Since the passage of the Tax Cuts and Jobs Act of 2017, a rare estate planning technique has become increasingly attractive to families who own appreciated assets. Called “upstream gifting” by some, the technique involves adult children making gifts of appreciated assets up the family tree to parents or grandparents, rather than more typical downstream gifts to children or grandchildren.

An important benefit of making upstream gifts is that at the older recipient’s death, the appreciated assets will receive a step-up in income tax basis. Those that receive the appreciated assets from the older generation should then be able to sell the assets promptly with no capital gains tax due.

Risks to Note

It is important to note that the gifted assets will not receive basis step-up if the father dies within one year of the gift and the assets revert back to the daughter at that time. However, many practitioners believe that step-up will be allowed if the assets pass to a trust for the daughter, rather than outright, or if the assets pass to a third party, such as the daughter’s children.

Of course, there are risks that should be considered. The father could happily accept the assets but then decide to pass them on to someone else, such as a new spouse, his favorite charity, a friend, or another family member whom he believes to be in greater need than the wealthy daughter or her children. Similarly, the father might have creditors who could try to seize the property in satisfaction of their claims.

Gifting to a Trust

Both of these risks can be mitigated if the daughter makes the gift to a trust for the father’s benefit, rather than to the father outright. However, the trust agreement would need to contain special provisions designed to trigger estate inclusion – a result that was keenly avoided in the past. Trying to obtain estate inclusion will be a new exercise for many practitioners.

One common strategy to trigger estate inclusion is to grant the father the power to “appoint” the trust assets by redrafting his will. This carries similar risks to those outlined above, because the father could decide to exercise that power and appoint the assets to his own estate beneficiaries or other parties who are not aligned with the daughter’s values/goals.

Finally, there is a risk the tax rules will change midstream. Under current tax laws, the lifetime gift tax exclusion amount is set to increase incrementally every year until 2026, at which time it is scheduled to revert back to $5 million (plus inflation). However, it is entirely possible that Congress could decide to change the exemption amount before that date.

If the exemption amount is unexpectedly reduced after the upstream gift has been made, the older generation may have to pay estate taxes on the gifted assets after all. For this reason, upstream gifts are best suited for clients who have a true desire to provide for their parents, regardless of any tax benefits. As always, these taxable gifts should be reported on a gift tax return, and the value of the assets in the estate of the parent should be reported on the estate tax return.

Please contact a BBH wealth planner or relationship manager if you would like to further explore this technique. Learn more about our Values-Based Wealth Planning services here.