Читать книгу 2012 Estate Planning - Martin Inc. Shenkman - Страница 21

Favorable gift tax rules make asset protection planning less complex, more cost efficient, and safer. It is that simple. That may all change in 2013. That risk makes it imperative that anyone concerned about asset protection planning act now, not later. Even if the potentially adverse estate tax changes are not a concern for you (e.g., you are young and not particularly concerned with the impact of estate taxes, or you are comfortable simply using life insurance to fund future estate tax costs), the impact on asset protection options might be critical. Gifting assets to a self-settled domestic asset protection trust (DAPT) today may protect those assets from a future lawsuit and divorce. Selling key assets to a trust may also protect those particular assets from lawsuit and divorce. It will not, however, protect the initial value transferred by sale since the note generated by the sale will be an asset of yours, taxable in your estate, and susceptible to the reach of a claimant or divorcing spouse. However, the terms of the note, including the interest rate, may make the note worth little to any creditor, including your spouse in the event of a divorce. For example, a younger taxpayer might take a note in exchange for the property. That note might not be payable for 30 or more years with very low annual interest—right now, such a note would likely bear interest at less than 2.5 percent a year and, if the note were for only nine years, the rate would be under 1 percent annually.

With a $5.12 million exemption, you may be able to gift assets to a self-settled, completed gift DAPT without incurring gift tax and obtain meaningful asset protection. However, if the gift tax exemption declines to $1 million, this type of planning could become more complex and costly. You would, for example, have to fund a family limited partnership, obtain a discount appraisal, gift non-FLP assets, then consummate a note sale for additional assets. If grantor trust status or discounts are eliminated, even that planning may be less productive, or impractical.

For larger transfers above the $5.12 million exemption, the elimination of grantor trust status or the restriction or elimination of valuation discounts may render a note sale impractical. Planning now, before adverse gift tax changes, may be the most crucial asset protection step you ever take.