Читать книгу 2012 Estate Planning - Martin Inc. Shenkman - Страница 15

A grantor trust is a trust that you establish and for which you will remain liable for all income taxes. You, as the “grantor,” pay the income tax on trust earnings. At the heart of much sophisticated estate planning is an irrevocable (you cannot change it) grantor trust to which you make a completed gift (so that the future value of that gifted asset will not be included in your estate). Even though you remain liable for the income tax on income and gains generated from the assets held in that trust, the trust assets are removed from your estate. This is a rather incongruous result. It is treated as a completed gift for gift, estate, and GST tax purposes, but the gift is essentially ignored for income tax purposes (i.e., you as the grantor are still treated as owning the trust property for income tax purposes only).The benefits of making a completed gift to a grantor trust cannot be overstated. Grantor trust status is a keystone of much of modern estate and trust planning. For example:

•A trust’s status as a “grantor” trust for income tax purposes permits the much coveted “estate tax burn” in your estate. As you pay income taxon earnings accumulating inside an irrevocable trust, your estate is further diminished by the annual tax payments. For many taxpayers, the impact of this estate tax burn can far exceed the benefit of pushing the envelope on valuation discounts that many practitioners continue to focus on.

•With grantor trust characterization, highly appreciated assets can be sold to an irrevocable trust without triggering any capital gains tax. For wealthy taxpayers seeking to shift large asset values (e.g., well above the $5.12 million exemption amount) out of their taxable estates, and for those of more modest wealth seeking to shift assets into the protective envelope of a trust in order to protect them from potential claims of future creditors, including divorce or lawsuits, grantor trust status may be critical. See the discussions that follow concerning DAPTs and BDITs.

•Grantor trust status can often help to avoid some of the thorny income and estate tax issues associated with transfers of life insurance policies to and from trusts.

President Obama’s Greenbook proposal (the General Explanations of the Ad-ministration’s Fiscal Year 2013 Revenue Proposals, released February 13, 2012), if enacted, would undermine this critical component to many estate plans by requiring that assets held in any grantor trust (even an irrevocable completed gift trust) will be included in the grantor’s taxable estate. Distributions out of such grantor trusts will be treated in the future as completed gifts by the grantor at that time. If an irrevocable grantor trust is created and funded in 2012, it may be exempt from the provisions of the new law (i.e., grandfathered), at least as to transfers completed prior to any law change. This can have a tremendous planning benefit and is yet another reason you should plan before the end of 2012.

PLANNING NOTE: You might consider incorporating express language in your Trust Agreements so as to permit trustees to create separate sub-trusts for pre- and post-grantor trust law changes. This would allow the trust to be bifurcated as to any future component of the trust that either will be anon-grantor trust or would be included in the grantor’s estate at death under President Obama’s proposal.

Other grantor trust planning opportunities are discussed in later chapters.