Contributing Authors: Robert G. Dwyer and Frances A. McCormick
Originally published in October 2015
Copyright © 2015 Knox McLaughlin Gornall & Sennett, P.C.
IRC §2036(a)(1) – Transfers with Retained Life Estates
This section will be invoked if each of the following requirements are satisfied:
“Possession or enjoyment” refers to “situations in which the owner of property divested himself of title but retained an income interest or, in the case of real property, the lifetime use of the property.” Although most common with real property, this can also occur with personal property, like artwork, where the transferor transfers ownership, but retains the right to possession.
The most common example of “right to income” is where Mr. Smith transfers income producing property in trust, retaining the right to income for his life, with the remainder going to the children of Mr. Smith upon his death. If Mr. Smith only retains 30% of the income from the property during his life, only 30% of the property held in trust is included in Mr. Smith’s gross estate.
If the income from transferred property is to be distributed to the transferor at the exclusive discretion of an independent trustee, the property generally will not be included in the transferor’s gross estate under this section because no right has been retained.
There are four exceptions to this general rule:
Exceptions to application of §2036(a)(1):
General rules for amount of inclusion:
IRC §2036(a)(2) – Transfers with Retained Powers
This section will be invoked if each of the following requirements are satisfied:
The fundamental difference between §2036(a)(1) and §2036(a)(2) is that §2036(a)(1) applies to the transferor’s possession or enjoyment of transferred property, whereas §2036(a)(2) applies to the transferor’s retained right to designate who will possess or enjoy the property.
The powers referred to in this Section can be narrow – such as the retained right to choose between two beneficiaries – or broad – such as the retained right to choose among a prescribed class of persons.
The following powers retained by the transferor cause inclusion of the entire property in the estate of the transferor:
The phrase “in conjunction with another person” means that even though a decedent may be constrained by a co-holder of the power, §2036(a)(2) still applies. A right of the transferor to veto the action of another person is sufficient to invoke §2036(a)(2).
Exceptions to application of §2036(a)(2):
General rules for amount of inclusion:
IRC §2037 – Transfers Taking Effect at Death
The value of a decedent’s gross estate includes the value of property to the extent of any interest therein of which the decedent made a lifetime transfer after September 7, 1916 if:
Section 2037 applies because the transfer is sufficiently incomplete in that:
The question of survivorship is not focused on whether possession or enjoyment of the interest is actually obtained before the decedent’s death, the inquiry is whether possession or enjoyment of the interest could be obtained only by surviving the transferor. For purposes of §2037, a reversionary interest refers to any possibility that corpus (but not income) may return to the transferor or his or her estate. This concept encompasses interests subject to conditions precedent and conditions subsequent, although the interest need not have matured into possession or enjoyment.
The §2037 reversionary interest requirement is commonly satisfied in the following situations:
Reversionary interest does not include the possibility that the decedent will receive an interest in previously transferred property in the form of an inheritance from the person it was transferred to. The reversionary interest must actually exist at the death of the transferor. It can either be created by the express terms of an instrument or by operation of law.
An example of a reversion that arises by operation of law is where Mr. Smith transfers all of his property to an irrevocable trust, with the income to be accumulated until Mr. Smith’s death and the remainder to be distributed to his then-living children. If Mr. Smith is not survived by any of his children, the property passes to Mr. Smith’s estate.
Immediately before the death of the transferor, the value of the transferor’s reversionary interest must exceed 5% of the value of the transferred property. This value is determined by consulting §7520 actuarial tables, providing present values of the remainder interests being analyzed.
Exceptions to application of §2037:
If the requirements of §2037 are met and none of the exceptions apply, the entire value (as of the date of death) of any interests transferred, the possession or enjoyment of which is contingent upon surviving the decedent, is included in the decedent’s gross estate.
IRC §2038 – Revocable Transfers
Section 2038(a)(1) will be invoked if each of the following requirements is satisfied:
The power to “alter or amend” has been broadly construed and does not need to be for the benefit of the transferor. Each of the following constitutes a power to alter or amend:
Section 2038(a)(1) explicitly states that a power to terminate triggers §2038, even though termination may cause the property to go to persons other than the transferor.
The power to revoke may be explicitly retained in the document of transfer or state law may provide an implicit power of revocation that is not expressed in the instrument of transfer. For example, if under state law, the settlor’s creditors can reach the corpus because the trustee may make discretionary distributions for the benefit of the settlor, the settlor has retained an implicit power to revoke.
Exceptions to application of §2038:
Under §2038, the amount includible in the estate of the decedent is the estate tax value of the interest or interests subject to the §2038 power, rather than the estate tax value of the entirety of the property to which the interest relates, as is generally the case under §2036. However, if more than one provision causes inclusion in the gross estate, the applicable provision is whichever causes the greatest inclusion in the gross estate.
