Publications (PDFs)

IRS Proposed Regulations Concerning Basis Consistency and Reporting for Property Acquired from a Decedent

May 2016

On July 31, 2015, President Obama signed into law the Surface Transportation and Veterans Health Care Choice Improvement Act of 2015, sometimes referred to as the “Highway Act.”  The Highway Act, among other things, added new provisions in Sections 1014(f) and 6035 of the Internal Revenue Code (IRC) concerning basis consistency and reporting for property acquired from a decedent.  These new statutory provisions apply to Federal estate tax returns filed after July 31, 2015 and have two primary components:  (1) a substantive rule requiring basis consistency that is set forth in IRC § 1014(f); and (2) reporting requirements imposed upon executors and certain other persons under IRC §  6035.  The Highway Act also enacted related penalty provisions under IRC §§ 6662, 6721 and 6722.  Congress left it to the U.S. Department of Treasury and the Internal Revenue Service (IRS) to figure out how to implement these rules, and originally gave the IRS just 30 days to do – until August 31, 2015.  The IRS has now on three separate occasions issued notices postponing the filing deadlines, with the most recent such notice, Notice 2016-27, 2016-15 IRB 1, pushing back the filing deadline for the reporting form applicable here – IRS Form 8971 – until June 30, 2016.

On March 4, 2016 the IRS published proposed regulations under IRC §§ 1014(f) and 6035 that are summarized in this article.  https://www.irs.gov/irb/2016-12_IRB/ar10.html The proposed regulations request comments by June 2, 2016, and it is anticipated that a number of professional organizations will so oblige.

Don't Overlook Your Clients' IRA Beneficiary Designations!

April 2016

The beneficiary designation forms for qualified retirement plans and individual retirement accounts (collectively “IRAs”) can be the most overlooked part of a client’s estate plan.  In many instances, the beneficiary designation forms will control more assets than pass under one’s Will.  A client may have a very elaborate Will and/or revocable living trust that contains highly detailed and carefully thought-through trust provisions for the management and preservation of wealth for children, grandchildren and more remote descendants.  But if the IRA beneficiary designation form provides, for example, that all property goes outright to children (instead of to trusts for their benefit that are to be established under the client’s Will and/or revocable living trust), the IRA will fail to link to such trusts, and the children will inherit the IRA outright and not in trust.

New York State Releases its Throwback Tax Form (and it is Unduly Complex) 

February 2016

The New York State Department of Taxation and Finance (the “NYSDTF”) has posted on its website Form IT-205-J, New York State Accumulation Distribution for Exempt Resident Trusts (“Schedule J”), together with accompanying instructions, for computing the throwback tax applicable to “exempt resident trusts:”
https://www.tax.ny.gov/pdf/current_forms/it/it205j_fill_in.pdf and https://www.tax.ny.gov/pdf/current_forms/it/it205ji.pdf   Given the complexity of this area of the tax law, it should not be surprising that this form will be very difficult for practitioners to complete.  Moreover, in a measure that was likely intended by the NYSDTF to be helpful to taxpayers by excluding from tax certain distributions to New York resident beneficiaries that are matched up against (i.e., thrown back to) undistributed net income attributable to tax years beginning prior to January 1, 2014, practitioners when applicable will also be required to track down information pertaining to trusts and their beneficiaries going back to the year 1969 (the year that Man first walked on the Moon!) to determine the existence of prior years’ undistributable net income to which such distributions could be applied.  Unfortunately, the NYSDTF has not permitted trusts to use a simplified “default calculation” for throwback purposes in conjunction with this -- similar to that employed by the Internal Revenue Service in Part III of the IRS Form 3520 – in order to better achieve this objective.  To its credit, the form does also clarify that capital gains will not be subject to throwback except where the capital gains are part of federal distributable net income, such as where the trust is a foreign trust for federal income tax purposes.

