What kind of estate planning is recommended for individuals with a non United States person spouse? In this article, San Francisco Bay Area attorney John C. Martin goes over three reasons that individuals with a non United States citizen spouse must consider estate planning with QDOTs, and how to avoid a number of mistakes.

What kind of estate planning is advisable for people with a non United States resident spouse? Most of the times, a decedent’s estate might be transferred to an US citizen spouse with no estate tax, thanks to a high exclusion quantity for US person and permanent resident decedents in 2009 and an unrestricted marital reduction. When a decedent’s partner is a not a United States person, nevertheless, the estate can not claim the marital deduction– no matter the citizenship of the decedent. That’s not a problem if a decedent’s estate is smaller than the applicable exemption quantity, or if the enduring spouse ends up being a United States person prior to filing an estate tax return. What if you are a non resident alien and have an appropriate exclusion quantity of just $60,000? Or, what if your partner doesn’t acquire citizenship in time?
Under IRC code areas 2056(d) and 2056A, a Certified Domestic Trust (QDOT) is the only instrument by which the marital deduction may be claimed when one’s partner is not a United States resident at the time of filing an estate tax return. A QDOT allows families with a low exemption quantity or big estate to postpone estate tax, provide earnings to a making it through partner, and develop important time during which an enduring partner might get US citizenship. The Internal Revenue Service permits QDOTs because they delay the estate tax till the death of the 2nd partner: Tax deferral lowers the possibility that an enduring spouse will declare a marital deduction and consequently pass away in a foreign nation, thereby avoiding all US tax. In this short article, we talk about three reasons why people with a non United States resident spouse need to consider estate planning with QDOTs, and how to prevent a number of mistakes.

First Reason: QDOTs Interest People with Assets in excess of their Suitable Exemption Amount.
Non Citizen Aliens with United States Assets over $60,000. In addition to other methods, QDOT planning need to be seriously thought about by non resident aliens with properties found in the United States that exceed $60,000. Non resident aliens can move only $60,000 in 2009 without activating estate tax at the rate of 45%. With a QDOT, nevertheless, the estate tax is delayed till the death of the second spouse.

US People and permanent homeowners with non US Resident partners. If an US Citizen or permanent homeowner’s estate is under $3.5 million upon a death in 2009, the total might pass without tax despite the spouse’s citizenship. Families with estates above $3.5 million must consider the use of a QDOT along with other estate planning strategies in order to protect the marital reduction. Households should remember that in 2011, unless Congress acts, the suitable exemption quantity will drop to $1 million. If this is the case, numerous households with estates above $1 million may one day take advantage of QDOT planning. As it stands, however, future modifications in the law are unpredictable.
Surviving Spouse is a Non Resident Alien. Another problem develops when an US resident or irreversible citizen has an estate below the applicable exemption quantity, however where the enduring partner is a non resident alien. In such cases, the surviving spouse’s death may sustain considerable estate tax liability upon his/her death. As discussed above, non resident aliens can move only $60,000 in 2009 without setting off estate tax at the rate of 45%. Such individuals might benefit from QDOTs and other estate planning for international households.

Second Reason: Lifetime Income and Estate Tax Deferral
To see the advantages of earnings and tax deferral, consider the following example. Let’s assume that Ronald, an US permanent resident, dies in 2009, survived by 2 kids and his other half, Marie. Marie is not an US citizen, and Ronald’s estate amounts to $5.5 million. For the purposes of this example, we are assuming that there is no joint property. Ronald’s exemption quantity is utilized to protect $3.5 million from estate tax, which is moved to his children through a trust created prior to Ronald’s death. The staying $2 million passes to Marie, in the type of a $1.5 million personal house in California and $500,000 in marketable securities. Ronald did not establish a QDOT throughout his life time. Hence, the $2 million would generally be taxable due to the fact that it surpasses Ronald’s exemption quantity and Marie does not get approved for the marital deduction. Nevertheless, Marie works with an attorney to produce a QDOT that pays a 5-percent unitrust interest to hold the properties. Marie consequently moves the properties to the QDOT prior to filing the estate tax return. She pays the trustee reasonable market price rent in order to live in the home, and the trustee pays Marie $100,000 yearly. Marie gets extra circulations from the QDOT in order to pay the trust’s costs, and to provide funds in case of hardship for herself or her children.

