Preserve Anonymity by Using a Land Trust to Buy and Sell Real Estate

Do you want to buy or sell real estate properties? Using a land trust is a good idea because it protects your interests. A land trust is a legal entity that holds a title to real property in a name other than its own.

Owning real estate is an excellent way to make money. But the taxes and the fees you have to pay for it are often high. You can avoid these costs by using something called title insurance. When you own more than one property, you may have to pay these fees repeatedly as time goes on. But there is a tool that can help you reduce that cost. Read more here to find out when the best time is to set up a land trust.

There are three primary kinds of land trusts, each with its structure and way of working. These include a real estate investment trust, a conservation trust, and a community trust.

  1. A real estate investment trust is an organization that buys the property. The trustee, in this case, is a legal entity that works on behalf of the beneficiaries.
  2. A conservation trust is a private, nonprofit organization that buys the property and builds easements to stop people from developing certain areas.
  3. A community trust is a group of people who want to acquire low-cost housing. They buy the land and build the home, then sell it for a lower price.

Do you want to learn more about the hows and why of a land trust? Check out "The How, The Why, and The Basics of Land Trusts."

Remaining Anonymous Is One Of The Many Advantages

You might be worried about other people coming to your door to sell you something, or you don't want real estate investors contacting you--leveraging the anonymity of a land trust is ideal. You can put your property in someone else's hands.

In real estate, it can be hard to avoid sales calls from companies. To prevent this, you might want to remain anonymous so people won't find you. The trustee is not allowed to tell people your name unless a court says that they can. The anonymity will help you avoid people who might disrupt your day.

Your Property Is Protected From Liability

Being a real estate investor makes you an attractive target for lawsuits. People who want to litigate will know how much you paid for your properties and use that information to gauge your wealth. It may be that those people will use that publicly available information to take money from you by filing a lawsuit against you.

A land trust is an excellent way to keep people from finding out how much money you have. It is important to remember that a land trust will not protect you from every person, but it will help.

Prevent The Due-on-Sale Clause

When the lender chooses to sell the property, they can use the due-on-sale clause to collect the entire outstanding debt of a property holder. This clause might prevent you from making investments with the flexibility you require as a real estate investor. A land trust prevents you from having to pay the total amount due on sale.

However, this is not a rule for everyone. There are limits to it:

It's Simple To Transfer Property Ownership With A Land Trust

A land trust is when you give someone else your property. When both the grantor and beneficiary are still alive, then it is simpler to transfer. Some jurisdictions might use a land trust for tax reasons.

Should you need to change your company or break it down, it will be easier to put the land in the hands of a trust.

You Can Use A Land Trust To Sell Real Estate

There may come a time when you need to sell land held in a trust; the procedure will be the same as when selling a non-trust property. The only difference is that people will see the name of your trust instead of your given name.

When the time comes to sell your property, you need to study the trust agreement. You can sell assets of a trust if the trust agreement allows for the sale.

You will want to answer the following questions before selling with a land trust:

Do You Have The Legal Right To Sell This Property?

Sometimes there are many titleholders in a land trust, so it might be hard to sell all assets. The trustee will negotiate with other people in the trust, sometimes buying out someone else's share for an acceptable price.

However, people can't buy your property if they don't know who you are. In the case where the trust is only one person's property, then it doesn't matter, and you can sell off all your assets without anyone stopping you.

What Happens When A Land Trust Sells Real Estate?

Like any other real estate investor, a seller strives to achieve the highest possible price on each transaction.

The money is converted into a personal property trust when a transaction is completed. Then, the land is transferred from the trust to the new owner. It protects the funds for the beneficiaries while maintaining everything as it was before.

Final Thoughts

We hope this post has helped you to learn more about investing your money in land trusts. You have worked hard, and it is essential to keep your money safe. You can make sure that you keep your money safe and make a profit by investing in real estate through intelligent use of land trusts.

When you decide the time is right to use a land trust for your property investment, talk to a lawyer with experience with this kind of agreement. Finally, if you still have questions about land trusts, check out our detailed Land Trust FAQs.

