Federal tax laws exempt property up to two million dollars from estate tax. They also allow a one million-dollar lifetime limit for gifting property without attracting any gift tax. However, there is a rider that the value of the gift must not exceed twelve thousand dollars to any one person during a single calendar year. Estate tax exemption is set to rise further to $3.5 million in 2009 and stands to be repealed in 2010, which will be a year free from estate taxes. Thereafter, in 2011, the Congress is expected to confirm a full repeal of estate taxes failing which, the old estate tax structure would return with an exemption limit of $1 million.



There is a supplementary provision to estate tax that is known as Marital Deduction. This allows one spouse to leave any amount of property at death to a remaining spouse without creating any estate tax liability. This provision is applicable only if the remaining spouse is a US citizen. If not, then the benefit of marital deduction can be availed only if the property of the deceased spouse is left in a QDOT or qualified domestic trust. This position has been effective since the passing of the Technical and Miscellaneous Revenue Act (TAMRA) in 1988. Among other requirements, a qualified domestic trust needs to have at least one US trustee who is citizen of the United States or is a domestic corporation. If the value of the assets of the deceased exceeds $2 million, the QDOT needs to be a US bank.

In order to avoid soaking of a substantial portion of ones assets in estate taxes, and to let a greater share be available for the benefit of loved ones, people form bypass or family trusts. These are excellent means to lower estate taxes. Such trusts can have a character of a lifetime trust or a testamentary trust. In a lifetime trust, the property is passed on to the trust either during the lifetime of the grantor or owner of the property. In a testamentary, trust the property passes on to the trust through a will after the grantors demise.

The trust is a separate legal entity that enjoys the status of an owner. The property it holds is not recognized as part of the estate of the grantor. No estate tax can be imposed on the grantors death as the owner i.e. the trust still survives. The trust property is managed by trustees for the benefit of designated beneficiaries.

When a married couple forms a bypass trust as part of their estate plan, each leaves property up to their estate tax exemption limit (currently $2 million) to the trust. On the first death, the rest of the property of the deceased can pass on to the surviving spouse under marital deduction without paying any estate tax. The assets in the bypass trust can be made available to the surviving spouse for upkeep, health and other needs. The survivor may even be authorized to draw a certain amount of the principal every year. On the death of the surviving spouse, the trust assets would pass on to beneficiaries named in the trust deed without attracting any tax. This is because the trust was created with assets within estate tax exemption limits to which the creator of the trust was entitled. The assets of the last to die spouse would be taxed subject to the exemption limit of $2 million.

This way, the whole estate (of both the spouses) gets the additional exemption benefit of $2million of the first to die spouse also which leaves more money for their surviving children/heirs/beneficiaries.

It should be noted that if the first to die spouse does not create a bypass trust and just lets the whole property pass on to the surviving spouse through marital deduction, his/her entitlement for the $2million estate tax exemption would simply fizzle away. Fewer assets would pass on to loved ones after the death of the second spouse in this case.