Tag Archives: irrevocable trust

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Photo of Donald Trump and his daughter Ivanka at property that will probably go into blind trust

Trump cannot avoid conflict with “Blind Trust”

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There is been a lot of discussion in the news lately about Donald Trump needing to transfer his investments to a blind trust. For example, the Wall Street Journal suggested in a November 17, 2016 editorial that Donald Trump transfer his real estate holdings so he does not have a conflict of interest in serving as President of the U.S. The conflict of interest concern is that Mr. Trump could push for legislation that will benefit his businesses, thus making his family money, whether or not it is good for the U.S.

So, what is a blind trust anyway? A “blind trust” is a common name for a variety of irrevocable trust in which a person names an independent person to manage the person’s assets. Let me start from the basics and explain so you understand.

A trust is a type of legal vehicle roughly similar to a corporation. You can’t feel or touch a trust. But it exists from a legal standpoint. A trust can own buildings and property. It can sue people in court. It can buy and sell things. It can hire and fire people.

You may have heard of a “living trust.” That’s a colloquial name for a trust that is commonly created by people who own a house and investments and want to avoid probate when they die. It is “revocable” because if you create one, you want to be able to make changes. Maybe you want to add a beneficiary. Or maybe you no longer like the trustee you named to take over when you die, so you insert a new person.

A blind trust is a type of irrevocable trust, meaning that (officially) it cannot be changed by the person who created it. I put the word “officially” in parentheses because there are indirect loopholes. With a blind trust, you create the irrevocable trust, but you remain the beneficiary. Here’s how a blind trust basically works:

  • You go to a lawyer (don’t try doing this on your own) to write the trust document.
  • You are the “grantor” or “trustor” or “creator”, which are all words that mean the same thing. They mean that you are creating the trust.
  • You choose a trustee who is a person other than yourself. The best bet is usually to name a trust company.
  • For a blind trust, you would name yourself as the beneficiary. An asset protection trust is a type of blind trust. Otherwise, you could name your children or other people as the beneficiaries; but then it wouldn’t be a blind trust.

All the news media is going crazy over talk about a “blind trust” as a way of eliminating the potential conflict of interest for Donald Trump. I agree that Mr. Trump can’t transfer his assets to a trust naming his children as beneficiaries. That would trigger a gift tax of roughly 50%.

But if Mr. Trump transfers his holdings to a “blind trust”, he is a smart person and will have checks and balances. He’s not going to risk having some independent company in control and making bad decisions. He will name a Trust Protector, which is an (officially) independent person with the power to make changes to the trust, add/remove beneficiaries, add/remove trustees, and so on. This independent Trust Protector will be someone loyal to Mr. Trump. And Mr. Trump will have the ability to replace the Trust Protector. So even if Mr. Trump is (officially) not managing his properties and businesses, he will have indirect control over them. And he will still be the beneficiary.

Again, the only other way for Mr. Trump to completely divest himself of his businesses is to pay a 50% gift tax and transfer everything to a trust for his kids. But a real estate investor has most of his wealth tied up in real estate. He can’t write a check for 50% of his wealth. So Mr. Trump is stuck. He MUST remain at least someone in control of all of his wealth.

He can do the best he can to transfer his investments to a blind trust. But he will still have some sort of control.

Mr. Trump will probably transfer his investments to a blind trust, and everyone will breathe a sigh of relief. He will have (officially) set things aside so he is no longer in control. But he will still have indirect control, such as being able to ask the Trust Protector to ask the trustee to do things he wants. There is no other way.

That being said, keep in mind that what is good for Mr. Trump as a real estate investor is going to be good for other real estate investors as well. Maybe the lesson out of all of this is to start investing in real estate.

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Decanting: When Trust B needs to be fixed

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Here’s the scenario: A married couple had a joint trust. One spouse has died. The survivor now wants to ensure that the trust money is protected for the benefit of the couple’s child or children (and grandchildren). A well-written Trust B (the decedent’s trust or bypass trust) would provide asset protection benefits, and would also prevent the next generations from squandering the money. But not every trust is well-written. Sometimes Trust B needs to be fixed by a process called decanting.

Our law firm fixes problems with trusts, so we are all to familiar with the problems that can arise when one spouse has died. Many of these problems are caused by poorly written documents. And a lot of these poorly written documents were prepared by non-attorneys (such as document preparation companies). Such companies are more interested in selling canned documents than actually providing a quality service. In our experience, documents prepared by non-lawyers (even non-lawyers who market themselves as estate planning experts) are usually full of mistakes.

As written in a recent Forbes article: “The trouble with do-it-yourself planning, however, is that even if your situation seems simple, there are many oddball things a layman wouldn’t think of that can go wrong, especially with a will. These mistakes can end up costing your heirs a lot more than you saved in legal fees.” I would lump document preparation companies in the same category as “do-it-yourself planning” because these people have no idea how the documents actually hold up after a person has died.

A couple of common problems in trusts that arise after one spouse has died include:

a. The surviving spouse has complete control. This sounds great at first. But as the surviving spouse gets older, he or she can be pressured by family and friends to change the beneficiaries of the trust. And suddenly the original beneficiaries have been written out of the will (or trust). It is best to provide a check and balance. Having co-trustees is one approach. Another method is to use a trust company (assuming the amount of assets allows for this).
b. The irrevocable trust lacks flexibility. For example, Trust B may provide for an outright distribution to the children, regardless of the children’s ability to successfully manage the money. Or perhaps a trustee is irresponsible but there is no way to remove the trustee without going to court. (This is one reason for using a trust protector.)

Luckily, the Arizona statute provides a way of fixing an irrevocable trust such as Trust B. Section 14-10819 of the Arizona Statutes allows for one irrevocable trust to be transferred to a newly written trust (assuming that certain conditions are met). The process of called “decanting” and is best done by an experienced estate planning attorney.

Has anyone had an issue with needing to fix a trust after one spouse has died? Please let us know below.

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