FA Magazine March 2023 | Page 60


Spy Balloon Over Heckerling

Our correspondent sends dispatches from the Heckerling 2023 estate planning conference .
By Joseph B . Darby III

THIS YEAR ’ S PREMIER CONFERENCE FOR estate planning professionals was best described as a sea of calm after recent years of turbulence : The week was delightfully boring , and pleasantly repetitive , and enjoyably dull .

The experts who gathered at Heckerling 2023 ( or the 57th Annual Heckerling Institute on Estate Planning , as it ’ s officially known ), had no major legislative changes ( actual or threatened ) to distract them . Instead , they were focused on the tried and true planning techniques they ’ ve been developing since 2017 , which overall are working quite well .
If there were an informal theme song for the conference , piped in like elevator music , it would have been the Grateful Dead ’ s anthem with the legendary refrain “ Just keep truckin ’ on …”
That said , there were plenty of new developments and the usual plethora of technical details , that known playground of the devil , that kept everyone attending the daily sessions and then talking over cocktails at night . The Heckerling printed materials ( if anyone bothers to print them these days ) are in the thousands of pages . That means any succinct summary requires a view from the highest of high altitudes — the tax-law equivalent of a Chinese spy balloon . Here is my 2023 report as witnessed from the balloon over Heckerling .
Basic Training
The conference theme was basic “ blocking and tackling ” and began with a fundamentals program called “ Using and Misusing the Marital Deduction .” To call this presentation thorough is to understate its relentlessness : The materials were 187 pages long and provided everything you would ever want to know on the marital deduction . As we all know , the marital deduction is a cornerstone of estate planning and it ’ s a great topic to know really well . This kicked off the theme for the week — get your fundamentals of estate planning in order .
Alert : A key issue and a chronic “ mistake ” is the failure to elect portability in a timely manner so that a widowed spouse can benefit from the deceased spouse ’ s unused lifetime exclusion amount . A late portability election is available only if the decedent was not required to file a federal estate tax return — but these days that means almost everyone , and as a result the IRS has been inundated with requests for private letter rulings .
The IRS clearly does not want any more PLRs on this issue and has provided automatic relief — most recently , under Revenue Procedure 2022-32 — extending the automatic consent period for a portability election to five years from the death of the first spouse . Five years is a strangely long time , and it creates interesting complications . For example , what happens if a surviving spouse has made taxable gifts without taking into