Loans From An Irrevocable Trust: How To Do Them Right!
Originally posted on Forbes.com
So, you have an irrevocable trust (or several) and you want to take a loan from the trust. While that might sound simple it really may not be as simple and you think, and you should discuss the decision with your trust attorney, CPA, and the trustee (especially if it’s a professional or institutional trustee with expertise in how this might be done) before you pull the loan trigger. Listed below are some of the many points you might want to consider before you have an irrevocable trust make a loan.
The First Step is Always….
Read the trust document. The trust agreement governs how the trust works. It’s the owners’ manual for the trust so you have to read it first and understand what it says. That is always the starting point for every trust decision. Don’t make assumptions. Every trust you have might be different.
Create an Annotated Trust
If you are not an expert at reading trust documents (most non-estate and trust lawyers aren’t) here’s a tip. If you’ve never annotated the trust document to create a roadmap for trust administration considering doing that. Work with the attorney who wrote the document, or who currently represents the trustee.
In the “old days” that would entail getting a signed copy of the trust and a yellow highlighter (if you don’t know what that is ask one of your grandparents). Then review the trust with the attorney and highlight the key provisions. The first step for some trusts is to go through the trust and add English captions. Some lawyers still identify provisions in the trust by article (e.g., “Article 3” instead of saying “Distribution Provisions”). Not having names for each section just obfuscates what they are and makes it really hard for anyone (even the lawyers who write trusts that way) to read the trust document. So, if you have to, write in captions on each trust provision to accompany the article designations. Next, when that is done identify key provisions the attorney tells you that you must understand to administer and operate the trust. This is often very different then the focus that you (or whoever set up the trust) had when the trust was created. This will include a lot of the provisions that when the trust was created were dismissed as routine or “boilerplate.” These supposedly standard (they really aren’t which is why you should go through this exercise) provisions may have been glossed over when the trust was planned, but they are essential to how the trust is administered. So, even if you just set up the trust and feel you don’t need to go back to the attorney just yet, yep you do. Next, again using our old-style paradigm, you should write margin notes on the trust document both explaining the provisions and with recommendations as to how you implement them. For example, notate when certain actions are completed that they can be done by the trustee alone. Identify common other situations when the trustee might need the approval of the trust protector or other person, or when the trustee should speak to the trust CPA or attorney before making a move. Some actions might best be documented by the trustee formally, others might not require that. Make the annotations both understandable, practical and informative. That will put “meat” on the trust “bones” so that lay persons have a better idea what to do to operate the trust properly.
Here’s the more modern approach to the above exercise. Get an electronic version of the final signed trust and convert that PDF to Word or whatever word processing software you use. Highlight the trust as above. Try using three different colors, e.g., blue for captions, yellow for trust provisions and green for your annotations. Consistency in color coding will make using this new electronic trust roadmap easier.
The annotated version of the trust should then be updated whenever you ask one of the trust’s professional advisers a question so that it evolves as you administer the trust. This can be effective to save professional fees as you won’t have to ask the same questions repeatedly. But its most important benefit is to help those involved with the trust know when to seek professional help. Remember, fixing a mess after the trustee does something wrong is always going to be much more costly then having an adviser tell you what to do right before you do it wrong and gum up the trust.
In addition to highlighting and explaining key provisions make some notes on top of the trust with some key information so it is available whenever you look at the trust. This info might include the trust tax identification number as you will need that for many types of transactions. Perhaps listing all the key persons and their phone numbers and email addresses. This would include not only the trustee but other fiduciaries (modern trusts might have five or more such roles) and even other key positions (e.g., powerholders, trust protector, etc.). You should also note the tax character of the trust as grantor, non-grantor, QSST, etc. Your CPA can explain these points to you. You should notate that the tax status of the trust can change so you don’t just assume that notation is good forever. This will all be relevant to what you thought was a simple decision on taking a loan from your trust, as will be explained below.
Should You Consider a Trust Distribution Instead of a Loan?
Before you charge forward with having a loan made under the terms of the trust evaluate options, ideally with the trust’s professional advisers as this could be a significant decision. Consider whether you really want to take a loan from the trust and why? Before you make a decision consider all the options that may be available. You might request that the trustee make a distribution. Depending on how the trust is structured that might have good or bad income tax consequences. For example, if the trust is a grantor trust (taxed to the person who set it up) making a distribution will likely have no income tax consequences. If instead the trust is a non-grantor or “complex” trust, making a distribution might flow income out of the trust to the recipient/beneficiary. That might be good or bad and you should probably ask the trust CPA to advise you as to the consequences before doing so, it could be complicated. You have to consider the tax rate the trust pays on income, the tax rate the beneficiary would pay if he or she received a distribution that was income, whether the distribution will in fact draw out income to the beneficiary (e.g., depending on the trust terms if the income was a capital gain the trust may have to pay the tax), etc. If the new trust income tax surcharges being proposed in Washington are enacted, that could change the decision process. Also, consideration should be given to the status of the beneficiary. If the beneficiary is in the midst of being sued or getting a divorce, making a distribution is not likely to be a smart move.
Should The Trust Buy An Asset Instead of Making a Distribution or Loan?
