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Considerations For Trust Type

Trusts are a major tool in estate planning.  Trusts can be used for disability planning, probate avoidance, asset protection, and/or tax planning.  Given the high thresholds for federal estate tax planning few individuals are concerned about tax planning.  In this article we want to focus primarily on grantor vs. non-grantor trusts.

When we are educating on trusts and the use of trusts in estate planning, people often get a concept confused. There is a difference between a grantor trust and a non-grantor trust. Simply stated, the assets in a grantor trust remain in the grantor’s Social Security number and are reported on the grantor’s personal income tax return.  For a non-grantor trust a separate tax ID number will be obtained to hold the assets and you will file separate trust tax returns, this return is separate and apart from your personal income tax return. 

We will typically use grantor trusts for asset protection trusts and revocable living trusts.  

However, we often use a non-grantor trusts for VA purposes as well as for estates that have a federal estate tax concern. Currently, a person has a federal estate tax issue if their estate is greater than $12.06 million and for a married couple $24.12 million. It is very rare in our practice to use non-grantor trusts, which require separate tax ID numbers and pay at higher trust tax rates, because not a lot of veterans are doing planning where they have to or want to give up complete control of their assets, and not a lot of estates are big enough to need federal estate tax planning. 

In those situations where we use grantor trusts, we intentionally put language in the trust so that is included in the person’s estate, as well as subject to income tax. We include this language because we want to get a step-up in basis at the death of the decedent, and we also want the parent or client to pay the income taxes, because generally retired clients have a lower income tax burden than their children who are still working. 

There are a lot of other factors that go into what type of trust should be used and under what circumstances, but this provides a basic understanding of the difference between grantor and non-grantor trusts. If you would like to learn more about these and other trust concepts, I invite you to come to one of our free in-house workshops to learn more. We would be more than happy to assist. Just call our office or go to our website to enroll in a workshop at a date and time which is convenient for you.

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jeffrey bellomo

Jeffrey R. Bellomo, Esquire is a Certified Elder Law Attorney by the National Elder Law Foundation under authorization of the Pennsylvania Supreme Court. As the owner of Bellomo & Associates, LLC he advises families about the legal challenges facing them today. He counsels clients and provides solutions on: Asset Protection, Special Needs Trusts, Wills, Trust Design, Guardianships, Medicaid and Estate Planning & Administration. His mission is to provide professional caring service to all his clients.

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