I’m not a betting woman, but I’d wager all my Apple stock that the family of Steve Jobs won’t owe Uncle Sam a dime of estate tax. That may surprise some folks given that Jobs, who died tragically of pancreatic cancer on Oct. 5, was worth $7 billion, according to Forbes estimates. But for estate planners, it’s all in a day’s work.
We’ll never know for sure what specific planning tools Jobs used. That’s because, being a very private person, he is likely to have passed as many of his assets as possible through trusts, rather than using a will. Unlike a will, a trust does not have to be submitted to probate — the process through which a court determines that a will is legally valid and approves the distribution of assets covered by that will. Therefore the terms of the trust remain completely private.
However, a trust avoids probate only for assets put into the trust. Reuters reported that in 2009 Jobs and his wife put at least three pieces of real estate into trusts.
Other assets will not go through probate no matter what a will or trust says. These include retirement assets, life insurance and savings bonds, as well as jointly titled bank accounts, brokerage accounts and real estate.
Lawyers recommend a will that can cover everything else, whether or not you list it. Of course, this will must be probated, but in Jobs’ case it is likely to be very simple and reveal little, if anything, about his assets.
To avoid estate tax, Jobs could pick and choose from a variety of tools. Some are very simple and are commonly used by people of much more modest means. Others are hugely sophisticated and involve high transaction fees for lawyers and financial advisors. Here are the tax saving techniques Jobs is likely to have found most appealing.
Transfers to his wife
Assets inherited from a spouse are not taxed as long as the inheritor is a U.S. citizen. This is the unlimited marital deduction. So Jobs could have avoided tax by leaving everything to his wife Laurene directly (outright) or having them go into a special trust, called a marital trust.
The marital deduction doesn’t avoid estate tax — it just postpones it. If assets inherited from Jobs remain when Laurene dies (say she didn’t spend all the money), those assets count as part of her own estate and could be taxed then. Given the amount involved, that’s a strong possibility.
Gifts to charity
Jobs has long been criticized for his lack of charitable giving. In previous posts, I raised the possibility that Jobs may have chosen to give anonymously, either during his life or through his estate plan, and described a variety of ways he could have done that.
Apart from altruism, for someone like Jobs, both lifetime gifts and charitable bequests would produce estate planning benefits. There’s an income tax deduction associated with gifts during life — adjusted gross income can be reduced up to 50 percent for cash gifts to public charities and by up to 30 percent for donations of appreciated assets, such as stock held longer than 12 months. Remember your favorite cause or alma mater money in your estate plan and you will be leaving less for Uncle Sam.
Use of the tax-free amount
Apart from assets left to a spouse, which are tax-free, for the next two years we can each transfer up to $5 million tax-free during life or at death to anyone else. That figure is called the basic exclusion amount. Starting in 2011, widows and widowers can add any unused exclusion of the spouse who died most recently to their own. This dramatic change enables them together to transfer up to $10 million free of the estate tax, which is currently 35 percent. Tax geeks call this portability.
Although portability is helpful to many people, for various reasons, it would have been unwise for Jobs to rely on it. For one thing, it’s not nearly enough to cover what will probably be left when Laurene dies. In addition, both the current exclusion amount and portability are scheduled to expire at the end of 2012 unless Congress extends them. So Jobs’ lawyers probably advised him to use it or risk losing it.
A bypass trust
This legal concoction is designed to preserve the estate tax exemption of the first spouse to die, without leaving the survivor short of funds. At the death of the first spouse, an amount up to his exemption goes into a trust for the kids. The surviving spouse has access to the earnings (and in some cases principal) of the trust, but the money isn’t hers outright and bypasses her estate when she dies. This trust shelters future appreciation from estate tax and has additional advantages: protecting assets from creditors, from those who prey on the elderly and from a new spouse if a widow remarries.
Jobs’ advisors probably advised him to apply the $5 million generation-skipping transfer tax exemption (which can’t be carried over to spouses) to this trust, so that it could pass assets to grandchildren and subsequent generations free of that additional tax. Query whether he even made them beneficiaries of this trust; given his humble origins he may not have favored the creation of dynastic wealth.
A long-time favorite of estate planners has been the grantor retained annuity trust or GRAT, which involves putting appreciating assets into a short-term irrevocable trust (two years is typical) and retaining the right to receive an annual income stream for the term of the trust.
This annuity is based on the Section 7520 rate, which is set each month by the Internal Revenue Service (for October it’s 1.4 percent, which is a historic low). If you survive the trust term — a condition for this tool to work — any appreciation above this set rate can go to family members or to trusts for their benefit when the term ends. If you die during the term, a portion of the trust will be included in your estate.
Under current law, it is possible to set up a GRAT that will result in no taxable gift, or a nominal one, which is sometimes called a Walton GRAT, because of its use by members of the Forbes 400 family that founded Wal-Mart. There was talk that Congress might change that, but the new tax law leaves GRATs alone. Given his reduced life expectancy, Jobs might have set up a series of GRATs with different terms as a hedge against the mortality risk.
Even more important than Jobs’ planning is what his wife does going forward. As his survivor, she will have the last word about which assets ultimately go to family, charity or the tax man. Since the couple amassed more wealth than is currently covered by the exclusion amount, she may want to take steps to minimize the estate tax down the road.
Deborah L. Jacobs, a lawyer and journalist, is the author of "Estate Planning Smarts: A Practical, User-Friendly, Action-Oriented Guide."
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