Fiscal cliff causes estate planning conundrum

December 11, 2012 

With all the talk of the impending "fiscal cliff" of spending cuts and tax increases that will occur on Jan. 1 if no deal is struck by Congress and the administration, another potentially impactful aspect of financial planning seems to have taken a back seat. However, when viewed from the perspective of the individual family, this could be a big deal.

On Jan. 1, the federal estate tax and gift tax exemptions will roll back to the $1 million level from their present level of $5.12 million. In addition, the estate tax rates are increasing, up to as high as 55 percent from the current level of 35 percent.

All of a sudden, quite a few people who probably weren't too worried about estate tax planning now need to be. Before we reach the point of panic, it is highly likely that at some point in the next year we will see action to move the estate tax exemptions back to a more reasonable level, probably in the $3 million range at least.

After all, most congressmen and women were somewhat successful in their business careers and many have estates larger than $1 million. They will want to, selfishly, protect their families legacy and I believe action will be taken.

But we cannot know what the final result will be, or how long the fix might take. More importantly, will the fix be

retroactive to the beginning of the year? There are enough unknowns at this time that those impacted should pay attention and consider actions they might take.

We don't have enough space here to go into detail on the techniques you could employ to help reduce the potential impact of estate tax, but we can review who might be impacted and recommend that you seek counsel from an estate planning attorney in the next three weeks to determine your best course of action.

Those families with total estate values under $1 million can stand down and enjoy the holidays. There will be no impact to you from the expiration of the current law and the aforementioned rollbacks.

Ironically, those with estate values over $5.12 million have probably already taken action to structure their estate with trusts, insurance and other techniques to shelter them from the impact of the potential changes at the beginning of 2013.

Those in the middle are affected the most. Estates between $1 million and $5.12 million are perhaps the most likely to not have taken any action previously, and they and their heirs are now directly in the line of fire if nothing is done.

It is not too late to take action, but you need to move quickly at this point to get trusts established or taxable value out of your estate through gifting. Again, consult an estate planning attorney before taking any significant action.

And finally, keep in mind that it is likely that any action you take now based on what will happen on Jan. 1 will prove to be unnecessary once appropriate legislation is passed -- we just don't know for sure what that will look like.

I guess we could call this planning in the face of uncertainty.

Tom Breiter, president of Breiter Capital Management, Inc., and a registered investment adviser, can be reached at 941-778-1900.

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