As a result of the Federal Reserve Bank’s recent stimulus and interest rate decreases in response to the coronavirus, intra-family loans can be used to transfer wealth to future generations with no gift tax consequences as well as to renegotiate existing intra-family loans at reduced interest rates.

An intra-family loan is a basic estate-planning technique which has a very low transaction cost. Uncertainty around coronavirus and continued decreases in the market highlight the effectiveness of this simple tool and corresponding wealth-transfer. Under rules set forth in the Internal Revenue Code, it is possible to make loans to family members at lower rates than those charged by commercial lenders without it being deemed a gift. As discussed below, the lender, usually a parent or grandparent, must charge interest in order to avoid making a gift to the borrower. However, this interest rate may be as low as 0.99% for a loan for a term of three to nine years, with interest paid annually, made in April 2020. The lender can also structure the loan as a balloon note meaning that the borrower pays only interest during the term of the loan and only repays the principal at the end of the term.

Economic Benefits of Intra-family Loans

If a parent makes an interest-free loan to a child or grandchild, the Internal Revenue Service (“IRS”) will treat the foregone interest as a taxable gift. In order to prevent the IRS from treating a part of the loan itself as a gift, the parent must charge a certain minimum interest rate, which is known as the applicable federal rate (“AFR”), which the Treasury determines every month. To the extent that the interest charged on the loan is lower than the interest calculated with the AFR, that amount will be imputed income to the parent, even though the parent does not actually collect it. Furthermore, the IRS will treat that amount as a gift to the child, which would require the filing of a gift tax return. However, if a parent establishes a bona fide creditor-debtor relationship with adequate stated interest, the intra-family loan will not be characterized as a transfer subject to the gift tax.

Intra-family loans allow a shift of wealth from one family member to another family member, usually a child or grandchild, if that child or grandchild can earn a greater return on the amount borrowed than the AFR. The minimum interest rate required to be used depends on the term of the loan, and the compounding period. In April 2020, if interest is paid annually on a loan, the AFR for short-term loans (demand loans and loans for up to three years) is 0.91%. The AFR for mid-term loans (loans from 3-9 years) is 0.99%, and the long-term AFR rate for loans over 9 years is 1.44%. To the extent that a child or grandchild is able to earn a higher rate of return on the borrowed funds than the interest rate being paid, he or she is able to keep the excess without any gift taxes being paid.

For example, if a parent makes a nine-year loan to a child of $2 million, the loan will be a successful estate planning tool if the child can earn over 0.99% with the money borrowed. If the child invests the $2 million for the nine years at an 8% annual rate of return, he or she will have about $3,998,009 at the end of the loan, and will only have to repay his or her parents $2,185,422 throughout the course of the loan. Therefore, the child is entitled to keep the difference of $1,812,587 without any gift tax consequences. If the parent was going to make the same investment that the child made anyway, the risk to the family as a whole has not changed and the loan was a successful way to transfer wealth to the next generation.

Other Benefits

Outside of a wealth transfer concept, intra-family loans may also be more beneficial than third party loans because they allow the total interest expense paid over the course of the loan to stay within the family rather than being paid to a bank. In addition, an intra-family loan can allow children who have poor credit history to buy a home or to start a new business. Furthermore, it allows families to avoid the normal expenses incurred with loans, such as administrative costs, closing costs and appraisal fees. Also, if a child wants to pay off the loan early, the terms on the loan can be structured so that there are no prepayment penalties.

The amount of savings for children who are looking to buy a house can be significant. For example, according to Freddie Mac, as of March 12, 2020, the average bank rate for a 30-year fixed mortgage rate is 3.36%. A $500,000 mortgage at 3.36% would require one to pay $2,206 a month. However, a mortgage at the long-term AFR for April 2020 (1.44%) would only require one to pay $1,711 per month. Therefore, a child would save about $495 per month and about $5,940 per year if a parent loans him or her money to buy a home.

