
Sid Mittra
Ph.D., Economics
Emeritus Professor, OU, Michigan
Dealing with the esoteric world of estate planning scares most people. And yet, without a basic understanding of the subject matter, professional estate planners are left with no other alternative than to guess what their clients wish to accomplish after they pass away. Our readers are therefore grateful to John Giarmarco, an acclaimed estate planner, for contributing this special article for our readers
ESTATE PLANNING HIGHLIGHTS 2022

John J. Giarmarco, J.D., LL.M
After months of speculation, 2022 began with no new federal estate and gift tax legislation. As the proposed legislation wended its way through the legislative process in 2021, the major proposed changes to federal estate and gift tax law were dropped. These aborted changes included a significant reduction in the federal estate and gift tax exemption, different tax treatment of grantor trusts, and elimination of the step-up in basis for appreciated assets at death. Because Congress could pass legislation that changes this information during the year, you should contact your estate planning attorney for advice prior to taking any transfer tax planning action. Despite all of the lurking uncertainty, there are some positive developments for taxpayers beginning in 2022. They include:
- Lifetime Exclusion Increases to $12,060,000: As of January 1, 2022, the federal gift and estate tax exclusion amount, as well as the exemption from generation-skipping transfer (GST) tax, (collectively, the “transfer tax exclusion amounts”) have increased by $360,000 from $11,700,000 to $12,060,000 ($24,120,000 for a married couple). Please note, however, that the transfer tax exclusion amounts are scheduled to decrease on January 1, 2026, to $5,000,000 per individual (plus an inflation adjustment between 2018 and 2025).
- Annual Exclusion Increases to $16,000: As of January 1, 2022, the federal gift tax annual exclusion amount (i.e., the amount that an individual can annually transfer to another individual without using any lifetime gift tax exclusion or paying any gift tax) increased by $1,000 from $15,000 to $16,000 ($32,000 for a married couple).
- The highest federal estate tax, gift tax, and generation skipping transfer (GST) tax rate remains at 40%. The highest federal income tax rate for estates and non-grantor trusts is 37%. This tax rate applies to taxable income over $13,450 earned by an estate or non-grantor trust during its administration period.
- New life expectancy tables used for determining required minimum distributions (RMDs) from IRAs and qualified retirement plans went into effect as of January 1, 2022. Changes in the life expectancy tables will result in lower required annual distributions from qualified retirement plans and IRAs in 2022. This benefits taxpayers because the lower distribution will result in less taxable income and helps to continue to preserve and grow the principal of the account under favorable market conditions. These changes impact traditional (non-Roth) IRA owners who have reached their Required Beginning Date for taking RMDs, qualified retirement plan participants who have reached their Required Beginning Date for taking RMDs, and beneficiaries of an inherited IRA or qualified retirement plan. Please contact your plan administrator or financial advisor regarding how to compute your RMDs for calendar year 2022 using the new tables.
- Since the proposals to limit Roth IRA conversions have not been enacted, the loophole known as a “back door” Roth IRA has not yet been eliminated. Using this technique, high earners who are otherwise barred from contributions to a Roth IRA and who do not have a traditional IRA may use after-tax money and establish a traditional IRA, and then immediately convert to a Roth IRA with no or minimal tax consequences. It’s uncertain if future legislation barring this technique will be retroactive to January 1 or some other date. For those considering this planning, completing it sooner rather than later may be beneficial.
- Under current federal tax laws, the income tax basis of property acquired from a decedent generally is adjusted to the fair market value of that property as of the date of the decedent’s death (often referred to as a “step-up” in basis at death). Although there were proposals in Congress to change this, Congress did not pass those proposals in 2021, so the step-up in basis at death remains in effect for 2022.
- The ability to transfer a decedent’s unused federal estate tax exclusion amount to the decedent’s surviving spouse by filing a federal estate tax return (often referred to as “portability”) remains in effect.
As we ring in 2022, let’s look at some of the most important estate planning documents you should have prepared:
- When you think about considering estate planning in 2022, one of the most important documents to consider is your will or trust. A will is a document that spells out your wishes regarding the distribution of your assets and care of any dependents if needed. A trust is a tax-advantaged way to arrange ownership of your assets and allows a third party to hold these assets on behalf of a beneficiary to protect the beneficiary from his/her inability, disability, creditors and predators including ex-spouses. Assets held in trust also avoid the costs, delays and public record of probate.
- You can also set up a living will, which is a directive to physicians that explains your end-of-life medical care preferences. If you are unable to communicate, a living will helps doctors and family members make decisions about your care based on what you would prefer (e.g., CPR, mechanical ventilation, tube feeding, organ donation). In your living will, you may also specify a healthcare power of attorney, which is an agent who can make important healthcare decisions on your behalf.
- Power of attorney (POA) is given to the agent or person you designate to act on your behalf and oversee your will if you are unable to do so. It’s important to designate POA because if you don’t, the court may decide how your will and assets should be managed. You don’t have to give POA to a family member, either. You can choose a trusted friend or financial advisor to act as the agent of your will, especially if they have a strong financial and estate planning background.
- A will or trust explains how you would like your assets distributed among beneficiaries, so it’s also important to update your beneficiaries as you build your estate plan. You should have a contingent beneficiary stated on all insurance and retirement accounts, as well as contingent beneficiaries stated in your will or trust. The new year is a great time to review your beneficiaries as things can change (e.g. marriage or divorce, kids and grandkids, new in-laws, etc.) and having an outdated estate plan can be a recipe for disaster. If no beneficiary is stated, your estate may end up in the hands of the court, which can be an impersonal way to handle your assets because a judge has no familiarity with your wishes.
- Finally, a letter of intent might cover other details that aren’t included in a will, such as funeral arrangements or a decision for a particular asset. Unlike a will, most letters of intent aren’t legal documents, but they provide supplemental information for your estate and the more information you have for your beneficiaries, the better. A letter of intent can help supplement gaps in a will and answer questions your beneficiaries or probate court might have.
So What Now? This is an opportune time to review and consult with your estate planning attorney to assess changes in your circumstances. High net worth individuals who have not made lifetime gifts may want to consider taking advantage of the increased exemptions in case Congress revisits this legislation and certainly in advance of the 2025 change. If you are charitably inclined, you might want to review options for incorporating charitable giving in your estate plan in ways that may also benefit your family. Keep in mind estate planning involves more than minimizing taxes, it’s about prudent planning for your family (and charity) to further your personal objectives.











