Preservation | Family Wealth Protection & Planning

With the passage of the Tax Cuts and Jobs Act (TCJA) in December 2017, the nearly doubling of the lifetime estate and gift tax exemption (currently $11.4 million in 2019) shifted the focus for many from estate tax planning to income tax planning. A wide range of income tax planning techniques can now be used under the TCJA, and it is important to explore these income tax planning techniques as a part of the estate planning process.

On July 12, 2019, Illinois Gov. J.B. Pritzker signed House Bill HB1471, which enacts the Illinois Trust Code (ITC) and repeals many of Illinois’ current trust statutes. The ITC was effective as of Jan. 1, 2020. Below is a brief overview.

Illinois Trust Code and Uniform Trust Code

The ITC generally conforms with the Uniform Trust Code (UTC), a comprehensive codification of the common law on trusts, as drafted, published and recommended by the National Conference of Commissioners on Uniform State Laws. The UTC is designed as a template to establish uniform trust laws among states, including, but not limited to, the creation, validity and modification of trusts, rights of certain parties with respect to beneficial interests and creditors, trust administration, trusteeship and trustee powers.

On May 23, 2019, the U.S. House of Representatives, by a vote of 417 to 3, passed legislation called Setting Every Community Up for Retirement Enhancement Act of 2019, or the SECURE Act. This legislation, if passed by the Senate and signed by the president, will cause significant changes for retirement planning, many of which are positive, but it also includes aspects that could have a big impact on estate planning.

Recent changes to Missouri law could make it easier for trustees to terminate “uneconomic” trusts.

Sometimes the cost of administration of an existing trust outweighs the justification for continuing to hold assets in the trust. This may be especially true if there is a corporate trustee and the beneficiaries have no estate tax, creditor, or divorce concerns. For such a situation, Missouri law provides a mechanism by which a trust may be terminated in the discretion of the trustee, without having to go to court, if the total value of trust property is under a certain dollar limit. If the total value of trust property is below the limit and the trustee concludes that the value of the trust property is insufficient to justify the cost of administration, the trustee may terminate the trust after providing notice to certain beneficiaries.

On Nov. 2, 2017, House Republicans released their long-awaited tax reform bill called “The Tax Cuts and Jobs Act.” The bill contains sweeping changes in a variety of areas and expands upon, and in some cases changes, what was included in the “Unified Framework for Fixing Our Broken Tax Code,” released in September 2017 (discussed here).

On July 14, 2017, Missouri Gov. Eric Greitens vetoed legislation that included a number of provisions related to estates and trusts.

Among the casualties of the veto were several provisions regarding estate and trust matters, the most significant being the Missouri Fiduciary Access to Digital Assets Act. Under this act, a user would be allowed to grant a fiduciary access to his or her electronic records or digital assets in a will, trust, power of attorney or other similar instrument. This issue is becoming more significant with the rise of online banking, trading and other financial services and will only increase in significance as more people abandon paper records for cloud services and other electronic storage. For now, Missouri is left without a uniform statute addressing these issues.