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Disclaimer: The information provided on this web site is not intended to be legal advice. It is intended to convey general information related to selected legal issues. Your access to and use of this website is subject to additional terms and conditions. Copyright © 2001-2010 Thomas E. Whitmore. All rights reserved.
The new tax cut extension package, which was signed into law on December 17, 2010, establishes a new estate and gift tax regime for 2011 and 2012. It also clarifies the situation for the estates of individuals who died in 2010.
2011 and 2012. For estates of individuals who die in 2011 or 2012, the federal estate tax exemption is $5 million and the tax rate is 35 percent. In 2012, the exemption amount may be increased by an inflation adjustment.
Unused federal estate tax exemptions of individuals who die in 2011 or 2012 are "portable" which means they can be passed along to surviving spouses.
In effect, the new portable estate tax exemption in conjunction with the unlimited marital deduction allows the first spouse to die to simply leave everything to the surviving spouse without losing the benefit of his or her $5 million federal estate tax exemption. Because the deceased spouse's unused exemption can be passed along to the surviving spouse, he or she effectively is given a $10 million federal estate tax shelter.
Basis. For heirs of decedents who die in 2011 and beyond, the familiar rule that allows the federal income tax basis of inherited capital-gain assets (such as real estate and stock) to be stepped up to reflect the date-of-death fair market value is reinstated. For decedents who died in 2010, the simple-and-easy unlimited basis step-up rule was replaced by a complicated modified carryover basis rule that limited basis step-ups to a maximum of $1.3 million plus up to another $3 million for assets inherited by a surviving spouse.
2010. The new law establishes two options for the estates of individuals who died in 2010. The estate tax is reinstated for 2010 with a $5 million exemption and a 35 percent tax rate. However, executors have the option of electing out of the tax for 2010, in accordance with the repeal of the tax for that year.
If the election out is made, the modified carryover basis rules apply to heirs for income tax basis purposes. So heirs of large estates can wind up owing capital gains taxes on appreciation that occurs through the decedent's date of death, but there won't be any federal estate tax bill.
If an election out is not made, the $5 million exemption and 35 percent rate apply for 2010, and the income tax basis of inherited assets equals fair market value on the date of death.