Disclaimer trust

Disclaimer trust allows to transfer property interests to the trust without being taxed. Usually its origin is will of passed spouse. It is necessary that second spouse acts according to the wishes of the passed one. There is a time limit to set up that kind of trust, e.g. in California it is 9 months. Disclaimer trust is different from traditional A/B trust, because it is allows to make decision about the plan later. Disclaimer trust is a powerful tool for many individuals, because is offers the asset transmission defined as beneficiary instead of gift status exposed to different taxes, which are necessary in property area.

Disclaimer trust in practice

Disclaimer trust is a complex legal construction, therefore it should be created with help of professionals. For example, it can bring problems with regard to inheritance. If the will is not precise it can be difficult to set disclaimer trust.

For example, if husband dies, wife can pass interests in the estate to the trust. The trust is then treated as it were the original beneficiary, therefore no tax is required. As a result, children can benefit from regular payouts. Nonmartial trust seems to be the best possible action they may take.

Disclaimer which is qualified cannot be refuse, it means it is irrevocable to accept an interest in property if following points is fullfilled.:

1. It is in writing.
2. There has passed no more than 9 months since disclaimant got age 21 or the interest has been made.
3. Disclaiment didn't refuse the interest and any benefits before.
4. Disclaimer must be effective and fill requirements of local law.

It is becoming more and more popular estate planning vehicle. I makes asset transfer in different direction much more flexible. Making decision may be valuable not only for the owner, but also rest of the closest family.

Examples of Disclaimer trust

• Disclaimer trusts may be used in estate planning to enable a surviving spouse to disclaim, or refuse, an inheritance from a deceased spouse. This may be done if the surviving spouse wishes to avoid being liable for estate taxes on assets they receive from the deceased spouse.
• Disclaimer trusts may be used to transfer assets from one generation to another. This type of trust can be used to transfer assets to a beneficiary while bypassing the probate process.
• Disclaimer trusts may also be used to protect assets so that they remain exempt from creditors. Assets placed in this type of trust are not considered part of the settlor's estate and are, therefore, not subject to creditors' claims.
• Disclaimer trusts may be used for charitable giving. Assets placed in this type of trust can be used to make charitable donations without the donor having to pay any taxes on the donation.
• Disclaimer trusts may also be used to protect assets from lawsuits. Assets placed in this type of trust are not considered part of the settlor's estate, and thus are not subject to any lawsuits that the settlor may be involved in.

Advantages of Disclaimer trust

Disclaimer trust is a type of trust that allows property interests to be transferred to the trust without taxation. It is often created by the will of a passed spouse, and requires that the second spouse follow the wishes of the passed one. There are advantages to setting up a disclaimer trust, including:

• Flexibility: Disclaimer trust allows the second spouse to make decisions about the trust later. This allows for more flexibility and the ability to change the trust plan, if desired.
• Tax Savings: Disclaimer trust can save money on taxes by deferring taxes until the trust is distributed. This can help to preserve the value of the trust for future generations.
• Estate Planning: Disclaimer trust allows for more effective estate planning since the second spouse can make decisions about the trust later. This can help to ensure that the wishes of the passed spouse are honored.

Limitations of Disclaimer trust

Disclaimer trust is a trust which allows to transfer property interests without being taxed. However, there are several limitations when using this trust:

• Disclaimer trust must be set up within a certain time frame, e.g. 9 months in California.
• Disclaimer trust is not a substitute for a traditional A/B trust, because it does not allow for the decision about the plan to be made immediately.
• The second spouse must act according to the wishes of the passed spouse in order for the disclaimer trust to be valid.
• Disclaimer trusts are only available in certain jurisdictions, so it is important to check local laws to see if they can be used.
• Disclaimer trusts can be complicated and expensive to set up, so it is important to get the advice of a qualified attorney before proceeding.

Other approaches related to Disclaimer trust

Other approaches related to Disclaimer trust include:

• The Qualified Terminable Interest Property (QTIP) trust. This trust is used to provide income to a surviving spouse while allowing the remainder of the trust to pass to another beneficiary upon the death of the surviving spouse. The surviving spouse has the right to use the income from the trust and can even receive principal from the trust, but they cannot change the terms of the trust or the beneficiaries.
• The Intentionally Defective Grantor Trust (IDGT). This trust is used to remove assets from the grantor's taxable estate and to shelter them from creditors. The grantor must be the trustee of the trust and must also pay the taxes on the trust assets.
• The Qualified Personal Residence Trust (QPRT). This trust is used to transfer an individual's primary residence to a beneficiary at a discounted value. The grantor can still live in the residence for a designated period of time, but once that period has ended, the residence will transfer to the beneficiary.

In summary, other approaches related to Disclaimer trust include the Qualified Terminable Interest Property (QTIP) trust, the Intentionally Defective Grantor Trust (IDGT), and the Qualified Personal Residence Trust (QPRT). These trusts all provide different benefits, depending on the individual's needs.

Footnotes

Disclaimer trust — recommended articles

Spendthrift clause — Absolute assignment — Consent order — Negative easement — Gift in trust — Pendente lite — Clear title — Tenancy at Will — Collateral assignment

References

• Becker, L. C. (2014). Property Rights (Routledge Revivals): Philosophic Foundations, Routledge, Abingdon-on-Thames.
• Cabral, M., & Hoxby, C. (2012). The hated property tax: salience, tax rates, and tax revolts (No. w18514) . "National Bureau of Economic Research", 2-60.
• Hirsch, A. J. (2001). Revisions in Need of Revising: The Uniform Disclaimer of Property Interests Act. Fla. . "St. UL Rev.", 29, 109.
• Hirsch, A. J. (2011). The Code Breakers: How States Are Modifying the Uniform Disclaimer of Property Interests Act. . "Real Prop. Tr. & Est. LJ", 46, 325.
• LaPiana, W. P. (2000). Uniform Disclaimer of Property Interests . "Prob. & Prop.", 14, 57.
• LaPiana, W. P. (2003). Some Property Law Issues in the Law of Disclaimers. . "Real Prop. Prob. & Tr. J.", 38, 207.
• Martin, J. H. (2004). The Joint Trust: Estate Planning in a New Environment. "Real Property, Probate and Trust Journal", 275-313.
• Reardon, D. C. (2003). The rise of disclaimer trusts. . "Journal of Financial Service Professionals", 57(1), 17.
• Schain, G. M. (1984). The Effective Disclaimer . "Cath. UL Rev.", 34, 19.

Author: Krystian Prorok