Donald Trump vowed to eliminate the estate tax during his presidential campaign, calling the 100-year-old tax "a disaster" and "a horrible weapon that has destroyed many families."
If there are such families, the number is likely small, since very few Americans pay an estate tax. Last year only 4,918 estates owed money under the law, according to the Internal Revenue Service. That's because anyone with an estate worth less than $5.34 million, or $10.68 million for a couple, is exempt.
With Trump soon to take office, trust and estate lawyers who help rich clients minimize or avoid estate taxes don't appear panicked that a revenue stream for their practices is about to dry up. In fact, most anticipate being busier than ever.
"Even if the estate tax is repealed and nothing is put in its place or the Trump plan is put in, there will be a stampede of work to do," said Henry Liebowitz, a partner in Proskauer Rose's private client services department. Change of any kind means that elaborate plans and documents will have to be revised, he pointed out.
"There will always be taxes on high-net-worth individuals," said Carol Harrington, the global head of McDermott, Will & Emery's private client practice. "We will adjust to deal with whatever taxes are placed on them."
T&E lawyers do a lot of planning for clients that has nothing to do with taxes, Harrington added. The one thing that might temporarily depress work in the T&E bar is uncertainty, she said, as people put off planning to see what happens.
Under Trump's plan, the very wealthy might still pay significant taxes upon death, even with the elimination of the estate tax. Property held by the decedent that has appreciated, such as stocks and real estate, would be treated as if it were sold for fair market value and would be taxed at the capital gains rate. (This follows the Canadian system, in which a person's death triggers a capital gains tax on appreciated property.) But the first $5 million of gain ($10 million for a married couple) would be exempt from tax.
(Related: 9 Ways to Save on Taxes in Retirement)
Trump's plan doesn't address the gift tax, which is an important element of estate planning.
End of an Era?
If the estate tax were eliminated, it would cost the government $240 billion in lost revenue over 10 years, according to the Tax Foundation, a nonpartisan tax research group. Last year, $17.1 billion was owed under estate tax returns filed. While that represents less than one half of 1 percent of the country's overall budget, it's money that could fund a lot of programs. The estate tax did lapse in one year, 2010, but was quickly reinstated.
All those interviewed agree that it's too soon to predict the future of the estate and gift taxes. Joshua Rubenstein, the national head of Katten Muchin Rosenman's trusts and estates practice and its private client services group, has been cautioning his clients not to rush to action. "I have certainly gotten a ton of calls to ask, 'What does this mean?'" he said. "The most important thing for clients to do is not run off half-cocked and do something foolish."
"I happen to think the odds of repealing the estate tax are extremely small," said Rubenstein. "We've had an estate tax for 100 years." (The tax was adopted in 1916 to help pay for World War I.) He added: "When push comes to shove, I suspect it will be more important to drop the corporate income tax."
McDermott's Harrington sounded less certain that the estate tax would survive. "Really for the first time, there's a good probability that [Congress] will repeal the estate tax, at least for now. It certainly has been on the Republican wish list for a long time," she said. "I think the odds have never been higher that it will be repealed."
"The biggest unknown is if the gift tax will be repealed," said Liebowitz. "If it is, we'll see trillions of dollars of assets transferred to a younger generation as soon as possible."
Harrington said that it's also hard to predict how the elimination of the estate tax might affect charitable giving. It could harm charities, because rich people wouldn't need to give away money to reduce their estates to avoid estate taxes. "High-net-worth individuals might reduce charitable giving, but they will have more money [because of the absence of an estate tax], so they might give it away," Harrington speculated. Trump's plan could also deter giving because it would limit itemized deductions to $100,000 per person.
David Scott Sloan, who co-chairs Holland & Knight's national private wealth practice, pointed out that the T&E bar has faced existential threats before. The number of estates subject to the tax has plummeted as the standard exemption has grown. Fifteen years ago, in 2001, the exemption was a mere $675,000 per person, compared with nearly $5.5 million today. In 1977 a total of 139,115 estate tax returns were filed, representing nearly 8 percent of all deaths that year. That figure fell to an infinitesimal 0.18 percent in 2013, according to the IRS.
"When the exemption was raised to $5 million [per person], that was supposed to kill T&E," Sloan said. "But it didn't."
--- Related on ThinkAdvisor:
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- Optimizing Clients’ Charitable Giving This Season