A Transformation Unfolds Before Our Eyes -- A View from the Audience at Heckerling (2016)

February 2016

The recently concluded 50th Annual Heckerling Institute on Estate Planning in Orlando, Florida celebrated this conference’s golden anniversary with an eclectic program that illustrates just how significantly the estate-planning landscape has transformed following the American Taxpayer Relief Act of 2012 (ATRA).   We can no longer assume that the predominate purpose of the estate-planning team is minimizing estate taxes – rather, a broad spectrum of client needs occupy the forefront, and minimizing estate taxes is only one piece of the puzzle.  Yes, it’s true that we continue to eagerly await the promulgation of proposed regulations under Section 2704(b) of the Internal Revenue Code that could severely reduce the availability of discounts for lack of marketability and lack of control for certain closely-held family entities.  But deserving of equal attention are matters such as: the need to plan for the special needs of elderly individuals with diminishing cognitive abilities; the importance of maintaining flexible provisions governing the appointment, succession, removal, oversight and powers of trustees; and saving income taxes (including via portability of the applicable exclusion amount of the first spouse to die to maximize the extent of the step-up in basis upon the second spouse’s death).

Moreover, the world continues to become smaller – both as a result of continued advancements in technology and due to initiatives commenced both in the United States and abroad to combat money laundering and to promote tax transparency.  Privacy is much harder to come by with the ubiquity of Google and social media.  Simply put, many of our practices as estate-planning professionals are morphing before our eyes.

Fighting the Good Fight for New York Estate Tax Reform, What Happened (and Did Not Happen) with the New York Estate Tax in the 2015-2016 New York State Fiscal Year Budget, and Next Steps 

April 2015

The estate tax provisions that were signed into law by Governor Andrew Cuomo on April 1, 2015 as part of the 2015-2016 New York State fiscal year budget (the “Budget Bill”) leave much to be desired. While the Budget Bill’s estate tax provisions fill in some gaps left in the wake of last year’s substantial revisions to the New York estate tax, they completely fail to address the substantive areas that the New York State Society of Certified Public Accountants (the “NYSSCPA”) identified as warranting reform in the report that it issued in December 2014. Thus, among other things:

(i) wealthy New Yorkers in their golden years still have to contend with a confiscatory estate tax cliff that at certain levels will push the marginal New York estate tax rate far in excess of 100%;

(ii) there’s no New York State portability for the deceased spouse’s unused exclusion amount;

(iii) no separate state qualified terminable interest property (“QTIP”) election is available in the case of an estate that files a federal estate tax return solely to make a portability election; and

(iv) no significant adjustment has been made to the 3 year addback of post-March 31, 2014 (and pre-January 1, 2019) gifts of real or tangible personal property located in New York State -- which effectively penalizes New York decedents for federal estate tax deduction purposes.

An Estate Planning World in Which Dispositive Objectives, State Tax Laws and Income Taxes Now Predominate For All But The Top 0.2% -- A View from the Audience At Heckerling (2015) 

February 2015

The recently concluded 49th Annual Heckerling Institute on Estate Planning built upon the groundbreaking themes which dominated the previous year’s conference that had challenged estate planners to take a fresh look at the role of income tax (and income tax basis) planning in advising our clients. We’re now another year down the road since the massive transformation in the overall estate planning landscape that was ushered in by the American Taxpayer Relief Act of 2012 (“ATRA”). The consensus at this year’s Heckerling conference was that for all but the top 0.2% of American society, the most vital functions of the estate planner are to implement the client’s dispositive objectives, consider ways to minimize state estate taxes, and maximize opportunities to save income taxes (including via portability of the applicable exclusion amount of the first spouse to die to maximize the extent of the step-up in basis upon the second spouse’s death).

Introducing the New York Throwback Tax 

December 2014

On April 1, 2014, Governor Andrew Cuomo signed into law as part of the New York State Executive Budget several provisions affecting estate planning and trusts.  Although most of the attention has focused on the New York estate tax law changes, the new law ushered in significant changes in the income taxation of trusts as well.  The most far-reaching of these changes is New York’s introduction of a “throwback tax” on certain distributions of prior year’s taxable income to New York resident beneficiaries from trusts qualifying for the “New York Resident Trust Exception.”  The New York Resident Trust Exception applies to nongrantor trusts for which (1) all of the trustees are domiciled outside of New York State; (2) all real and tangible trust property is located outside of New York State; and (3) all trust income and gains is derived from sources outside of New York State. Many of the contours of the throwback tax, however, still await clarification from the New York State Department of Taxation and Finance, which as of this writing has not yet issued a form or provided guidance on certain technical issues.

