Читать книгу 2012 Estate Planning - Martin Inc. Shenkman - Страница 44

To understand the use of the GST exemption and President Obama’s proposed changes, another important concept must be introduced: the inclusion ratio. The portion of a trust that is exempt from the GST tax is determined by the trust’s inclusion ratio. (Another way of saying this is that the inclusion ratio determines the portion of the trust that, in effect, is subject to the GST tax.) A trust’s inclusion ratio is established when you as the transferor make a completed gift to the trust and allocate your GST exemption (either under the Code’s automatic allocation rules or using a gift tax return to affirmatively allocate GST exemption) to the trust. The inclusion ratio is: [1 - the applicable fraction]. The applicable fraction, when a transferor makes a gift to a trust, is determined as follows:

One approach to addressing the potential GST tax problems associated with long-term trusts is to allocate your GST exemption to the trust. If you allocate any portion of your GST exemption to the trust, that portion of the exemption is considered used, whether or not a GST tax is ever incurred. However, if you allocate GST exemption to a trust, and the trust property never passes to a skip person, you will have wasted that portion of your exemption. You should analyze all the relevant factors and consider the likelihood of the trust incurring a GST tax in the future before committing to allocate GST exemption. This is especially difficult because of the uncertainty as to what the GST exemption will be after 2012. If it appears likely that the trust will incur a GST tax, then you may benefit your heirs by allocating GST exemption to the trust. If the likelihood of a GST tax appears small, then perhaps GST exemption should be reserved for other planning opportunities.

PLANNING NOTE: Less than 2 percent of term life insurance policies ever pay off on the death of the insured. The policies are generally cancelled long before death. So if you plan to establish an irrevocable life insurance trust (ILIT) in 2012 (e.g., to take advantage of the large gift tax exemption and transfer a large amount of cash to the trust in order to avoid future Crummey powers), evaluate whether or not GST exemption should be allocated. If you knew for certain that the exemption would drop to $1 million in 2013 and not increase again in the future, it might make sense to use up GST exemption regardless of the likelihood of benefit: If you don’t use it, you will lose it. On the other hand, allocating what remains of your GST exemption to an inefficient trust, like an insurance trust holding term insurance, would be a waste of a valuable exemption if the law is not so harshly changed in 2013.

A better approach might just be to design a better trust in 2012 and instead of using a rather plain vanilla ILIT, use a DAPT-ILIT combination. The domestic asset protection trust (DAPT) is explained in more detail in Chapter 5. A key feature of a DAPT is that you may be a discretionary beneficiary of the trust. The concept of an ILIT that holds insurance on your life can be combined with a DAPT to which completed gifts are made, so in effect you are a beneficiary of a trust that owns life insurance on your life. This might avoid the need to have multiple trusts. You can use assets transferred to the DAPT to pay insurance premiums. When a DAPT structure is used in this manner, GST exemption would likely be allocated to the trust. There are obviously technical complications to creating and maintaining such a trust so refer to Chapter 5.