Additional Tax Benefits

The IRS allows any individual to make a gift to another person free of the gift tax each year up to the amount of the annual exclusion, which is currently $15,000. In addition to the annual exclusion, every person is allowed an $11,580,000 lifetime exemption from the gift tax. Therefore, even if an individual gives more than $15,000 to a single person in a given year, the gift amount which is above $15,000 will not be subject to tax unless the individual has already given $11,580,000 in taxable gifts throughout his or her life.

Because intra-family loans are not gifts, they do not count towards an individual’s lifetime gift tax exemption. Therefore, even if an individual has used up all of his or her $11,580,000 lifetime exemption from the gift tax, he or she can still make a loan to a family member without paying gift tax. Furthermore, a grandparent can make a loan to a grandchild without being subject to the generation-skipping transfer tax.

In addition, an intra-family loan can be used to take advantage of the $15,000 annual exclusion. A parent can forgive up to $15,000 per year per family member (and up to $30,000 if a married couple splits the gift) without any adverse gift tax consequences. However, the parent will have interest income in any year in which interest is forgiven.

Renegotiation of Existing Loans

Many clients already have outstanding intra-family loans relating to one or more recent transactions. In light of the reduced interest rates in April 2020, there is an opportunity for those clients to renegotiate any existing loans. If done properly, the renegotiated loans can result in significant transfer tax savings in excess of the savings contemplated when the initial transaction took place. Clients who currently have outstanding intra-family loan should call Proskauer to discuss their options in this current low-interest rate environment.

Conclusion

An intra-family loan can be used as a simple and effective wealth transfer device. Such a loan is a successful estate planning tool if a family member earns a higher return on the money borrowed than the AFR, thus today’s low AFR presents an opportunity to lock in a low interest rate on an intra-family loan. Additionally, clients who have existing intra-family loans may consider renegotiating those loans in order to take advantage of the current low interest rates.

Photo of Mitchell Gaswirth Mitchell Gaswirth

Mitchell M. Gaswirth is a partner in the Tax Department. His practice focuses primarily on income, gift and estate tax and related business planning. Mitchell counsels individuals, entrepreneurs and business entities in connection with the various income and other tax issues which arise…

Mitchell M. Gaswirth is a partner in the Tax Department. His practice focuses primarily on income, gift and estate tax and related business planning. Mitchell counsels individuals, entrepreneurs and business entities in connection with the various income and other tax issues which arise in sophisticated business transactions.

Mitchell’s practice also encompasses a wide array of merger and acquisition, business formation and financing, debt restructuring, and real property acquisition, disposition and exchange transactions. His knowledge encompasses the complex and often arcane application of California’s property tax regime (“Proposition 13”) in a variety of business transactions directly or indirectly involving California real property.

Photo of Albert Gortz Albert Gortz

Albert W. Gortz is a partner in the Private Client Services Department and has been with the firm since 1970 and in the Florida office since he opened it in 1977.

Al has built an extensive practice counseling individuals and families of high…

Albert W. Gortz is a partner in the Private Client Services Department and has been with the firm since 1970 and in the Florida office since he opened it in 1977.

Al has built an extensive practice counseling individuals and families of high net worth regarding estate, personal, charitable and financial planning. This includes guidance in areas of gift, estate and generation-skipping tax planning. He has in-depth experience in the administration of complicated estates and trusts. Al also has extensive experience in representing charitable organizations and has worked with public charities in setting up planned giving programs.

Photo of Stephanie Heilborn Stephanie Heilborn

Stephanie Heilborn is a partner in the Private Client Services Department and leads the International Private Client Services group.

Stephanie counsels some of the world’s wealthiest families and largest financial institutions in the implementation of complex tax-planning strategies, international estate planning and trust…

Stephanie Heilborn is a partner in the Private Client Services Department and leads the International Private Client Services group.

Stephanie counsels some of the world’s wealthiest families and largest financial institutions in the implementation of complex tax-planning strategies, international estate planning and trust administration as well as fiduciary litigation. She assists in the formation and provision of corporate tax advice to private foundations and other tax-exempt organizations. She also has experience in forming and advising domestic and international family offices regarding estate and tax planning.

Stephanie frequently lectures and writes on estate-planning topics and has been quoted by The New York Times and Forbes. She has served as an Adjunct Associate Professor of Law at Brooklyn Law School.

