1. A Primer on Trusts and Trust Taxation.

In everyday practice, trust and estate planning attorneys often advise clients and their family members about the importance and benefits of various trust arrangements. When planning for a family member with a disability, the dominant topics are ongoing asset management and preservation of eligibility for government benefits.

However, an important component is often neglected in considering the choice of the appropriate type of trust: the taxation of the different trust arrangements.

Two Categories of Trusts: Revocable and Irrevocable

Revocable Trusts

A revocable trust is a trust, which can be revoked or amended by its creator at any time and without anyone's consent. Of course, the creator of the trust retains the unrestricted control of the trust assets so long as he or she is competent. After the creator's death, the trust usually continues for traditional estate planning purposes.

When planning for a family member with special needs, his or her parent(s) or other relatives often create a revocable special needs trust but expect to delay funding until the creator's death. The trust creator may declare the trust irrevocable at any time and may even provide for an automatic shift to irrevocable status under a specific circumstance, such as funding by someone other than the trust creator. Revocable trusts give the creator significant flexibility to address changes in the lives of those expected to be involved in the future administration of the trust.

Irrevocable Trusts

Irrevocable trusts are the other (and more commonly used) category of trusts used in special needs estate planning. The primary characteristics of an irrevocable trust are that the creator cannot amend the provisions of the trust and cannot spend trust funds for the benefit of anyone other than the beneficiary unless the terms of the trust document specifically authorize it. Sometimes the trust document grants the trustee a limited right to amend certain provisions if changes in the beneficiary's life justify or require an amendment. For example, this need could be triggered by the beneficiary moving to another state with different laws or policies, or by changes in trust, tax, or public benefits law.

SNTs created by and funded with the assets of the parents, grandparents or other relatives are called "third-party" SNTs, whether they are irrevocable at the time of creation or become irrevocable later. SNTs funded with assets of the beneficiary are called "first-party," "self-settled" or "Medicaid payback" trusts and must be irrevocable from the beginning. First-party trusts can receive and hold any assets of the beneficiary, such as his or her injury settlement funds and gifts and inheritances left directly to the beneficiary.

Whether a first- or third-party irrevocable SNT, the creator is prevented from accessing the funds unless those funds are to be spent for the benefit of the trust beneficiary according to the trust's terms.

Trust Taxation

Family members should have a general understanding of the basic income tax rules that will apply to the trusts they create for their loved ones. Where is the trust's income reported? Who is responsible for the payment of tax on the trust's income? The remainder of this article addresses questions like these.

Revocable Trusts

Revocable trusts are the simplest of all trust arrangements from an income tax standpoint. Any income generated by a revocable trust is taxable to the trust's creator (who is often also referred to as a settlor, trustor, or grantor) during the trust creator's lifetime. This is because the trust's creator retains full control over the terms of the trust and the assets contained within it. Typically during the creator's lifetime, the taxpayer identification number of the trust will be the creator's Social Security number. All items of income, deduction and credit will be reported on the creator's personal income tax return, and no return will be filed for the trust itself. Revocable trusts are considered "grantor" trusts for income tax purposes. One could think of them as being invisible to the IRS and state taxing authorities. Grantor trusts are discussed in more detail below.

Irrevocable Trusts

Most irrevocable trusts have their own separate tax identification numbers, which means that the IRS and state taxing authorities have a record of the existence of these trusts. Income of a trust that has a tax identification number is reported to that tax identification number with a Form 1099, and a trust reports its income and deductions for federal income tax purposes annually on Form 1041. There are two primary taxation categories of irrevocable SNTs: (1) grantor trusts and (2) non-grantor trusts.

Grantor Trusts

If a trust is considered a grantor trust for income tax purposes, all items of income, deduction and credit are not taxed at the trust level, but rather are reported on the personal income tax return of the individual who is considered the grantor of the trust for income tax purposes.

The concept of who is the grantor can sometimes be confusing, especially in the context of a first-party SNT. For income tax purposes, the grantor is the individual who contributed the funds to the trust, not necessarily the person who signs the trust as the creator. Generally all first-party trusts (those funded established with the beneficiary's own assets) are considered grantor trusts for income tax purposes and so all of the items of income, deduction and credit will be reportable on the beneficiary's personal income tax return.

Third-party SNTs can also be created as grantor trusts, as sometimes the creator of the third-party SNT wants to remain responsible for payment of the income taxes during his or her lifetime. In those instances the creator of the trust retains certain rights, which cause the trust to be treated as a grantor trust for income tax purposes. At the time the creator of the trust passes away or otherwise relinquishes the rights causing the trust to be a grantor trust, the trust's income will no longer be taxable to the grantor, and the trust will no longer be considered a grantor trust.

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