Crummey Trusts
 There are many non-tax benefits to making lifetime gifts to loved ones, aside from the obvious tax benefits. For example, what better way to preview the financial maturity of your loved
ones with an inheritance in the future than through a dress rehearsal in the present … while you are still in the audience?
Keeping Control
If you are like most people, you may be reluctant to part with control over how your lifetime gifts will be used once transferred. Unfortunately, when you retain direct control over a
gift, the value of the gift (and its appreciation) may be included in your estate upon your death for estate tax purposes. Worse yet, the gift may be taxable at the time of transfer as a future
interest gift, rather than treated as a nontaxable present interest gift.
To qualify as a nontaxable present interest gift, the donee must be able to exercise complete and unrestricted control over the gift. Fortunately, there are exceptions to this
general rule, such as custodial accounts for minors as described. Another exception is the Crummey Trust, as created in the landmark case of Crummey v. Commissioner, 397 F2d
82 (9th Cir. 1968).
Although the Crummey case carved an exception to the general rule regarding the present interest requirement for nontaxable gifts, the path to safety is very narrow. Therefore, it is
essential for the success of your Crummey Trust that you dot all of the legal i’s and cross all of the procedural t’s. Truly, the devil is in the details here. [Note: If
a Crummey Trust is properly created, administered and funded with life insurance, then 100 percent of the eventual insurance proceeds will be excluded from the trustmaker’s estate
under current tax law.]
Crummey Requirements
First, you create an irrevocable trust agreement (you cannot change its terms once signed by you) containing all of the strings you wish to attach to the future gifts to the
trust.
Second, you make lifetime gifts to the trustee on behalf of your trust beneficiary (or beneficiaries).
Third, the trustee must provide written notice to the beneficiary (or their legal guardian, if the beneficiary is a minor) each time you make such a gift, giving the beneficiary a
period of time (typically not less than 30 days) to exercise their right to withdraw all or part of the gifted amount.
If the beneficiary does not exercise this withdrawal right, then the gift lapses and the trustee administers the gift for the beneficiary according to the strings you attached.
These strings may provide valuable protection for your gifts from divorces, lawsuits, bankruptcies and squandering. Conversely, if the beneficiary exercises this withdrawal right, then you
may have gained a valuable insight into their current financial maturity level. In either case, you may wish to revise your estate plan accordingly.
As on Broadway, a dress rehearsal today may prevent bad acting tomorrow.
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