Photo of Andrew M. Katzenstein Andrew M. Katzenstein

Andrew M. Katzenstein is a partner in the Private Client Services Department where he assists high net worth individuals, companies and charitable organizations with all aspects of tax and estate planning. He focuses his practice on tax planning matters, which include estate, gift…

Andrew M. Katzenstein is a partner in the Private Client Services Department where he assists high net worth individuals, companies and charitable organizations with all aspects of tax and estate planning. He focuses his practice on tax planning matters, which include estate, gift and generation-skipping tax planning, as well as income tax of trust planning, probate and trust administration matters, resolving disputes between fiduciaries and beneficiaries, and charitable planning.

Chambers USA consistently ranks Andy among the leading tax attorneys in the country, and highly regards his estate planning expertise in advising wealthy individuals and charitable organizations on a range of matters, including tax planning, trust administration and philanthropic giving. A client is quoted as saying, “He’s extraordinarily knowledgeable and creative. He’s one of the smartest estate planners in the US and I learn a lot from him. He’s a pleasure to work with – he gets very deeply engaged with his clients and he gets to the point very quickly in a friendly and professional way. He makes clients comfortable that they’re with the best planner around. He delivers quickly and efficiently and he has outstanding technical skills – 11/10.”

Andy is a much sought-after speaker on estate planning and probate issues and has appeared on CBS’ 48 Hours Mystery, NPR, and served as host of KFNX’s weekly radio talk show “Principal of the Matter,” which addressed a variety of trust and estate planning topics. He has published numerous articles in Estate Planning Magazine, the Journal of Taxation, Taxes Magazine and Major Tax Planning, and was one of the principal contributors to the probate treatise “Marshall and Garb on Probate.”

A frequent lecturer on a variety of estate planning and tax related topics, appearing annually before the Los Angeles County, Beverly Hills and California State Bar Associations, Andy also has participated in the prestigious USC Tax Institute, the USC Probate and Trust Law Conference, has lectured in Europe, Canada and across the United States and is a featured speaker at the CalCPA Education Foundation Annual Conference on seminars in estate planning. Andy has taught estate and gift tax law at USC Law School since 2009 and previously taught estate tax at UCLA Law School for 18 years. He has also taught estate planning and advanced estate planning in the Graduate Tax Program at the University of San Diego and at Golden Gate University. Andy currently teaches Estate and Gift Tax in the LLM program at the UC Irvine School of Law.

Photo of Hank Leibowitz Hank Leibowitz

Hank Leibowitz, a partner in the Private Client Services Department, has a practice encompassing all aspects of estate and tax planning, estate and trust administration and fiduciary litigation. Hank is a member of the Firm’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team. He addresses client…

Hank Leibowitz, a partner in the Private Client Services Department, has a practice encompassing all aspects of estate and tax planning, estate and trust administration and fiduciary litigation. Hank is a member of the Firm’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team. He addresses client concerns with respect to gift tax and estate tax issues. Additionally during the pandemic Hank has had to deal with logistical issues concerning the execution of documents requiring witnesses and notaries as well as navigating the probate court system during this difficult time.

Hank primarily represents individuals in a wide variety of estate and financial planning issues including estate, gift and generation-skipping tax planning. He has obtained favorable private letter rulings from the IRS in connection with the preparation of estate plans for his clients. In recent years, Hank has become very involved with planning relating to distributions from qualified plans and IRA’s, including Roth rollovers, income and estate tax issues and devising methods that allow continued tax deferral within said plans. He also has extensive experience with all types of life insurance planning, including split-dollar arrangements.

Photo of David Pratt David Pratt

David Pratt is Chair of the Private Client Services Department and head of the Boca Raton office. His practice is dedicated exclusively to the areas of trusts and estates, estate, gift and generation-skipping transfer, fiduciary and individual income taxation and fiduciary litigation. He…

David Pratt is Chair of the Private Client Services Department and head of the Boca Raton office. His practice is dedicated exclusively to the areas of trusts and estates, estate, gift and generation-skipping transfer, fiduciary and individual income taxation and fiduciary litigation. He has extensive experience in estate planning and post-mortem tax planning. He has been routinely “Chambers” ranked.

