Changes to U.S. taxing after death

Ray Madoff

TEXT OF INTERVIEW

Kai Ryssdal: Among the many sayings Benjamin Franklin left us is this one, hat in this world nothing can be said to be certain except death and taxes. The death part is still true -- but the way we're taxing after death is changing.

That's the point Boston College law professor Ray Madoff makes in her new book "Immortality and the Law." She says "dead" doesn't really mean dead anymore, financially speaking. Because after some intensive lobbying from the banking industry, states have started extending to the well-off dearly departed permanent control over their trusts and estates.

Ray, welcome to the program.

Ray Madoff: A pleasure for me to be here, Kai.

Ryssdal: Obviously, somebody has made an argument to lawmakers and to lobbyists, and they said, "Listen, we think it's good for society if you let people control their money and their inheritances forever." What is that argument like?

Madoff: It's, "if you let us -- Alaska legislatures -- if you let us change our laws here in Alaska, then all this trust money that's currently in New York or other states will move into our state." And that's exactly what happened in Alaska. A local Alaska bank lobbied the legislatures to make Alaska the most trust-friendly state, and they were quite effective. And after that legislation, they attracted about $4 billion of trust money into the state.

Ryssdal: And then the state of Alaska can tax that and reap the benefits and so on.

Madoff: Interesting is that in order to attract the money, they also have to get the states not to impose income tax on this money. So the only way they benefit is if the banks themselves profit, and then maybe the state can collect some money. But this is really cases where there have been private benefits and unrecognized social costs.

Ryssdal: Well, layout the social costs.

Madoff: The problem is that right now estate planners are encouraging their clients to set up these things called "dynasty trusts." These are perpetual trusts for the benefit of a person's heirs. However, what people haven't been paying attention to is what the world is going to be like for our children, grandchildren, great-grandchildren, etc. when they have to live in a world where some people in society are beneficiaries of this trust and other people aren't.

Ryssdal: Seems to me though, there's nothing more fundamental than being able to decide what you want to have happen to your stuff, whether it's money or your favorite teddy bear from when you were a kid, forever. I mean, it's my stuff, I get to say who gets it, right?

Madoff: I totally agree with you, up until the word "forever." People should be able to decide what happens to their stuff, but stuff is something that has to be shared with future generations. Our world today would be very different if the people living before us allowed property to be subject to controls put into place 100 years ago, 200 years ago or 300 years ago. It's because the people who came before us were mindful of these costs that we are not suffering the burdens of it today. We have to be similarly mindful for future generations. And Thomas Jefferson was very, very mindful of this. Much of his writing was about how the world should be held for the living and the dead shouldn't have control over it.

Ryssdal: So back to the point that I started with in this interview, dead doesn't really mean dead anymore, but only if you've got enough money.

Madoff: It's definitely true. It's really for money people. Because in other interests, for example, with respect to reputation and the ability to control our bodies, Americans have virtually no rights at all. There, we have the clear rule of "you're dead and gone, and frankly, we're not that interested in what your views are."

Ryssdal: Professor Ray Madoff from Boston College. Her book is called "Immortality and the Law: The Rising Power of the American Dead." Professor Madoff, thanks so much for your time.

Madoff: Thank you Kai. It's been a real pleasure.

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