Maintaining Control in an Uncertain Environment

Trusts are one of the best vehicles to provide flexibility. 

The political and tax uncertainty as a result of the November elections, combined with the current health pandemic and economic uncertainty, all require flexible modern estate planning more than ever. Thus, many people are updating their estate plans and using trusts, which in turn will allow a family to navigate an unknown future with flexibility and control intergenerationally. Each presidential candidate’s tax policies will be extremely important as a result of the COVID-19 pandemic and everything else going on in the world. Economic recovery, the growing deficit, health care and many other costly programs will all be debated. These programs will need to be paid for, so tax policy will be critical.

Different Ideologies
With Bernie Sanders out of the race, it appears as though it will be President Donald Trump versus former Vice President Joe Biden. Joe Biden has set forth many of his general tax policy ideas. He has a $4 trillion tax plan to increase both income and death taxes.1 Biden didn’t propose a wealth tax like his Democratic primary opponents Elizabeth Warren and Bernie Sanders, but he’s in favor of eliminating the step-up in income tax basis from inherited capital assets for individuals earning over $1 million.2 The Biden proposal wouldn’t allow individuals to avoid these taxes by gifting assets to lower income tax bracket family members during their lifetime. The appreciation on these assets would still be subject to taxes on such a transfer under the Biden proposal. According to the Joint Committee on Taxation, not taxing capital gains at death results in a loss of approximately $40 billion in tax revenue a year.3 Biden is silent on the estate tax exemption, but most experts believe that he’ll support a return to the $3.5 million estate, gift and generation-skipping tax transfer (GST) exemption. There’s also current legislation pending in the House that supports the $3.5 million exemption amounts.

President Trump’s signature legislation, the 2017 Tax Cuts and Jobs Act (TCJA), doubled the federal estate tax exemption for estate, gift and GST taxes to $10 million, indexed for inflation (currently $11.58 million).5 This exemption sunsets in 2026, which is a measure included to help reduce the law’s cost as scored by the Congressional Budget Office. The TCJA also called for a step-up in cost basis at death. Even before the TCJA was enacted and doubled the estate tax exemption, so much wealth could be sheltered that the actual rate paid was only about 17%.6 President Trump has continually called for a repeal of the estate tax, and the Senate has introduced bills reflecting such view recently. To date, these bills haven’t moved forward.7 Although frequently discussed, it’s unlikely the estate tax will be repealed anytime soon as a result of the growing deficit. The federal estate tax has been repealed and has returned four times in our history. The most recent repeal occurred in 2010. If it’s repealed again, the likelihood of its return is high. It’s important to note that only two out of every 1,000 Americans pay federal estate taxes, which brought in $23 billion in revenue in 2018.8 The number of individuals paying the estate tax and GST tax is less than 2,000. The repeal of the estate tax would decrease estate tax revenue by an estimated $172 billion over the next decade.9 As such, many advisors believe that estate tax repeal won’t happen in the near future but instead could be leveraged as part of the tax negotiations. It appears as though President Trump would now like to extend the income and estate tax provisions of the TCJA beyond their scheduled expiration date.

Is the Estate Tax Voluntary? 
As Professor A. James Casner of Harvard Law School once stated, “In fact, we haven’t got an estate tax, what we have is, you pay an estate tax if you want to; if you don’t want to, you don’t have to.”11 Consequently, despite the estate tax exemption level, estate taxes may be reduced or eliminated with proper planning. This may require the use of a “Kennedy Trust,” that is, a testamentary charitable lead annuity trust (CLAT), combined with other powerful trusts, such as the dynasty trust.12 The CLAT gained popularity after the will of Jacqueline  Kennedy Onassis became public. When she passed away in 1994, her will devised most of her estate to her children; however, the plan was for her children to disclaim some of their inheritance to a testamentary CLAT that would last 24 years for the benefit of Jackie’s private foundation (PF). At the expiration of the trust term, the remaining trust principal would go to her grandchildren without being subject to any transfer tax, because the estate would generate an estate tax charitable deduction. The Kennedy children never disclaimed a portion of this bequest in favor of the CLAT; therefore, the PF was never funded, and the enormous estate tax savings were never realized. Despite the Kennedy family not using the CLAT, CLATs can provide flexibility regarding funding at death and, if funded, provide enormous tax savings. Consequently, when they’re combined with other trusts and strategies, they can render the estate tax voluntary. Why do people volunteer to pay estate taxes? Four key reasons: (1) they’re not aware of all the planning vehicles available; (2) their tax objectives don’t coordinate with their non-tax objectives; (3) they’re not aware of all the non-tax benefits of modern trusts; or (4) they’re not aware how much control and flexibility that modern trusts provide. 

