The benefits of trusts and estates are well documented and significant. However, their highly compressed tax brackets result in income being subjected at the highest tax backets, at much lower income levels, than for individuals. There are opportunities to save through good tax planning and timing. One significant tax election is the 663(b) elections – known as the 65-day rule.
The Internal Revenue Code section 663(b)(1) provides that a distribution from a trust or an estate within the first 65 days of the tax year can be made effective as of the last day of the preceding tax year. That means that a distribution of all or a part of trust or estate income by the trustee to a beneficiary made as late as March 5, 2024, can be treated for income tax purposes as if it had been made on December 31, 2023. (Note: the deadline for the distribution typically is March 6. But because 2024 is a leap year, the deadline is March 5.)
Trusts, estates, and individuals are taxed up to a maximum rate of 37%. And for a trust or estate, this top marginal tax rate is triggered with any income above $14,450. It’s important also to note that an additional 3.8% Medicare surtax may also apply to a trust or estate, resulting in an effective marginal tax rate of 40.8%.
Although there are a variety of ways to avoid the high trust tax rate, they can be tough to execute before the end of the year because trustees may not know the amount of the income until after December 31. The 65-day rule gives trustees more time to plan and allocate income.
Why is the 65-Day Rule Important?
As shown in our examples below, an estate or trust with a December 31, 2023 year-end has earned $50,000 of taxable income. This puts the estate or trust into the highest 37% tax bracket, with $16,644.50 owed in federal income tax. If the 65-day election is made, the estate or trust can distribute some or the entire $50,000 to the beneficiary up to March 5, 2024, which may result in significant savings.
| Federal Estate and Trust Income Tax Rates | |
| Amount of taxable income | Tax rate |
| Not over $2,900 | 10% of taxable income |
| Over $2,900 but not over $10,550 | 24% of taxable income |
| Over $10,550 but not over $14,450 | 35% of taxable income |
| Over $14,450 | 37% of taxable income |
| Taxes Owed for a Trust Earning $50,000 in 2023 |
| 10% of $2,900 = $290 |
| 24% of $7,650 = $1,836 |
| 35% of $3,900 = $1,365 |
| 37% of $35,550 = $13,153.50 |
| TOTAL taxes due: $16,644.50 |
But if the 65-day rule is elected and distributed to an individual in a marginal tax bracket, the tax savings may be significant.
| 65-Day Rule Elected | |
| Individual Tax Bracket | Tax Savings |
| 15% of $50,000 = $7,500 | $9,144.50 |
| 22% of $50,000 = $11,000 | $5,644.50 |
| 24% of $50,000 = $12,000 | $4,644.50 |
| 32% of $50,000 = $16,000 | $644.50 |
Note: savings may be different depending on filing status, other income, deductions, and/or credits.
*The above is a hypothetical example for illustrative purposes.
How to Make the Election
The 663(b) election is made by checking the box on line 6 under “Other Information” at the bottom of page 3 of Form 1041. The question on line 6 reads, “If this is an estate or complex trust making the section 663(b) election, check here.”
Estate or Estate Tax Planning Requires Careful Consideration
When choosing a trustee, consider other factors beyond the person’s age and their relationship to your heirs. How much do you know about their money management skills? Will the trustee be willing to handle the responsibility for many years to come in the case of minor children or a business? If large amounts of money are involved, does the trustee have the experience necessary to evaluate financial professionals that might need to be hired?
Trust or estate planning can be complicated and naming a trustee can be one of the trickiest parts. If you need additional information about the 65-day rule or would like to discuss your trust or estate planning needs, contact your wealth advisor. And if you’re not a client, let’s talk.