Five Commonly Believed Land Trust Myths Dispelled

A land trust is a legal entity that is designed to protect the land from creditors. It does this by keeping land out of the owner's name and placing it in the land trust's name. Real estate investors have used these structures since the late 1800s when investors bought the land up left and right.

Savvy real estate investors created land trusts as an asset protection tool for wealthy landowners who were worried about losing their land due to lawsuits or other factors that could lead to bankruptcy. There are many misconceptions about these entities that people believe are true because they have repeatedly heard them—even though they aren't based on any facts!

In this article, we will explore five myths about land trusts and dispel them once and for all.

Myth #1: Land trusts are too expensive for real estate investors to use.

This is entirely false. While wealthy landowners have used land trusts in the past, there is no reason why real estate investors can't use land trusts today. Land trust registration fees are much lower than you might think!

People fail to understand that these trusts are not only for the wealthy landowner—this couldn't be further from the truth. Anyone can use a land trust to protect their land, no matter how much money they have in assets.

Do you have questions about setting up a land trust? Check out our article about the basics of land trusts. We answer the "how" and "why" of what you need to set one up to protect your assets.

Myth #2: Land trusts are a scam.

Land trusts have been around for over 100 years, and there is no evidence that they are a scam. They cannot be used for fraud or land grabs when land is being purchased. In addition, land trusts work if you buy with a spouse/partner.

Land trusts involving real estate are not always used by landowners alone. Many land trusts involve more than one landowner or even spouses/partners who must own the land together. The belief that only a single person can buy into a land trust is a persistent misconception that stems from the fact that some land trust providers don't allow multiple names on their forms.

This is easy to get around—write an addendum! Addendums are additional documents that can be used to modify an existing document such as a land trust. For instance, you could add information that would protect against tax liens or judgments in the land trust agreement itself.

There are multiple benefits to leveraging a land trust. We invite you to research those value-added benefits further here.

Myth #3: Land trusts are too tricky to set up.

Many land trust providers have excellent customer service, making it easy to get the land in your name, out of your name, and into a land trust.

An associated misunderstanding is that land trusts must be a specific size—some people believe that if your land doesn't meet a minimum requirement, land trusts won't shield it from creditors. That is not true either!

Maybe you have heard that land trust documents require a lot of paperwork and filings—false again! While it does take some time every year or two to update land trust documents, it's not nearly as strenuous or time-consuming as you might imagine.

Myth #4: Land trusts are only for large land purchases.

This isn't true! Many land trust providers have an option to choose which parcel of land you want to protect, so it's possible to register one  on land parcels that range in size from one acre up to thousands of acres.

The misconception is that land trusts are only helpful for wealthy landowners—while the upper class initially created land trusts, anyone can use them today! They offer asset protection to real estate investors who want to keep their land protected from

Moreover, some people think that land trusts don't protect real estate assets from lawsuits or creditors—this myth stems from the fact that land trusts are not always public knowledge.

As a real estate investor, you can structure land trusts to ensure the landowner's name is never publicly available. This doesn't mean land trusts don't protect the land from lawsuits or creditors—they do!

Do you think that you may need to set up a land trust? Find out if you are eligible and can benefit from setting up a land trust.

Myth #5: Land trusts are only for land.

Another common misconception about land trusts is that they can only protect the land. This isn't the case at all! You can own almost anything under a land trust today. These structures have become more common in recent years, so the costs have gone down significantly.

Conclusion

In conclusion, land trusts are not scams or land grabs—they're fundamental, valuable tools that can be used to asset protect your land.  They are not only for the ultra-wealthy but also for real estate investors.

They can help investors to protect the land from creditors, lawsuits, and other land problems. There are many myths about land trusts that can be dispelled with simple research!

Still, have questions? Check out our land trust FAQs for your answers.

The Personal Property Trust: An Often-Overlooked Asset Protection Tool

Asset protection is a crucial component of financial planning for any real estate investor. There are many tools you can use to keep your property out of the clutches of creditors and would-be-litigants, and we’ve talked about some of them a lot on this site.

