As an estate planner, I get questions all the time, but there is one question that seems to be on people’s minds recently: What impact will President-Elect Donald Trump have on my estate plan?
It’s a great question, but the problem is there is more we don’t know than we do know.
Let’s start with the federal estate tax. Trump’s plan right now is to repeal the estate tax. The federal estate tax exemption is currently $5,450,000, and it will jump to $5,490,000 in 2017. There were only about 5,000 federal estate tax returns due in 2015, which means only.02% of the estates in the country are subject to federal estate tax. Under Trump’s plan that number would be 0%.
But there is a lot we don’t know. We don’t know how Trump plans to pass his estate tax proposals. If he passes them through Congress, that would require 60 votes in the Senate, which he does not have. If he passes them through as a budget reconciliation legislation, which only requires a simple majority, then there is a 10-year sunset provision under the Byrd Rule.
We also don’t know if Trump is actually going to keep the gift tax even if he repeals the estate tax, even though his official plans talk about repealing the gift tax as well. There’s a good chance my planning work is going to shift from an emphasis on estate tax planning to income tax or asset protection planning.
And there is one huge unknown that could be a game-changer. Currently, assets that are passed from one person to another person because of someone’s dying receive a “step up in basis.” This is an amazing income tax break for most of my clients. Let’s explain the concept briefly and relate it to Trump’s plan.
If Mary buys a property (or a stock) in 1950 for $20,000, but then sells the property in 2016 for $500,000, Mary would have to pay capital gains tax on the difference between what she purchased the property for ($20,000) and what she sold the property for ($500,000). The exact amount of tax would depend on several factors that we will not get into now; however, it’s important to know that Mary would owe taxes on the $480,000 gain she received on her property.
However, same facts, but Mary dies owning the home and leaves it to her children—her children would not have to pay any capital gains tax at all. The property receives a “step up in basis” so that her children would be receiving a $500,000 home and would not have to pay any capital gains tax if they decide to sell it.
Let’s get back to Trump. Trump is currently talking about stripping away this step up in basis for estates valued at $10,000,000 and above. For most of my clients that is not an issue (you can exhale!). However, let’s be honest. We are talking about Donald Trump, and he is somewhat of a loose cannon. I can imagine a scenario whereby he repeals the estate tax only to strip away the step up in basis completely even for estates under $10,000,000. Which is why I wanted to let you know about Trump’s proposals so you are prepared.
As you can see there are no simple answers. My job is to be as flexible with our planning as possible, but there are still many unknowns. When there are any updates, I’ll let you know!
By Alec Borenstein
Alec Borenstein, Esq., an estate planning attorney, is a Teaneck resident with offices in Springfield and Brooklyn. His firm’s website is bmcestateplanning.com. If you’d like a free estate planning consultation in the comfort of your own home or office, please email [email protected].