SUMMARY OF RULES FOR TRUSTS
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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:

  1. Is a separate legal person.
  2. Holds legal title to property that forms the corpus of the trust.
  3. May be a "resident" or "nonresident" of a specific forum or jurisdiction.
  4. A nonresident trust is a "nonresdient alien" in respect to the national government.
  5. 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.
  6. There are two types of trusts: Private/pure trusts and Statutory trusts.
  7. 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.
  8. 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.
  9. 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."
  10. If the trust is a passive entity that doesn't transact financial business, don't get ID numbers like Employer ID numbers. 
  11. 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.
  12. 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
  13. 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.
  14. 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.
  15. 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:

  1. Creator, Grantor, and Settlor are all names for the same person.
  2. 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.
  3. The Creator creates the trust for the Exchanger, who is the person who requested the trust.

3.  The Trustee(s):

  1. Appointed by the Creator.
  2. Has no personal tax liability for the actions of the trust, if it is a statutory entity.
  3. Trustee can be a relative of the Beneficiary.
  4. 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. 
  5. The trustee can appoint a manager, but the manager or he can also be a manager separately.
  6. The Trustee cannot hold multiple title.  He can only be a Trustee and not a Beneficiary or a Protector.
  7. A corporation can be a Trustee.

4.  The Beneficiary:

  1. The Beneficiary is the person who receives the benefits from the corpus of the trust.
  2. The Beneficiary of the trust gets equitable title to the corpus of properly in the trust.
  3. 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:

  1. Not all trusts have protectors, but good ones do.
  2. The Protector is empowered to fire trustees and replace them. 
  3. Relatives are OK as protectors.  If trustee becomes incapacitated then he can be replaced by the Protector. 
  4. The General Manager of the trust can also be a Protector.
  5. The Protector can be anyone.

6.  Sequence for Creating a Trust

  1. Creator and Exchanger:
    1.1  Exchange consideration
    1.2  Sign Trust Contract. 
  2. Creator creates:   Register of Certificates
  3. Creator creates and signs:  
    3.1  Schedules
    3.2  Indenture (get notarized)
    3.3  Certificate of Beneficial Interest 001
  4. Creator sends following to exchanger:
    4.1  Indenture
    4.2  Certificate of Beneficial Interest 001
    4.3  Surrender of Certificate of Beneficial Interest
  5. Exchanger:   Signs indenture (get notarized)
  6. 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
  7. 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
  8. Creator sends following to First Trustee:
    8.1  Appointment of First Trustee
    8.2  Covenant of Privacy
  9. First Trustee signs and sends following to Creator:  
    9.1  Appointment of First Trustee
    9.2  Covenant of Privacy
  10. Creator sends all trust paperwork to First Trustee
  11. 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.
  12. Trustee records following with county recorder if desired:   Affidavit and Notice of Trustees Powers, if desired.
  13. Additional property is conveyed into trust by third parties and notice given of conveyance
  14. Trustee updates Schedule B adding assets conveyed into trust