To Live and Die in New York (the Tax Department’s Sequel)

The New York State Tax Department’s Guidance on the 2014 New York State Estate Tax Law Changes

October 2014

On August 25, 2014, the New York State Department of Taxation and Finance (the “New York Tax Department”) issued TSB-M-14(6)M to provide guidance on the significant changes in the New York State estate tax system that became effective on April 1, 2014 (the “Tax Department’s Estate Tax Guidance”). In its guidance, the New York Tax Department clarified certain points left open by the language of the April 1st statute concerning whether the potential addback for taxable gifts made after March 31, 2014 include gifts of real or tangible personal property having a location outside of New York State (it does not) and whether an estate tax return filed solely for purposes of electing portability of the deceased spouse unused exclusion amount is deemed an estate tax return that is “required to be filed” so as to warrant conforming qualified terminable interest property (“QTIP”) elections for federal and New York State estate tax purposes (it is).

The Tax Department’s Estate Tax Guidance, however, illustrates just how far the recent New York estate tax law changes miss the mark in achieving the laudable objective that Governor Cuomo had specified in his State of the State address of keeping wealthy New Yorkers in the Empire State during their golden years. This statutory disparity provides the overarching backdrop to a review of the Tax Department’s Estate Tax Guidance.

IRS Guidance on the 2-Percent of AGI Floor for Trusts and Estates

The Final Regulations under IRC § 67(e) 

September 2014

On May 9, 2014, the IRS issued final regulations under § 1.67-4 that provide guidance on which costs incurred by estates or trusts other than grantor trusts (non-grantor trusts) are subject to the 2-percent of adjusted gross income floor for miscellaneous itemized deductions under Section 67(e) of the Internal Revenue Code (the “2-percent floor”).  Although the IRS has deferred the effective date of these final regulations so that they now apply to taxable years beginning on or after January 1, 2015, it has nevertheless created enormous concern among corporate fiduciaries in particular.  Chief among these concerns is how a fiduciary should go about subdividing (or “unbundling”) a single fiduciary fee that represents a composite of various functions that the fiduciary has performed, including the providing of investment advice (which is generally subject to the 2-percent floor) and managing other aspects of its relationship with beneficiaries including distribution decisions (which is not subject to the 2-percent floor).

To Live and Die in New York 

A Review of the Recent New York Tax Law Changes Affecting Estate Planning and Trusts

 April 2014

On April 1, 2014, Governor Andrew Cuomo signed into law as part of the New York State Executive Budget what might appear at first blush to constitute sweeping changes affecting estate planning and trusts. The new law, however, falls far short of achieving the laudable objective that Governor Cuomo had specified in his State of the State address of keeping wealthy New Yorkers in the Empire State during their golden years. Although the new law does indeed accomplish the important goal of increasing the New York estate tax exemption -- it now stands at $2,062,500 for persons dying between April 1, 2014 and March 31, 2015 and is scheduled to increase over time to match the federal applicable exclusion amount (currently $5,340,000) by 2019 -- there is an effective “cliff” within the new estate tax law that snatches away all of the benefits of the “tax-free zone” by imposing a marginal tax rate substantially in excess of 100% until all of the benefits of the tax-free zone have been undone.

U.S. Estate and Gift Taxation of Nonresident Aliens

March 2014

The United States imposes three distinct transfer taxes on the gratuitous transfer of property:  the estate tax, the gift tax and the generation-skipping transfer tax.  The estate tax applies to transfers at death; the gift tax applies to lifetime transfers; and the generation-skipping transfer tax applies to transfers of property that effectively “skip” a generation, from the transferor to a person or persons at least two generations below that of the transferor.

