Despite its off-putting name, a “Crummey trust” can provide favorable results for individuals who have a significant amount of assets. This device might be incorporated into a comprehensive estate plan.
Background: One of the basic ways of saving estate tax is to utilize the annual gift-tax exclusion during your lifetime. Currently, this provision enables you to give away up to $14,000 each year to a donee without paying any federal gift tax ($28,000 for a joint gift by a married couple). For example, if you have two adult children and three grandchildren, you and your spouse can give each one $28,000 for a grand total of $140,000 in tax-free gifts.
This is a relatively simple way to reduce your taxable estate. (Gifts in amounts above the annual exclusion may be sheltered from gift tax by the lifetime gift-tax exemption of $5.43 million in 2015, but this reduces the effective estate-tax shelter.)
When you make an outright gift to a beneficiary like a child, however, you give up control over the assets. So, you run the risk that the money may be squandered—especially if the child is young or irresponsible. Instead, if the assets are transferred to a trust with the child as a beneficiary, you can appoint a trustee to manage the property. After a set period of time (e.g., when the child reaches a certain age), the assets are distributed to the child.
Potential problem: To qualify for the annual exclusion, the gift must be a “present interest.” When a gift is placed in a trust and is not distributed to the beneficiary for a period of years, it is generally considered a “future interest.” This results in a taxable gift. The Crummey trust (named for the case that authorizes its use) was devised as a solution to this problem. Typically, the beneficiary of the trust is granted the right to withdraw trust principal shortly after it is transferred to the trust. Since the beneficiary has a present right of withdrawal, the gift qualifies for the gift-tax exclusion.
Of course, if you are the donor of the trust, you may not want your child to withdraw the assets. Nevertheless, these so-called Crummey powers are usually not exercised. While the beneficiary must be notified of the withdrawal power, he or she may be too young to understand the implications. The trust principal does not have to be paid out when the beneficiary reaches a certain age, so the trust can continue for a long period of time.
Be aware that there are several variations on this theme. Typically, this is not a do-it-yourself proposition. Setting up and administering a Crummey trust usually requires expert professional assistance.