[EstGift] Formula General Power to Capture Income Tax Basis Adjustment

[Day, Eileen]

Wondering if anyone is using a formula General Power of Appointment in Irrevocable Trusts so that the second-to-die spouse includes the irrevocable trust assets in their estate to the extent they have available estate exemption, in order to take advantage of step-up in basis.

For example, a credit-shelter trust is created at first death. Second-to-die spouse has unused/unusable estate exemption. Instead of trying to terminate the credit shelter trust to include the asset in spouse’s estate, it would be nice to have drafted in a formula GPA to force assets in second-to-die spouse’s estate, but only to the extent of that person’s available estate exemption, and then get basis adjustment on those assets.  Thought being to direct that the first assets of the trust over which power is exercisable are those assets with largest percentage difference between FMV and income tax basis.

If anyone has drafted such a provision or has thoughts about traps of using such a formula in drafting, your thoughts are appreciated.

-Eileen

Eileen M. Day
Partner

STINSON LLP
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