September 28, 2020

Volume X, Number 272

September 28, 2020

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Impact of COVID-19 on Estate Planning

The rapidly evolving coronavirus (COVID-19) crisis is creating a plethora of unique estate planning and legal challenges across the globe, particularly given the volatility of the financial markets. It also creates some unique opportunities in wealth planning. To learn more about some strategies you may wish to consider, see below. 

Transfer Tax Planning 

  • Basic Estate Planning.  Now more than ever we need to focus on our wellbeing and that of our families.  As part of this process you should review your current estate planning documents to ensure that you at least have your basic documents in order (Wills, Revocable Trusts, Powers of Attorney, beneficiary designations and health care directives) and that these documents reflect your current wishes.

  • Efficient Wealth Transfer Strategies.  Given the volatility of the financial markets, depressed asset values and historically low interest rates you should consider this an opportune time to transfer wealth to your intended beneficiaries.  Below is a brief outline of a few strategies you might want to consider. 

    • Intra-Family Transactions.  In a low interest rate environment planning techniques involving intra-family transactions where the senior family member lends or sells assets to junior family members are very effective because the loaned or sold assets only need to appreciate at a rate greater than the interest rate charged.  In such cases, the appreciation above the interest rate charged passes to junior family members or trusts for their benefit transfer tax free.  Further, the value of the assets remaining in senior family member's estate will be frozen at the loan/purchase price.  The value of the loaned or sold assets will be based on a fair market value valuation, which may include discounts for certain factors.  Given market conditions, we anticipate the fair market value of many assets will be extremely depressed and discounted.  Should you put one of these intra-family strategies into place, when asset values rebound all that appreciation will be outside of your taxable estate and will be held by or for the benefit of your intended beneficiaries transfer tax free. 

    • Grantor Retained Annuity Trusts.  The use of a Grantor Retained Annuity Trust (a "GRAT") allows you, the Grantor, to contribute assets into a Trust while retaining a right to receive, over a term of years, an annuity stream from the Trust.  When the term of years expires, the balance of the assets held in the Trust pass to your intended beneficiaries.  The IRS values the ultimate transfer of assets to your intended beneficiaries (i.e., the gift you're making) based on the value of the annuity stream you retain and an assumed rate of return on such assets.  The assumed rate of return is proscribed by the IRS (and is commonly known as the 7520 rate).  The current 7520 rate is 1.8%.  As such, if you retain the right to receive an annuity stream from the Trust equal to the value of the assets contributed plus a 1.8% rate of return, any assets remaining in the Trust at the end of the term, will pass to your intended beneficiaries transfer tax free (this is known as a "zeroed-out GRAT").  If the assets outperform the 1.8% assumed rate of return, all such excess will escape estate taxation.  Again, given this low hurdle rate and depressed asset values, GRATs should be seriously considered by anyone looking for an effective was to transfer assets to younger generations. 

    • Charitable Lead Annuity Trusts.  If you have any charitable inclinations, you may want to consider a Charitable Lead Annuity Trust (a "CLAT").  Similar to a GRAT, in a CLAT, you, as Grantor, transfer assets to a Trust in which a charity is designated to receive an annuity stream for a term of years.  At the end of the term of years, the balance of the assets remaining in the Trust pass to the beneficiaries you indicate in the Trust Agreement.  As with a GRAT, it is possible to structure a CLAT such that the balance of the Trust assets pass to your intended beneficiaries transfer tax free.  The value of the assets ultimately passing to your intended beneficiaries (i.e., the value of the "gift," if any) is determined by subtracting the value of the annuity stream the charity receives from the value of the assets at the time the CLAT is funded.  The value of the annuity stream passing to the charity is also affected by the 7520 rate - the lower the 7520 rate, the higher the present value of the annuity passing to the charity.  As with all the previously discussed strategies, depressed values and the low-interest rate environment result in more assets passing to your intended beneficiaries transfer tax free. 

© 2020 Bilzin Sumberg Baena Price & Axelrod LLPNational Law Review, Volume X, Number 73


About this Author

Mildred Gomez Estate Planning Attorney Bilzin Sumberg

Mildred is a close confidant and trusted advisor to a range of high net worth clients whose affairs often require the utmost sensitivity. She assists her clients in structuring their wealth in the most tax-efficient manner possible, which often includes the use of limited liability companies and irrevocable trusts. 

A native Spanish speaker, Mildred frequently counsels Latin American clients. Her understanding of cultural nuances allows her to form uniquely personal relationships with her clients.