What sort of estate planning is advisable for people with a non United States resident partner? In this post, San Francisco Bay Location lawyer John C. Martin talks about 3 factors why individuals with a non US person spouse must think about estate planning with QDOTs, and how to prevent several pitfalls.

What kind of estate planning is a good idea for individuals with a non United States resident spouse? A decedent’s estate might be transferred to an US resident partner without any estate tax, thanks to a high exemption quantity for United States citizen and irreversible resident decedents in 2009 and an endless marital deduction. When a decedent’s spouse is a not an US resident, however, the estate can not declare the marital deduction– no matter the citizenship of the decedent. That’s not a problem if a decedent’s estate is smaller sized than the appropriate exemption amount, or if the enduring spouse ends up being a United States citizen prior to submitting an estate tax return. What if you are a non resident alien and have a relevant exclusion quantity of just $60,000? Or, what if your spouse does not acquire citizenship in time?
Under IRC code sections 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 person at the time of filing an estate tax return. A QDOT enables families with a low exemption quantity or large estate to postpone estate taxation, provide income to an enduring spouse, and develop valuable time throughout which a making it through spouse might get United States citizenship. The Internal Revenue Service permits QDOTs since they postpone the estate tax till the death of the second spouse: Tax deferral lowers the possibility that an enduring spouse will declare a marital deduction and consequently pass away in a foreign nation, thereby preventing all US tax. In this article, we go over three reasons why individuals with a non United States citizen partner ought to think about estate planning with QDOTs, and how to prevent a number of pitfalls.

First Factor: QDOTs Interest People with Assets in excess of their Appropriate Exemption Amount.
Non Local Aliens with United States Assets over $60,000. In addition to other techniques, QDOT planning ought to be seriously considered by non resident aliens with possessions located in the United States that surpass $60,000. Non resident aliens can move just $60,000 in 2009 without activating estate tax at the rate of 45%. With a QDOT, nevertheless, the estate tax is delayed up until the death of the second spouse.

US Citizens and irreversible homeowners with non US Person partners. If a United States Person or permanent resident’s estate is under $3.5 million upon a death in 2009, the total may pass without tax despite the partner’s citizenship. Households with estates above $3.5 million ought to think about the usage of a QDOT along with other estate planning methods in order to protect the marital reduction. Families should bear in mind that in 2011, unless Congress acts, the appropriate exclusion quantity will drop to $1 million. If this is the case, lots of families with estates above $1 million may one day gain from QDOT planning. As it stands, nevertheless, future modifications in the law are uncertain.
Surviving Spouse is a Non Citizen Alien. Another problem occurs when an US citizen or long-term local has an estate listed below the applicable exclusion quantity, however where the making it through spouse is a non resident alien. In such cases, the surviving partner’s death may sustain considerable estate tax liability upon his/her death. As pointed out above, non resident aliens can move just $60,000 in 2009 without activating estate tax at the rate of 45%. Such individuals might benefit from QDOTs and other estate planning for worldwide households.

Second Reason: Life Time Income and Estate Tax Deferment
To see the benefits of income and tax deferral, consider the following example. Let’s assume that Ronald, a United States permanent citizen, passes away in 2009, endured by two children and his better half, Marie. Marie is not an US resident, and Ronald’s estate totals up to $5.5 million. For the purposes of this example, we are assuming that there is no joint property. Ronald’s exemption amount is used to protect $3.5 million from estate tax, which is transferred to his kids through a trust produced prior to Ronald’s death. The remaining $2 million passes to Marie, in the form of a $1.5 million individual residence in California and $500,000 in valuable securities. Ronald did not establish a QDOT throughout his life time. The $2 million would generally be taxable because it surpasses Ronald’s exemption amount and Marie does not certify for the marital deduction. Marie works with a lawyer to create a QDOT that pays a 5-percent unitrust interest to hold the properties. Marie consequently moves the possessions to the QDOT prior to filing the estate tax return. She pays the trustee fair market price rent in order to reside in the home, and the trustee pays Marie $100,000 every year. Marie receives extra distributions from the QDOT in order to pay the trust’s expenditures, and to provide funds in case of hardship for herself or her children.

