Some Grantor Trusts Not Eligible for Stepped-Up Basis
In Revenue Ruling 2023-2, the IRS distinguished two types of grantor trusts, one of which is not eligible for a stepped-up basis at the date of death of the grantor. The ruling takes the position that regardless of whether the grantor retains control of the investments of the trust, that “control” is not sufficient for the grantor’s estate to include the trust in the estate. Rather, the ruling takes the position that the stepped-up basis under IRC Section 1014 is only available where the grantor had the legal authority to completely repeal the trust altogether.
Accordingly, in the most common circumstances where it is expected the trust assets will appreciate in value over time, it is important that the trust documents clarify that the grantor has the legal authority to repeal the trust. That will enable the basis of the trust assets to appreciate to fair market value at the date of the grantor’s death.
No basis step-up for grantor trust assets if not in grantor’s estate (journalofaccountancy.com)
Revenue Ruling 2023-2 Got It Wrong? The Case For A Stepped-Up Basis When The Grantor Dies (forbes.com)