The Thursday Report – 4.11.13

This report and other Thursday Reports can be found on our website atwww.gassmanlaw.com.

OUR ARTICLE WITH HOWARD ZARITSKY

The Probate Practice Reporter March 2013 article entitled “Re-Tooling Estate Plans After ATRA 2012 for Married Couples with Estates Safely Under $10.5 Million: Part I” includes a number of planning ideas, strategies, and traps for the unwary that we believe is worthy of review by anyone who practices in the estate or estate tax planning area.

            Some of the highlights include:

• How to avoid the common trap of underestimating the potential growth of a client’s assets.
• Why clients can’t rely on the annual adjustment to the estate tax exemption, based on the Consumer Price Index, to keep up with the growth of their assets.
• Reevaluating the balance between estate planning and income tax planning, asset preservation, and creditor protection under the now-permanent combined $10.5 million exemption.
• Our recommended strategies under the permanent $10.5 million exemption to properly balance estate tax planning and creditor protection, including each strategies’ strengths and weaknesses.

An excerpt from our article is as follows:

Think twice if you are assuming that relatively young or financially successful clients will not have estate tax exposure with the $5,250,000 per person exemption.  An excerpt from our article is set forth below:

Evaluating Size of the Combined Estate. Practitioners must recognize the potential for appreciation of a client’s estate and not necessarily assume that the indexing of the applicable exclusion amount will protect a married couple whose estate is currently under $10.5 million from being ultimately subject to significant estate taxes.  Family businesses and other assets will often grow much faster than the Consumer Price Index, which is the standard used to adjust the applicable exclusion amount for wealth transfer tax purposes.  A simple spreadsheet can show clients the possible appreciation based upon historical market and CPI growth, and the impact of added savings.

For example, the pre-tax total return on the S&P 500 index, with dividends reinvested, from 1981 through 2011 was over 2.175%.  A $5.25 million estate that was invested in the S&P 500 index in 1981, with dividends reinvested and no taxes, annual fees, or costs would be worth $119 million at the end of 2011.  In contracts, a $5.25 million estate that was invested in a fund adjusted according to the Consumer Price Index from 1981 through 2011 would be worth slightly over $12.5 million.  If $200,000 per year had been added to accounts replicating these rates of return each year for this period, the S&P 500 account would be worth $163.5 million, and assets growing at the Consumer Price Index rate would be worth only $22,328,990.

An excel spreadsheet that can be used to rework the numbers can be downloaded free of charge at www.zaritskygassman.webs.com.  This website also includes a draft explanation letter of the spreadsheet that can be downloaded for client use.

Practitioners should cover these concepts with clients and consider using these tools to show how the time value of money growth in investments can impact estates and estate tax planning.  It is also important to note that the CPI index used in the Projected Estate Tax Exclusion Calculations is thought to be well below the actual cost of living.  One economist, Walter J. Williams, claims that [i]nflation, as reported by the Consumer Price Index (CPI) is understated by roughly 7% per year.” Walter J. Williams, The Consumer Price Index pt. 4 (updated October 1, 2006).

If the CPI was understated by even 1 percent per year, based on historic rates, in thirty years the estate tax exclusion based on the CPI would be over $4 million less than an exclusion based on the CPI plus 1 percent ($12.6 million vs. $16.8 million).  Clients will often refine their savings and investment goals during discussions which can help the estate planner gain a better grasp of their planning.  Interaction with the client’s CPA and other financial advisors can also be helpful.  Notwithstanding the above, the client, rather than the practitioner, must ultimately bear responsibility for any prediction of likely growth (or lack thereof) of the client’s estate.  Practitioners need to make this point very clear to their clients, focusing on the type of assets the clients own and the relationship between the income generated by those assets and the clients’ annual expenditures.  Aided by the practitioner, the clients can determine whether there is a significant likelihood that their current estate, be it worth $6 million or $9.5 million, is ever likely to exceed two times the applicable exclusion amount, as adjusted for inflation to the extent permitted by estate and tax laws.

Portability preserves the surviving spouse’s ability to use the first spouse’s DSUE amount, which reduces the significance of the inability to fund a nonmarital trust adequately, particularly with respect to estates that are unlikely ever to exceed the combination of one indexed applicable exclusion amount and one DSUE amount.  The DSUE amount, unlike the applicable exclusion amount, is not indexed for inflation, so the combination of the DSUE amount and the applicable exclusion amount will grow together at a combined rate that is even lower than the CPI.

To view the entire article please click here.

The Excel spreadsheets with sample client letter referenced in the article can be found atwww.zaritskygassman.webs.com or by clicking here.

We welcome your questions, comments and suggestions for future article.  Howard does a fantastic job of making sure that planning ideas and strategies are thoroughly thought through and always has something to add.