David’s clients consist predominantly of high net worth individuals and families. He regularly counsels his clients regarding how to transfer wealth from generation to generation with the least amount of tax and the maximum amount of asset preservation at each generation, including protection for a divorcing child or grandchild and from potential creditors. While many of David’s clients are retired, he also represents a significant amount of business owners. He has recommended and implemented many plans which have transferred ownership of business interests to the next generation with minimal transfer tax cost and without disruption of the family business. Such plans very often include recommendations resulting from the family dynamics involved with a family business.

Photo of Jay Waxenberg Jay Waxenberg

Jay Waxenberg is a partner in our Private Client Services Department and a former Chair. He advises on all aspects of multi-generational wealth planning and has particular expertise in complex estate planning, related tax work and the administration of estates and trusts. As…

Jay Waxenberg is a partner in our Private Client Services Department and a former Chair. He advises on all aspects of multi-generational wealth planning and has particular expertise in complex estate planning, related tax work and the administration of estates and trusts. As a member of our Fiduciary Litigation Group, Jay is regularly involved in will contests and other estate- and trust-related litigations. He is a member of the Firm’s Executive Committee.

Jay has extensive experience working with high-net worth individuals and their estates and has assisted clients, often for many years, in the structuring of their estate plans so as to minimize gift, estate and generation-skipping taxes in the transmission of their wealth through several generations. Lauded by his clients as “an all-star private client lawyer” who is “very focused on client service,” he is involved in the full range of his clients’ economic and personal concerns, including closely held businesses, commercial and residential real estate holdings, artistic collections and philanthropy. Jay has helped his clients structure new business ventures, restructure existing ventures with an emphasis on shifting appreciation potential to younger generations, and has guided the sale and liquidation of businesses. He regularly handles family matters, such as the preparation of prenuptial and postnuptial agreements, counsels on charitable giving and structures plans to enable client’s businesses to remain intact at their death, and to ensure the desired continuity of ownership and control.

Jay lectures regularly on estate planning topics and has written numerous articles that have appeared in various legal publications. He is a Fellow of the American College of Trust and Estate Counsel. Jay is a former Chair of the Estate and Gift Tax Committee of the Association of the Bar of the City of New York. He serves on the professional advisory committees of a number of museums and hospitals in New York.

Photo of Nathaniel Birdsall Nathaniel Birdsall

Nathaniel W. Birdsall is a senior counsel in the Private Client Services Department. His practice focuses on estate planning for high-net-worth individuals and families, including testamentary planning, lifetime gifts and sales, and estate administration. He advises clients with respect to charitable gifting, insurance…

Nathaniel W. Birdsall is a senior counsel in the Private Client Services Department. His practice focuses on estate planning for high-net-worth individuals and families, including testamentary planning, lifetime gifts and sales, and estate administration. He advises clients with respect to charitable gifting, insurance planning and inter-generational transfers of closely-held business interests, marketable securities, real estate and tangible property.

Nat prepares wills, trusts, and other documents necessary to effectuate an estate plan, such as purchase or gift agreements. He is experienced in reviewing and preparing gift, estate and generation-skipping transfer tax returns, as well as with IRS gift and estate tax audits. Nat also advises on the “decanting” of irrevocable trusts and with issues relating to state income taxation of resident trusts.

Photo of Vanessa Maczko Vanessa Maczko

Vanessa is a senior counsel in the Private Client Services Department.

Vanessa advises moderate to high net-worth international and domestic individuals and families on multi-generational transfers of assets, such as closely-held business interests, marketable securities, art collections, real estate, tangible personal property and…

Vanessa is a senior counsel in the Private Client Services Department.

Vanessa advises moderate to high net-worth international and domestic individuals and families on multi-generational transfers of assets, such as closely-held business interests, marketable securities, art collections, real estate, tangible personal property and insurance policies. Her practice focuses on estate, gift and generation-skipping transfer tax planning.

