What is a business trust?
A business trust is a legal structure where a trustee (the manager) manages assets for the beneficiaries (the receivers) of the trust. The trustee acts under precise directions in the trust instrument and is responsible for all administrative duties to ensure business interests are protected.
Trusts are formed under state law, however, the IRS doesn’t recognize a “business trust” and warns against using one as an abusive tax evasion scheme. The IRS recognizes and taxes these entities as partnerships, corporations, or trusts, depending on the types of activities the business performs.
How does a business trust work?
Think of a trust as a bucket that can hold assets. The legal structure of a trust allows these assets to be transferred to beneficiaries without going through probate or paying estate taxes. It also offers some protection and privacy for important assets. This can protect the business, preserve profits, and ensure business succession and continuity.
A business trust is structured with the following elements:
Grantor: The creator of the trust.
Trustee: The manager of the trust.
Beneficiary: The receiver of assets placed in the trust. (The grantor may also be a beneficiary in some cases, such as when a co-beneficiary is listed.)
Assets: What you place in the trust. Examples include bank accounts, stocks and bonds, real estate, artwork, antiques, and other valuable assets.
Instructions and guidelines: The trust is administered by a trustee, who follows the instructions outlined in the trust instrument.
A business trust isn’t a substitute for an operational structure, such as an LLC or partnership. It simply serves as a trust vehicle for business interests.
What are the different types of business trusts?
There are three main types of trusts that businesses can set up: grantor, simple, and complex.
These business trusts can be set up as either revocable (changeable) or irrevocable (unchangeable) trusts. Irrevocable trusts have better asset protection because they can’t be changed once they’re set up.
Grantor trust: A grantor trust is set up so the grantor can maintain power. They must pay taxes on the trust’s income, and it is treated as personal income. It’s best for owners who still want to be involved in the business.
Simple trust: Simple trusts work for grantors who want to pass on income to beneficiaries. As per the rules, you cannot reinvest profits or donate to charity. Beneficiaries pay taxes on their income.
Complex trust: A complex trust has more functions. Allowed to accumulate income, make charitable contributions, and make distributions other than income. It works for more sophisticated and multi-generational businesses.
Can you put a business in a trust?
Yes, you can put certain types of businesses in a trust if it is permitted by the operating agreement of the business. You can transfer ownership interest and shares in a family business or closely-held corporation. If you’re a sole proprietor, your business is not a separate legal entity, but you can still place individual business assets into the trust.
However, there are some important considerations you should make before doing so.
For tax purposes, the IRS doesn’t recognize a “business trust” and you’re taxed as a corporation, partnership, or traditional trust, depending on the activities performed in the business. Certain trusts, such as grantor trusts, are taxed as personal income. You’d likely pay more taxes this way.
To understand all the repercussions of putting business interests in a trust, it’s helpful to contact legal and financial advisors.
What are the pros and cons of business trusts?
Putting your business in a trust has some pros and cons to consider.
Pros
Liability and asset protection (if irrevocable): The legal structure of a trust holds assets separately from your personal assets and obligations. Your business is protected, and your personal assets are protected by being separated.
Transfer title: A trust allows you to pass title to a beneficiary and avoid estate taxes.
Avoidance of probate: A trust can transfer ownership without going through probate, which can be an expensive and public process.
Succession planning: A trust can eliminate ambiguity in business succession and continuity. Plans are carefully outlined, and beneficiaries are named in a trust.
Offers privacy: When your assets are transferred to a beneficiary without going through probate, there’s no public record of what your assets are, which helps keep your assets private.
Cons
Complex process: Establishing a trust is a complex process, and you’ll need to take into consideration long-term goals of both the business and your personal life.
Expensive to set up: You’ll need to hire people with the legal and financial expertise to set up and operate a trust. With the time required, it can be costly.
Large ongoing fees: Once set up, you’ll also need to pay for the ongoing professional services that fill the role of trustee.
Taxes: With a grantor trust, the person who created the trust pays taxes on the income.
Borrowing money: Lenders may be hesitant to lend to businesses tied up in a trust. They’ll ask for the trust documents and take time to analyze the restrictions, which translates into longer lending timelines and often denial.
Evaluating the pros and cons can help you decide whether or not to look at putting your business into a trust.
Business trust vs. family trust: What’s the difference?
Business trusts differ from family trusts in their purpose. Business trusts hold business assets for beneficiaries, while family trusts hold personal assets.
Separating your business and personal assets could be a strategic move for transferring and protecting wealth.
Some other important comparisons are outlined in the following table.
| Business trust | Family trust | |
|---|---|---|
| Primary purpose | Holds ownership interests and business assets for future transfer to a beneficiary | Preserves, protects, and transfers family wealth |
| Ownership of assets | The trust owns the assets and business interests | The trust owns personal assets and investments |
| Beneficiaries | Investors, partners, business owners, or family members named as beneficiaries | Family members |
| Control structure | Managed by a trustee, may be the owner, a professional fiduciary, or co-trustees | Managed by a trustee, usually a family member or advisor |
| Liability protection | Separates business ownership from personal liability to some degree | May protect assets from personal creditor claims and external risks, depending on the structure |
| Succession | Clear transition of ownership | Facilitates inter-generational transfer of assets |
| Tax treatment | May be treated similarly to business entities | Often tax-efficient for estate planning |
| Regulation | Not a public entity and not subject to corporate filings, though transfers of interests must comply with governing agreements | Created via private trust agreement; generally governed by state trust law |
| Complexity and costs | Can be complex and costly to set up and administer | Variable complexity; generally simpler than a business trust |
| Examples | Trust holding LLC membership interests or corporate shares of a privately-owned company | Revocable family trust holding homes, investments, cash, and potentially business interests |
How to set up a business trust
If you’re thinking about setting up a business trust, the process will look something like the following.
Step 1: Assemble your team
Choose your advisors and interview potential trustees. You’ll work for years with the trustee, so be sure the working relationship is a good one. Some other advisors you may want to hire include: business valuation expert, estate planning attorney, tax accountant,
Step 2: Choose the type of trust
You’ll want to determine what trust best serves your needs. With the types listed above, you’ll want to determine what level of control you want to maintain. If you still want to be involved in the business, you’ll want to set up a grantor trust. If you’re ready to pass on profits to heirs, you may consider a simple trust. For more sophisticated needs, consider a complex trust.
Step 3: Write the trust instrument
In the trust document, you’ll include the following:
A name for the trust
The names of the beneficiaries
What they will inherit
Trust assets
Property
The name of your trustee
Rules and instructions
With a revocable trust, these can be changed at any time until the grantor passes away. You can add assets over time, which could help mitigate your trust tax burden.
Step 4: Execute and sign the trust
To make the trust legal and operational, you must sign it. You may need to have two witnesses or be notarized to be valid (depending on your state’s laws).
Step 5: Fund the trust
You fund the trust when you transfer assets to the trust. Once the assets are transferred to the fund, they belong to the fund, not to the original grantor.
The way to transfer business interests to the fund can be done in the following ways:
Issuing stock certificates or membership interests in the name of the trust (for new businesses).
File an assignment of interest for transferring business interests to a trust.
File an assignment of stock agreement to transfer stock interests to the trust.
Bottom line
If you have questions about how best to set up your business, you may want to seek expert advice.
Unbiased can connect you to a financial advisor who can guide you in the right direction.