Low or High Exemptions
Despite what happens with the November elections, the current opportunity has never been greater with the current estate, gift and GST tax exemptions at $11.58 million per individual in 2020 ($23.16 million per couple). Families should consider gifts to trusts sooner than later. Additionally, extremely low interest rates also provide a powerful opportunity to further leverage these high exemptions with strategies such as the promissory note sale.13 As mentioned, these historically high exemptions are due to sunset on Dec. 31, 2025 to $5 million, indexed for inflation. It doesn’t really matter whether these increased exemptions are reduced or if the estate tax is repealed altogether, because there are many other important non-tax reasons to pass family wealth intergenerationally with a trust, including:

• family governance/succession/education
• ability to override the Prudent Investor Act, with less liability than with a delegated trust, holding one security (public or private) without diversifying (directed trust)
• diversifying broadly into private equity, alternate investments and commercial and residential real estate, without extensive fiduciary liability (directed trust)
• ability to work with investment advisors and managers of a family’s choice (directed trust)
• ability to appoint a trust protector
• ability to appoint a family advisor
• asset protection/wealth preservation
• divorce protection
• litigation protection
• promotion of social and fiscal responsibility in the family, thus promoting family values (directed trust)
• privacy—court procedures (reformations/
modifications) and litigation

• beneficiary quiet—keeping trust information from one or more beneficiaries until appropriate
• lessening family and family advisor personal liability as fiduciaries (directed trust)
• disability planning
• special needs planning
• preservation of treasured family assets and heirlooms —purpose trust

It’s due to the above-mentioned non-tax reasons that it may not be prudent to automatically pass assets, outright and directly, to one’s children and/or grandchildren even if the federal estate tax is repealed. Additionally, the state tax savings can also be beneficial  for state death taxes, state insurance premium taxes and state income and capital gains taxes. Consequently, clients will continue to transfer assets to trusts, most importantly to GST and dynasty trusts. It’s important to note that the gift tax will most likely always remain to limit transfers and income tax shifting. On the other hand, federal death tax savings may be a secondary benefit in most instances with modern trusts. 

Structuring Trusts for the Future
It’s very unlikely that estate tax repeal will happen in the near future, but it could down the road. An interesting issue could arise regarding future GST tax planning if repeal were to occur: namely, how would GST tax planning work with trusts established after repeal? Also, in planning for the possibility that the GST tax could return, flexibility and proper drafting would be crucial to take advantage of GST tax repeal but avoid possible issues with any past or future legislation. This issue was also discussed back in 2010. If the estate and GST tax are both repealed, there may be four scenarios for GST issues during the repeal year and beyond:
1. The administration of existing non-exempt GST trusts;
2. GST trusts created in repeal year;
3. Testamentary GST trusts created as a result of death in repeal year; and
4. Outright gifts.

These issues shouldn’t present problems, if properly planned for, but definitely need to be addressed.

Modernize Existing Trusts
Clients with existing trusts may need to modernize these trusts to maximize flexibility and control in uncertain times. This can be accomplished if the client’s resident state has flexible non-judicial or judicial reformation/modification statutes27 as well as decanting statutes.28
Generally, if the client’s state doesn’t provide such statutes, then the family can look to change the situs of a trust to a modern trust jurisdiction with these statutes and then modernize the trust so that the trust can provide flexibility and control to deal with any unanticipated changes as previously discussed.

Step-Up in Cost Basis 
Under current law and under the Trump proposal, unrealized capital gains aren’t taxed at death because assets in an estate are generally valued at their fair market value at date of death or one year after (that is, step-up in cost basis). Consequently, when they’re sold at the date-of-death value, there are no income taxes. These assets receive a step-up in income tax basis. The original purpose of these step-up in basis rules was to avoid double taxation, that is, income and estate taxes. Consequently, step-up could also apply during repeal, which would be very important for many families, particularly those in high tax states. 