IRC §2039 – Annuities
Section 2039 stipulates that the gross estate includes the value of an annuity or other payment receivable by any beneficiary by reason of surviving the decedent under any form of contract or agreement (other than insurance on the decedent’s life) if, under such contract or agreement, an annuity or other payment was payable to the decedent for any period not ascertainable without reference to his or her death or for a period that does not end before his or her death.
Inclusion under §2039 requires the following conditions:
Private annuities that expire upon the transferor’s death escape inclusion in the transferor’s gross estate under §2039, as death extinguishes the transferor’s right to any further payments with no amount being payable to a beneficiary.
IRC §2040 – Joint Interests
Non-Spousal Tenancies – §2040(a)
The presumption is that the entire jointly owned estate is includible in the deceased joint tenant’s gross estate. To overcome this presumption, the personal representative of the estate has the burden of showing the surviving co-tenant either originally owned the asset, or contributed to its acquisition.
In addition, §2040(a) provides that jointly owned property acquired by the owners by gift, bequest, devise, or inheritance from another is included in a deceased joint tenant’s estate only to the extent of that joint tenant’s interest, determined by dividing the value of the property by the number of joint tenants.
Spousal Tenancies – §2040(b)
Effective for estates of decedents dying after 1981, §2040(b) establishes a special estate tax inclusion rule for “qualified joint interests.” A “qualified joint interest” is any interest in property held by the decedent’s surviving spouse as tenants by the entirety, or joint tenants with right of survivorship, but only if the decedent and the spouse of the decedent are the only joint tenants. Also, the surviving spouse must be a U.S. citizen.
One-half of the value of a qualified joint interest is includible in the estate of the first spouse to die. This rule applies regardless of which spouse furnished consideration in acquiring the property or whether a gift occurred upon formation of the joint tenancy. The portion includible in the deceased spouse’s estate qualifies for the estate tax marital deduction. The survivor’s basis in the one-half interest is, in most cases, entitled to a step-up in basis to fair market value with respect to that one-half of the property.
IRC §2041 – Powers of Appointment
Property subject to a general power of appointment held by a powerholder at his or her death is includible in his or her gross estate under §2041. A general power of appointment is commonly defined as “a power exercisable in favor of the powerholder, his or her estate, his or her creditors, or the creditors of his or her estate.” A power of appointment may be created by Will, deed, trust or other instrument.
Regulation § 20.2041-1(b)(1) identifies the following rights as powers of appointment:
Conversely, the following powers will not be deemed to be powers of appointment:
A power vested in a donee to consume, invade, or appropriate property, even though for his or her own benefit, is not deemed a general power of appointment if it is limited by an “ascertainable standard” relating to the health, education, maintenance, or support. If a decedent holds a general power under §2041, the decedent’s estate must report the value of the property (at the date of death value) subject to the power.
IRC §2042 and Irrevocable Life Insurance Trust (“ILIT”)
Section 2042 provides that the value of the gross estate shall include the value of all property:
Generally, when a trust is modified under state law (See III(B) below) the life insurance proceeds are not included in the settlor’s estate under §§2036-2038. However, the mere ability to amend an ILIT would appear to qualify as an incident of ownership exercisable by the decedent in conjunction with another person which could cause insurance proceeds, thought to be outside the decedent’s estate, to instead be included. In fact, the Internal Revenue Service (“IRS”) could take the position that the settlor would not even need to consent to the modification to reach this result, as the power itself may suffice.
Note: The IRS has not ruled on this specific issue, but it should be brought to clients’ attention, especially when considering modification of a valuable ILIT. A safer option would be to sell the policy from one trust to another trust in order to avoid the issue altogether. The purchase price is the interpolated terminal reserve value plus any unused portion of the paid premium.
§7740.1 – Modification or Termination of Noncharitable Irrevocable Trust by Consent
Consent by settlor and beneficiaries: A noncharitable irrevocable trust may be modified or terminated upon consent of the settlor and all beneficiaries even if the modification or termination is inconsistent with a material purpose of the trust. A settlor’s power to consent to a trust’s modification or termination may be exercised by a guardian, an agent under a settlor’s general power of attorney, or an agent under the settlor’s limited power of attorney that specifically authorizes that action.
Consent by beneficiaries with court approval: A noncharitable irrevocable trust may be modified upon the consent of all the beneficiaries only if the court concludes that the modification is not inconsistent with a material purpose of the trust. A noncharitable irrevocable trust may be terminated upon consent of all the beneficiaries only if the court concludes that continuance of the trust is not necessary to achieve any material purpose of the trust. A spendthrift provision in a trust instrument is presumed to constitute a material purpose of the trust.