For lifetime planning, Vanessa drafts and analyzes inter vivos trust agreements, such as insurance trusts, grantor trusts and dynasty trusts. She advises clients on the funding of trusts, whether through direct or formula gifting or leveraged sales, as well as on the administration and taxation of trusts. Vanessa prepares and reviews gift tax returns in connection with the transfer of assets and represents clients in gift tax audits with the Internal Revenue Service. In addition, she advises clients on the structuring of new investments as well as the restructuring of existing businesses with a focus on transitioning wealth and control to the next generation in a tax efficient manner that maintains business continuity.

Vanessa also assists with the preparation of testamentary documents and estate administration, including the probating of wills, the marshalling of assets, the filing of state and federal estate tax returns, the sale of estate assets and the distribution of assets among estate beneficiaries. Vanessa also has experience administering intestate estates and representing estate fiduciaries in estate tax audits.

Vanessa advises clients on charitable giving by forming and administering private foundations, setting up donor advised funds, papering pledges and drafting charitable lead and charitable remainder trusts.

Photo of Lindsay Rehns Lindsay Rehns

Lindsay A. Rehns is a senior counsel in the Private Client Services Department. Her diverse private client services practice includes estate, gift and generation-skipping transfer tax planning, probate, estate and trust administration matters and preparing and negotiating prenuptial and postnuptial agreements. Lindsay assists…

Lindsay A. Rehns is a senior counsel in the Private Client Services Department. Her diverse private client services practice includes estate, gift and generation-skipping transfer tax planning, probate, estate and trust administration matters and preparing and negotiating prenuptial and postnuptial agreements. Lindsay assists high net worth individuals and families with developing suitable estate plans to maximize and protect the transfer of wealth to future generations. She is able to carefully navigate the often sensitive family dynamics involved in representing individuals and can make complex issues more comprehensible to her clients so they can make informed decisions about their assets.

Lindsay also supports Proskauer’s fiduciary litigators on estate, trust and tax related matters both relating to trial and settlement negotiations. She has extensive experience handling IRS estate and gift tax audits and prepares and reviews gift and estate tax returns.

Lindsay is experienced in implementing advanced estate planning techniques, including:

  • Estate, gift and generation-skipping transfer tax planning
    • Drafting wills, trusts and other estate planning documents
    • Charitable gift planning, including forming foundations and charitable trusts and obtaining IRS tax-exempt status
    • Life insurance planning
    • Asset protection planning
    • Coordinating transfers and estate plans among generations
  • Estate and trust administration
    • Preparing and filing estate and gift tax returns
    • Representing fiduciaries and beneficiaries in the probate and administration process
    •  Post-mortem tax planning
    • Probate court proceedings
    • Handling all aspects of estate administration, from marshaling assets to asset distribution

Lindsay has worked both in Proskauer’s Florida and New York offices and frequently travels between offices to best service clients. She is qualified to practice in Florida, New York and Georgia.

Daniel Hatten

Daniel W. Hatten is an associate in the Private Client Services Department and a member of the firm’s Fiduciary Litigation group.

Dan advises clients on a range of estate and wealth planning transactions, including the preparation of estate planning documents, lifetime gifting, multigenerational…

Daniel W. Hatten is an associate in the Private Client Services Department and a member of the firm’s Fiduciary Litigation group.

Dan advises clients on a range of estate and wealth planning transactions, including the preparation of estate planning documents, lifetime gifting, multigenerational planning, estate administration and fiduciary litigations.  He also advises clients on issues relating to their retirement plans, charitable giving, change of domicile and life insurance, including split-dollar life insurance.  Dan works with clients in a range of industries, including insiders of public companies, entrepreneurs, art dealers and art collectors, and helps clients navigate issues specific to their assets and situations.

Dan has also been involved in many fiduciary litigation matters and disputes with the IRS.  He has helped clients to obtain favorable private letter rulings from the IRS and navigate estate tax audits initiated by the IRS.  Dan has been involved in all aspects of fiduciary litigation proceedings, including briefings in Surrogate’s Court proceedings, appeals and settlement negotiations of interfamily disputes.