For eight years our Congress has been aware of the need to fix our estate tax problems and for eight years nothing was done. You see, President George W. Bush wanted to eliminate estate tax for good. The best he could do was law that did eliminate estate tax by 2010, because he did not have enough votes to make it permanent. However, even with a Republican controlled Senate and House during his last term, he was unable to make elimination permanent. So, under Bush’s law, estate tax is eliminated in 2010 – but that law expires at the end of the year resurrecting the law that preceded Bush’s in 2011. In other words, estate taxes will apply to significantly more estates in the year 2011.
It should be noted that President Obama is on record supporting a continuation of the tax with the elevated exclusions we currently enjoy under Bush’s law. In 2009, a person was allowed to pass up to $3,500,000 before taxes were applied. This is the figure Obama wants to maintain.
If nothing happens, there is no estate tax for 2010 but in 2011 the exclusion amount will be reduced to only $1,000,000. Keep in mind that in determining estate tax all assets are included including proceeds on life insurance. This reduction will amount to a significant number of estates being subject to the tax. In addition, while there will be no estate tax in 2010, the ability to pass property at its stepped-up value will be reduced.
Now, all of the gurus and experts I have read or listened to still believe that President Obama and Congress will permanently establish the exclusion at $3,500,000. They argue that estate tax returns are not actually due for nine months and therefore the government has nine months to pass a new tax law retroactive to January 1. Everyone agrees this will happen. But then again, everyone also agreed a year ago that we would have a new law by now.
So, as it stands today, Bush’s law will expire at the end of 2010. This means there is no estate tax in 2010 but in 2011 any estate that has a value of over one million dollars will be taxed. Oh, and I almost forgot to mention that this law that will be resurrected has a maximum rate of 55%! (this is not a misprint – 55%) This is serious business for those estate that approach one million dollars.
This admittedly makes planning more difficult but at the same times make planning more important than ever.
[I promised to keep you up to date as soon as Congress did something. Keeping you informed that they did nothing was not what I had in mind. If and when Congress does act, I will let you know.]