Upon termination, the trustee shall distribute the trust property as agreed by the beneficiaries. If not all of the beneficiaries consent to a proposed modification or termination of a trust, the modification or termination may be approved by the court only if the court is satisfied that:
§7740.2 – Modification or Termination of Noncharitable Irrevocable Trust by Court
The court may modify the administrative or dispositive provisions of a noncharitable irrevocable trust, make an allowance from the principal of the trust or terminate the trust, if, because of circumstances that apparently were not anticipated by the settlor, modification, allowance or termination will further the purposes of the trust. To the extent practicable, the modification or allowance shall approximate the settlor’s probable intention.
The court may modify the administrative provisions of a noncharitable irrevocable trust if adherence to the existing provisions would be impracticable, wasteful, or impair the trust’s administration.
Upon termination of a trust under this section, the trustee shall distribute the trust property in a manner consistent with the purposes of the trust.
§7740.4 – Modification or Termination of Noncharitable Trust – UTC 414
A trustee of a noncharitable trust may terminate the trust if the trustee concludes that the value of the trust property is insufficient to justify the cost of administration, the trustee has given written notice to the qualified beneficiaries at least 60 days before the proposed termination, and no qualified beneficiary provides the trustee with a written objection to the proposed termination on or before the date specified in the notice. The court may modify or terminate a noncharitable trust, or remove the trustee and appoint a different trustee, if it determines that the value of the trust property is insufficient to justify the cost of administration.
Upon termination of a trust under this section, the trustee shall distribute the trust property in a manner consistent with the purposes of the trust.
§7740.5 – Reformations to Correct Mistakes
The court may reform a trust instrument, even if unambiguous, to conform to the settlor’s probable intention if it is proved by clear and convincing evidence that the settlor’s intent, as expressed in the trust instrument, was affected by a mistake of fact or law, whether in expression or inducement. The court may provide that the modification have retroactive effect.
§7740.6 – Modifications to Achieve Settlor’s Tax Objectives
The court may modify a trust instrument in a manner that is not contrary to the settlor’s probable intention in order to achieve the settlor’s tax objective. The court may provide that the modification have retroactive effect.
Trust Protectors are a very simple way to create flexibility in an irrevocable trust document. The scope of the Trust Protector depends on the instrument of appointment. The Trust Protector needs to be an independent person. The role can be a very narrow one, such as simply overseeing the trustee and being given the power to fire the trustee in certain circumstances.
The role can, however, be much broader, and encompass some or all of the following powers:
Great care should be taken while drafting the powers of the Trust Protector to ensure that the powers do not include:
The states with the most aggressive asset protection laws, while giving the settlor some level of control over assets irrevocably transferred in trust include Alaska, Delaware, Nevada, New Hampshire, South Dakota, and Tennessee. These states generally require the trustee to be local to the state, so a corporate trustee is typically utilized.
Before certain asset protection attributes are guaranteed, there may be a waiting period of several years where the trust assets must be held in trust. These trusts often don’t guard against creditors such as current tort lawsuits or divorcing spouses. Another benefit is that their liberal state laws often grant a trustee the unilateral power to amend an irrevocable trust agreement by giving notice to the beneficiaries – sometimes consent is not required.
Recent Tax Court Cases, Revenue Procedures, and Private Letter Rulings that support the trend of the IRS attacking schemes whereby grantors attempt to control assets that they want to keep out of their estates (i.e. “plugging loopholes”) include:
In Revenue Procedure 2015-37, 2015-26 IRB, the IRS ruled that it will no longer provide a ruling letter that assets in a grantor trust will receive a Code Sec. 1014 basis adjustment on the death of the owner where those assets aren't included in the owner's estate. Practitioners have speculated that this no-rule guidance may be targeted at the overly aggressive use of intentionally defective grantor trusts as an estate planning tool.
In Balsam Mountain Investments, LLC v. Comm'r, TC Memo 2015-43 (March 12, 2015), the Tax Court denied an income tax deduction for a gift of a conservation easement over a 22-acre parcel of land, where the donor retained the right to make minor modifications of the boundaries of the restricted area. The Tax Court, relying on Belk v. Comm'r, 140 TC 1 (2013), supp'd by TC Memo. 2013-154, aff'd, 774 F3d 221 (4th Cir. 2014), stated that an interest in real property is a deductible “qualified real property interest” only if it is an interest in an identifiable, specific piece of real property, and that the property is not identifiable if the donor can change the boundaries.