Many people traditionally hold low basis assets until death to obtain a step-up in basis. As previously mentioned, the Biden proposal taxes unrealized capital gains at death, thus preventing the step-up in income tax basis.29 If the Biden proposal were enacted, many of these individuals might then be willing to diversify and sell concentrated positions and restructure their entire portfolios. Deferring taxes as long as possible may also be prudent. Additionally, many individuals may be more inclined to transfer these low basis assets to charity to receive a charitable income tax deduction. 

An important option to consider when drafting control and flexibility into an irrevocable trust is a substitution or swap power.30 This wouldn’t work well under the Biden proposals but would under the Trump proposals. The swap power allows the grantor to swap personal non-trust assets with trust assets without any negative income, gift or estate tax consequences. This allows the grantor to swap high income tax basis trust assets to the trust in exchange for low income tax basis assets31 that can then receive a step-up in cost basis at the grantor’s death. Consequently, no income taxes will be owed on the grantor’s death if the asset is sold. This swap power is generally considered a grantor trust power resulting in the trust being taxable to the grantor for income tax purposes but still removed from the estate for estate tax purposes.32 The effectiveness of this power may depend on whether Biden is elected and his tax plan enacted. Either way, this swap is a very useful tool to have down the road, especially with an uncertain tax and economic future.

Investment Flexibility 
Because trusts are so important, particularly in extremely uncertain political and economic times, many families need to have control and flexibility over the investment management of the trust. Historically, many events have caused uncertainty to both U.S. and international economies. Events over the last two years, such as the trade tensions between the United States and China, Brexit, continuing Middle East conflicts and the economic shut down and unemployment caused by COVID-19, are all examples of this uncertainty. Each presidential candidate may handle these important matters differently. Both will need to deal with the issue of the estimated $8 trillion dollars (two years of tax revenue) that will be pumped into the U.S. economy for rescue and recovery purposes. The deficit created by this enormous influx of capital is an additional concern to many people particularly when interest rates rise in the future. Many investors have sold securities and bought U.S. government bonds as a result of this current, past and future uncertainty. Many others have transitioned to cash. Some feel safer with direct private equity investments, gold and other alternative investments. Other families desire a well-diversified portfolio of traditional investment assets. Each family has different investment plans to accomplish its desired goal of preserving capital. Consequently, investment management flexibility becomes key. Traditional trust laws (for example, the Uniform Prudent Investor Act (UPIA) and delegated trusts)33 may not provide families with enough flexibility and control to get through these periods of economic uncertainty. 

Most jurisdictions have enacted the UPIA,34 which provides for a general duty to diversify trust assets unless the purpose of the trust is better served without diversification. Some of the typical exceptions to this diversification requirement are low cost basis assets (sale would trigger large tax gains) and/or family business interests. Even with these exceptions, it may still be difficult to safely override the diversification requirement of the UPIA.

The best alternative is the directed trust,36 which gives families the option to diversify by overriding the UPIA. Additionally, if they do diversify, they can do so with either traditional or sophisticated investments such as private equity (direct and via a fund), real estate, gold and other alternative investments.37 The liability standard for fiduciary investment decisions with a directed trust is typically limited to gross negligence and/or willful misconduct as compared with the reasonable care standard associated with most traditional delegated (non-directed) trustee statutes. Many family trustees or co-trustees generally don’t have investment management expertise, and they’re forced to delegate investment management. This delegation function requires that they do due diligence on the investment professionals to whom they’re delegating as well as conduct ongoing monitoring of these investment professionals and their investment management. They can delegate the duty, but not the risk. Consequently, the reasonable care liability standard for delegating may present a problem, particularly in times of economic uncertainty, depending on a family’s investment management strategy and the required level of investment sophistication.

Alternatively, the directed trust allows individuals to appoint a trust advisor or investment committee, which in turn can select an outside investment advisor(s) and/or manager(s) to manage the trust’s investments and direct the administrative trustee in a directed trust state. The directed trust allows a family to use and deploy a broad and sophisticated Harvard or Yale endowment-type asset allocation39 with direct private equity and alternative investments or to remain in a concentrated non-diversified position in either cash, government securities or public and/or private securities. Consequently, the directed trust allows for the trust to hold both financial and non-financial assets (for example, offshore companies, business interests, real estate, limited liability companies (LLCs), family limited partnerships, timber land and direct private equity). Many of these types of trust investments might be prohibitive from a liability standpoint as a result of most jurisdictions’ UPIAs and delegated trust statutes. Thus, the directed trust can provide a family with the desired maximum flexibility and control to navigate both political and economic uncertainty intergenerationally.

