By: Alexander J. Gase, Esq.
As with any presidential administration change, one of the first actions a new president will typically make is engaging Congress to pass new tax law. Coupled with the substantial amount of government spending as a result of the global pandemic, raising tax revenue is a hot agenda item for President-elect Joe Biden. One anticipated change involves restricting the use of grantor retained annuity trusts.
Grantor Retained Annuity Trust
The grantor retained annuity trust (the “GRAT”) is an irrevocable trust that is established by a grantor for a specific term of years. The grantor contributes assets, typically property expected to appreciate throughout the duration of the term, to the GRAT and retains the right to receive annuity payments over the trust term. To the extent the GRAT investments perform at a rate higher than the IRC 7520 rate, the remaining GRAT assets at the end of the term are transferred to the beneficiaries, gift tax-free. If the grantor dies before the end of the trust term, a portion of the GRAT assets revert to the grantor’s estate and are subject to Federal estate tax. GRATs give the grantor the ability to pass wealth with little or no tax consequences and keep appreciated property out of the grantor’s taxable estate.
Proposed Limitations to the GRAT
GRATs must meet certain requirements in order for the assets to pass to the beneficiaries gift tax-free. For example, the grantor is required to outlive the trust term. Currently, the specified trust term must be at least two years and many clients elect a 2 year term to ensure they outlive the term and produce a minimal gift. However, under Biden’s proposed tax plan, Congress could extend this minimum term to 10 years. This change would make it more difficult for grantors to have confidence that they will outlive the trust term. It is also expected that President-elect Biden’s plan will require a minimum taxable gift, which is not required under current law. These potential limitations on GRATs present unique challenges for future GRATs. Accordingly, it is encouraged that individuals interested in using GRATs as an estate planning tool consider this option prior to December 31, 2020 in order to fully benefit under the current law.
It is important to note that in September 2020, the Federal Reserve announced that interest rates would remain near 0% until at least 2023. Given the low rates, uncertain economic yields, and potential for GRAT reform under Biden’s plan, individuals should consider lifetime gifting techniques such as the GRAT before we enter 2021.
If you would like to discuss the above options and changes in further detail, or you would simply like to review your estate plan in light of this unprecedented year, please reach out to Leech Tishman’s Estates & Trusts Practice Group.
Alexander J. Gase is an attorney in the firm’s Estates & Trusts, Taxation, and Corporate Practice Groups and practices in the Pittsburgh, PA office. He can be reached at 412.261.1600 or email@example.com.
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Leech Tishman Fuscaldo & Lampl is a full-service law firm dedicated to assisting individuals, businesses, and institutions. Leech Tishman offers legal services in alternative dispute resolution, aviation & aerospace, bankruptcy & creditors’ rights, cannabis, construction, corporate, data privacy & cybersecurity, employee benefits, employment, energy, environmental, estates & trusts, family law, government relations, immigration, insurance coverage, intellectual property, international legal matters, litigation, real estate, and taxation. Headquartered in Pittsburgh, PA, Leech Tishman also has offices in Chicago, Los Angeles, New York, Philadelphia, Sarasota and Wilmington, DE.