Dealing with the tax hit
One strategy to reduce the tax hit is to invest more of the trust's assets in tax-exempt securities, such as municipal bonds.
"The new investment income taxes have caused some clients to think about whether they can handle higher allocations to municipal bonds," said Lisa Whitcomb, director of wealth strategies at Glenmede, a privately owned trust company managing more than $25 billion in assets. However, the still-low yields on muni bonds—and the fact that tax-reform proposals from both political parties have proposed taxing muni bond interest—have made people wary, she added.
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A more difficult decision is whether a trustee should consider making larger distributions to beneficiaries. If those beneficiaries are in a lower tax bracket and not subject to the new Obamacare taxes, the distribution can save a lot of money. "If it's in the discretion of a trustee to distribute assets, the additional level of tax is an aspect of what you have to look at," said Davidowitz.
It's still only one aspect, however. A bigger distribution may not be permissible under the trust's governing documents, and it may not make sense based on the circumstances of the beneficiaries. If their beneficiaries are minors or deemed not responsible enough to handle larger sums of money, trustees are likely wary of making the distributions, despite potentially positive tax consequences.
"Saving taxes is not the be-all and end-all of managing trusts," said Laura Twomey, a partner with law firm Simpson Thacher & Bartlett who specializes in estate planning. "There are a lot of non-tax issues involved in distributions to beneficiaries, and you have to be aware of the intentions of the creator of the trust."
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Nevertheless, bigger distributions can make sense in some situations, said Whitcomb. According to her, while only two or three of the hundreds of trusts that Glenmede manages elected to make additional distributions for the 2013 tax year—the deadline for making them was March 5—it's the right thing to do in some cases, she said.
"Many trusts created years ago are in their third or fourth generation of beneficiaries, and those beneficiaries may be competent, normal adults who are not among the high-net-worth individuals who created the trust," said Whitcomb. "A bigger distribution might be a real boon for them."
With higher income taxes likely an ongoing issue, trustees may want to consider the option more closely.
—Andrew Osterland, Special to CNBC.com.