How to double your estate-tax exemption

Melody Juge for MarketWatch writes:  Let's take a look at the portability provision of the federal estate-tax law and see how it could potentially double your federal estate-tax exemption.

1. What is the portability provision

The portability provision is the allowable transfer of the federal estate-tax exemption from the estate of the first spouse to die to the estate of the second spouse to die.

This portability provision was set to expire in January of 2013 as part of the fiscal cliff. Not only did the provision not expire but there is no expiration scheduled as of this writing. I checked with Beverly Hills estate-planning attorney Randy Spiro and asked if there was anything about this provision that we should be especially attentive to.

Randy said, "Currently our administration in Washington is attempting to change the limits on the $5.25 million federal estate tax exemption to $3.5 million but interestingly enough, portability isn't on the table."

2. Double your federal estate-tax exemption

The maximum federal estate-tax exemption for people dying in 2013 is $5.25 million per person and that amount will continue to be indexed for inflation in 2014 and beyond.

For couples who are legally married, the federal exemption of $5.25 million may pass directly from the first-to-die to the surviving spouse, thus providing a federal exemption upon the second spouse's death that will increase from $5.25 million to $10.5 million.

The only way this opportunity to double your estate-tax exemption can be realized is if IRS Form 706 is filed timely — that is within nine months of the first-to-die.

The surviving spouse may receive a six-month extension by filing Form 4768 — within nine months of the first spouse's death. The extension will provide the surviving spouse with a total of 15 months to file Form 706.

3. Beware of potential complications

Estate-tax planning and the interpretation of the provisions, laws and rulings relating to it can be challenging. Just the calculation of the gross and net estate-tax liability can be complicated as it relates to your particular state's laws on estate and inheritance as well as federal estate-tax laws.

A simple error in calculation can cost the named heirs hundreds of thousands of dollars in additional tax and the lack of awareness of the need to timely file Form 706 after the death of the first spouse can create serious repercussions for the ultimate beneficiaries.

4. Plan well

Many people don't establish formal estate plans but create wills and trusts and assign an executor to their estate. Without a professional estate plan created by an attorney who specializes in estate tax planning, important considerations can be overlooked.

Here is an example:

The adult children of a surviving spouse who are the heirs to an estate have just been told that the federal estate tax due and immediately payable is $300,000 but could have been zero if only Form 706 had been suggested and timely filed for the first spouse to die.

Here is a simple calculation that supports the above example:

Form 706 wasn't filed therefore there is no portability of the federal estate-tax exemption for the first spouse to die. The value of the estate on the death of the second-to-die is $6 million minus $5.25 federal estate-tax exemption = $750,000 x 40% estate tax = $300,000 federal estate tax due.

So imagine being hit with a $300,000 federal estate tax bill that could have been avoided by the timely filing of Form 706.

Here is the same scenario applying the timely filing of IRS Form 706:

Form 706 was filed timely at the first death which allowed the $5.25 million federal estate-tax exemption to be passed to the surviving spouse. The value of the estate on the second-to-die is $6 million; there is $5.25 million federal estate-tax exemption granted from the portability provision on the first death plus $5.25 million federal estate-tax exemption allowed on the second-to-die, this equals a $10.5 million total federal estate-tax exemption available. There is zero federal estate-tax due on this $6 million estate because of the election to use the portability provision which was allowable due to the timely filing of Form 706 on the death of the first spouse.

Estate tax planning can be complicated. Please seek your own professional legal and tax guidance for each particular situation. The fees that you will be charged will be minimal compared with potential penalties and taxes due for miscalculations or misinterpretation of the IRS code as it relates to your estate tax liability.