Trusts are a type of financial vehicle which are widely used for estate planning, asset protection, and tax optimisation. There are numerous types of trusts, each with their own specialised structures, rules, and use cases. In this article, we will explore the type of trust known as a Grantor Trust. We will get to know how it works, the different types of grantor trusts, how they are used, and their benefits and potential shortfalls.
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A grantor trust is a type of revocable living trust, whereby the tax burdens of the trust fall upon the grantor and not the trust itself. In other words, the trust is not seen as a separate entity for tax purposes, and all its income and deductions are therefore reported on the grantor’s personal tax returns. The grantor is deemed to remain the owner of the trust’s assets for the purposes of determining income and estate taxes.
Most grantor trusts are revocable by nature. This means that the grantor has the right to change or terminate the terms of the trust during their lifetime. The grantor usually acts as the trustee of the trust while they are capable of doing so. The grantor may also designate successor trustees to manage the trust if they become incapacitated or mentally disable. In this case, the grantor is still responsible for the trust’s tax burden, and not the trust itself.
When the grantor dies, the trust automatically becomes a non-grantor trust, or irrevocable trust. The trust will then be managed as per the terms upon which it was formed. If a successor trustee was named, they would take control of managing the trust. The trust’s assets would be distributed to the trust’s beneficiaries as per its terms (either immediately or in the future). The beneficiaries would be responsible for paying taxes on these distributions at the time they are distributed.
Note that a living trust simply refers to any trust which is formed while the grantor of the trust is alive. This means that all grantor trusts are living trusts, but it is possible to have living trusts which are not grantor trusts. These would usually be in the form of irrevocable living trusts, whereby the terms of the trust cannot be changed or altered by the grantor.
By relinquishing control of the assets in the trust in this way, the grantor also separates themselves from the tax obligations of the trust, and it is therefore viewed as a separate entity for tax purposes.
It is possible in some circumstances for an irrevocable trust to be a grantor trust. An irrevocable trust can be deemed to be a grantor trust for tax purposes when certain Internal Revenue Code (IRC) requirements are met. In this instance, the irrevocable trust will be “disregarded” as a separate entity for tax purposes.
There are a number of different types of grantor trusts which you can use, each with their own rules and features. The four most common types are:
This is the most widely used and simplest type of grantor trust. You, as the grantor, establish the trust and designate yourself or a third party to act as trustee. As the grantor, you are responsible for funding the trust by transferring assets from your personal estate into the trust’s ownership. The trustee manages the assets in the trust as per your instructions for the benefit of the trust’s beneficiaries. The trust is revocable which means you can alter the terms or revoke the trust altogether whenever you wish.
This is a type of irrevocable trust which allows the grantor to withdraw the income generated from assets in the trust during their lifetime. After transferring assets to the trust, the grantor would receive annuity payments for a specified time period, after which the remaining assets would be distributed to the beneficiaries.
A QPRT is a type of trust which is commonly used for estate planning. It permits you to transfer the ownership of your personal home or secondary residence into the trust, so as to exclude its value from your personal taxable income. This enables you to pass on your home to your beneficiaries in a tax efficient manner.
An IDGT is a special type of irrevocable trust whereby the grantor is liable for the income tax burdens of the trust, but the assets do not form part of their estate and so are not subject to estate taxes. An irrevocable trust is deemed to be “intentionally defective” if the grantor retains one or more of the powers which are associated with ordinary grantor trusts, but has not retained any powers that would warrant estate tax inclusion. This type of trust can be thought of as a hybrid, whereby there is greater flexibility than an ordinary irrevocable trust, but it offers the same level of estate tax benefits.
Grantor trusts have some important benefits and uses, which include:
The fact that the grantor is liable for the tax burdens of the trust can be either an advantage or disadvantage depending on the circumstances. In many cases, paying income tax on trust assets at the personal level results on overall better tax rates than if the trust was taxed as a separate legal entity.
This of course depends on tax regulations in the jurisdiction where you and the trust are taxed. For example, in the case of an offshore asset protection trust based in a tax haven, the trust would be subject to much better tax treatment when viewed as a separate legal entity as compared to being part of the grantor’s personal tax obligations.
Grantor trusts are revocable and therefore the grantor maintains complete control over the trust terms, as well as the assets in the trust. This gives the grantor the power to change the trustee and/or beneficiaries, direct the trustee to make changes to the trust (if they themselves are not the trustee), add or remove terms, etc.
The grantor is entitled to “borrow” assets from the trust without paying interest on the assets, as well as the freedom to invest the trust income where they see fit.
Grantor trusts are used as estate planning vehicles to facilitate the transfer of assets to beneficiaries upon the grantor’s death. They help to avoid expensive and time-consuming probate procedures, and minimise estate taxes.
Grantor trusts, like other types of trusts, offer a level of asset protection. The assets in the trust are viewed as separate to the grantor’s individual estate to a certain extent (albeit not for tax purposes), which means that they are more well protected from creditors, lawsuits, and other risks. That being said, the level of asset protection offered by an irrevocable asset protection trust is far superior to that of a revocable living trust.
There are few downsides to a grantor trust, other than certain areas where it is not quite as effective as an irrevocable trust. In exchange for the flexibility and control that a grantor trust offers, it does not offer the same level of asset protection and tax optimisation as some types of irrevocable trusts do.
The other issue is that, because the tax burdens of a grantor trust are accrued directly to the grantor, it is important to ensure that you have sufficient cash flow to cover these tax liabilities as and when they arise.
Deciding whether you need a grantor trust involves a careful consideration of your own circumstances and the financial solutions you are seeking. Generally, these types of trusts are most useful for individuals with large personal estates who want to pass on their assets to their beneficiaries in the simplest, most tax-efficient manner. Grantor trusts can also be used as asset protection vehicles to protect your assets from creditors and other dangers.
However, you might also consider other asset protection mechanisms such as an irrevocable asset protection trust or offshore LLC. There are various subtypes of grantor trusts which can serve different functions and be used in alternative ways depending on your needs.
We recommend consulting a trust expert, such as an estate-planning attorney, before deciding whether to establish a grantor trust and how to best go about it. Trusts are complex financial instruments which require the right expertise and guidance to navigate.
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