While Land Trusts, Series LLCs, and anonymous trusts are some of my favorite tried-and-true asset protection methods, a financial planning tool that doesn’t get as much attention as it should is the personal property trust.

With this article, we're going to change that!

What Is A Personal Property Trust?

In general, a trust is a type of legal arrangement where a trustee holds title to specific property and manages it for the benefit of the trust’s beneficiaries. Trusts can be revocable, which means the trust can be altered or canceled at any time while the person establishing the trust is still alive. They can also be irrevocable, which means they cannot be modified or revoked.

Like a Land Trust or living trust, a personal property trust is a type of revocable trust. Whereas the Land Trust is used to hold real property, the personal property trust is used to hold title to personal property assets such as vehicles, boats and mobile homes.

Whenever an asset needs to be registered and included in public records, you can use a personal property trust to keep your ownership information private. 

Since trustees must manage the trust assets as directed by the trust instrument, you can use a trust to transfer legal ownership and protect your identity while essentially maintaining complete control over the trust property. Generally, the sale of trust property requires approval from the beneficial owner, and the trustee cannot make the decision alone. Naming yourself as the beneficiary of a personal property trust can keep you in control of your assets.

property trust

What Are The Benefits Of Putting Your Property In A Trust?

The primary benefit of using a personal property trust is privacy. When you place your assets in a personal property trust, public record registrations will show the trust as the owner instead of listing your name. If you choose a privacy-protecting name for your trust, there will be no indications in the public record that you own the property.

A few additional benefits of using a personal property trust include:

When Should You Use a Personal Property Trust?

As a real estate investor, there are several ways you can take advantage of the protections offered by a personal property trust. Here are a few of the most beneficial ways to use personal property trusts to help keep your real estate investments safe and private.

Mortgages

One of the most common uses of personal property trusts is to hold mortgages, since the ownership information for this type of asset can be found through a public records search. As a real estate investor, you may want to consider creating a separate personal property trust for each property for which you have a mortgage. This strategy will allow you to keep your ownership information private and avoid links between your various properties. 

LLCs

Savvy real estate investors often use an LLC to own real estate directly or name an LLC as the beneficiary of a Land Trust. To add another layer of separation and anonymity to your asset protection strategy, you can use a personal property trust to hold your membership interest in the LLC. 

If you use an LLC as part of your real estate asset protection plan, it’s important to remember that, in most states, LLC membership is included as part of the public record. One way to keep your LLC interests private is to list a personal property trust as the LLC member and name yourself as the trust beneficiary. 

Vehicles

Any vehicle—including cars, trucks, and motor homes—that must be registered with the Department of Motor Vehicles is generally part of the public record, which can make your personal data open to public search. You can avoid this by titling your automobiles to a personal property trust. 

Given its various uses, a personal property trust can be a valuable tool for real estate investors, as well as people who haven’t caught the real estate bug (yet). No matter how you use your personal property trust, it is a practical but often-overlooked component of a successful asset protection plan. When deciding what financial planning tools are best for your real estate investment plan, it’s vital that you seek the input of an experienced asset protection attorney. 

 

2021 Is A Critical Year for Estate Planning—A Trust Is A Great Start

Real estate investors were thrown a few curveballs last year, to say the least.

The stress and uncertainty of 2020 motivated a lot of you to stop procrastinating and get your financial affairs in order. Trust me ... Financial planners and asset protection attorneys have been working overtime.

On top of an unprecedented global pandemic, another election cycle brought the prospect of legislation that could change how our businesses (and our estates) are taxed.

With the current estate credit set to end in 2025, proactive business owners were calling us before COVID spread throughout the globe. But the events of 2020 have even more of you thinking about the gloomy prospects for recession, disability or death.

Whatever happens with the pandemic and the fallout for landlords, 2021 is shaping up as a critical year for estate planning because of President Joe Biden's proposal to lower estate tax exemptions. Biden proposals include limits to the gift, estate, and GST exemption amounts a taxpayer can take. According to The National Law Review, it is now more important than ever to create an estate plan or review the terms of an existing one.

