Jul 1, 2010 12:00 PM

, By Gail E. Cohen

Administering estates and trusts during the “gap” — dilemmas fiduciaries face making decisions in an uncertain environment

By Gail E. Cohen

Since Jan. 1, 2010, trustees and personal representatives have faced a new transfer tax landscape — one filled with questions but very few answers. For this one year, the estate and generation skipping transfer (GST) taxes have been eliminated and a modified carry-over basis regime has begun. During this year, fiduciaries are confronting an array of new issues never encountered before. Complicating the resolution of those issues are two unanswered questions: (1) Will Congress change that landscape with respect to the year 2010? and (2) If not, what impact will the scheduled sunset of the Economic Growth and Tax Relief Reconciliation Act (EGTRRA) have on the decisions made this year?

In addition to eliminating estate and GST taxes, EGTRRA changes how to determine the basis of property acquired from a decedent who dies after Dec. 31, 2009 and before Jan. 1, 2011 for income-tax purposes by providing for only a limited stepped-up basis under certain circumstances. As 2010 continues to unfold, fiduciaries will face dilemmas that are part of the uncharted territory of the EGTRRA. As uncertain as they are, however, fiduciaries also need to seize on opportunities that exist this year that will not be available after the EGTRRA sunsets. Let's explore a few of the dilemmas fiduciaries face as a result of EGTRRA as well as the available opportunities.