Grantor Trusts
Any Trust which is created by an individual and where the individual transfers assets to the trust and the assets remain in the trust for the lifetime enjoyment of that individual. The Individual is referred to as the Grantor.
Examples of Grantor Trusts and the various Tax implications of each
Revocable Trust – Trust whereby the Grantor reserves the right to revoke any term of the trust during their lifetime. The grantor transfers assets such as property, investments and savings to the trust. The grantor typically names himself and his spouse as Trustee.
- Income Taxes– The grantor typically reserves the right to the income that the Trust generates. This includes rental income from property and dividends and interest from investments. As a result any income generated from the Trust is attributed to the grantor. The Tax ID for the Trust can be the social security number of the grantor or they can obtain an EIN from the IRS.It is possible to create a Revocable were the grantor assigns the income of the trust to another individual, such as a child. In this instance, the income is taxed to that beneficiary.
- Gift Taxes – Because a revocable trust can be revoked by the Grantor, it is considered an incomplete gift. As such there is no gift tax implications.
- Estate Taxes– Assets transferred to a revocable trust are considered to be part of the Grantors estate. Therefore, the value is added to the Grantor’s total estate and used in any estate tax calculation.A revocable trust can include a Credit Shelter provision or QTIP language. In either scenario, the grantor’s assets will pass to a testamentary trust (Credit Shelter Trusts are also disclaimer trusts – meaning that the surviving spouse has to disclaim the assets for them to pass to the trust). The purpose of establishing these trusts is to limit the estate tax liability.An example of how it works: Married individuals are worth $5,000,000. If they did not do anything, and one spouse passed away, the surviving spouse would be worth the entire $5,000,000. Upon their passing, the heirs would be responsible for a potentially large estate tax bill.By placing assets into a Credit Shelter or QTIP Trust, the assets of the spouse who passes first remain in their estate for tax purpose. The surviving spouse has limited access to those assets, however, the assets do not pass to children until the passing of the second spouse. Because the “disclaimed” assets remain in the estate of the first spouse, the children benefit from the exemptions of each parent. As a result, in the example above, each estate would be values at $2,500,000. Assuming the Federal Estate Tax exemption is $2,500,000, the children would not be responsible for a federal estate tax (there would still be a NY State Estate Tax). However, if they did not plan, assuming the same numbers, the children would be responsible for approximately $1,000,000 in federal estate taxes upon the death of the second parent.
Irrevocable Income Only Trust (IIOT)– Trust whereby the Grantor does not reserve the right to revoke any term of the trust during their lifetime. It is typically done to protect assets against the cost of long term care (home health aide or nursing home)
- Income Taxes – The grantor typically reserves the right to the income that the Trust generates. This includes rental income from property and dividends and interest from investments. Often spouses who create a Irrevocable Income Only Trust would create a joint trust. Therefore, an EIN should be requested from the IRS. However, if it is a sole individual, their SSN can be used.
- Gift Taxes – An IIOT is also an incomplete gift when the grantor retains an interest income and a limited power of appointment to change the beneficiaries in their Will. No Gift taxes owed.
- Estate Taxes – Cannot include Credit Shelter or QTIP language. All assets included in Taxable estate.
Supplemental Needs Trust – Trust whereby the Grantor places assets into a trust for the benefit of a disabled individual.
- Income Taxes – New EIN for the Trust is recommended. A tax return will be done for the Trust because the income does not go to the grantor or beneficiary but remains in the trust.
- Gift Taxes – When an individual transfers assets to an SNT for the benefit of another individual, they should file a gift tax return if the yearly transfer exceeds $13,000.
- Estate Taxes – Included in the estate of the disabled individual.
Andrew Lamkin is principal in the law firm of Andrew M. Lamkin, P.C., where he focuses his practice in the areas of elder law, estate planning and special needs planning, including Wills and Trusts, Medicaid planning, estate administration and residential real estate transactions. He is admitted to practice law in New York and New Jersey.
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