By now, most practitioners know of the significant changes to the estate tax provided in the 2010 Tax Relief Act. We know now that for decedent's dying in 2010, the decedent's estate must choose from one of two options. Option (1) allows an executor to operate under the 2010 law, which provides for no estate tax but also provides for no step-up in basis (although a fiduciary is permitted to assign a limited amount of basis to specific assets). Option (2) allows a fiduciary to operate under the 2011 law, which reinstates the estate tax (and the basis step-up), but only taxes estates valued above $5,000,000. For fiduciaries of decedents dying in 2010 with estates valued below $5,000,000, there appears little reason not to simply operate under the 2011 law (i.e., no estate tax since the estate is less than $5,000,000 plus a full basis step-up). For the Steinbrenners of the world, it's a different matter, and more thought will have to be put into it.
But how does the fiduciary in a normal (i.e., non-George Steinbrenner) estate plan elect to operate under the 2011 rules? Are the deadlines for the election? Do you have to file a Form 706 even in a small estate to get the stepped up basis using 2010 rules?
More about that shortly.