The U.S. transfer tax regime requires special planning for nonresident aliens who invest in the United States.  The U.S. estate and gift tax rules for individuals look first to whether an individual is a U.S. citizen.  If the individual is not a U.S. citizen, then the next inquiry is whether the individual is a resident of the United States, with residence in the transfer tax context being synonymous with being a U.S. domiciliary.  While U.S. citizens and residents are subject to worldwide estate and gift taxation on their gratuitous transfers, nonresidents (meaning here persons who are neither U.S. citizens nor U.S. domiciliaries) are only subject to the U.S. transfer tax system on property that is situated, or deemed situated in the United States.  In addition, nonresident aliens are generally not subject to U.S. gift tax on the transfer of intangible property (such as U.S. securities) regardless of where the property is situated or deemed situated. Further, nonresidents are only subject to the Federal generation-skipping transfer tax with respect to transfers that are subject to the Federal estate or gift tax.

Will the New York Estate Tax System Be Turned Upside Down? -- Aspects of Governor Cuomo’s Budget Bill That Affect Estate Planning and Trusts

February 2014

On January 20, 2014, Governor Cuomo issued the New York State Executive Budget (the “Budget Bill”).  The cornerstone of the Budget Bill as it affects estate planning and trusts is the Governor’s proposal (i) to increase the New York estate tax exemption to ultimately match the federal estate tax exemption (which is currently $5.34 million for decedents dying in 2014, subject to further indexing) and (ii) to decrease the top New York estate tax rate from 16% to 10%.  Both the increased exemption and the decreased rates would be phased in over four years, with the state estate tax exemption to be approximately equal to the federal estate tax exemption, indexed for inflation, beginning in 2019.  The next question then becomes how to pay for this if the budget overall is to be revenue neutral.

The Estate Planning World Has Been Turned Upside Down By ATRA -- A View from the Audience at Heckerling (2014)

February 2014

The recently concluded 48th Annual Heckerling Institute on Estate Planning posed more questions than answers and challenged estate planners to take a fresh look at the role of income tax (and income tax basis) planning in advising our clients.  More than one year has now passed since the paradigm shift in the overall estate planning landscape that was ushered in by the American Taxpayer Relief Act of 2012 (“ATRA”).  Although ATRA instilled some degree of stability in the estate, gift and generation-skipping transfer (“GST”) tax systems through the elimination of sunset provisions to favorable exclusion amounts, tax rates and GST tax rules, the consensus at this year’s Heckerling Institute was that estate planning – particularly for clients in the $ 5 million to $ 10 million range – is much more complex than ever due to the multitude of variables that will have to be considered in a well-structured plan.  Indeed, given that for 2014 up to $ 5,340,000 ($ 10,680,000 for a married couple) can pass free of federal estate tax, the new paradigm requires a case-by-case analysis of the role that income tax planning (and achieving a step-up in basis upon the surviving spouse’s death) now plays in light of our clients’ particular circumstances.  More than ever, the need for flexibility is paramount.

2013 Year-End Tax and Estate Planning Opportunities

November 2013

The 2013 year-end lacks the high drama of the 2012 year-end, which had tax and estate planning advisers scrambling through December 31st in light of the impending fiscal cliff and its December 31, 2012 expiration date to favorable exclusion amounts and tax rates. The 2012 year-end fiscal cliff was not rectified until January 2, 2013, when President Obama signed into law The American Taxpayer Relief Act of 2012 (“ATRA”).

Nevertheless, although the 2013 year-end may lack dramatic flair, it makes up for it through solid tax and estate planning opportunities that can save clients significant amounts of money both in the short term and in the long run.This article explores some of the top year-end tax and estate planning opportunities before the clock strikes midnight on January 1, 2014.

The Obama Administration’s Fiscal Year 2014 Tax Proposals That Pertain to Estate Planning

May 2013

The Obama Administration’s Fiscal Year 2014 tax (“Greenbook”) proposals that pertain to estate planning, which were released in April 2013, have shattered as a mirage any notion of a “permanent” estate and gift tax system little more than three months after Congress’s enactment of so-called “permanent” tax relief in this field. In fact, the proposals have actually created a new urgency for wealthy individuals to engage in transactions with their grantor trusts.

