According to EY, the United States has one of the highest estate and inheritance tax rates in the world, at 40%. The Tax Cuts and Jobs Act (TCJA) of 2017 doubling the estate, gift, and generation-skipping transfer tax exemption amount from $5 million to $10 million ($12.06 million for 2022, after inflation adjustments), this is set to revert back to the pre-TCJA rates in 2025, unless Congress votes otherwise. The burden on anyone inheriting property is very, very high. Trust funds are a key tool in helping you to pass your wealth onto your heirs, in the most tax efficient way p[ossible.
What is a Trust Fund?
A trust fund is a legal entity created by a Grantor, who is either a person or an organization, who grants to it their assets. In the trust document which outlines the terms governing the trust, a Trustee is named, who manages the trust. Those assets given to it are held “in trust” by the trust fund until the conditions specified by the trust document are met. Thereafter, those assets are distributed to the beneficiaries named in the truist document. These conditions are normally related to age, or the attainment of some achievement, such as graduating from college.
A trust fund is superior to a will because it avoids probate court, and the lengthy processes that estates go through when they are under a will.
Although trusts have normally been associated with the wealthy, with people talking about “trust fund babies”, trust funds are far more accessible and can be used by anyone seeking to leave any assets to specific individuals or causes.
Setting Up a Trust Fund
It’s important to state, right off the bat, that you should speak to an estate planning lawyer before creating a trust fund. That lawyer will be able to propose specific arrangements, and help you draft the language of the trust document.
You can place any of your assets within a trust fund. You should audit your assets to see what exactly you own, and how much it’s worth.
When you have created the final draft of your trust document, you will sign it, and notarize it, and if required by law, file the deed of trust.
You will then have to create a trust fund account, and transfer assets to your trust and its accounts. You can only fund the trust with the things you specified in the trust document.
Once you have funded the trust, you have to register the trust with the Internal Revenue Service (IRS). The IRS will provide you with a tax number for the trust. When filing tax returns for the trust, you will use that tax number.
The length of the process depends upon the size and complexity of your estate. It can take several months to organize, for the most complex estates.
Kinds of Trusts
There are different kinds of trust, and you and your lawyer will discuss some of the following.
Revocable and Irrevocable Trusts
Broadly, trusts are divided into two kinds: revocable trusts and irrevocable trusts.
Revocable trusts can, as the name implies, be revoked, they can be changed while you are alive. Revocable trusts are also known as living trusts, because they can be changed throughout the life of the Grantor. Assets can be added or taken out, beneficiaries can be added or taken out, everything is changeable, the trust document lives, and evolves. Indeed, the trust can even be dissolved. This is important for Grantors that are looking for flexible solutions, solutions which allow them to retain a large measure of control. Given these features, the assets within a revocable trust remain part of the estate of the Grantor. This is a positive and a weakness, because the estate can be subject to any legal claims made upon the Grantor. You can learn more about revocable trusts here.
Irrevocable trusts are those that cannot be revoked, they cannot be changed. The terms cannot be changed, and the trust cannot be dissolved. Although this is a very rigid solution, it has numerous advantages. By giving up ownership of assets, the heirs do not have to pay any estate tax. These assets are not part of the Grantor’s estate. Furthermore, by removing these assets from the Grantor’s estate, they reduce the size of their estate, and therefore, the tax rate they have to pay on their remaining assets. Irrevocable trusts protect the assets given to the Trust, from any legal claims made upon the Grantor.
All trusts are organized as revocable or irrevocable trusts. There are also sub-types of trusts.
Sub-Types of Trusts
Testamentary trusts only get into effect when the Grantor has died. It is placed in the last will and testament. On the other hand, a living trust starts working during the course of the Grantor’s life.
Educational trusts are created for the educational costs of the beneficiaries.
Charitable trusts are created to benefit charities . They are always irrevocable, and are mostly private foundations.
Spendthrift trusts are created to control the spending of beneficiaries whom the Grantor feels would, without controls, waste their inheritance.
Joint trusts are mostly used by married couples. During the life of the two, each party controls their own assets, but when one party does, the surviving party becomes the trustee.
AB trusts are also used by couples. These trusts split into two when one of the parties dies, so that the estate tax rate is reduced.
Blind trusts are types of living trusts in which the beneficiaries are not given any knowledge about the trust. For Grantors who worry that their beneficiaries might come into conflict, this trust is very popular.
Qualified Terminable Interest Property (QTIP) Trusts are also useful for couples. It is designed to ensure that a surviving spouse inherits the income that would have been due to the deceased, and that after the surviving spouse has died, nominated beneficiaries inherit this income.
Special needs trusts are created where there are beneficiaries with special needs, especially special needs children in need of life-long care. They are created to assist the beneficiary without making the beneficiary ineligible for government aid.