Everything You Wanted To Know About Trusts But Were Afraid To Ask
Given that more and more state legislatures and courts are allowing the ‘piercing of the corporate veil’ in regards to LLCs, it would be more prudent to utilize a long-standing proven asset protection vehicle.
Of course nothing is absolutely ‘bullet-proof’, but given the case law and precedents, trusts are about as close as one can get, which is why you rarely see trusts in trial courts, and when you do the attacks are overwhelmingly unsuccessful, which is not the case for LLCs. Not to mention that trusts, unlike other methods of holding assets, are completely exempt from the horrors of probate.
One of the most useful type of trusts is the ‘Grantor Trust’, as federal, state, and local governments and courts consider them a legal fiction.
A Grantor Trust exists as the legal owner of assets (for purposes of property law) but does not exist as a separate taxpayer for income tax purposes. All taxable transactions inside the trust are treated as if the grantor executed the transaction without the existence of a trust.
Instructions for Form 1041:
In general, a grantor trust is ignored for income tax purposes and all of the income, deductions, etc., are treated as belonging directly to the grantor
The legal fiction is extended to real estate taxation, as in most jurisdictions, real estate held in a Grantor Trust can take advantage of reductions in real estate taxes, such as Veteran Discounts, Senior Citizen discounts, low-income discounts, and more, which is not the case with LLCs and other forms of ownership.
In addition, there are trust and sub-trust variables that can be utilized to fine-tune estate planning, such as:
Spendthrift Trusts can protect from a beneficiary squandering an inheritance and in addition protects the assets from any of the creditors of the beneficiary.
Sprinkling Trusts allow a successor trustee (subsequent to your demise) to decide how to allocate some trust assets among beneficiaries according to the circumstances at that future time.
Charitable Remainder Trusts allow you to make an irrevocable gift of property to a charity while you’re alive, and retain any income, use, and control of the property until your demise, when the property then passes to the charity, but without any estate taxation.