Planned Giving: Illustration One

Mary and John Smith, both 70 years old, have a condominium they purchased a number of years ago. Initially they used it as a vacation home, but as they have gotten older and their children moved away from home and from the area, it gradually became an investment property. It is now fully depreciated and provides a return of about 4 percent after expenses.

Condominium Value
Value:$1,000,000
Cost:$200,000
Gain:$800,000

At 70 years old they wish to avoid working with tenants and repairs to the condo. The Smiths have considered selling, but they have been slowed down by circumstances: Whom would they consider as the real estate agent? What about the necessary cleanup? What if they do not want to pay capital gain tax (15 percent) or the recapture of depreciation tax (25 percent)?

Mary recently spoke with a friend who not long ago had been in a similar situation. She suggested talking with an attorney about donating the property since she knew the Smiths were very involved with several non-profit organizations. After meeting with a development officer, the Smiths sat with an attorney who suggested a Charitable Remainder Trust.

In their tax bracket, they could place the property in a charitable remainder trust that would sell the property and invest the proceeds in other investments without having to pay capital gain tax. The Smiths would receive an income for life based on a percentage of the assets in the trust. The trust would be revalued every year, and if the assets increase, their income would rise as well. After their lives, the remainder in the trust would go to the nonprofit organization of their choice.

The attorney ran some numbers and suggested that the Smiths take a 5 percent payout from the trust ($50,000 the first year as opposed to the $40,000 they are currently earning). The attorney estimated that the trust could earn 7 percent and would continue to pay the Smiths 5 percent each year of the value of the assets in the trust*.
Unitrust
First Year Income:$50,000
Total Estim. Income:$1,214,870
Tax Savings:$268,680

At their deaths, the remainder in the trust would pass without taxes or probate to the nonprofit organization they choose. Based on assumptions and his calculations, the nonprofit organization would receive $1,485,950 in about 20 years. It would increase from the initial $1,000,000 because it was earning more than it was paying to the Smiths.

Furthermore, the Smiths would be able to take a current year charitable tax deduction (depending on their taxable income) of $424,790 with a tax saving in their 35% tax bracket of $148,680 (not including any state tax savings) and they would save $120,000 in capital gains tax. In addition, they could look forward (again, based on assumptions and current rates) to a total income of $1,214,870** over their estimated lifetime.

Knowing that the trust would mean a wonderful thing for their nonprofit organization and that they would have higher income and fewer worries without the property itself, the Smiths decided to follow the attorney's suggestion.

Charitable Remainder Trust

An arrangement in which property or money is donated to a charity, but the donor (called the grantor) continues to use the property and/or receive income from it while living. The beneficiaries receive the income and the charity receives the principal after a specified period of time. The grantor avoids any capital gains tax on the donated assets, and also gets an income tax deduction for the fair market value of the remainder interest that the trust earned. In addition, the asset is removed from the estate, reducing subsequent estate taxes. While the contribution is irrevocable, the grantor may have some control over the way the assets are invested, and may even switch from one charity to another (as long as it's still a qualified charitable organization). CRTs come in three types: charitable remainder annuity trust (which pays a fixed dollar amount annually), a charitable remainder unitrust (which pays a fixed percentage of the trust's value annually), and a charitable pooled income fund (which is set up by the charity, enabling many donors to contribute).

Family Limitied Partnership

Over the past five years, the Family Limited Partnership (FLP) has risen from obscurity, as a little known tax loophole, into the preeminent vehicle for asset protection and estate planning. A recent article in Forbes extolling the benefits of the FLP—headlined "Cut Your Estate Taxes in Half"—claimed that individuals were successfully using this technique to discount the value of their estate by up to 90 percent.

In this section, we will discuss the features of the Family Limited Partnership which provide remarkable advantages and planning opportunities. By itself, or in combination with other techniques, the FLP can be used to create a powerful strategy for asset protection and for realizing estate tax and income tax benefits. We will start with the background on this technique.