The Federal estate tax ceased to exist in the year 2010. At least for most of the year it seemed that the estate of a person who died in 2010 would not be subject to any Federal estate tax. However, since other provisions relating to the estate tax, particularly, “step-up” basis rules, also drastically changed with the disappearance of the tax, both confusion and potential hardship faced many 2010 estate administrators. In New York, the estate tax exemption remained at $1,000,000.00 which added even more complexity and uncertainty to planning and estate settlement in New York.
In late December 2010, Congress and the President finally passed legislation which provided at least some clarity to the void that had existed earlier in the year. Essentially, the new law reinstated the Federal estate tax for 2010 but raised the exemption to $5,000,000.00 for estates of decedent’s who died in 2010, 2011 and 2012. However, the $5,000,000.00 exemption for gifts does not apply until 2011.
Under the new law, the “step-up” basis rules again apply to estate assets. An estate is also given the option of opting-out of the 2010 estate tax and instead, accepting “carry-over” basis treatment for estate assets. Another interesting and beneficial feature of the new law allows portability of the $5,000,000.00 exemption between spouses. Thus, if one spouse dies in 2011 and does not use all of his or her exemption (say – $1,000,000), the unused portion can be transferred to and used by the surviving spouse thereby increasing his or her exemption above the $5,000,000.00 level.
The new Federal tax law does not change the New York estate tax exemption limit of $1,000,000.00. Therefore, the variance between the State and Federal tax laws and the unfamiliarity with the nuances of the just passed Federal legislation present challenges to planning a New York estate.
It should be remembered that the Federal and New York estate tax applies to a decedent’s gross estate. Generally, the gross estate includes all assets that pass through probate and are distributed according to a Last Will or by intestate administration as well as assets that pass by operation by law such as joint bank accounts or life insurance that has designated beneficiaries.
New York Probate Attorney, Jules Martin Haas, has represented clients over the past 30 years in Brooklyn and Queens, as well as throughout New York City, in estate administration and settlement and probate proceedings. If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial consultation.