End of the year gifting

THE FACTS: With the holidays fast approaching, I’ve been thinking about making gifts of cash to my grown children. I’ve heard that I can give each child $14,000 without any negative tax consequences. I am not wealthy but, at this point, I believe I can afford to give each of my children $14,000. I know they could really use the money.

THE QUESTION: Is there any reason I should think twice before making the gifts?

THE ANSWER: The quick answer is that when you’re talking about giving away thousands of dollars, you should always think twice. That being said, there are many factors that you should consider before deciding whether making significant cash gifts to your children is in your best interest.

Since you did not mention your age, your health status or the number of children you have, it is difficult to say which factors may prove the most important in your decision-making process.

Under current federal gift tax laws, a person can give any number of people up to $14,000 a year without incurring any gift tax liability. The recipients of the gifts need not report them on their tax returns and can simply enjoy the grantor’s generosity.

The need for the grantor to report gifts to the IRS only arises if the value of the gifts made to any one person in a single calendar year exceeds the $14,000 gift exclusion.  In that case, in April following the year in which gifts valued at over $14,000 were given to a single recipient, the grantor is required to file a gift tax return with the IRS. The return reports the amount of the gift in excess of $14,000.

For example, if the grantor made a gift of $20,000, he would have to report $6,000 of the gift on the gift tax return. Under current federal law, no gift tax will be due unless and until the cumulative value of the gifts reported by the grantor exceeds the estate tax exclusion amount in effect when the gift tax return is filed.

For gifts made in 2015 and reported in 2016, the grantor would not have to pay any gift tax unless the value of his cumulative lifetime gifts exceeded $5.45 million. Under New York State law, there is no gift tax, but the value of gifts made in the last three (3) years of the grantor’s life may be added to the value of his estate for purposes of calculating estate tax.

Since most people are not in a position to give away millions of dollars during their lifetime, whether or not a gift triggers a gift tax liability is usually not a deciding factor in making gifts. A more important factor for many grantors is whether they will need the money as they age. The cost of long-term care and the possibility that the grantor may need to apply for Medicaid are factors that frequently dictate whether gifting is a good option.

While the gift tax laws allow people to make gifts of up to $14,000 to countless people each year without adverse tax consequences, Medicaid eligibility is not governed by the tax code. As a result, many people who make gifts in accordance with the IRS guidelines are later surprised to find they are penalized for making those gifts when applying for Medicaid.

Under the Medicaid guidelines, gifts made within five (5) years of applying for benefits may trigger a penalty period based upon the value of those gifts. For younger, healthier grantors, the risk of having to apply for benefits within five (5) years of making a gift and then facing a penalty period may be minimal. However, the risk increases for the elderly or those with serious health conditions.

If you feel that you have adequate assets to cover the cost of your care, or if you have a generous long-term care insurance policy, you may not be concerned about the cost of care down the line, in which case making significant gifts to your children should be fine.

However, before you actually write those $14,000 checks to your children, I encourage you to carefully look at both your financial and physical health and assess your risk tolerance. After all, you don’t want to make the gifts this year and then have to ask your children to return the money or pay for your care next year.

This article first appeared in the December 8, 2016 issue of the Times Beacon Newspapers.

Linda M. Toga, Esq. provides legal services in the areas of estate planning, probate and estate administration, real estate, small business service and litigation from her East Setauket office.

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