Can a Property Held in Trust Be Subject to Lien by the Government? (2024)

FAQs

Can a Property Held in Trust Be Subject to Lien by the Government? ›

2. Protection from liens. Real estate titled in a trust's name is not subject to liens against the beneficiary of the trust. For example, if you are dealing with a seller in foreclosure, a judgment holder or the IRS can file a claim against the property in the name of the seller.

However, any other assets, such as, but not limited to, improvements such as buildings on trust land, vehicles, bank accounts, earnings, and fee simple land, owned by individuals, are subject to seizure, Federal Tax Liens, garnishments, and levies.

This rule generally prohibits the IRS from levying any assets that you placed into an irrevocable trust because you have relinquished control of them. It is critical to your financial health that you consider the tax and legal obligations associated with trusts before committing your assets to a trust.

The downside of irrevocable trust is that you can't change it. And you can't act as your own trustee either. Once the trust is set up and the assets are transferred, you no longer have control over them, which can be a huge danger if you aren't confident about the reason you're setting up the trust to begin with.

When property is placed in a revocable living trust, there is no “change in ownership,” and thus, no reassessment of the current values.

The trust fund loophole refers to the “stepped-up basis rule” in U.S. tax law. The rule is a tax exemption that lets you use a trust to transfer appreciated assets to the trust's beneficiaries without paying the capital gains tax. Your “basis” in an asset is the price you paid for the asset.

The general rule is that the IRS may assert a tax lien on any of the taxpayer's debtor's interest in any type of property including any present or future interest, absolute or contingent, in debtor's interest in an irrevocable notwithstanding contrary state laws.

The IRS concluded that no step-up in basis is available for assets in an irrevocable trust where the individual creating the trust retains a power that causes the individual to be the owner of the entire trust for income tax purposes but does not cause the trust assets to be included in the individual's gross estate.

The IRS and Irrevocable Trusts

This means that generally, the IRS cannot touch your assets in an irrevocable trust. It's always a good idea to consult with an estate planning attorney to ensure you're making the right decision when setting up your trust, though.

All items of income, deduction and credit will be reported on the creator's personal income tax return, and no return will be filed for the trust itself. Revocable trusts are considered “grantor” trusts for income tax purposes. One could think of them as being invisible to the IRS and state taxing authorities.

What is the disadvantage of putting your house in a trust? ›

What Are the Disadvantages of a Trust in California? Trusts are costly to create. Creating a trust without an attorney may be less expensive, but doing so leaves the trust much more vulnerable to trust contests and other legal litigation. It is also more time-consuming to properly set up a trust than to create a will.

Irrevocable trusts are generally set up to minimize estate taxes, access government benefits, and protect assets.

Your Assets Might Not Be Protected: Another crucial point to note is that not all trusts offer protection from creditors. For instance, in revocable trusts, the assets are not protected from creditors as the grantor retains control of the assets. Potential Tax Burdens: Finally, trusts can carry potential tax burdens.

Trust property is typically tied into an estate planning strategy used to facilitate the transfer of assets upon death and to reduce tax liability. Some trusts can also protect assets in the event of a bankruptcy or lawsuit.

Typically, assets you place in trust for your beneficiaries are eligible for a step-up in basis if the trust is revocable, and therefore considered part of your taxable estate. But with an irrevocable trust (which exists outside of your estate), trust assets do not receive a step-up in tax basis.

One of the biggest differences between a revocable and an irrevocable trust is your ability to make changes to it after it's been created. You, the grantor, can modify a revocable trust, while an irrevocable trust can't be easily changed.

The IRS and Irrevocable Trusts

This means that generally, the IRS cannot touch your assets in an irrevocable trust. It's always a good idea to consult with an estate planning attorney to ensure you're making the right decision when setting up your trust, though.

Assets — A lien attaches to all of your assets (such as property, securities, vehicles) and to future assets acquired during the duration of the lien. Credit — Once the IRS files a Notice of Federal Tax Lien, it may limit your ability to get credit.

Q: Do trusts have a requirement to file federal income tax returns? A: Trusts must file a Form 1041, U.S. Income Tax Return for Estates and Trusts, for each taxable year where the trust has $600 in income or the trust has a non-resident alien as a beneficiary.

An IRS levy permits the legal seizure of your property to satisfy a tax debt. It can garnish wages, take money in your bank or other financial account, seize and sell your vehicle(s), real estate and other personal property.