Worried yet?

Don't be. As with many things in life, a little preparation goes a long way. You have a lot of options.

For example: Setting up a trust, which allows a third party—or trustee—to hold assets on behalf of your beneficiaries, can offer you valuable peace of mind. With a trust in place, your heirs will not have to go through the time and expense of probate. A trust also allows you to protect your assets, maintain privacy, and reduce estate and gift taxes.

Even if you have an estate plan in place, it is critical to update it each year to allow for life’s many changes, including births, deaths, weddings, divorces, illnesses, and children reaching the age of majority.

In this article, we'll examine one of the primary components of estate planning—selecting who will serve as your personal trustee. But first, let's look at the changes that 2021 could be bringing to the way estate planning attorneys like me handle our clients' affairs.

estate planning: biden changesWhat Estate Law Changes Will 2021 Bring?

Changes that impact the way we leave assets to our families are afoot.  These include:

The world is changing. Your family and your needs are changing. Estate plans should be updated every year to reflect these shifts, to give you peace of mind and preserve your wealth for your loved ones.

Creating a Trust Is A Great Start

Updating your estate plan for 2021 means finding ways to control where your assets will go should you die or become otherwise incapacitated. Establishing a land trust or another kind of trust can do exactly that.

Determining who will serve as your trustee is a key step. This individual acts as a fiduciary, overseeing the management of property owned by the trust. The person (or persons) you choose must have a clear understanding of the role. The primary expectations of a personal trustee include:

While those duties align with moral responsibilities, the position also comes with distinct hands-on tasks such as paying bills, reporting taxes, fulfilling obligations to beneficiaries, and following all compliance requirements. Making investments may also be part of the job.

Particularly with large estates, the trustee may be exposed to legal action by the beneficiaries of the trust. As you can see, the position or the offer of the position should not be taken lightly. You'll want to make sure the person fully understands the responsibilities and isn't blindsided with them after your death.

In addition to being a trusted friend or family member, a trustee can be a professional (such as your attorney) or an institution (like a bank). You also can to have an individual and an institution serve as co-trustees. A professional trustee can help shift the legal liability of the position away from the personal trustee while keeping them informed and part of critical decision-making.

How is a trustee compensated for their time?

Choosing who will serve as your personal trustee is an important decision. It should be someone who knows you well and who gets along with your family members. It's more than an honor; it's a serious commitment to you and your heirs.

Both personal and professional trustees are entitled to payment for their work. As you might expect, the compensation depends on the size of the estate and the amount of work the position requires.

There is no set fee for a trustee, and most trust documents and state laws state that trustees should earn a "reasonable" amount for the work. What is a reasonable amount? Here are some guidelines:

In some cases, a trustee may not want to receive financial compensation for their work. One consideration is that a trustee's remuneration is taxable as income. But family relationships also can enter into the picture.

For example, a relative may choose to forego payment for their time as a trustee because they view the position as a family responsibility. Others may think that accepting payment could cause friction or strain within the family.

curve ballThe Takeaway

With the rate of COVID vaccination increasing, many of us are looking forward to returning to some semblance of normal life in 2021. However, we would be wise not to ignore the wake-up call that the pandemic has given us to get our affairs in order. And thanks to legislative changes, investors are faced with a whole new ball game going forward. 

None of us knows what the future holds. No matter the size of your estate, you'll gain valuable peace of mind when you create or update your estate plan in 2021.

Should Rental Property Be in an LLC or Trust?

Should rental property be in an LLC or trust? Unfortunately, the answer is not as straightforward as you might think.

Whether you’re planning your will or setting up a company to manage your growing real estate portfolio, you need to know exactly what type of entity you should use to shield your properties from legal trouble. If you make the wrong decision, you could potentially expose your holdings to unnecessary risk, costing you hundreds of thousands of dollars down the road (or, at the very least, giving you a big headache).

So, first, let’s start with a basic definition of "LLC" and "Trust" as they apply to real estate investing. 

