A once-popular, and almost universally used, estate planning tool for those with estates subject to the estate tax, may now cost families more in taxes, income and estate, than it saves. Changes in the estate tax law have made the “by-pass trust” a less appealing option for many families.  If your estate plan includes one, you should consult with an experienced estate planning lawyer to reconsider its necessity. It could be doing more harm than good for you and your family’s financial condition.

What is a By-Pass Trust?

by-pass trust estate tax planning attorney lawyerThe by-pass trust was used extensively prior to 2013 for the purpose of basic estate tax planning.  If your estate planning documents were prepared prior to 2010, and you and your spouse’s combined estate was in excess of $1,000,000, you probably have a by-pass trust in your estate planning documents, whether you have a will based plan or a revocable trust based plan.

When the first spouse dies and leaves everything to the surviving spouse, the surviving spouse may have an estate that exceeds the state or federal estate tax exemption. A bypass trust (also called an “A/B trust” or a “credit shelter trust” or a “marital trust” and “family trust”) was designed to prevent the estate of the surviving spouse from having to pay estate tax. The standard in estate tax planning was to split an estate that was over the prevailing state or federal exemption amount between spouses and for each spouse to execute a trust to “shelter” the first exemption amount in the estate of the first spouse to pass away. While the terms of such trusts vary, they generally provide that the trust income will be paid to the surviving spouse and the trust principal will be available at the discretion of the trustee if needed by the surviving spouse. Since the surviving spouse does not control distributions of principal, the trust funds are not included in the surviving spouse’s estate at his or her death and will not be subject to tax.

In 2013, estate taxes changed dramatically and now very few people are subject to federal estate taxes. Currently, the first $5.45 million (in 2016) of an estate is exempt from federal estate taxes, so theoretically a husband and wife would have no estate tax if their estate is less than $10.90 million. The estate tax is now also “portable” between spouses, accomplishing the same purpose as, but without the necessity of, the bypass trust. This means that if the first spouse to die does not use all of his or her $5.45 million exemption, the estate of the surviving spouse may use it (provided the surviving spouse makes an “election” on the first spouse’s estate tax return).

Why the By-Pass Trust May Now Be Harmful?

One problem with a bypass trust is that the surviving spouse does not have complete control over of the assets in the trust. The surviving spouse’s right to use assets in the trust is limited and requires the filing of accountings and separate tax forms, and in Florida requires disclosure of information about the trust to the next level of beneficiarby-pass trust estate tax attorney lawyeries – which often include children of one or both spouses. In addition, if the trust generates income that is not passed to the beneficiary, that income can be taxed at a higher tax rate than if it wasn’t in a trust.  In fact, the trust will incur the highest income tax rate at a level of income of only about $11,000 each year.  Such income tax rates could be substantially higher than if the income was taken by the surviving spouse.

Another problem is that a bypass trust can actually cost more in capital gains taxes than it saves in estate taxes. When someone passes away, his or her assets receive a step-up in basis. When an asset is in a bypass trust, it does not receive a step-up in basis because it is passing outside of the spouse’s estate. If the assets are sold after the surviving spouse dies, the spouse’s heirs will likely have to pay higher capital gains taxes than if the heirs had inherited the asset outright.

Why Would Anyone Want to Keep Their By-Pass Trust?

A bypass trust can still be useful in some circumstances. If your estate is greater than the current estate tax exemption, a bypass trust is still a good way to protect your assets from the estate tax. In addition, some states, other than Florida, tax estates at thresholds much lower than the federal estate tax, and a bypass trust may help in those states. For other people, these by-pass trusts have other uses besides avoiding estate taxes. For instances, a by-pass trust may be desirable for a blended family where there are children from prior marriages and the parties desire to ensure some assets are passed on to their own children.

What Should I Do If I Have a By-Pass Trust in My Estate Planning Documents?

Review your estate planning documents, both wills and trusts, If your estate plan includes language that establishes an A trust and a B trust (which can also be referred to as a Marital Trust and a Family Trust, or a By-Pass Trust, you probably have a by-pass trust.  To find out if your estate plan contains an unnecessary bypass trust or if you might benefit by having one, consult with an experienced estate planning attorney.  The difference in total tax costs for your surviving spouse, family members and other loved ones can easily justify any expense incurred with updating your estate plan to more accurately and appropriately deal with any estate tax liability imposed on your estate.

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