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To Gift or Not to Gift: ’Tis the Question for the Season!

By Anthony J. Enea, Esq.

With the holidays fast approaching, many of us will be deciding whether to make significant monetary gifts to our children, grandchildren and other loved ones. Some issues often raised in connection with the decision to gift are whether doing so will result in any taxes being paid by the person making the gift (the “donor”) and/or the person receiving it (the “donee”). Another issue that needs to be considered is whether the gift should be made outright or to a trust for the benefit of the donee.

As to the first question regarding taxation of the gifts, a donor can gift up to $15,000 per done per year for the year 2018 free of any gift taxes. The donee is not taxed on the amount of the gift even if it is greater than $15,000. However, if the donor makes any gifts in excess of $15,000 per donee in any calendar year, he or she is required to file a gift tax return by April 15thof the following year.

The fact that a federal gift tax return is required does not mean that the donor will have to pay any gift taxes as he or she will be able to apply his or her federal exemption for federal estate and gift taxes to the amount of any gift above the $15,000 per donee in any calendar year. For example, a single (non-married) donor makes a gift of $100,000 in the year 2018 to his son or daughter, $15,000 of the gift is tax free and $85,000 would be subtracted from the donors’ federal exemption amount of $11.18 million dollars for Federal estate and gift taxes (available through December 31, 2025). If the donor is married, his or her spouse can join in on the gift and then reduce the taxable amount of the gift to $60,000, whereas only $30,000 would be subtracted from the lifetime credit of each donor. It should be noted that New York does not have a gift tax.

The existence of an $11.18 million-dollar federal estate and gift tax exemption, which expires on December 31, 2025 unless made permanent by law, creates a great opportunity for individuals to remove highly appreciating assets from their taxable estate. It is also a way of reducing the assets one owns that may be subjected to one’s long term care costs.

The other issue that needs to be addressed by the donor is whether he or she wants the gift to the donee to be an outright gift that is free of any trust. This is a decision that often requires consideration of a number of factors such as the age of the donee (child or adult), the ability of the donee to appropriately manage his or her financial affairs and whether or not the donee is a spendthrift.

The use of a trust agreement is a prudent way of gifting and managing assets for a loved one. As the trustee of the trust can be given the discretion to use the assets and income of the trust to or for the benefit of the trust beneficiary as delineated in the Trust. The trust can also specify the age or the condition that is a prerequisite for the trust beneficiary receiving the assets in the trust outright. The trust can also have more than one beneficiary.

The assets transferred to a trust will also be protected against any claims the beneficiary(ies) creditors have against them until the time the trust makes a distribution to them. Additionally, one can give the trustee(s) the authority to continue the trust beyond the set termination date if doing so is in the best interest of the beneficiary. The assets in the trust will also not be subject to equitable distribution claims in New York in the event the beneficiary gets divorced. Furthermore, if the beneficiary develops any disabilities during the term of the trust and the beneficiary needs any federal and/or state aid, a properly drafted trust will allow the beneficiary(ies) share to be continued as a Special Needs Trust for the beneficiary, which will not impact his or her eligibility for any federal and/or state programs.

In conclusion, unless one is making a relatively small gift to a donee and there are no concerns as to the donee squandering or wasting said monies, an outright gift may be appropriate. However, in most other instances the use of a trust to hold the gift is a much wiser option. Even the three wise men would have approved of it.