One of the many factors one must take into account when setting up a trust is whether to make it a grantor or non-grantor trust. While a grantor trust was more common a non-grantor trust can be more useful in certain situations
A grantor trust is a trust in which the grantor retains some control over the trust. That also means the grantor may have power to revoke the trust, change beneficiaries, trust assets, and distribute income from the trust to the grantor’s spouse. Most trusts set up for estate planning purposes fall into this category. A non-grantor trust is any trust that is not a grantor trust. This means that the person who sets it up has no rights over trust assets.
The main difference between the two trusts is how they are taxed. With a grantor trust the grantor is usually responsible for paying any tax generated on the trust. Grantor trusts are often set up with the grantor’s social security number so that income is reported directly to the tax return of the grantor. A non-grantor trust is taxed as a separate entity meaning that the trustee is responsible for filling out a tax return for the trust. If the trust pays income to a beneficiary the income is then included in the beneficiaries taxable earnings.
A non-grantor trust has tax benefits in some circumstances that may be useful to situations such as:
- You do not want to be involved with the trust such as setting up a trust for an ex-spouse following a divorce
- The beneficiaries of the trust are taxed at a lower bracket allowing them to pay less income tax than the grantor
- Owning a small business such as an LLC could allow you to take a 20% business income deduction.
- Owning expensive real-Estate and putting it in a non-Grantor trust may allow the trust to get a state and local tax deduction (SALT). This is usually capped at $10,000 so if it is included in your estate you can only get one deduction but if it is placed in one or more non-grantor trusts then each trust will qualify for its own deduction.
The downside to non-grantor trust are their costs. They cost much more to create and maintain. The grantor also loses all control of the assets in the trust. The taxes also tend to be steeper. Contact your local elder law attorney to find out what trust is best for you.
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