In PLR 201507008 (Feb. 13, 2015), the IRS stated that an irrevocable trust for the benefit of the grantor and her issue was a grantor trust for income tax purposes, an incomplete gift for gift tax purposes, and includible in the grantor's gross estate for estate tax purposes. The trust allowed an independent distribution adviser to direct the independent trustee as to distributions of principal and allowed the grantor to veto distributions to her issue. It also gave the grantor a lifetime and testamentary power to appoint the trust assets among the issue of her father, excluding the grantor, her estate, her creditors, and the creditors of her estate. The grantor was allowed to borrow trust assets with independent interest, but not necessarily with security.
In PLR 201440008 – PLR 201440012 (Oct. 3, 2014), the IRS stated that transfers to an irrevocable trust were not completed transfers for gift tax purposes, and that the trust was not a grantor trust. The trusts were directed trusts for the benefit of the grantor, her stepchildren, her children, and their issue. During the grantor's lifetime, the trustee must distribute net income and principal to and among the beneficiaries as follows: (a) pursuant to the direction of a majority of the distribution committee, with the grantor's written consent; (b) pursuant to the direction of the unanimous distribution committee members, other than the grantor; and (c) pursuant to the grantor's sole decision, to beneficiaries other than the grantor, for their health, maintenance, support, and education.
The IRS stated that, as long as there was a distribution committee, the trust was not a grantor trust, contributions of property to the trust were not completed gifts by the grantor, distributions of property by the distribution committee from the trust to the grantor were not completed gifts by any member of the distribution committee, and distributions of property by the distribution committee from the trust to any beneficiary, other than the grantor, were not completed gifts by any member of the distribution committee, other than the grantor.
In PLR 201326011 (June 28, 2013), the IRS stated that a grantor who was the income beneficiary of an irrevocable trust and who held a testamentary limited power to appoint the remainder of the trust was deemed to own both income and principal under the grantor trust rules. The IRS stated that the grantor owned the ordinary income of the trust, because it must be distributed to her, and she owned the income allocable to principal (gains and losses, depreciation, depletion, and other principal items), because the grantor has a testamentary power to appoint the corpus (and any accumulated income allocable to corpus), and capital gains are added to corpus.
Independent Trustee
The phrase “Independent Trustee” generally means a person who has no beneficial interest, present or future, vested or contingent, direct or indirect, in the trust. The Independent Trustee also cannot be any of the following:
Intentionally Defective Grantor Trust
A grantor trust is a trust that runs afoul of the rules contained in IRC§§671-679. Traditionally, violating these rules was viewed negatively, because the grantor of the trust was, for income tax purposes, the owner of the trust assets, and therefore responsible for all income tax associated therewith. This income tax responsibility rested with the grantor whether the income and/or principal was distributed to the grantor or not.
Modern thinking is that violating these rules produces a positive result in many instances, as the grantor’s payment of the income tax generated on the trust’s assets is not considered a gift to the trust beneficiaries. Although the grantor is treated as the owner for federal income tax purposes, the grantor is not necessarily treated as the owner for federal estate tax purposes. The estate tax inclusion rules are applied separately to make this determination.
An Intentionally Defective Grantor Trust (“IDGT”) is a term used for a trust that is purposely drafted to invoke the grantor trust rules. The grantor typically utilizes an IDGT by irrevocably transferring assets to the trust for the benefit of others, typically children or grandchildren. Those assets are removed from the grantor’s estate for estate tax purposes.
The grantor continues to pay the income tax on those assets which provides three substantial benefits:
Decanting
The basic premise is that if the trustee has the ability to invade corpus for a beneficiary under the terms of a trust agreement, the trustee may, in the exercise of its principal invasion power, appoint the principal to a new trust for the benefit of some or all of the beneficiaries of the first trust.
The various state statutes permit a trustee to exercise a decanting power to varying degrees. Decanting statutes can be used to update the terms of a governing instrument by pouring over all of the assets from a trust governed by an outdated instrument to a new trust that contains modern administrative provisions that will afford more flexibility to the trustee and beneficiaries. The decanting statute can also be used in certain situations to alter the beneficial interest in a trust.
There are at least 17 states that have enacted decanting statutes: Alaska, Arizona, Delaware, Florida, Illinois, Indiana, Kentucky, Missouri, Nevada, New Hampshire, New York, North Carolina, Ohio, Rhode Island, South Dakota, Tennessee and Virginia.
Trust Protector
An independent person or entity who holds one or more powers capable of affecting what the trustees are able to do with the trust property.
Investment and Distribution Committees
Increasingly popular strategies to remove the trustee of investment and/or distribution decisions by assigning investment decisions to appropriate experts and distribution decisions to family advisors.
Contributing Authors: Robert G. Dwyer and Frances A. McCormick
Originally published in October 2015
Copyright © 2015 Knox McLaughlin Gornall & Sennett, P.C.