In the above example, Marie’s QDOT permits deferment of the estate tax. Since Marie has actually timely moved possessions to a QDOT, the transfer of assets from Ronald’s estate is not subject to estate tax at the time of Ronald’s death. In the above example all federal tax has actually been avoided at the first death through the usage of appropriate planning. The estate tax will then be delayed till the death of the second spouse– a significant benefit for Marie during her lifetime. This does NOT imply that the enduring spouse will be able to offset the tax on QDOT assets with her suitable exclusion quantity at the time of her death. Assuming Marie never ever becomes an US citizen, an estate tax will be enforced upon the QDOT assets by reference to Ronald’s estate. She would at least have the benefit of QDOT earnings throughout her lifetime.
Third Reason: A QDOT Purchases Time

The QDOT in the example above purchases time for Marie to get her US citizenship. If Marie ultimately ends up being an US resident prior to her death, the regular guidelines that use to US citizen partners for establishing the marital reduction would use. Accordingly, the entire $5.5 million can pass to the kids without the evaluation of estate taxes upon Marie’s death. Nevertheless, Marie should be a citizen for the entire duration after Ronald’s death in order to prevent deferred estate tax. The United States trustee must likewise prompt alert the IRS of Marie’s acquisition of citizenship.
During the time it takes Marie to obtain her citizenship, she can receive particular circulations that are not subject to a QDOT tax imposed under IRC section 2056A(b). She can receive earnings, such as a unitrust quantity between 3-5 percent. In the above example, Marie and her attorney agreed upon the optimum percentage of 5%. Marie can not, nevertheless, receive capital gains or a distribution of principal without liability for QDOT tax. Second, Marie can receive a circulation devoid of QDOT tax of the principal on the occasion that she suffers monetary challenge and has no other affordable source of funds for her or her children’s health, maintenance, and assistance. Third, Marie can get distributions from the QDOT free of QDOT tax for the payment of certain expenditures and earnings taxes generated by the QDOT. Once Marie becomes a United States person, circulations can be made without imposition of the IRC section 2056A(b) QDOT tax.

Consider the Numerous Pitfalls
The Rules. From Marie and Ronald’s case, we may glimpse some of the myriad rules governing QDOTs. Importantly, at least one of the trustees has to be a United States resident individual or corporation, who has the authority to keep quantities from circulations of principal in order to pay a special QDOT tax.

The QDOT can not make any circulations of principal unless special withholdings are satisfied in order to pay taxes. In situations where the QDOT possessions are significant, it is required that at least one of the United States trustees be a bank or that the United States trustee post a substantial bond based on the date of death value of QDOT assets. In addition, because Marie may acquire United States citizenship while the QDOT is in place, it ought to be drafted flexibly so that it can react to such changes. This is not an extensive list of requirements for a legitimate QDOT, however it may offer you some concept of the lots of guidelines that need to be followed.
Not a Remedy. While a QDOT has a number of benefits, it must not be treated as a one-size-fits-all service. Particular assets may not be eligible to transfer to a QDOT, and the expense of establishing and preserving the QDOT might be high relative to its benefits. The requirement of an US trustee necessarily results in a loss of control for the non-citizen spouse, and possible extra costs. Anticipated gratitude of the QDOT possessions, the amount of final tax to be paid at the second partner’s death, the capability to make tax-free distributions under a hardship exemption during the spouse’s life, and the likelihood of the partner’s acquisition of US citizenship will all influence whether tax deferral under a QDOT deserves the pain and cost. In some situations, people may think about the payment of a tax on the death of the first partner to outweigh the expense and complexity associated with a QDOT.

Individuals and their families must also think about the unique guidelines governing joint property at death for people with non United States person spouses. Under IRC code area 2040(a), a contribution tracing guideline might use when one’s partner is not an US person, leading to the addition of all joint property in the taxable estate of the decedent. Additionally, worldwide households constantly need to keep the function of foreign jurisdictions in mind. Many civil law countries do not recognize trusts, perhaps leading to adverse tax effects in a various nation. Additionally, the benefits of an estate tax treaty may make a QDOT unnecessary.
Conclusion: Consider Your Options

QDOTs are one tool amongst numerous which are readily available to individuals with non United States resident partners. A suitable method needs to likewise consider gifting and alternative testamentary gadgets. In all cases, the estate plan should be effectively coordinated with applicable treaties, rules from the foreign jurisdiction, and estate planning files currently in location. Ideally, the guidance and assistance of both foreign and domestic counsel should be sought.
IRS CIRCULAR 230 DISCLOSURE: To ensure compliance with requirements imposed by the Internal Revenue Service, we notify you that any U.S. tax advice included in this interaction (including any accessories) is not meant or composed to be utilized, and can not be utilized, for the function of (i) avoiding charges under the Internal Profits Code or (ii) promoting, marketing or recommending to another celebration any deal or matter resolved herein.

General Disclosure: This post is meant to offer basic details about estate planning techniques and should not be trusted as an alternative for legal advice from a qualified attorney.