The Fiscal Year 2014 Greenbook proposals come on the heels of the recent transformation that had just occurred in the overall estate planning landscape courtesy of the American Taxpayer Relief Act of 2012 (“ATRA”), which was signed into law by President Obama on January 2, 2013 to avert the tax side of the “fiscal cliff.” For the first time since 2001, ATRA purported to establish some degree of stability in the estate, gift and generation skipping transfer (GST) tax systems through the elimination of sunset provisions to favorable exclusion amounts, tax rates and GST tax rules. This manifested itself as a “permanent” unified $5,000,000 exclusion amount subject to indexing (the indexed amount is $5,250,000 for 2013) for each of the estate, gift and GST tax regimes, with a 40% tax rate to apply to taxable transfers that exceed the applicable exclusion amount. Moreover, ATRA made this exclusion permanently “portable” for estate and gift tax purposes (but not for GST tax purposes) between spouses following the first spouse’s death. Portability, in a nutshell, involves the carryover of the first decedent spouse’s unused applicable exclusion amount to the surviving spouse for estate and gift tax purposes (but not for GST tax purposes) and can be accomplished through the executor’s election on the estate tax return of the first spouse to die.

A View from the Audience at Heckerling (2013)

February 2013

The recently concluded 47th Annual Heckerling Institute on Estate Planning came on the heels of the greatest year for estate planning that we’ve ever known. From the vantage point as a member of the audience, the lingering weariness produced by our industry’s unprecedented client demands over the last several months was supplanted by the challenges posed by the new paradigm that would now govern the road ahead. Indeed, a startling transformation had just occurred in the overall estate planning landscape courtesy of the American Taxpayer Relief Act of 2012 (“ATRA”), which was signed into law by President Obama on January 2, 2013 to avert the tax side of the “fiscal cliff.” For the first time since 2001, we now have some degree of stability in the estate, gift and generation-skipping transfer (GST) tax systems through the elimination of sunset provisions to favorable exclusion amounts, tax rates and GST tax rules. That translates into a “permanent” unified $5,000,000 exclusion amount subject to indexing (the indexed amount is $5,250,000 for 2013) for each of the estate, gift and GST tax regimes, with a 40% tax rate to apply to taxable transfers that exceed the applicable exclusion amount. Moreover, this exclusion is now permanently “portable” for estate and gift tax purposes (but not for GST tax purposes) between spouses following the first spouse’s death. As a consequence of these permanently expanded exclusions and portability, income tax planning (with a particular focus on basis), as well as elder law planning, can now be expected to command a greater degree of attention in estate planning practices.

But as many of the speakers noted, today’s “permanent” transfer tax system will last only until Congress changes the law yet again.

So What Does It Mean To Have a "Permanent" Estate and Gift Tax System Anyway? -- Estate Planning in 2013 and Beyond

January 2013

The American Taxpayer Relief Act of 2012 (“ATRA”) was signed into law by President Obama on January 2, 2013 to avert the tax side of the “fiscal cliff.” For the first time since 2001, ATRA has instilled some degree of stability into the estate, gift and generation-skipping transfer (GST) tax systems by eliminating the application of expiration dates to favorable exclusion amounts and tax rates. The new tax system features a unified $5,000,000 exclusion amount subject to indexing (the indexed amount is $5,250,000 for 2013) for each of the estate, gift and GST tax regimes, with a 40% tax rate for taxable transfers that exceed the applicable exclusion amount. In addition, this exclusion is now permanently “portable” for estate and gift tax purposes (but not for GST tax purposes) between spouses following the first spouse’s death.

But when it comes to taxes, nothing is truly “permanent,” because Congress possesses the ability at moment’s notice to revamp the system yet again the next time it needs a revenue raiser. This is of particular concern to wealthy individuals and their advisors.

Estate Planning Opportunities During 2012 Before the Clock Strikes 2013 - Use It or Lose It?

April 2012

The year 2012 provides a huge opportunity for estate planning for wealthy individuals that may be lost forever when the clock strikes January 1, 2013.

