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Heckerling Musings 2014 and Current Developments

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Heckerling Musings 2014 and Current Developments Heckerling Musings 2014 and Current Developments April 2014 Steve R. Akers Senior Fiduciary Counsel — Southwest Region, Bessemer Trust 300 Crescent Court, Suite 800 Dallas, TX 75201 214-981-9407 [email protected] www.bessemer.com TABLE OF CONTENTS Introduction ....................................................................................................................... 1 1. Legislative Developments ............................................................................................ 1 2. Treasury-IRS Priority Guidance Plan; “BDITs” ............................................................... 6 3. General Approaches to Estate Planning Following ATRA; The “New Normal” .................... 7 4. Planning for Couples Having Under $10 Million ............................................................ 9 5. Portability................................................................................................................ 18 6. Estate and Income Tax Intersection—Basis Planning for Larger Estates ......................... 31 7. Basis Adjustment Flexibility Planning ......................................................................... 36 8. Joint Spousal Trusts (To Facilitate Funding Credit Shelter Trusts and for Basis Adjustment); Section 2038 Marital Trust .................................................................... 46 9. Trust and Estate Planning Considerations for 3.8% Tax on Net Investment Income and Income Taxation of Trusts ................................................................................... 50 10. Drafting for Maximum Flexiblity (and “Dead Hand Control”); But Can It Go Too Far? ...... 68 11. Gift Planning Issues for 2014 and Beyond .................................................................. 77 12. Defined Value Clause Updates ................................................................................... 81 13. Sale to Grantor Trust Transaction (Including Note with Defined Value Feature) Under Attack, Estate of Donald Woelbing v. Commissioner and Estate of Marion Woelbing v. Commissioner .......................................................................................................... 84 14. Grantor Trust Miscellaneous Issues ............................................................................ 88 15. Self-Canceling Installment Notes (SCINs); CCA 201330033 and Estate of William Davidson ................................................................................................................. 89 16. Same-Sex Marriage Issues ......................................................................................... 94 17. Life Insurance Developments—Right to Dividends, Shark-Fin CLATs, Intergenerational Split Dollar Insurance ....................................................................................................... 97 18. Life Insurance Management, Particularly for Life Insurance Trusts ................................ 98 19. Business Life Insurance .......................................................................................... 101 20. Charitable Planning Reminders, Strategies and Creative Ideas .................................... 103 21. Planning for Surviving Spouse Who is Beneficiary of QTIP Trust; Sale of Assets for Deferred Private Annuity, Estate of Kite v. Commissioner, T.C. Memo. 2013-43 and Rule 155 Order ............................................................................................... 109 22. IRS Appeals........................................................................................................... 112 23. Generation Skipping Transfer Tax: Post-ATRA Planning and Practical Pointers ............. 116 24. Fixing Trusts—Modifying Irrevocable Trusts .............................................................. 125 25. Residence and Domicile Issues—State Income Tax Issues ......................................... 128 26. Power to Adjust or Unitrust Election ......................................................................... 130 www.bessemer.com/advisor i 27. Funding Unfunded Testamentary Bypass Trusts ........................................................ 132 28. Practical Tips in Dealing With Aging Clients (and Diminished Capacity Issues) ............. 135 29. Gifts of Fractional Interests in Art ............................................................................ 137 30. Mandatory Income Requirement For Marital Trust ..................................................... 138 31. Malpractice Issues From Reviewing Documents Prepared by Others ............................ 139 32. Recent Cases Addressing Asset Protection Planning and Domestic Asset Protection Trusts ................................................................................................................... 139 33. IRS Valuation Art Panel .......................................................................................... 142 34. Interest on Graegin Loan Not Deductible; Majority Interest in LLC Valued With Low Marketability Discount, Estate of Koons v. Commissioner, T.C. Memo. 2013-94 .......... 142 35. Net Gift Offset by Donee’s Assumption of Potential §2035(b) Estate Tax Liablility if Donor Dies Within Three Years, Steinberg v. Commissioner...................................... 143 36. Reciprocal Powers, PLRs 201345004, 201345026, 201345027, 201345028. ........ 144 37. Valuation of Investment Holding Company; Valuation Method, Built-In Gains Tax Adjustment, Lack of Control and Marketability Discounts, and Undervaluation Penalty, Estate of Richmond v. Commissioner, T.C. Memo 2014-26 ........................................ 144 38. New York Estate, Gift, GST, and Trust Income Tax Issues ........................................... 153 39. Family Limited Partnership Attack for Estate Inclusion Without Any Discounts, Estate of Williams .................................................................................................. 154 40. Valuation of Real Property in 2009 (When Comparables Were Not Available Reflecting Depresed Values Folliwing the 2008 “Crash” Because Properties Were Not Selling), Estate of Lovins ..................................................................................................... 155 41. Appraiser Failed to Testify; Estate Arguing Lower Value Than on Form 706, Estate of Tanenblatt ............................................................................................................. 155 42. Early Termination of Charitable Remainder Trusts ..................................................... 156 43. Garnishment from Discretionary Spendthrift Trusts .................................................... 156 44. Material Participation by Trustee , Frank Aragona Trust .............................................. 157 45. Interesting Quotations ............................................................................................ 167 APPENDIX A .................................................................................................................. 176 APPENDIX B ................................................................................................................. 178 www.bessemer.com/advisor ii Copyright © 2014. Bessemer Trust Company, N.A. All rights reserved. April 18, 2014 Important Information Regarding This Summary This summary is for your general information. The discussion of any estate planning alternatives and other observations herein are not intended as legal or tax advice and do not take into account the particular estate planning objectives, financial situation or needs of individual clients. This summary is based upon information obtained from various sources that Bessemer believes to be reliable, but Bessemer makes no representation or warranty with respect to the accuracy or completeness of such information. Views expressed herein are current only as of the date indicated, and are subject to change without notice. Forecasts may not be realized due to a variety of factors, including changes in law, regulation, interest rates, and inflation. www.bessemer.com/advisor iii INTRODUCTION The 48th Annual Philip E. Heckerling Institute on Estate Planning was again held in Orlando during the week of January 13, 2014. I have summarized some of my observations from the week, as well as other observations from various current developments and interesting estate planning issues. My goal is not to provide a general summary of the presentations. The summaries provided on the American Bar Association Real Property, Trust & Estate Law Section website, http://www.americanbar.org/groups/real_property_trust_estate/events_cle/heckerling_reports.html, that are prepared by a number of reporters, and coordinated by Joe Hodges, do an excellent job of that. Rather, this is a summary of observations of selected items during the week as well as a discussion of other items. I sometimes identify speakers, but often do not. I take no credit for any of the outstanding ideas discussed at the Institute — I am instead relaying the ideas of others that were discussed during the week. 1. LEGISLATIVE DEVELOPMENTS a. Overview of Administration’s Fiscal Year 2015 Revenue Proposals. The Treasury on March 4, 2014 released the General Explanations of the Administration’s Fiscal Year 2015 Revenue Proposals (often referred to as the “Greenbook”) to provide the details of the administration’s budget proposals. For a discussion of the proposals impacting estate planning in the 2014 Fiscal Revenue Proposals, see Item 2 of the Hot Topics and Current Developments
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