Why Having A “Crummey Trust” Isn’t So Crummey

By: Randall A. Denha, J.D., LL.M.

Perhaps one of the most amusing phrases used in the estate planning world is the term “Crummey Trust.” Since the landmark case of Crummey v. Commissioner in 1968, many clients have asked, why would I want a Crummey Trust? The adjective itself is enough for many clients to not want to get involved. However, the term “crummy” isn’t so crummey after all. So, why would a client want a Crummey Trust? The answer is because you would want to make a present gift to your children, grandchildren or some other designated beneficiary, without any concern about the recipient’s ability to properly manage the gift received. Actually, there is no such thing as a Crummey Trust. Many trusts, however, contain specific language known as “Crummey Powers” which are the proper procedures to be followed which allow gifts to trusts to qualify for annual gift tax exclusions.

What Are Crummey Powers?

Many estate plans call for annual gifts to heirs, often through trusts. To be eligible for the annual gift tax exclusion — currently $14,000 per year — these gifts must be of a “present interest,” which means that the recipient must be able to access the assets immediately without restriction. In many cases, gifts to trusts are of a “future interest” because the beneficiary’s access is restricted until some future date or event. The Crummey power, named after a taxpayer from the landmark tax case in 1968, is an often-used trust provision that allows a gift that would otherwise be a future interest gift to be treated as a present interest gift, and thus be eligible for the annual gift tax exclusion.

Crummey powers give the beneficiary a limited time (often 30 or 60 days) to withdraw contributions to a trust, converting the future interest gift to a present interest gift. This withdrawal right is generally limited to an amount equal to the current annual gift tax exclusion. If the beneficiary does not exercise this right within the specified time, the Crummey power is deemed to have lapsed and the assets remain in trust.

Avoiding IRS Attacks On Crummey Powers

The Crummey decision has evolved over the last forty-seven years. There have been court decisions too numerous to count addressing and refining the Crummey rules. The IRS has issued dozens of Revenue Rulings related to the Crummey decision. The current Crummey landscape is a series of rules, some of which are not necessarily clear, which give us basic guidelines to qualify gifts to a trust as present interest gifts which qualify for the annual gift tax exclusion and thereby avoid gift tax.

The IRS has long viewed Crummey powers as a fancy tool that estate-planning attorneys use to treat a future interest gift as a present interest gift when no one intends for the beneficiary to actually exercise withdrawal power. Despite unsuccessful challenges to Crummey powers in the courts, the IRS continues to attack them. Accordingly, trustees, advisors and beneficiaries must follow Crummey rules closely to avoid such disputes.

The most basic step, sometimes forgotten by careless trustees and advisors, is providing notice to beneficiaries of the withdrawal power when a gift is made to the trust. This procedure is often spelled out in the trust document, generally requiring that beneficiaries receive detailed and timely written instructions on how they might exercise their withdrawal rights. The IRS has confirmed in multiple private letter rulings that in certain situations actual knowledge of the gift is sufficient notice of the withdrawal power, such as when the Crummey power holder is a trustee. The tax courts, despite many rulings, have never specifically stated that a beneficiary must be given notice upon a contribution to a trust, leaving some practitioners to speculate that notice isn’t required as long as the beneficiary is aware of the withdrawal right. However, written notification is always prudent, since it provides concrete proof that notice was given. When the beneficiary is a minor, the notice should be delivered to the guardian of the minor. When the beneficiary is disabled, the notice can be delivered to the conservator or a person holding a Power of Attorney for the disabled person.

To follow the IRS’ accepted practices relating to Crummey withdrawal powers, trustees, trust advisors and grantors should take these additional steps:

• Ensure that there is no express or implied agreement between the trustee or the grantor and the beneficiaries that the withdrawal power won’t be exercised. The benefits of keeping assets in the trust can be explained to beneficiaries, but the trustee or grantor should never imply that withdrawals are prohibited.

• Specify a withdrawal period of at least 30 days in the trust document. While a shorter time may be accepted, if it is too short, the IRS may argue that the Crummey power holder was not given sufficient time to consider or exercise the withdrawal right.

• Encourage beneficiaries to simply allow the withdrawal period to lapse without acting, rather than proactively notifying the trustee that they do not wish to exercise their withdrawal rights. This is because when a beneficiary expressly decides not to exercise his or her withdrawal right, the money that could have been withdrawn is considered a gift to the other beneficiaries for gift tax purposes. However, when the beneficiary allows the withdrawal right to lapse there is no deemed gift so long as the Crummey power does not exceed the greater of $5,000 or 5 percent of the value of the trust property (commonly referred to as the 5 and 5 exception). Note that the exception applies only to the lapse, not to the waiver or release, of a Crummey power.

• Do not allow a beneficiary to waive his or her withdrawal right for current or future contributions to the trust. The IRS prohibits such waivers.

• For insurance trusts, do not allow the grantor to pay annual insurance premiums directly. The trust should make all premium payments.

• Send Crummey notices using a method that can provide proof of mailing date, such as certified mail or a courier service. In addition, the trustee or trust advisor can have the beneficiary sign the notice of withdrawal acknowledging that it has been received; however, as noted above, the signature should not specify a release or waiver of the withdrawal power.

• Do not provide Crummey withdrawal powers to an individual who doesn’t have a substantial economic interest in the trust, often referred to as “naked Crummeys.” Absent some potential future benefit from the trust, it is likely that an individual would exercise his or her withdrawal right. A naked Crummey holder’s failure to take the money casts doubt on the legitimacy of the Crummey power.

• Try to avoid making contributions to the trust so late in the year that the withdrawal period extends into the next year. This prevents potential complications in determining the year in which the gift is made or when the Crummey withdrawal rights lapse.

Many IRS challenges result when estate planners do not follow the generally straightforward yet strict requirements for Crummey trust provisions. The key to avoiding such attacks is dotting your i’s and crossing your t’s. Follow the guidelines above, and you have won the battle before it’s begun.