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Prompt, Professional, and Cost-Effective Legal Services
Disclaimer: The information provided on this web site is not intended to be legal advice. It is intended to convey general information related to selected legal issues. Your access to and use of this website is subject to additional terms and conditions. Copyright © 2001-2010 Thomas E. Whitmore. All rights reserved.
In 2001 Congress adopted legislation that was intended to abolish the federal estate tax. The plan was that the estate tax exemption would increase in steps from $600,000 per estate to $3,500,000 until 2010, when the estate tax would be eliminated. At the same time, the provision that allowed heirs to receive inherited property at a “stepped up basis” equal to its value at date of death was eliminated effective in 2010.
A sunset clause reinstates the estate tax for 2011, with a $1 million exemption. The thought was that Congress would act to complete the elimination of the tax before the sunset clause would take effect. With the ever-increasing polarization in Congress, it has been impossible to reach a consensus on how to resolve the estate tax issue, and no solution has been enacted.
The result is estate planning chaos that extends well beyond those who have exposure to paying federal estate taxes. The presence in 2010 of “modified carryover basis,” for example, could cost many estates and heirs dearly. The step-up in basis for 2010 deaths is limited to only $1.3 million of gain, plus $3 million of additional step-up for assets left to spouses.
Congress may or may not take quick action to reinstate all transfer taxes for 2010. The federal gift tax remains in effect for 2010, of course, but with the top tax rate reduced from 45% to 35% and a $1 million lifetime gift tax exemption. No one can predict what Congress will do, when they will do it, or if proposals such as restoring federal estate and GST taxes retroactively will hold up in court. Flexibility, obviously, will be the key to drafting estate planning documents in 2010.