The Probate Practice Reporter is an excellent and highly recommended publication.  You can go to their website to subscribe by clicking here.  Maybe they will buy you a bucket of chicken if you subscribe now.

 HESCH-PORTER INTERVIEW CONTINUED: TIERED VALUATION DISCOUNTS

Chris Denicolo: Some clients have unique situations where they have one entity that owns certain underlying assets such as real estate or marketable securities, and that entity is owned in part by another entity.  This often arises where a client has a partnership, and that partnership has a minority  share limited partnership interest in another partnership or a non-voting interest in an LLC.

For example, we have a client who has a family limited partnership, and that family limited partnership owns 49% of an LLC that owns some real estate.  The client wants to give a non-voting limited partnership interest in that partnership as a gift or sell it to a grantor trust in an installment  sale. What are the rules on discounting that 49% interest in the valuation of that limited partnership?

John Porter: There are no rules per se, Chris. Value is inherently in an appraiser’s judgment, and there are cases that you can find going each way. Some cases allowing tiered discounts such as the Astleford case, the Gow case, the Dean case and then there are other cases where the courts have said that the top level discount adequately takes into account the valuation issues associated with the lower-tiered lack of control and lack of marketability.

One case that the government always likes to cite is a case called Royal Martin vs. Commissioner.  I love it when they cite that case because the taxpayer sought an 80% combined discount by the time he rolled all those discounts up.  The court allowed 75% and said that the effect of the tiering in this case is adequately taken into account by our discount.  So I always say to the Service that if you’re willing to give me that 75% discount, we’ll call it a day.

I think that ultimately there’s some language in the Astelford case that talks about the fact that you really have to analyze whether at the top level some of this lack of control and lack of marketability attributed to the bottom tier entities is already considered in the discount. If the entity whose interest is being valued at the top level owns its principal asset by far more than just a portion of the assets, let’s say 90% or more of the net asset value is comprised of a lack of control or non-controlling non-marketable interest, then tiering discounts may not be appropriate in that case.  But again I think that ultimately it’s subject to valuation judgment and every case stands on its own. There are lots of cases supporting the tiered discount concept.

Alan Gassman: Thanks very much John.  You have a remarkable memory and an excellent way of expressing these situations.

Jerry Hesch: Yes, the IRS has always allowed tiered discounts. For example, all stock prices of marketable securities already reflect a discount for lack of control.  So if I have stock that’s selling for $50 a share, you know you see in people buying-out companies that they’re willing to pay more than the market price. That’s because they’re willing to get control- so all marketable securities already have discounts.  If you put your marketable securities into a partnership, and you get a discount on a minority share interest in the partnership, then that’s in effect a tiered discount.

I think that the key is that if the discount in the first entity level is created by the investment vehicle that you have that was not a family transaction, tiered discounts are appropriate, but if all the entities have been created by the client taxpayer for the purpose of tiering up and increasing the discounts, the IRS is going to look at that more carefully and be more inclined to challenge it. Again, as John said it’s all facts and circumstances and you know if an 80% discount was created all by the client’s creating all the tiers, I would worry about it. I think that a 75% discount was a remarkable result.

Jerry Hesch’s contact information is as follows:

Jerome M. Hesch

Berger Singerman

1450 Brickell Avenue, Suite 1900

Miami, Florida 33131

Phone: (305) 755-9500

Fax: (305) 714-4340

jhesch@bergersingerman.com

John Porter’s contact information is as follows:

John W. Porter

Baker Botts

One Shell Plaza

910 Louisiana Street

Houston, Texas 77002-4995

Phone: (713) 229-1597

Fax: (713) 229-2797

john.porter@bakerbotts.com

DON’T MISS THE FLORIDA BAR’S ANNUAL WEALTH PROTECTION CONFERENCE – THURSDAY, MAY 16, 2013 IN FT. LAUDERDALE

 “HOW A LAWYER CAN PROTECT A CLIENT’S WEALTH”

TOM ELLWANGER’S CORNER. TRADE OFFS IN ESTATE PLANNING: TRUSTEE DISCRETION

Once again Tom Ellwanger entertains and educates all of us with a fantastic 30,000 foot view of what we are doing with the draft trust documents that provide too much or too little discretion on the part of a well chosen or not so well chosen trustee.  We will be sharing this piece with new clients to help them understand choices and the possible results in decision making for their loved ones.

Life is full of trade-offs.  A Kia leaves you with more money in the bank, but you drive with your knees against your chin.   Living sixty miles from work lets you afford a bigger house, but you see a lot less of it.  And, remembering your spouse’s birthday takes up valuable brain room which could otherwise boost your fantasy football chances, but then again . . .

