The new law brings back the estate tax, for 2011 and 2012 anyway. During 2011 and 2012, the top rate is 35%. For 2011, the exemption amount is $5 million per individual (indexed for inflation after 2011). At those levels, the vast majority of estates (all but an estimated 3,500 nationwide in 2011) will not be subject to any federal estate tax and the tax will raise about $11.4 billion for the government. By way of comparison, the 55% tax with a $1 million exemption would have resulted in about 43,540 taxable estates in 2011 and raised about $34.4 billion. Tax historians would also note that except for the temporary repeal of the estate tax in 2010, the estate tax rate has not been less than 45% since 1931.
The new law also gives heirs of decedents dying in 2010 a choice of which estate-tax rules to apply 2010’s or 2011’s. That’s important because although there is no estate tax in 2010, some inherited assets are subject to higher capital gains tax under the 2010 rules, a situation that actually raises the tax burden for some heirs. Inherited assets under the 2010 rules have a tax basis equal to the price when they were purchased (referred to in tax parlance as “carryover basis”) rather than the price at death. That could lead to a significant tax burden for heirs who sell assets such as stocks that had been held for many years and have greatly appreciated in value. Under the 2011 rules, by contrast, heirs are allowed to inherit assets with a “stepped-up basis.” While most heirs would choose the 2011 regime ($5 million exemption from both estate and generation-skipping tax and an unlimited step-up in the basis of assets to their current market value), the heirs of superrich decedents could find it more advantageous to elect the 2010 law (limited step-up in the basis of assets and no estate tax). If the executor makes the election to have the 2010 rules apply, the estate tax return’s due date will not be earlier than the date that’s nine months after the new law’s enactment date.
For gifts made after December 31, 2010, the gift tax is reunified with the estate tax. Under the new law, the estate and gift tax exemptions is reunified starting in 2011, which means that the $5 million estate tax exemption is also be available for gifts. The law in effect prior to 2010 provided a $3.5 million lifetime exemption for estates, but only $1 million for gifts. The gift tax rate, starting in 2011, is 35%. The exemption from the generation-skipping tax (GST) the additional tax on gifts and bequests to grandchildren when their parents are still alive also rises to $5 million from the $1 million it would have been without the new law. The GST tax rate for transfers made in 2011 and 2012 is 35%.
From a planning standpoint, a nice feature of the new law is that it makes it easier to transfer the $5 million exemption to a surviving spouse, so married couples can shield $10 million of their assets from taxes. In the language of tax professionals, the estate tax exemption will be “portable.”
If you would like more details about the estate and gift tax or any other aspect of the new law, please do not hesitate to call our office.