Warning: As of October 18, 2006 Private Annuity Trusts (PAT) are no longer recognized by the Internal Revenue Service (IRS) as legal means for managing assets tax deferred! The Private Annuity Trust has been replaced with The Ensured Installment Sale (Structured Sale), which will be discussed later. The following information applies only to Annuity agreements funded prior to October 18, 2006, which are still honored by the IRS.
PRIVATE ANNUITY TRUST: WHAT IS IT?
A Private Annuity Trust works very similar to an Immediate Annuity, although you will use assets other than money to fund this Annuity. Typically, you transfer ownership of a home or land with high value to a Trust. The Trust agrees to make lifetime payments to you, and can then sell the asset you gave them and use the money to fund this Annuity agreement through investments.
You cannot use other retirement funds such as a 401k to fund a Private Annuity Trust, but you can add multiple properties to increase your tax break and Annuity payment. If you decide to add an additional property to your Private Annuity Trust you must create a new Annuity agreement for each property, unless your original agreement contained a provision to include additional assets at a later date.
Each new agreement will have a different deferral period which creates an added benefit to you by providing both immediate and long term income. The withdrawal period from a Private Annuity Trust must begin by age 70 ½, but you can always choose to receive payments sooner.
When structuring a Private Annuity Trust, you must name a Trustee who will be responsible for controlling the investments of your assets in the Private Annuity Trust. The Trustee can be an adult child, relative, close friend, attorney, or anyone else other than you or your spouse. By law, the annuitant is not allowed to have any direct control over the investments of their Annuity. You may make council to the Trustee but cannot have any direct contact with the assets once they are transferred into the Private Annuity Trust, and your transfer of ownership is irrevocable.
ASSETS TRANSFERRED TO A PRIVATE ANNUITY TRUST: HOW TO ESTIMATE THE ANNUITY PAYMENTS
It is fairly easy to estimate what your Annuity payments will be for the asset transferred into a Private Annuity Trust. The IRS uses the following factors to determine your payment:
1. Your life expectancy
2. The selling price of your asset
3. The Annual Federal Mid-Term Rate (AFMR) effective when your property was transferred (this rate will be the rate used for the duration of your Annuity)
4. The length of time you defer payments
Using these factors, the amount you will receive from an Annuity is a fixed amount and you cannot start and stop payments from a Private Annuity Trust. Once the withdrawal period begins you will continue to receive payments for life.
The “life expectancy” factor is only used by the IRS to help determine what your payments should be and is not to be confused with a payment “cutoff” age. If you live beyond what the IRS factored as your life expectancy, you will continue to receive payments for life.
JOINT ANNUITY FOR SPOUSE TO RECEIVE PAYMENTS
Owning a joint annuity will allow your spouse to continue receiving Annuity payments should you die first. After your spouse dies, payments will cease and your beneficiaries will inherit any surplus money remaining in your Private Annuity Trust created by wise investment options of the Trust’s reserve.
By law there must be enough money set aside for the Trust to fulfill its Annuity agreement with you, and there will usually be a reserve account established of five to ten percent of your asset’s value as a safety precaution. Remember, your Annuity payment is fixed and will not increase regardless of profit your assets create via the Private Annuity Trust.
NO ESTATE TAX, INCOME TAX OR GIFT TAX ON PRIVATE ANNUITY TRUST TRANSFER
When you establish a Private Annuity Trust, you are not subject to estate, income, or gift taxes. The transfer of ownership of an asset to a Trust is “paid for” by the Annuity agreement. The IRS cannot accurately determine your life expectancy, and therefore cannot determine how many payments you will actually receive.
Taxes will be deferred on the transfer until you start receiving payments, and a portion of your payment will be taxed based on your income amount. The transfer of ownership involving your assets is not considered a gift to the Trust because they are agreeing to pay you for the asset at a later date, and as a result you will not have to pay a gift tax.
Once your asset is transferred to the Trust, it is removed from your taxable estate. This is of particular benefit to your beneficiaries who will not be held responsible for paying estate taxes when they receive excess funds from your Annuity. After your death it is the responsibility of the Trust to cover any unpaid taxes due on the assets.
ENSURED INSTALLMENT SALE (STRUCTURED SALE)
The Ensured Installment Sale was developed by the Allstate Insurance Company in 2005 and works in a similar manner to the Private Annuity Trust. The major difference between the two is that when you sell your assets, the Annuity is purchased directly from an insurance company. The insurance company, and not the Trustee for a Private Annuity Trust, is responsible for making investment decisions and ensuring you receive Annuity payments for life.
Author bio - Rocco Beatrice, CPA, MST, MBA
Award-winning estate planning & trust expert
MS - Taxation, Master of Science Taxation
MBA - Management / Taxation
BSBA - Management / Accounting
CPA - Certified Public Accountant
Irrevocable Trust Asset Protection, Medicaid Asset Protection
Charitable Gift Annuity
71 Commercial Street #150, Boston, MA 02109
tel: +1.508.429.0011 fax: +1.508.429.3034