26 January 2018
If you are a hotel executive or other highly compensated individual in the hospitality industry, you need to be aware of how the new Tax Act (H.R. 1 – Tax Cuts and Jobs Act) might affect your estate plan. In some cases, the impact will be significant. In the brief article below, JMBM’s tax attorneys recommend that you review your existing estate plan to ensure that the Tax Act does not alter your plan’s original intentions. They also point to substantial new planning opportunities provided by the Tax Act, and you will want to be advised of those, as well. What better way to start the new year than by making sure your assets, and your family’s future, are protected?
How the New Tax Act Could Affect Your Estate Plan
President Trump signed into law H.R. 1, which has a major impact on estate planning. The new law doubled the federal exemption for estate tax, gift tax and the tax on generation-skipping transfers (GST), starting January 1, 2018; the lifetime exemption for each of these taxes is now $11.2 million per taxpayer. Married couples together have a total of $22.4 million of lifetime exemption. The exemptions are reduced by lifetime transfers prior to 2018 and are indexed for future inflation. The annual gift tax exclusion amount also increased to $15,000 per donee per year.
The increased gift, estate and GST tax exemptions are not permanent. This part of the Tax Act is scheduled to expire in 2026 and return to the prior exemption amounts ($5.6 million plus inflation after 2018). Changes in control of Congress and the Presidency could also terminate the increased exemptions. While it may make sense for some clients to take advantage of the increased exemptions to engage in additional estate planning, there is also a potential risk that the new exemptions will unintentionally alter existing estate plans, requiring important immediate changes.
As the increased exemptions may significantly skew a client’s existing estate plan, it is important for all clients to review their estate planning documents to make sure they continue to reflect their intentions. Many estate plans for married couples use a formula to divide assets at the first death between a “marital” portion passing to or held in a trust for the surviving spouse and a “bypass” portion intended to bypass the estate of the surviving spouse. The bypass portion may be allocated to a trust for the surviving spouse and/or descendants. It may also be allocated directly to descendants, skipping the surviving spouse entirely, or may provide fewer benefits to the surviving spouse than the marital trust. Similarly, at the second death, the estate plan may have a formula dividing assets, based on the GST exemption, between children and grandchildren.
Depending on the exact language of the document, these divisions may be very different now because of the larger exemptions. For some clients, the new division will be acceptable. For others, it will be important to update the language of their estate planning documents to avoid a sharp reduction in what the surviving spouse receives and what the children and grandchildren receive.
Clients may also want to take advantage of the opportunity to pass larger portions of their wealth to younger family members at minimal tax cost, through lifetime gifts and other traditional wealth transfer techniques.
The estate, gift and GST provisions of the new Tax Act present substantial new planning opportunities. They also have a potentially significant impact on existing estate plans. Clients need to review their existing documents to determine this impact. We are ready to help you with all aspects of this analysis and to advise you on the various available alternatives.
About JMBM’s Taxation, Trusts & Estates Group
JMBM’s Taxation, Trusts & Estates Group is one of the largest and most active groups of its kind within a full-service law firm. Recognized by U.S. News & World Report / Best Law Firms® with a First-Tier ranking in the Los Angeles metropolitan area, our practice focuses on the needs of individuals and families, and their business interests. Our attorneys provide estate planning, wealth transfer planning, trust administration and the resolution of trust disputes. Our tax lawyers understand business concerns, and work closely with colleagues in the Firm’s corporate and real estate groups to ensure the tax efficiency of organizational and transactional decisions.
This is Jim Butler, author of www.HotelLawBlog.com and hotel lawyer, signing off. Please contact us if you would like to discuss any issues that affect your hotel interests or see how our experience might help you create value and avoid unnecessary pitfalls. Who’s your hotel lawyer?
Jim Butler is a founder of the JMBM law firm and chairman of its Real Estate Department. He founded and chairs the Firm’s Global Hospitality Group® and its EB-5 Finance Group which provide business and legal advice to owners, developers and investors of commercial real estate, particularly hotels, resorts, restaurants, spas and senior living. This advice covers purchase, sale, development, financing, franchise, management, labor & employment, litigation, ADA, IP, and EB-5 matters for such properties.
Jim is recognized as one of the top hotel lawyers in the world and has led the Global Hospitality Group® in more than $87 billion of hotel transactions and more than 3,900 hotel properties located around the globe. They have helped clients with more than 1,000 hotel management agreements, 1,000 hotel franchise agreements and more than 100 hotel mixed-use projects.
JMBM’s EB-5 Finance Group has advised on more than 100 EB-5 projects, closed more than $1.5 billion of EB-5 financing, and sourced more than half of that for our clients. EB-5 Investors Magazine named Jim one of the top 25 EB-5 lawyers in the United States, and Jim serves on the Public Policy Committee of the IIUSA, the EB-5 industry’s trade group for regional centers.
Contact Jim at +1-310-201-3526 or JButler@jmbm.com
Hotels we have worked on over the years. Visit our hotel photo gallery to see some of the more than 3,900 properties around the globe that the hotel lawyers of the Global Hospitality Group® have been involved with, on behalf of our clients. For a more comprehensive list of hotels properties and projects we have worked on, see our Credentials.
Bob Braun is a Senior Member of JMBM’s Global Hospitality Group® and is Co-Chair of the Firm’s Cybersecurity & Privacy Group. Bob has more than 20 years experience in representing hotel owners and developers in their contracts, relationships and disputes with hotel managers, licensors, franchisors and brands, and has negotiated hundreds of hotel management and franchise agreements. His practice includes experience with virtually every significant hotel brand and manager.