Is Estate Tax Owed on Living Trust Assets?

Assets that are either in your name or in your Living Trust are going to be included in your estate when you die for federal estate tax purposes. The federal government assesses about a 40% tax on the value of your assets when you die, but only if they exceed a certain amount.

Starting in 2018, as a result of our new tax law, an individual will be able to exempt $11.2 million of assets from the 40% estate tax. To take it a little further, married couples can exempt up to $22.4 million from the federal estate tax.

In fact, for most families, it is more advantageous for assets to be included in your estate for tax purposes than excluded. Assets that are in your estate, for tax purposes, get a step-up in capital gains tax basis when you die. This permits your heirs to sell assets after you die and pay no tax on the appreciation from the time of your initial purchase until the time of your death. This can save a load of tax.

In fact, since Louisiana is a community property state, we get to benefit from the special rule that says that all of the married couple's community property gets a step-up in basis at the first death, not just the deceased spouse's half. And if you set up your estate planning program the right way, the entire estate will get another step-up in basis when the surviving spouse dies. We call this the "Doube Step-Up." But it doesn't happen automatically, you have to actively work with the right estate planning attorney who can guide you through this.

It's worth mentioning at this point that the federal gift and estate tax are unified. Here's what that means. If, in 2018, you donate more than $15,000 to anyone, no one owes tax. By giving more than the annual exclusion amount ($15,000 for 2018), you simply start using up some of your $11.2 million estate tax exemption. That's right - no one owes taxes if a gift is in excess of $15,000 (unless, of course, you give away more than $11.2 million, but that would be one heckuva gift!

And note that based on the new tax law, the estate tax exemption is scheduled to revert back to $5 million (indexed for inflation), in 2026, unless, of course, Congress and the President change it again.