New Capital Gains and Estate Tax Planning Challenges with Grantor Trusts

Estate planners have relied on a technique that allows heirs to receive a “stepped-up basis” in assets inherited from certain grantor trusts. If the property inherited from the trust has appreciated in value over time, planners have taken the position that the tax basis of the inherited property is “stepped-up” to fair market value at the time of the grantor’s death. Consequently, when the heir sells the asset, the capital gains tax will be minimized.

For example, if an inherited stock has appreciated in value from $1,000 during the life of the grantor to $10,000 at the grantor’s death, the heir can sell the asset for $10,000 and pay no capital gains tax. Without the step-up, the heir will pay tax on a $9,000 gain.

“Intentionally defective” irrevocable grantor trusts have been used for the dual purpose of managing estate tax liabilities while ensuring that beneficiaries of those trusts will acquire assets on a stepped-up basis. However, the use of intentionally defective trusts has been called into question by Internal Revenue Service Revenue Ruling 2023-2. The ruling provided that assets in a defective grantor trust are not eligible for a stepped-up basis because they are not considered to be acquired or passed from a decedent within the meaning of the Internal Revenue Code.

This ruling creates a unique tax planning challenge in Washington State for large estates that might have assets denied a step-up in basis on the federal level. On one hand, an intentionally defective grantor trust may be used to avoid Washington estate taxes, but on the other hand, that same trust may saddle an heir with a potential Washington Capital Gains Tax if the inherited asset bases will generate capital gains above the $250,000 tax exclusion threshold when sold.

Fulcrum Advisors can help clients plan around existing IRS and Washington tax rules to minimize future estate and capital gains taxes. For further reading, see the following:

https://www.irs.gov/pub/irs-drop/rr-23-02.pdf

https://taxnews.ey.com/news/2023-0654-irs-rules-on-basis-adjustment-for-assets-in-grantor-trust-that-were-not-in-decedents-gross-estate

https://www.cl-law.com/news-events/the-irs-puts-its-stake-in-the-ground-with-respect-to-step-up-in-basis-on-grantor-trusts-not-included-in-taxable-estate

https://dor.wa.gov/taxes-rates/other-taxes/capital-gains-tax

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