While it is true that there is uncertainty in tax planning now (there always is) and there is a distinct possibility that the estate tax will be repealed and we should of course urge our clients to update after such a major change, it is not true that we cannot plan at all for repeal.
As always, flexibility is key.
We can plan right now for repeal by including trust protector provisions to effect needed changes, for example the granting of general or limited testamentary powers of appointment to trigger estate inclusion by various means including the Delaware Tax Trap.
Yet some firms apparently are not considering repeal at all in their current planning, as you can see from this excerpt of a sample letter to clients:
If the federal estate tax is repealed in 2018 or later, there will be no state or federal exemption amount. In such event, it’s not clear to whom assets would be allocated under your will, because this possibility wasn’t considered at the time your wills were drafted. Therefore, should the federal estate tax, in fact, be repealed, it’s important that your wills be revised to clarify what should occur.
