The IRS Has Spoken, Providing Another Asset Protection Trust Strategy

(Lexology) In this new tax landscape, each individual person is now able to own up to $11,400,000 in assets (or more if discounting vehicles are used) without ever being subject to (i) the 40% federal estate tax; (ii) the 40% federal generation-skipping transfer tax; and (iii) in a number of states, an additional state level estate tax.

Many existing estate plans are outdated with the entire individual’s estate assets being directed to be held in a “bypass trust,” “credit shelter trust,” or in what is sometimes referred to as a “Trust B” or “exemption trust.” While it is true these types of plans also avoid the estate tax hit, they do so at the cost of disallowing any “step-up” in the income tax basis of trust assets upon the death of any family member.

As such, without this step-up in basis, assets retain their historic low income-tax basis, which results in larger capital gains taxes or other taxes upon the eventual sale of those assets.

An update may, therefore, be in order for these outdated estate plans. Highly respected estate planning professionals have begun suggesting the insertion of a clause in estate plans that allows a “special trustee” to grant a limited “general power of appointment” to any of the beneficiaries, which can include elder family members and other persons with much shorter expected life spans.

These persons, however, need to truly be beneficiaries as opposed to a special trustee just granting “naked” powers to older individuals.

If there is a concern that once the special trustee grants a power of appointment to someone, such power could be abused or used in a way that would be against family values, then certain added drafting measures can be taken.

For example, the exercise of any granted general power of appointment can be conditioned upon the joinder of consent by a non-fiduciary non-beneficiary person that you have selected.

This consenting party serves as a check-and-balance so that such general powerholder cannot be coerced or influenced by opportunity-seeking adverse parties, such as a creditor.

One reason this technique has not been used in the past in trusts is that if the general powerholder is given such a broad power, but then a special trustee revokes or severely restricts the powers of the powerholder, then this raised concerns that such revocation or restriction would be viewed as giving up a right that had great value, and therefore treated as triggering a taxable gift back to the trust.

Reasons the special trustee may want to effect such a revocation or restriction could be due to a concern that the powerholder is about to be swindled into exercising the power, or the powerholder’s own estate has grown to such a level that it has become subject to estate taxes, thereby also exposing the trust assets to such estate taxes.

Fear not, in that a fairly recent ruling by the IRS (Private Letter Ruling 201845006) has stated that if such a power is revoked or restricted, no taxable gift occurs. Instead, this is viewed as simply an exercise of the administrative authority of a special trustee.

I thought you said this is an asset protection strategy? Yes (thank you for that reminder) this does create an effective asset protection trust vehicle. Please let me explain.

If a person creates a trust for his/her own benefit, it is what is known as a “self-settled” trust. Most state laws do not protect such trusts from the trust creator's creditors. In the scenario first described above, the trust is being created only for other family members, charities or possibly other persons very close to the trust-creator (who is called the “Settlor”).

The only way the Settlor is able to become a recipient of the trust assets is by way of a couple of intervening events that are beyond the Settlor’s control (e.g., the appointment of a special trustee, or if already appointed, the special trustee granting a power of appointment, and such powerholder exercising that power of appointment to direct assets to the Settlor). Nonetheless, for those who think that this is a distinction without a difference, and therefore fear a court might consider such a trust to be in substance a self-settled trust, then consider as a belt-and-suspenders approach having the trust incorporate the trust laws of (i) one of the seventeen states that protect self-settled trusts, or (ii) the laws of one of the numerous offshore jurisdictions (e.g., Cook Islands, Nevis, Isle of Man) that protect self-settled trusts.

The author would argue, however, that such a distinction causes a real difference in that the Settlor has not created a trust that includes the Settlor as a beneficiary.

Even so, if financial circumstances change someday (a rainy day trust concept) in which a need for access to the trust occurs, at least preferred parties are in control of the assets as opposed to the assets falling under the control of a creditor.

The creditor who can otherwise seize trust assets, would likely act, in contrast to the preferred parties, in a manner that such creditor believes can do the most harm to the Settlor.

Having the trust assets remain under the control of preferred parties allows such parties to take actions, if they so choose, to do what would not be motivated as a way to be hurtful to the Settlor.

In other words, a Settlor’s options are vastly better positioned.

Although beyond the scope of coverage of this blog, the trust can also be designed to have the trust assets, in the event the general power holder dies without ever having exercised the power, circle back to an enhanced trust design that also gives the Settlor better options, as well as achieving a newly “stepped-up” income tax basis that avoids capital gains taxes that the trust would not have otherwise been able to achieve.

The icing on the cake is that such a trust is mostly a tax strategy, notwithstanding that is has some incidental asset protection qualities.

The trust assets, as intimated above, are eligible for a step-up in income tax basis (mark-to-market) at the time of the powerholder’s death because of the powerholder’s appointment powers.

The tax code treats assets subject to such powers as includible in the power holder's estate (which has no estate tax ramifications if the powerholder owns or has such powers over less than $11,400,000) and therefore generally achieves a whole new “cost basis” in all of the trust assets.

Such a tax goal/motive can take the wind out of the sails of a Settlor’s creditors who might otherwise try to argue that the Settlor had created the trust as a fraudulent transfer device, primarily motived (as such argument goes) to achieve nothing more than a scheme to hinder or delay creditors.


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