December 22, 2012
Authored by: Stephanie Moll and Larry Brody
With nine days left in the year, many people are still planning how to make 2012 gifts, whether by making “annual exclusion” gifts of $13,000 per beneficiary, or by taking advantage of the 2012 gift tax exemption amount of $5,120,000. Maybe they couldn’t make up their mind before now, maybe they were waiting for the election results, or maybe they wanted to see whether the Mayan calendar was accurate before making any gifts. Whatever the reason for the last minute gifting, as the end of the year approaches, people may be tempted to make a “quick and easy” gift to their beneficiaries by simply writing a check. As the year draws to a close, however, if your gift is dependent on utilizing 2012 tax law, beware of the potential trap of making a gift by check.
A gift is not complete for tax purposes until the gift is no longer revocable. However, if you write someone a check, until that check clears, you could always “revoke” the check by alerting your bank to stop payment, or by emptying your account of sufficient funds to pay on the check. Until the check clears the bank, your gift is still revocable. Therefore, if your beneficiary doesn’t deposit the check in time for the banking system to clear the check, your gift may not be considered irrevocable until 2013, and you have therefore made a gift in 2013 instead of 2012.
If you are planning to make 2012 gifts over the next 9 days by means of a check, be wary and let your beneficiaries know that they need to deposit that check as soon as possible. Better yet, make the gift by means of a cashier’s check, which is considered irrevocable as soon as you hand it over. That way, you don’t have to rely on the promptness of your beneficiaries’ next trip to the bank, and the promptness of the banks in processing the checks.