In the above example, Marie’s QDOT enables deferral of the estate tax. Due to the fact that Marie has prompt transferred assets to a QDOT, the transfer of possessions from Ronald’s estate is exempt to estate tax at the time of Ronald’s death. In reality, in the above example all federal tax has actually been prevented at the very first death through the use of appropriate planning. The estate tax will then be postponed up until the death of the 2nd spouse– an incredible advantage for Marie during her life time. This does NOT suggest that the enduring spouse will be able to balance out the tax on QDOT properties with her appropriate exclusion amount at the time of her death. Presuming Marie never becomes a United States person, an estate tax will be imposed upon the QDOT possessions by reference to Ronald’s estate. However, she would a minimum of have the advantage of QDOT earnings throughout her life time.
Third Factor: A QDOT Purchases Time

The QDOT in the example above buys time for Marie to get her United States citizenship. If Marie eventually ends up being a United States person prior to her death, the common rules that apply to United States citizen partners for establishing the marital reduction would apply. Appropriately, the whole $5.5 million can pass to the kids without the evaluation of estate taxes upon Marie’s death. However, Marie must be a resident for the entire duration after Ronald’s death in order to avoid deferred estate tax. The US trustee need to likewise timely inform the IRS of Marie’s acquisition of citizenship.
During the time it takes Marie to get her citizenship, she can receive specific distributions that are exempt to a QDOT tax enforced under IRC area 2056A(b). She can get income, such as a unitrust amount between 3-5 percent. In the above example, Marie and her attorney concurred upon the optimum portion of 5%. Marie can not, nevertheless, receive capital gains or a circulation of principal without liability for QDOT tax. Second, Marie can receive a distribution devoid of QDOT tax of the principal in 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 circulations from the QDOT totally free of QDOT tax for the payment of specific expenses and income taxes generated by the QDOT. When Marie becomes a United States resident, distributions 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 might glimpse a few of the myriad guidelines governing QDOTs. Notably, a minimum of one of the trustees needs to be a United States citizen person or corporation, who has the authority to withhold quantities from circulations of principal in order to pay an unique QDOT tax.

The QDOT can not make any distributions of primary unless unique withholdings are pleased in order to pay taxes. Additionally, in situations where the QDOT properties are considerable, it is needed that at least one of the US trustees be a bank or that the US trustee post a substantial bond based upon the date of death worth of QDOT assets. In addition, due to the fact that Marie may acquire US citizenship while the QDOT remains in location, it must be drafted flexibly so that it can react to such changes. This is not an exhaustive list of requirements for a valid QDOT, however it may give you some concept of the numerous rules that need to be followed.
Not a Panacea. While a QDOT has numerous advantages, it ought to not be treated as a one-size-fits-all service. Particular possessions may not be eligible to transfer to a QDOT, and the cost of developing and keeping the QDOT may be high relative to its advantages. The requirement of a United States trustee always results in a loss of control for the non-citizen spouse, and possible additional expenditures. Anticipated gratitude of the QDOT properties, the amount of final tax to be paid at the second partner’s death, the capability to make tax-free circulations under a hardship exemption during the spouse’s life, and the likelihood of the spouse’s acquisition of United States citizenship will all affect whether tax deferment under a QDOT is worth the pain and expense. In some scenarios, people may consider the payment of a tax on the death of the very first partner to outweigh the cost and intricacy related to a QDOT.

Individuals and their households ought to likewise think about the unique guidelines governing joint property at death for individuals with non US person partners. Under IRC code section 2040(a), a contribution tracing rule might apply when one’s partner is not an US person, leading to the inclusion of all joint property in the taxable estate of the decedent. Worldwide households always need to keep the role of foreign jurisdictions in mind. Numerous civil law countries do not recognize trusts, possibly leading to adverse tax repercussions in a various country. The advantages of an estate tax treaty may make a QDOT unnecessary.
Conclusion: Consider Your Options

QDOTs are one tool amongst numerous which are available to individuals with non US citizen partners. A proper method needs to likewise consider gifting and alternative testamentary gadgets. In all cases, the estate plan should be properly collaborated with relevant treaties, guidelines from the foreign jurisdiction, and estate planning documents currently in place. Preferably, the advice and assistance of both foreign and domestic counsel ought to be looked for.
IRS CIRCULAR 230 DISCLOSURE: To make sure compliance with requirements imposed by the Internal Revenue Service, we inform you that any U.S. tax advice included in this interaction (consisting of any accessories) is not meant or composed to be utilized, and can not be used, for the function of (i) avoiding penalties under the Internal Income Code or (ii) promoting, marketing or recommending to another celebration any transaction or matter addressed herein.

General Disclosure: This article is meant to offer basic information about estate planning techniques and must not be relied upon as an alternative for legal guidance from a certified attorney.