(If you just want the pros and cons of each option, feel free to scroll down to the bottom of this article).

Why Use an LLC to Hold Your Rental Properties?

An LLC is a limited liability company

It’s one of the most popular legal entities that a person can set up to operate their business. You don’t need any employees or a board of directors, and you can use it to separate your business assets from your personal finances. That way, if you ever find yourself on the losing side of a lawsuit, the only assets you’ll be forced to give up are those assets held within the LLC (in this case, your rental properties).

If someone sues you and wins, they can’t take away your personally-owned assets (like your car, primary residence, and your kid’s college fund).

Sounds like a pretty sweet deal, right? You could theoretically make some risky moves with the assets you put under an LLC and then dissolve that LLC in case you get into any trouble. The only risk is the asset, right?

Well, not so fast. There are some instances when your personal assets might be at risk, and you definitely shouldn’t start an LLC for the sole purpose of doing something nefarious. 

When Does an LLC Fail to Protect Your Personal Assets from Lawsuits?

There are a few instances when, if you use an LLC to hold your rental properties, you’d be putting both your rental properties and personal belongings at risk. Those instances include:

Furthermore, an LLC can create a kind of avalanche effect. As soon as one property is attacked under an LLC that holds multiple rental properties, your entire portfolio can take a hit.

Why Use a Trust to Hold Your Rental Properties?

You’ve probably heard about trusts as they relate to estate planning. By putting certain assets in a trust, you can guarantee exactly how and when they’re distributed. This way you can avoid a solid chunk of estate taxes, since the assets in a trust aren’t considered your personal property, or even protect your assets from heirs that are likely to mismanage them.

One solution is putting all of your properties under separate trusts. There are a few different types of trusts: revocable, irrevocable, pay-on-death (POD), and living trusts. For our purposes, we’re just going to focus on revocable and irrevocable trusts.

What are the Benefits to Using a Trust Versus an LLC?

What are the benefits to putting your rental properties in a trust rather than an LLC?

Should You Put Rental Property in an LLC or Trust?

So, to review, what are the pros and cons of each option?

Putting Rental Property in an LLC Pros

Putting Rental Property in an LLC Cons

Putting Rental Property in a Trust Pros

Putting Rental Property in a Trust Cons

 

Estate Planning For An Irresponsible Child 

Having an estate plan in place is one of the most important gifts you can give your children. You've worked hard to build up assets that will help them in the future.

But a difficult question that is on the mind of many investors we work with is, "How can I prevent one of my kids from wasting their inheritance?"

Your concern may come from your child's reckless overspending, or your worries could be rooted in your child's history of substance abuse or destructive relationships. This article will offer tips for estate planning for an irresponsible child.

Estate Planning For An Irresponsible Child The Living Trust: Your Bulwark Against Irresponsible Behavior

Although a will lays out how your assets will be distributed, a trust is often a better option for many families. A trust is a valuable estate planning tool that allows you to deposit assets, including cash, property, and other investments, into the trust account during your lifetime.

There are two main types of trusts – testamentary and living. A testamentary trust is created after your death by your will, while a living trust is established during your lifetime.

A living trust is usually revocable, meaning it may be changed during the trustor's lifetime, and it becomes operational at the trustor's death. Unlike a will, a living trust does not have to go through probate court. Your assets can be passed immediately and directly to your named beneficiaries.

How is a trust a solution for an irresponsible heir? 

When you create a trust, you give another party (your trustee) the authority to handle your assets for your beneficiaries' benefit. You can select a trusted friend or family member to serve as your trustee. Your trustee could also be your attorney or a financial institution.

Understanding living trusts is an important way to protect your assets from misuse. While your assets are in the trust, they are safe from a beneficiary's irresponsible spending and any other relatives or in-laws who may want to misuse your assets. 

Different Ways to Structure A Trust

Trust assets may be distributed to your children with regular installments giving you a level of control over their use. Depending on your financial and family situation, there are several different ways to structure a trust.