Let’s use a really common example to illustrate this loan alternative. A kid is a beneficiary of a trust and wants to buy a new home. The knee-jerk reaction of many is to have the trust make a distribution to the kid so the kid has the money to purchase the home. But that means that the kid will own the home and the money is removed from the protection the trust would have afforded (from divorce, lawsuits, estate taxes, and more). That is not always a wise move, but frequently done. If instead of giving the money to the Kid to buy a house, the trust could loan the kid the money to buy the house. Since the kid is a beneficiary, the trust might not even need to charge interest. But that is complicated too, especially if there are siblings who are beneficiaries and who are not receiving identical loans. A loan to the kid might be a better option than a distribution as the kid will owe the money back to the trust so that the value of the loan remains an asset of the trust, protected from divorce, lawsuits and estate taxes. But there may be a third and better option to consider. Perhaps the trust could buy the house and let the kid use it. That way there is no asset in the kid’s name and the value of the property remains protected inside the trust. That might be the best result. The kid might initially object “Gee I want to own my own home.” But explain the benefits of trust ownership. Also point out that when the kid is sitting on the living room couch watching the Squid Game no one is going to know or care whose name is on the deed. There are more issues and details to a trust owning a home, but that will be for another article.
OK, So You Still Think A Loan is the Way to Go
So, after all the above considerations and homework, you think a loan from the trust is still the way to go. Don’t write the check just yet! It is important that everyone understand that how a loan may be handled could also be very different depending on the type of trust involved. Everyone should understand the broader picture on trust loans to avoid a foot-fault.
Non-Grantor Trusts Should Not Loan Money to the Settlor But May To Others
If the trust is a non-grantor trust (the trust pays its own income tax) the person who set up the trust probably should not take a loan. That’s because a loan, if it does not have adequate security or adequate interest, could change the tax characterization of the trust from a non-grantor trust to a grantor trust. That could undermine the intended tax benefits the trust was created for. Well, you’ll just make sure that there is adequate interest and security. That is probably not worth the risk as it is not always clear what those terms mean in the tax law.
What if someone other than the settlor who created the trust wants a loan? If you are going to make the loan to the spouse or minor child of the settlor, check with the trust attorney and CPA first. If to someone else, it may be fine from a tax perspective to make a loan. But before you do go back to square one above and see what the trust says about it. No matter the tax and economic consequences, any loan should comply with the terms of the trust agreement.
Grantor Trusts Might Have Special Provisions for Loans to the Settlor
A grantor trust (the trust income is reported to the settlor who created the trust) is a different animal than a non-grantor trust and may have a different process and result. Many grantor trusts include a specific provision naming a person who can make loans to the settlor who created the trust. That person might be called by various titles, perhaps “loan director.” The loan director may be expressly authorized in the trust to loan the settlor money. Adequate interest probably should be charged to avoid risks of estate inclusion. Does the trust need to get security? It depends. Some trusts expressly provide that the loan director can make a loan to the settlor without adequate security. That is done for income tax reasons as it helps support the characterization of the trust as a grantor trust.
A loan to anyone other than the grantor of the trust will be the same decision process as described above for a non-grantor trust.
Keep in mind that a non-grantor trust cannot have a loan director provision as that would taint the trust as a grantor trust for income tax purposes.
Who Makes the Loan Decision?
In modern trusts there may be a proliferation of trustees. Traditional trusts often had just one trustee who handled all trust functions and decisions. If that is the case with the trust you are considering then you might be done and that trustee can make the loan.
Many modern trusts bifurcate trustee functions. They might have a general trustee, an investment trustee and a distributions trustee (there could be more divisions if you wanted to make sure your trust was really long and complicated). So, then the question is whether making a loan, especially to a beneficiary, is a decision for the distribution trustee (who decides on distributions to the beneficiaries), the investment trustee who decides on trust investments, or a general trustee decision. If the loan is at an arm’s length interest rate it may well be an investment decision. But often loans to beneficiaries are at favorable or no interest and often do not have the same security that a loan to an unrelated person would have. In those cases, the distribution trustee might have to make the decision. Some trusts address this specifically, most probably don’t. So, the first time this is done it might well be worthwhile to review the matter with the trust’s lawyer so that it is done correctly. If you have an institutional trustee and the trust is not clear they might have a specific approach they want followed, and they may well insist that the trust attorney provide advice on the manner.
So, you’ve plowed through all the legal, tax and economic decisions, and consulted with an army of advisers and are ready as trustee to write out the loan check. Before you do be sure all the formalities of a loan are met. The borrower should sign a written note agreeing to repay the loan to the trust. Whether or not interest should be charged will depend on whether the borrower is a beneficiary and the objectives involved. If there is going to be security, which again may depend on the trust terms and who the borrower is, the note should state that it is secured and legal documentation (e.g., mortgage on real estate, a pledge agreement, etc.) should be prepared by an attorney assuring the trust has the appropriate rights and interests in the security. The trustee might want to inform other beneficiaries of the loan, and in some instances have those other beneficiaries sign a document acknowledging that the loan is being made. Example: Three sisters are beneficiaries of a trust. The trustee loans the youngest sister $1 million to buy a home. No interest will be charged as she is a beneficiary of the trust. The trustee might want the other two siblings to acknowledge, in writing, that the loan is being made to preclude their complaining later about a loan that might favor their younger sister. Some trust loans occur when the settlor sells assets to the trust. In those instances, there will be several additional legal documents that will have to be created by counsel. Finally, be sure that a copy of all documents once signed are kept in the permanent trust records. Be certain that the trust CPA has copies of the documentation for their permanent file and so that the transaction is properly handled for income and if applicable gift tax reporting purposes.
Well, if you made it this far congratulations! You are certainly now convinced that making a loan from a trust could be a great step or it could be a disaster, but in most situations, it is just not the simple or obvious transaction you thought. So, bottom line is if you are not sure ask the trust advisers and do it right.
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