ALI-ABA Course of Study Estate Planning for the Family Business Owner

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1 597 ALI-ABA Course of Study Estate Planning for the Family Business Owner Cosponsored by the ABA Section of Real Property, Trust and Estate Law and the ABA Section of Taxation July 7-9, 2010 Chicago, Illinois Advance Transfer Tax Planning Issues for Estate Planning for the Family Business Owner By Domingo P. Such, III McDermott Will & Emery LLP Chicago, Illinois 2009 McDermott Will & Emergy LLP. McDermott operates its practice through separate legal entities in each of the countries where it has offices. This communication may be considered attorney advertising. Previous results are not a guarantee of future outcome.

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3 599 Advance Transfer Tax Planning Issues for Estate Planning for the Family Business Owner July 8, 2010 ALI-ABA Course of Study IRS Circular 230 Disclosure: To comply with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained herein (including any attachments), unless specifically stated otherwise, is not intended or written to be used, and cannot be used, for the purposes of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter herein. # v1 Boston Brussels Chicago Düsseldorf Houston London Los Angeles Miami Milan Munich New York Orange County Rome San Diego Silicon Valley Washington, D.C. Strategic alliance with MWE China Law Offices (Shanghai) 2009 McDermott Will & Emery LLP. McDermott operates its practice through separate legal entities in each of the countries where it has offices. This communication may be considered attorney advertising. Previous results are not a guarantee of future outcome. Featuring Speaker Domingo P. Such, III Partner McDermott Will & Emery LLP *The materials are based on the articles published in Private Wealth (May/June 2009) and Willamette Management Associate Insights (Winter 2010), co-authored by Domingo P. Such and Tina Davis Milligan. 1

4 600 Phase-out Schedule: Estate, Gift and GST Tax Rates Phase-out Current year Full repeal Estate tax GST tax Gift tax Top estate & GST Top gift tax 1 Year exemption exemption tax rates $675,000 $1,060,000 $675,000 55% 3 55% ,000,000 1,100,000 1,000, ,000,000 1,120,000 1,000, ,500,000 1,500,000 1,000, ,500,000 1,500,000 1,000, ,000,000 2,000,000 1,000, ,000,000 2,000,000 1,000, ,000,000 2,000,000 1,000, ,500,000 3,500,000 1,000, ,000, and after 1,000,000 1,120,000 1,000, Notes: Credit for state estate taxes phased out: The federal credit for state estate taxes was eliminated in Depending on the taxpayer s domicile at death and taxable estate, total estate taxes could actually increase based on payment of additional state estate taxes. New carryover basis: New step-up rules will be implemented in Step-up will be limited to adding $1.3 million of basis to property selected by the executor for assets transferred, plus an additional $3 million step-up for assets transferred to a surviving spouse. 1 The gift tax is not scheduled to be repealed under this law. 2 Top rates apply to transfers of more than $2.5 million. 3 The 5% surcharge on taxable estates larger than $10 million is repealed. 4 In 2010, the top gift tax rate will equal the highest ordinary income tax rate. 2 Summary of Current Transfer Taxes Gift Tax (on lifetime transfers) Unlimited annual exclusion gifts of $13,000 per year per donee ($26,000 if a husband and wife elect to split gifts ) - not just family. $1 million total lifetime exemption: maximum amount of all gifts to all persons (excluding annual exclusion gifts). No gift tax imposed on transfers for tuition and medical expenses: unlimited amounts and unlimited donees provided payments made directly to institution, care provider. Estate Tax (on transfers at death) Imposed on transfers at death to persons other than surviving spouse (or to trustees of certain marital trusts for the sole benefit of a surviving spouse). Current estate tax exemption is $3.5 million less lifetime taxable gifts. Generation-Skipping Transfer ( GST ) Tax (on all transfers that skip over members of one younger generation to a still younger one) GST tax may apply simultaneously to transfers subject to gift tax or estate tax. Current GST tax exemption is $3.5 million. Marital and charitable deductions: unlimited (during life or at death). 3

5 601 Legislative Watch Repeal/No repeal of the estate, GST tax Other discussions in Washington Carryover basis Reunification of the estate/gst with gift Rate change proposals Higher exemption proposals Portability of exemptions GRAT legislation Anti valuation discount proposal 4 Common Estate Planning Objectives To identify who gets what, when and under what circumstances To name fiduciaries who administer assets and make various decisions To avoid probate (post-death) and guardianship (during life) Asset protection Business succession planning Minimization of transfer taxes Some of above objectives are designed to take effect at death ( testamentary ) and others are effective or can be achieved during life ( inter vivos ). 5

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