Its uses are:
- To control or purchase real estate
- To protect confidentiality
- To limit liability
- To help with "DOS" clauses in some cases
Land trusts have been used since 1868 in one form or another and became recognized by statute or case law in many states.
A land trust is a vehicle that holds real estate nothing more nothing less.
The trustee has the power to convey or deal with the property at the direction of the trust beneficiary. The beneficiary, on the other hand, retains the power to use, convey, or manage the land and holds any other number of rights as directed by the beneficiary and the trust agreement.
The process in it self is simple:
The owner of the subject real estate transfers title to the property over to the trust by way of deed and enters into a trust agreement with the trustee and a beneficiary agreement with all beneficiaries.
A trust is just an agreement to hold or manage assets by a trustee for the benefit of another.
Different types of trusts are used based upon needs and goals. They will vary in use, flexibility, control and asset distribution so I have taken the liberty to share some information about other forms of trust below.
Personal Residence Trust - A personal residence trust involves the transfer of a personal residence to a trust with the grantor retaining the right to live in the residence for a fixed term of years. Upon the shorter of the grantor's death or the expiration of the term of years, title to the residence passes to beneficiaries of the trust. This is an irrevocable trust with gift tax implications.
Qualified Personal Residence Trust - A qualified personal residence trust (QPRT) involves the transfer of a personal residence to a trust with the grantor retaining a qualified term interest. If the grantor dies before the end of the qualified term interest, the value of the residence is included in the grantor's estate. If the grantor survives to the end of the qualified term interest, the residence passes to beneficiaries of the trust. A QPRT is a grantor trust, with special valuation rules for estate and gift tax purposes, governed under IRC 2702.
Living trusts - Are created during the lifetime of the trustor. Property held in a living trust is not normally subject to probate (the court-supervised process to validate a will and transfer property on the death of the trustor). In Washington, because such property is not subject to probate, it need not be disclosed in the court record and confidentiality may be maintained. Such trusts are widely used because they allow the trustor to designate a trustee to provide professional management.
Testamentary trusts - Are created as part of a will and must conform to the statutory requirements that govern wills. This type of trust becomes effective upon the death of the person making the will (the "decedent") and is commonly used to conserve or transfer wealth. The will provides that part or all of the decedent's estate will go to a trustee who is charged with administering the trust property and making distributions to designated beneficiaries according to the provisions of the trust.
To create a legal trust you will need a trustor, trustee, beneficiary, trust property and trust agreement.
You can be appointed as Trustee and run all the day to day business affairs of the Structure or you can appoint another.
The trustee has no personal liability in their capacity so long as they operate within the bylaws of the contract on behalf of the trust.
A trustee normally will act in accord with the express terms of the trust instrument; act impartially, administering the trust for the benefit of all trust beneficiaries; administer the trust property with reasonable care and skill, considering both its safety and the amount of income it produces; maintain complete accounts and records; and perform taxpayer duties, such as filing tax returns for the trust and paying required taxes.
When using a land trust it is best not to name yourself as trustee because A trustee in general must administer the trust property only for the designated beneficiaries and may not use trust principal or income for his or her own benefit. In other words, a trustee is usually prohibited from borrowing or buying from the trust, from selling his or her own property to it, and from using the trust assets as collateral for a personal debt.
While trusts can offer a number of tax advantages, tax avoidance, and provide confidentiality this should never be your sole motivation for using this strategy.
Basic Documentation Process of a trust is:
- The Land Trust Agreement
- The Assignment
- The Beneficiary Agreement
The trust is normally created under the name of the current property owner or the property address.
Trust will also help with:
- Protecting Assets From Lawsuits
- Protecting Assets From Business Failure
- Protecting Assets From Governmental Seizures
- Protecting Assets From Tax Troubles
- Protecting Assets From Divorce
Trust will simply make your assets private and if set up properly should convince any litigant that, it will be impossible to collect.
Support of Land Trust
Wellenkamp vs. Bank of America (8/25/78) (50 USLW 4916) 73 L.Ed.2d 664, 10 S.Ct. 3014 (1982)
Fidelity FSB vs. de la Cuesta (6/28/82) Regulations Act of 1982 - (FDIRA) (10/15/82) 12 USCA sec. 1701-j-3
GARN-ST. GERMAIN EXCEPTIONS Governing Land Trusts www4.law.cornell.edu/uscode/12/1701j-3.html
This form of investing is another tool to help you as an investor and help your customers as well.
As an investor, you need more than just a few tools in your investors toolbox.
To your success,
Copyright 2005 JMichael Investments
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Short note about the author
John Michael is an active Real Estate Investor and Coach.
Real Estate Investing Site at: http://jmichaelrei.com
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