Estate planning also has many trade-offs.  One of the big ones comes up when we prepare trust agreements.  It involves how much discretion to give to a trustee.

Trusts can be drawn up to very closely define the authority of the trustee:

“The trustee shall only invest in U.S. Government obligations.”

“The trustee shall pay the trust income to my spouse, but may not use any trust principal for his benefit.”

“The trustee may not distribute any income or principal to a beneficiary who is not gainfully employed.”

Or, trusts may be drawn up to give the trustee a lot of discretion:

“The trustee may invest the trust assets in any type of investments.”

“The trustee shall pay the trust income to my spouse and may distribute principal to my spouse as needed for her health, maintenance, and support in reasonable comfort.”

“The trustee, in its discretion, may distribute income and, if necessary, principal to my children for their health, education, support, and maintenance.”

Discretion is good.  It allows the trustee to adapt to conditions you couldn’t have foreseen when you set up the trust.  For example, it’s risky to assume that one particular investment will always be a good choice; safety of the principal isn’t necessarily the only factor to consider in investing.  The trustee will be there in the future, when the decision has to be made.  Why tie the trustee’s hands?

Of course, the reason you think about tying the trustee’s hands is that discretion can also be bad.  The discretion that allows a trustee a broader investment horizon can also allow horrendous investments.  The discretion that allows principal distributions to a spouse may lead to enrichment of the spouse at the expense of the children.  The discretion that allows a trustee latitude in providing for children may result in distributions which are considerably more generous (or considerably more stingy) than what the creator of the trust wanted to happen.

Drafting trust agreements which give the trustee little or no discretion means ignoring a main benefit of trusts.  We know how we would provide for our spouses and children while we are around.  But, we also know that we won’t always be around.   Trusts allow us to continue to take care of our loved ones despite the limitations imposed by mortality.

It’s risky, however, to engrave a trust like a tombstone.  As an example, where the trust prohibits distributions to beneficiaries who are not gainfully employed, or limits distributions to an amount equal to a beneficiary’s own earnings, we see a client who cared about the beneficiaries, but perhaps not a lawyer who helped the client think things through.   Any number of things could happen in the future which would probably have made the client reconsider such limitations. Depriving the trustee of the power to adjust to future circumstances can leave the trustee helpless to do what clearly needs to be done.

What can we do, in advising clients and drafting trust agreements, to maximize the benefits of discretion while minimizing the chances of abuse?

Give less than total discretion.

Discretion does not have to be black or white.  A trustee can be given broad discretion without being given total discretion.

I have seen many trust documents authorizing trustees to invest in anything their hearts desire.  I have seen trust documents which expressly negate the Prudent Investor Rule.   If the goal is to free the trustee from the investment restrictions of 50 years ago, which often interfered with  good investing practices, the lawyers drafting these agreements need to get more up to date.

My personal belief is the Prudent Investor Rule (adopted in Florida as Section 518.11, Florida Statutes) will give the typical trustees plenty of latitude in making investments.  There might be situations where the nature of a client’s assets requires something extra.  Even in those cases, however, the situation after the client is gone is usually different than it was during the client’s lifetime.  The client is free to invest in anything, free to try for the big killing, free to suffer stupid losses.  The client is not a trustee.  Or, if the trustee of a living trust, the client has no duty to anyone else.

I hope the trustee of a trust agreement I’ve drafted never loses most of the trust assets because of investments that only an idiot would make; but I hope even more that such a trustee can’t point to a clause in the agreement which says that he could, in fact, invest in anything.

In the area of distributions, Florida case is clear: “absolute discretion” rarely means what it says.   If the trust agreement says “the trustee may, in its sole discretion, make distributions for the support of the beneficiary,” the trustee is not allowed to refuse to make distributions where the beneficiary can establish a need for support.

The same concept applies whenever the trust language invokes what the tax laws call an “ascertainable standard,” not just support, but also such things as health, education, and  maintenance.  Before these terms had a tax law meaning they had a trust law meaning.  The trust law meaning survives today.  An ascertainable standard is one where a court could determine what a reasonable distribution would be.

Conversely, there are distribution standards which are so vague a court would shy away from such a determination.  “Welfare.”  “Happiness.”  Including these standards gives a trustee more discretion.  A current beneficiary would have difficulty convincing a court that the trustee should be more liberal.  On the flip side, a future beneficiary would have difficulty convincing a court that the trustee distributed too little.

Sometimes the tax laws have an impact on our decisions on the distribution standards we use in trusts.  We know we can’t use “welfare” in a credit shelter trust for the spouse where the spouse is trustee, or the remaining assets will be included in the spouse’s estate for estate tax purposes, precisely what this trust is supposed to avoid.  Then again, we can’t forget that these words have meanings outside the tax laws.

