Insurance Q&A

February 3, 2010

Temporary Estate Tax Lapse Creates Boom for Lawyers

Filed under: Uncategorized — rrroark @ 12:10 pm

National Law Journal, Estate Lawyers Hustle Over Nothing; Expired Tax Leads to Hours of File Review and Still Unknown Questions, by Lynne Marek:

[For lawyers] who specialize in trusts and estates law, the year has started with a rush. Lawyers across the country are scrambling to field calls from clients worried about how the one-year lapse in the estate tax affects their legal documents. They’re sifting through client files to pinpoint those at greatest risk of facing complications and contacting clients by e-mail, phone and letter. They’re preparing to revamp wills, trusts and wealth-transfer documents. …

“It’s almost like a lawyers relief act because clients have to examine their documents to figure out if they’re protected or not,” said Andrew Gelman, a Chicago partner at Holland & Knight. “I don’t want to call it chaos, but everything is in limbo,” he said.

The lapse of the estate tax, and related levies such as the generation-skipping tax, is creating a burst of demand in a legal specialty that has slowed in recent years because higher tax exemptions have left fewer people in need of sophisticated estate-planning advice. The current demand is likely to last at least a year, lawyers say. They also predict a surge of litigation, which could last several years, as family fights break out over the lack of clarity in documents for those who die this year.

Handler pointed to one client couple who face what is probably the most common problem. The couple, including a husband in poor health, have a $35 million estate. In the event of his death, their estate plan grants their children as much money not covered by the estate tax as possible, with the wife receiving the remainder. As of Jan. 1, that means the children will get everything and the wife will get nothing if the husband dies this year. Aside from that key issue, a host of complicated formulas for calculating the most advantageous distribution of funds have been thrown off by the lapsed tax.

Although trusts and estates lawyers generally are seeing longer hours that will result in more billing, most don’t expect there to be enough work in the end to merit hiring more attorneys.

However most states provide for the surviving spouse’s right to enforce a statutory share (normally 1/3) from non-probate assets, like assets in a trust (undoubtedly the planning vehicle of choice for such a large estate).

More importantly, it is unlikely that the $35 million passes outright to the children but more likely that it does so in trust (and changes could be added to make the spouse a discretionary beneficiary of that trust). The real problem is the carryover basis and allocating new basis under the current (confusing and unworkable) scheme – unless the spouse is the sole beneficiary of the new trust, her $3.0 million in new basis will go unused. Any competent financial advisor will have planned for this since 2002, but it is still disquieting and disheartening to have no idea what is going to happen and to be scurrying around with last minute fixes that will only work for 11 months at most. The congress is already bemoaning the “loss” of this tax revenue and may well retroactively (remember Clinton?) include this year in a new estate tax bill by explaining to their constituents that the new bill will reduce future estate taxes based on the old rates returning in 2011.


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