Liz Weston

Dear Liz: You mentioned in a recent column that people should check estate plans created before 2010 because they might contain bypass trusts that are no longer needed. The classic AB Trust, although not necessary now for the estate tax exemption for most people, still can be useful if one spouse wants to ensure her half of the estate goes as she desires if she is the first to die.

Answer: Possibly, but people should make the decision proactively by having their estate plan reviewed and discussing their options with an experienced attorney, since these trusts have some significant disadvantages.

Bypass, or AB, trusts were a routine part of estate planning even for middle-income couples when the estate tax exemption limit was just $675,000. When the first spouse died, a portion of the couple’s assets went into an irrevocable trust that would avoid estate taxes when the surviving spouse died. Because the trust was irrevocable, the surviving spouse couldn’t change its terms and had limited access to the assets.

Also, assets in the irrevocable trust don’t get a step up in tax basis when the survivor dies. That means the ultimate beneficiaries could wind up paying higher capital gains rates when they sell the assets. When the estate tax exemption limit was low, couples were gambling that the estate tax savings would outweigh the future capital gains cost.

Today, far fewer families have to worry about estate taxes. The exemption limit for 2022 is over $12 million per person and over $24 million per couple. Even after the current limit sunsets in 2025, individuals would be able to exempt over $6 million and couples over $12 million from estate taxes. Estate tax exemptions are also now “portable,” which accomplishes much of what the AB trust was designed to do in ensuring the exemption of the first to die wasn’t “wasted.” Now the amount of the exemption limit that isn’t used by the first spouse to die can be transferred to the survivor’s estate.

Bypass trusts are still routinely used for wealthier people and those who live in states with low estate tax exemption limits, but for many people this estate planning tool has outlived its usefulness.