You also can use a trust to provide non-monetary assets for your heirs. You could place a home in a trust, for example. However, since we're on the subject of irresponsible children, you might want to place the home in a trust that stipulates that any money from its sale must be reinvested in another house.

The Spendthrift Provision

Another answer to the problem of estate planning for an irresponsible child is to include a clause known as the "spendthrift provision" in your trust. A spendthrift clause limits the transfer of a beneficiary's interest in the trust assets.

A spendthrift trust directs the trustee on how to distribute the beneficiary's entitlement. Limitations might include paying only for a beneficiary's basic living needs or making only limited payments directly to the beneficiary.

A spendthrift trust might be useful if the beneficiary has a history of

Each spendthrift clause is written according to the trustor's specific preferences. For example, the clause can include protection of the trust assets if your child goes through a divorce. In some cases, the trustee of a spendthrift trust can cut off benefits to a beneficiary. The benefits could be distributed to that child later or paid to another beneficiary instead.

The trust document can also spell out that the trustee only makes payments on the beneficiary's behalf and may withhold direct payments of cash from the beneficiary.

Individual states vary on the extent of the protection they allow under a spendthrift clause. For example, some states allow creditors access to a trust with these clauses. Some state laws also allow for alimony or child support payments under the provision.

For the strongest protection, aim to be as specific as possible on the conditions under which your assets are to be distributed. Here are two examples:

The spendthrift provision must be worded very carefully to avoid placing the trustee in a difficult situation. An overly strict clause could prevent your child from obtaining money when there is a genuine need. On the other hand, a too lenient clause leaves a trustee having to deal with an angry heir demanding their assets.

How to Set Up a Spendthrift Trust

Your lawyer will help you create a spendthrift trust that fits your particular needs. Here are some questions you should be ready to answer:

You've worked hard to provide for your family both now and in the future. No one wants to think about their money disappearing in a few years due to an heir's reckless spending or poor lifestyle decisions. A spendthrift trust can offer you a combination of protection and freedom.

 

Using a Power of Attorney With a Land Trust

Using a power of attorney with a land trust is a good idea.

A power of attorney, or a POA, allows someone to act on your behalf. This is a good thing to have in case you are out of town or you are unable to act when the need arises.

You may think of a power of attorney as something for your elderly family member who cannot do anything for themselves. However, a POA is also good for those who are running a business and who might be out of town when an action is required.

If you have a land trust with someone close to you, you may need a power of attorney in case you are out of town and need someone to sign documents for you or act on your behalf. Generally, a power of attorney is not designated for a trust. However, there could be cases where you want to name the same person as your trustee and as your attorney-in-fact.

Are Land Trusts Still Effective?

Land trusts are often the unsung heroes of the real estate investing world. You can use them to control assets rather than own them yourself. The land trust is also called a “title holding trust” because that’s it’s main job: hold title to the property in your place. You still get to stay in control of any property associated with your trust, and of course, any earnings generated.

Land trusts can form a critical part of your asset protection strategy; in fact, we prefer creating them anonymously. This type of revocable trust takes the critical first step in asset protection: stripping the title out of your name.

If your attorney tells you that land trusts are not as effective as they once were, they are not educated enough on land trusts. Most attorneys don't know enough about land trusts for them to give you advice on using one. They most likely didn't get this education in law school. Land trusts are just as effective as they once were, if not more effective these days.

roth ira vs 401kWhat States Are Land Trusts Used In?

Land trusts are only used in six states as of now. These states include Illinois, Florida, Virginia, Indiana, Hawaii, and North Dakota. These are the only states that have statutes for land trusts right now. This may be why many attorneys don't know enough or, if anything, about them currently.

Who Should Have Power of Attorney for the Land Trust?

When choosing the best person to use as your power of attorney, trust is what matters. It might be your closest friend or family member. However, if you don't want to use an individual for your land trust, you also have the option to use an institution (which will usually charge you a fee).

So, in short, it is a great idea to use a power of attorney for your land trust in case you need documents signed and you are either unable to do this because you are in the hospital or out of town on a business trip.

Hopefully, these questions and answers helped you learn a little more about land trusts and you are more educated on this effective tool for real estate investors.

