Below is a summary of rules for trusts. These rules must be observed
in order to prevent the trust from being dismantled by the government
or the courts.
1. The Trust:
- Is a separate legal person.
- Holds legal title to property that forms the corpus of the trust.
- May be a "resident" or "nonresident" of a specific forum
or jurisdiction.
- A nonresident trust is a "nonresdient alien" in respect
to the national government.
- The trust must exist for at least a year
before the
trust becomes immune to any legal action against the Grantor
to recover his assets.
- There are two types of trusts: Private/pure trusts and
Statutory trusts.
- Statutory Trusts" are engaged in a "trade or business"
and connected to a public office in the government and
therefore subject to government control/regulation.
- Private Trusts are not subject to government statutory
regulations or control. The U.S. Supreme Court has
held that the ability to regulate private conduct is
repugnant to the constitution and therefore private trusts
are not a "person" under the civil law.
- A private trust becomes a statutory trust by applying
for and using a government issued identifying number.
26 CFR §301.6109-1 indicates that Taxpayer Identification
Numbers may only be used in connection with the exercise of
a "trade or business", which is defined in
26 U.S.C. §7701(a)(26) as "the functions of a
public office."
- If the trust is a passive entity that doesn't transact
financial business, don't get ID numbers like
Employer ID numbers.
- If it must open a bank account and only if the bank
insists on getting a number to open an account should the
trust obtain a government number using the SS-4 form.
- Private trusts wishing to STAY private when applying for
an Employer Identification Number (EIN) should be VERY
careful how they fill out the SS-4 form. They should
check "Other" for the entity type and identify the purpose
of application "For banking purposes only. NOT an
'employer' or public office in the government."
We recommend attaching the following form to the SS-4
application:
Why It is Illegal for Me to
Request or Use a "Taxpayer Identification Number",
Form #04.205
http://sedm.org/Forms/FormIndex.htm
- In order to protect the trust from illegal tax
enforcement, the trust indenture/contract should have a
provision prohibiting the trustees or their assigns from
applying for or accepting or using government issued
identifying numbers. That way, if they trust is forced
to obtain a number, the trustee can later use as a defense
that it is beyond his delegated authority to do so and
therefore the request and all the consequences resulting
from use of the number are void ab initio. This is the
same defense the government uses when its officers exceed
their delegated authority.
- Trusts wishing to open bank accounts are may be asked
for one or more of the following:
14.1 Certificate of registration from the Secretary of
State of Your State.
Click here to find the Secretary of State for your
state.
14.2 Articles of incorporation.
14.3 The trust document itself.
14.4 An affidavit of trust identifying the existence of
the trust, and sometimes the officers and beneficiaries.
It is best not to disclose the beneficiaries or all of the
trustees on the above documents submitted to third parties
such as banks in order to keep the trust as private
as possible. If you are compelled to provide evidence
of the existence of the entity to a financial institution,
call it a association and give them Articles of
Incorporation so that the trust, beneficiaries, and trustees
stay private.
- After 911, the IRS told many banks that they can't open bank
accounts directly in the name of trusts because terrorists were
using trust accounts to launder money. If you have problems
opening trust financial accounts directly, consider doing the following:
15.1 Going to another bank.
15.2 Creating a Limited Liability Company (LLC) to
handle all the accounts.
2. The Creator:
- Creator, Grantor, and Settlor are all names for the same
person.
- The Creator is the one who creates the trust document,
appoints the trustee, and accepts the initial corpus of the
trust, which is usually some sum of money. He/she
usually does this for a fee.
- The Creator creates the trust for the Exchanger, who is the person who requested the trust.
3. The Trustee(s):
- Appointed by the Creator.
- Has no personal tax liability for the actions of the
trust, if it is a statutory entity.
- Trustee can be a relative of the Beneficiary.
- The Trustee can defend a trust in court without being a
lawyer. If there is more than one trustee, the group of
trustees must be represented by a lawyer.
- The trustee can appoint a manager, but the manager or he
can also be a manager separately.
- The Trustee cannot hold multiple title. He can only
be a Trustee and not a Beneficiary or a Protector.
- A corporation can be a Trustee.
4. The Beneficiary:
- The Beneficiary is the person who receives the benefits
from the corpus of the trust.
- The Beneficiary of the trust gets equitable title to the
corpus of properly in the trust.
- If the trust is a statutory (public) trust, then
distributions to the beneficiary are taxable. If it is
a private trust not connected to a "trade or
business"/public office, they are not.
5. The Protector:
- Not all trusts have protectors, but good ones do.
- The Protector is empowered to fire trustees and replace
them.
- Relatives are OK as protectors. If trustee becomes
incapacitated then he can be replaced by the Protector.
- The General Manager of the trust can also be a Protector.
- The Protector can be anyone.
6. Sequence for Creating a Trust
- Creator and Exchanger:
1.1 Exchange consideration
1.2 Sign Trust Contract.
- Creator creates: Register of Certificates
- Creator creates and signs:
3.1 Schedules
3.2 Indenture (get notarized)
3.3 Certificate of Beneficial Interest 001
- Creator sends following to exchanger:
4.1 Indenture
4.2 Certificate of Beneficial Interest 001
4.3 Surrender of Certificate of Beneficial Interest
- Exchanger: Signs indenture (get notarized)
- Exchanger:
6.1 Lines out and signs “Surrendered” on Certificate 001
6.2 Signs Surrender of Certificate
6.3 Sends signed indenture and Certificate 001 and
Surrender of Certificate to Creator
- Creator:
7.1 Updates register of Certificates to remove Exchanger
and add final beneficiary.
7.2 Prepares Certificate of Beneficial Interest 002 in
name of Beneficiaries
7.3 Prepares appointment of First Trustee
- Creator sends following to First Trustee:
8.1 Appointment of First Trustee
8.2 Covenant of Privacy
- First Trustee signs and sends following to Creator:
9.1 Appointment of First Trustee
9.2 Covenant of Privacy
- Creator sends all trust paperwork to First Trustee
- Board of Trustees Convenes
11.1 Adds additional property to Minute Number 1 that is
to be added to trust.
11.2 Nominates additional trustees.
11.3 Issues Minute Number 1
11.4 Issues Affidavit and Notice of Trustees Powers.
Witness signs it.
- Trustee records following with county recorder if desired:
Affidavit and Notice of Trustees Powers, if desired.
- Additional property is conveyed into trust by third parties
and notice given of conveyance
- Trustee updates Schedule B adding assets conveyed into trust