Grantor/Family Participation
The modern directed trust also provides a family with the opportunity to participate in many trust decisions involving investments and distributions, which is extremely important in times of uncertainty. Often the grantor, family members and/or close advisors serve as the investment committee. Sometimes, the grantor will serve as a member of the investment committee40 along with his family and other trusted advisors, which alleviates anxiety in this environment as well as provides a great way for the grantor to help educate the children and grandchildren regarding trust investments and asset allocation particularly during difficult and uncertain times.

In addition to flexibility regarding investment management, the directed trust also provides flexibility as to trust distributions. While advisors usually avoid the appointment of the grantor to the distribution committee, family members or close family advisors may be named.42 Sometimes, a non-binding letter of wishes from the grantor may be used as well to provide guidance to the distribution committee. In addition, the trust may be drafted to allow for distributions to both charitable or non-charitable organizations. The flexibility to make distributions from a non-charitable long-term or dynasty trust to charitable organizations may be very important to many families.43 These provisions must be properly drafted and included at trust formation because non-charitable trusts can’t be reformed to allow direct distributions to charity and provide the trust with an unlimited income tax deduction.44 Trusts may generally be modified or decanted to include a power of appointment to charities.45 The grantor and family beneficiaries may also have the power to remove and replace a trustee and/or investment/distribution committee members.

Many families may also want to add a trust protector to their directed trust. A trust protector is generally an individual (or a committee of individuals or an entity) with specified personal and/or fiduciary powers over the trust.46 The trust protector can have powers to veto investment or distribution decisions. The power acts as a checks and balances to such decisions. The trust protector may also have powers to amend the trust, which can be very useful in the future. The trust protector is often an extended family member or a close advisor,  providing the family with another trusted individual who has flexibility and control over the family trust. The trust protector’s statutory standard of liability is generally gross negligence and/or willful misconduct. The grantor and family beneficiaries may also have the power to remove the trust protector.

Some jurisdictions also allow for the appointment of a family advisor, which is a non-fiduciary appointment, and authorize such an individual to consult or advise on fiduciary or non-fiduciary matters.47 A family advisor can be very important in times of uncertainty. The standard of liability is generally dishonesty or improper motive, which provides family advisors with the utmost liability protection. Family advisors may have the power to remove and appoint a trustee, fiduciary, trustee advisor, investment committee member, trust protector or distribution committee member. They also have the power to advise the trustee and/or investment and distribution committees regarding beneficiary matters. Typically CPAs, attorneys and advisors are appointed as family advisors, which allow them to play an important role in the family’s trust while limiting their liability exposure during uncertain times. 

Despite the gross negligence and/or willful misconduct liability standards for both directed trust investment and distribution committee members as well as trust protectors, many advisors may wish to consider adding a trust protector company (TPC) or special purpose entity (SPE) to the directed trust structure.48 These are typically LLCs or some other form of corporation that houses the trust protector, the investment and/or distribution committees or advisors, which provides direction to a qualified directed trustee in a modern trust state. TPCs and/or SPEs aren’t private trust companies but are popular alternatives. These entities provide a family and its advisors with a great way to obtain director and officers insurance as well as errors and omissions insurance for serving as a fiduciary. This coverage typically isn’t easy to obtain if fiduciaries are serving individually. Additionally, unlike individual fiduciaries, the TPC and/or SPE never dies nor becomes incapacitated. Thus, the TPC or SPE provides an inexpensive and perpetual entity providing additional liability protection, family governance, flexibility and control in uncertain times. 

Unprecedented Planning
No matter who’s elected in November or what happens to the federal estate tax, whether it remains at historic highs, sunsets back to $5 million or is repealed altogether, trusts still make sense for a multitude of non-tax reasons and state tax reasons. Unprecedented times and an uncertain future call for unprecedented planning. Trusts are one of the best vehicles to provide this flexibility and control intergenerationally. Consequently, the need and desire of the modern directed trust continues to increase. It’s important for advisors to continue to make clients aware of such a powerful trust planning vehicle.

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