“Welfare” may cost a remainder beneficiary 40% of the assets of a credit shelter trust due to estate taxes, but it may also cost the remainder beneficiary 100% of the assets due to distributions to the surviving spouse.

The point is this: when giving a trustee discretion with respect to distributions, the authorizing language shouldn’t be there just because the law firm always uses that language.  The language should be there because that’s the authority which the trustee of this trust should have.

Provide guidance rather than rules.

Sometimes we provide firm rules to a trustee.  “Pay all income from the marital trust to my surviving spouse so that the trust qualifies for the estate tax marital deduction.”

Of course, we also have the option of providing guidance rather than rules.  That is just a form of discretion.  In many situations it can make sense.

To go back to the client who wanted the beneficiaries to be gainfully employed: setting out a firm rule can hamstring the trustee if (for example) the beneficiary develops health problems.   Suppose instead of setting out an absolute direction, the trust agreement says something like this:

The grantor believes that beneficiaries should be gainfully employed to the extent that their health, age, and other factors reasonably permit this.  The trustee is encouraged to take this belief into account in determining distributions to beneficiaries.

Suddenly the trustee is given the power to adjust to future circumstances.

Does this mean that the trustee can make distributions the client would not have made?  Certainly.  Does this mean that the trustee can deny distributions which the client would have made?  Absolutely.   If we could still have the client around to make all decisions, we really wouldn’t need the trust.

But we can’t have the client.  We can’t even draft a trust agreement which anticipates everything that might happen and sets out how the client would want to deal with it.  No client wants to spend that much time with a lawyer, if only because no client wants to pay for it.  And even if we had unlimited time to question clients and draft trust agreements, there are too many things that nobody could predict.  So, we do the best we can, and we hope the trustee will do likewise.

Help the client pick a good trustee.

In the end, providing at least some discretion to the trustee will be necessary.  Providing more discretion increases the importance of helping the client choose a good trustee.

Most clients have only a vague notion of what a trustee is supposed to do.  Client education is usually the first step in trustee selection.

Choosing trustees could be an article in itself-and probably will be, one of these days-but  a few suggestions can be made which relate to the discretion issue.

First, trustees can have conflicts of interest which are not necessarily apparent to a client.   The client might think that having children by a first spouse serve as trustees for a second spouse would be a good idea.  As it could be; but lawyers who have lived through the most common result typically suggest otherwise.  Also, having one child serve as trustee for another (giving the “good child” control over the “bad child”) may sound logical, but in practice, it rarely works well.

One attraction of family member trustees is that they have known the client and thus are in a position to know and carry out the client’s wishes.  Unfortunately, they may also have developed odd notions and prejudices which can interfere with a trustee’s duty to be impartial.

For that reason, and because family member trustees so often lack the skills and knowledge necessary in a good trustee, I have often suggested pairing the family member with a corporate or other professional trustee where the financial situation makes this feasible.  One advantage is that the professional trustee typically does most of the work, while the role of the family member is  limited to advice.  However, the professional trustee can also provide some protection against a family member’s lack of objectivity.  (Think about that, by the way, before giving the family member an unrestricted power to change professional trustees.)

The gift of exculpation.

One area where prediction is easy is this: a trustee given discretion is likely to make someone unhappy when that discretion is exercised.   Unhappiness with a trustee can lead to the courthouse.  If it does, somebody will get a new boat, but probably not the trustee.  Hence, the advisability of clauses which limit the trustee’s liability.

I see these clauses all the time and wonder if they were discussed with the client.   Then again, I don’t think I’ve ever had a client object.  Clients can easily grasp the unfairness of giving somebody a job outside of the person’s education and experience, but allowing that person to be dragged into court on almost any pretext.   Then again, beneficiaries from time to time are wronged by trustees in situations where they should have some recourse.

The Florida Trust Code tries to balance protection of the trustee with protection of the beneficiaries by allowing a trustee’s liability to be limited, but not allowing a free pass.  Trustees  must remain liable for improper actions taken “in bad faith or with reckless indifference to the purposes of the trust or the interests of the beneficiaries . . .”  Section 736.1011(1), Florida Statutes.

Providing protection to the trustee is not mandatory under the law.  My usual approach is to  limit the liability of family members and other non-professional trustees, but to not limit the liability of trust companies or other professional trustees.

Giving trustees discretion is a minefield, but one we have to navigate.  In the end the client makes the decisions, but clients almost always need some guidance along the way.   Focusing on what’s good and bad about discretion, and on ways to limit the risks, will usually improve that guidance.

 Tom Ellwanger