On Dec. 17, 2010, President Obama signed into law “The Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010” (“TRA 2010”). TRA 2010 ushered in sweeping changes to the Federal estate, gift and generation-skipping transfer (“GST”) tax systems. Among other things, TRA 2010 unified the estate, gift and GST lifetime exemption amounts at $5 million for the years 2011 and 2012, with this amount to be indexed in 2012 – the 2012 indexed amount is $5,120,000. TRA 2010 also established a maximum tax rate of 35%. It moreover ushered in the portability of lifetime exemption amounts between spouses for estate and gift tax (but not GST tax) purposes for the years 2011 and 2012.

The critical point here is that TRA 2010 is essentially a “two-year patch” that will expire on December 31, 2012. This means that unless Congress takes further action, then come January 1, 2013 the tax laws that existed back in 2001 – including the $1 million Federal estate, gift and GST tax exemptions, and the 55% top estate, gift and GST tax rates – will come roaring back into effect.

Because it is impossible to predict when Congress will act and what form such legislation may take, the year 2012 presents a unique opportunity for estate planning that may be lost forever once the clock strikes January 1, 2013.

U.S. Estate and Gift Taxation of Nonresident Aliens

January 2012

The U.S. transfer tax regime requires special planning for nonresident aliens who invest in the United States. The U.S. estate and gift tax rules for individuals look first to whether an individual is a U.S. citizen. If the individual is not a U.S. citizen, then the next inquiry is whether the individual is a resident of the United States, with residence in the transfer tax context being synonymous with being a U.S. domiciliary. While U.S. citizens and residents are subject to worldwide estate and gift taxation on their gratuitous transfers, nonresidents (meaning here persons who are neither U.S. citizens nor U.S. domiciliaries) are only subject to the U.S. transfer tax system on property that is situated, or deemed situated in the United States. In addition, nonresident aliens are generally not subject to U.S. gift tax on the transfer of intangible property (such as U.S. securities) regardless of where the property is situated or deemed situated. Further, nonresidents are only subject to the Federal generation-skipping transfer tax with respect to transfers to a person or persons that effectively “skip” a generation where such transfers have been subject to the Federal estate or gift tax.

What Estate Planners and Their Clients Should Know About The Tax Relief Act of 2010

Tax Stringer, March 2011

On December 17, 2010, President Obama signed into law “The Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010” (“TRA 2010”). The new tax law caught most estate planners by surprise with its sweeping changes to the federal estate, gift and generation-skipping transfer tax systems. Among other things, TRA 2010 retroactively restored the estate and generation-skipping transfer (GST) tax systems as of January 1, 2010 (although subject to an “opt out” for 2010 decedents for purposes of the estate tax). It also unified the estate, gift and GST lifetime exemption amounts at $5 million (with this amount to be indexed from 2010 beginning in 2012), although the lifetime gift tax exemption amount was maintained at $1 million in 2010 before being raised to $5 million in 2011. TRA 2010 also establishes a maximum tax rate of 35%, with the notable exception that GSTs occurring during 2010 are instead subject to a zero percent tax rate. It moreover ushers in the portability of lifetime exemption amounts between spouses for estate and gift tax (but not GST tax) purposes. TRA 2010 is scheduled to expire on December 31, 2012, so it may effectively be regarded as a temporary patch.

A View from the Audience at Heckerling

Trusts and Estates (Online Version), February 2011

The recently concluded 45th Annual Heckerling Institute on Estate Planning had a vibe unlike any other. The overarching dynamic, of course, was the massive changes to the estate, gift and generation-skipping transfer tax landscape brought about by The Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 (“TRA 2010”), which President Obama signed into law on December 17, 2010. The techniques in the estate planner’s toolbox all of a sudden require reexamination with the increased gift, estate tax and generation-skipping transfer (GST) tax exemptions unified at $5 million with a 35% maximum tax rate beginning in 2011, and the introduction of portability of lifetime exemption amounts between spouses for estate and gift tax (but not GST tax) purposes. And for those who may have thought that 2010 had already been confined to the history books, TRA 2010 retroactively restored the estate and GST tax systems as of January 1, 2010 (although subject to an “opt out” for 2010 decedents for purposes of the estate tax), and established a maximum tax rate of 35%, with the notable exception that GSTs occurring during 2010 are instead subject to a zero percent tax rate. But alas, permanence is not to be found in the new law, as it is scheduled to sunset after December 31, 2012, so what were the principal themes that dominated the 2011 Heckerling conference?

