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Friday, April 21, 2017

Beneficiary Defective Inheritor's Trust – You Just Can't Beat It


Being a child of the ’70s and growing up through the ’80s, I was a HUGE fan of Michael Jackson. So, for this article, I’ll focus on my favorite Michael Jackson hit, BDIT. Who could forget the lyrics to this all-time classic? Below are just a few lines:

They told him don’t you give your assets 'round here
Don’t wanna lose control, you better disappear
The assets need to go and the answer is really clear
So BDIT, just BDIT
Assets transferred by a third party who can
You’ll need a good advisor and lawyer man
You wanna keep control, guess what? You can
So BDIT, this technique is not bad
Just BDIT, BDIT, BDIT, BDIT
You want your estate depleted
Creditor protection, they cannot fight
Transferring wealth, but control is your right
Just BDIT, BDIT
Just BDIT, BDIT
Just BDIT, BDIT
Just BDIT, BDIT


The King of Pop was well ahead of his time when he moonwalked to the benefits of utilizing a beneficiary defective inheritor’s trust (BDIT). The BDIT is a powerful estate planning tool that allows you to enjoy the benefits of a traditional trust without giving up control over your property. You can continue managing and using the BDIT assets without compromising the trust’s ability to reduce transfer taxes and shield assets from your creditors.

BDITs can hold a variety of assets, but they’re particularly effective for assets that have significant appreciation potential, or that are entitled to substantial valuation discounts, such as interests in family limited partnerships or limited liability companies (LLCs). And by designing a BDIT as a “dynasty” trust, you can provide benefits for future generations without triggering transfer taxes or exposing the trust assets to creditors’ claims.

When to use one
Popular estate planning tools such as grantor retained annuity trusts and intentionally defective grantor trusts offer many benefits. They enable you to leverage valuation discounts to reduce gift, estate and generation-skipping transfer taxes. And they allow you to “freeze” asset values at their date-of-contribution levels, protecting all future appreciation from transfer taxes.

These tools also take advantage of the grantor trust rules to generate additional estate planning benefits. The trust’s income is taxed to you, as grantor, allowing the assets to grow tax free and preserving more of your wealth for future generations. Essentially, your tax payments are additional, tax-free gifts to your children or other beneficiaries. And, because a grantor trust is your alter ego, you can sell it appreciated assets—removing them from your estate—with no income tax consequences.

Despite these benefits, most traditional trusts suffer from a significant disadvantage: You must relinquish the right to control, use or direct the ultimate disposition of the trust assets. If you wish to take advantage of trust-based estate planning techniques, but you’re not ready to let go of your wealth, a BDIT may be the answer.

Why it works
The BDIT’s benefits are made possible by one critical principle: Assets transferred by a third party to a properly structured trust for your benefit enjoy transfer tax savings and creditor protection, even if you obtain control over those assets.

IRS rules prohibit you from transferring assets to beneficiaries on a tax-advantaged basis if you retain the right to use or control the assets. But those rules don’t apply to assets you receive from others in a beneficiary-controlled trust. The challenge in taking advantage of a BDIT is to place assets you currently own into a third-party trust.

How it works
Here’s an example of how the classic BDIT strategy works. In keeping with the Michael Jackson theme, let’s say Michael owns his home and several other pieces of real estate in Neverland Ranch LLC. He’d like to share these properties with his three children on a tax-advantaged basis by transferring LLC interests to trusts for their benefit, but he’s not yet ready to relinquish control. Instead, he arranges for his friend Webster to establish two BDITs, each naming Michael as primary beneficiary and trustee and one of Michael’s children as contingent beneficiary.

To ensure that the BDITs have the economic substance necessary to avoid an IRS challenge, Webster “seeds” the trusts with cash. (We’ll discuss seeding later.) He also appoints an independent trustee to make decisions that Michael can’t make without jeopardizing the strategy, including decisions regarding discretionary distributions and certain tax and insurance matters.

In addition, in order for each trust to be “beneficiary defective,” the trust documents grant Michael carefully structured lapsing powers to withdraw funds from the trust. This “defect” ensures that Michael is treated as the grantor of each trust for income tax purposes.

After the BDITs are set up, Michael sells a one-third Neverland Ranch LLC interest to each trust at fair market value (which reflects minority interest valuation discounts) in exchange for a promissory note with a market interest rate. When the dust settles, Michael has removed the LLC interests from his taxable estate at a minimal tax cost, placed them in trusts for the benefit of himself and his heirs, and provided some creditor protection for the trust assets.

Unlike a traditional trust strategy, however, this strategy allows Michael to retain the right to manage and use the trust assets, to receive trust income, and to withdraw trust principal in an amount needed for his “health, education, maintenance or support.” He also has the right to receive additional distributions, at the independent trustee’s discretion, in any amount.

In addition, Michael has the right to remove and replace the independent trustee, and to use a special power of appointment to distribute trust assets as he sees fit (so long as he doesn’t direct distributions to himself, his estate or his creditors).

Planting the seeds for a BDIT
To ensure that a BDIT will withstand an IRS challenge, it’s critical for the sale of assets to the trust to have “economic substance.” Generally, that means that the third party establishing the trust must “seed” the trust with a meaningful contribution of his or her own funds. If you give the third party the seed money, the IRS will likely view the transaction as a sham.

According to a common rule of thumb, seed money should be at least 10% of the asset purchase price. This may not be feasible, however, if you plan to transfer millions of dollars in assets to a BDIT. If the third party lacks the means to contribute sufficient seed money, you may be able to make up the difference by obtaining a personal guarantee from a financially sound and creditworthy party.

The best of both worlds
Traditional estate planning techniques often involve a trade-off between tax and asset protection benefits on one hand, and control over your wealth on the other. A properly structured BDIT can provide the best of both worlds. Talk with your advisor to determine if a BDIT makes sense as part of your estate plan.

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