Buy-Sell Agreements and Their Role in Business Succession Planning

American Bar Association, 2011

The death, disability, or retirement of a controlling owner in a family-controlling business can wreak havoc on the entity that the owner may have spent a lifetime building from scratch. If not adequately planned for, such events can lead to the forced sale of the business out of family hands to an unrelated third party.

The Top 10 Estate and Tax Planning Ideas Before The End of 2010

Tax Stringer, December 2010

The number of days that remain until the calendar rings in 2011 is now dwindling to a precious few. With each passing day, the estate and tax planning opportunities that are unique to the calendar reading 2010, or which could be swiftly eliminated by Congressional action or other changes in circumstances, become more and more in focus. Accordingly, with apologies to David Letterman (and with the sequence below not intended to connote any particular internal ranking), I have compiled the following "Top 10 List" of estate and tax planning ideas before the end of 2010.

Death and Taxes: What Might Benjamin Franklin Say About Them Today

Tax Stringer, October 2010

Benjamin Franklin said, “in this world nothing can be said to be certain, except death and taxes.” With the federal estate tax repealed for 2010 and no new estate tax legislation or other “patch” currently in place, estate planners and taxpayers have found themselves navigating a brave new world in which Benjamin Franklin’s notion of certainty has been eradicated—at least when it comes to estate taxes. But, alas, Benjamin Franklin’s world may be only temporarily upturned. Indeed, if Congress fails to enact any estate tax legislation before the end of the year, we will have the federal estate tax—and the generation-skipping transfer tax—laws that existed in 2001 return on Jan. 1, 2011.

Successor Trustee Liability: What You Must Know Before Accepting a Fiduciary Appointment

Trusts & Estates, March 2010

The fiduciary field can be a bit of a minefield. The article offers practical preventatives and solutions ranging from exculpatory and indemnification clauses to decanting and alternative dispute resolution procedures.

Play Ball! Estate Planning for Professional Athletes

Trusts & Estates, June 2009

Pro athletes create their wealth in an extremely short period of time and they accomplish this feat while very young. This means an extreme emphasis must be placed on preserving and protecting wealth that athletes accumulate while in their 20s and 30s.

Estate Planning Strategies for Private Equity Fund Managers

Estate Planning, Nov 2007

The high growth potential of the carried interests that a private equity fund manager holds through the fund's general partner makes these interests ideal for wealth transfer planning. This article analyzes the best planning techniques for carried interests.

Special Concerns in FLP Planning Where Both Spouses are Living

Estate Planning, January 2007

If a family limited partnership is established when both spouses are living, there is a risk that a large portion of the couple's estate tax liability may be accelerated to the first spouse's death. This article suggests possible remedies for this dilemma.

Practical Strategies for Funding a Child's College Education

Estate Planning, June 2006

There are a variety of techniques for funding a child's education, including different types of trusts, UTMA custodianships, Section 529 college savings plans, and the Section 2503(e) gift tax exclusion for the direct payment of tuition.

Changing Values: Resolving the Mismatch of Estate Inclusion Value and Deduction Value

Estate Planning, July 2008

The changing value problem for family limited partnership interests should not be overlooked, given its real potential to produce substantial estate tax liability upon the first spouse’s death—even in the case of a well-structured and well administered FLP that is not subject to Section 2036 of the Internal Revenue Code.

Knight’s Decided. Now What?

Trusts and Estates, March 2008

The US Supreme Court’s decision in Knight v. Commissioner appears to resolve a controversy that has been raging since the early 1990s, concerning whether a trust’s investment advisory fees are subject to the two percent of adjusted gross income floor. But Knight leaves open a good many questions, including how the IRS will finalize its proposed regulations under IRC Section 67(e) concerning the applicability of the two percent floor to costs that are paid or incurred by trusts and estates.

Practitioners Weigh In On 2 Percent Floor Debate

Trusts and Estates, July 2008

ACTEC breaks ranks on a key issue by supporting a mandatory unbundling requirement for fiduciary fees and commissions.