 

Interested in learning more? Check out our articles Do I Need a Durable Power of Attorney? and Do I Need a Medical Power of Attorney?

Using A Land Trust In Estate Planning: How To Avoid Probate

When you work hard and save money to pass on to your heirs, you don’t want them to have to pay legal fees to obtain it after your death. You also don’t want your family members to experience stress while they wait to find out who gets what from your estate.

One way to avoid the expenses and delays of these legal proceedings (called probate) is to create a type of living trust called a Land Trust.

What is a Living Trust?

A living trust— also known as an “inter vivos” trust, which translates from the Latin to mean a trust that is created “between the living”—places your assets in a fund that is managed by a trustee of your choosing for the best interests of your beneficiaries.

As an alternative to a Last Will and Testament, which distributes your assets after your death, a living trust bypasses the time and expense of probate because your assets already are dispersed in the trust. In addition, living trusts offer other advantages, including privacy in situations where the state requires the filing of an asset inventory and immediate access to income and principal by your beneficiaries.

While a living trust can hold any type of asset, a Land Trust is a type of living trust designed specifically for real estate-related assets. A Land Trust can hold physical properties, mortgages, air rights, notes, and other types of property assets.

The property owner is the beneficiary of most of these anonymous trusts, meaning the owner controls how the property is managed and retains all of the property rights, including developing, renting, and selling it. Land Trusts are generally considered to be revocable trusts, meaning that the owner can amend or even terminate them at any time.

Land Trust In Estate Planning: Yacht OwnerWhat Are the Benefits of a Land Trust?

In addition to avoiding probate, there are other possible benefits of making a Land Trust part of your estate plan. A land trust offers:

What Are the Disadvantages of a Land Trust?

A Land Trust does not protect property owners from all potential liability, and it does not offer privacy in all cases. Also, the IRS requires that all trusts, including Land Trusts, file Form 1041.

Here are three potential pitfalls of setting up a Land Trust.

  1. Redemption rights allow homeowners to reclaim their property before and, in some cases, after foreclosure. This right is lost if the property is purchased under a land trust and you are the beneficiary.
  2. Homestead exemptions, which protect your property from taxes and creditors in 48 states, are forfeited with a land trust.
  3. A land trust disqualifies you from secondary market loans. In the secondary mortgage market, lenders and investors buy and sell home loans and servicing rights.

When is Best Time To Set Up A Land Trust?

If you have decided that the benefits of a land trust outweigh any potential disadvantages, your first step is to choose your trustee. The trustee can be a friend, family member, or institution, but make sure it is someone you trust. 

Next, setting up a land trust requires two primary documents—a deed to trustee and a land trust agreement. After you have chosen your trustee, you will need to draw up an agreement that satisfies all parties and complete and sign the documents.

You can keep your ownership private by forming a land trust with either a private trustee or an institutional trustee just before closing on the property. By keeping your name off the permanent property records, you will protect your property from creditors who might use the Uniform Fraudulent Conveyance Act to gain your assets.

A land trust trustee should be exempt from personal liabilities related to the land trust’s debts and obligations. However, not every state views land trusts in the same way. Your trustee should research their state laws so that they are clear on their liability before they sign a land trust agreement.

Royal Legal Solutions will work with you to construct a trust agreement and file the right paperwork on behalf of your land trust. If you choose us your “nominee trustee,” our name will appear on all public records to protect your anonymity. After filing the paperwork, we will then transfer the trustee title back to you.

The professionals at Royal Legal Solutions are experienced in assisting with land trusts throughout the U.S. and Canada.

Is A Grantor Trust Right for Your Estate Plan?

When you’re building your estate plan, one goal is to minimize the tax burden for your heirs. One tool to accomplish this is a grantor trust. In this article, we will examine these types of trusts, including their pros and cons, for your long-term financial plan.

What is a Grantor Trust?

The term "grantor" describes the person who creates a trust and owns its property and assets for both income and estate tax purposes. Therefore, a grantor trust is a living trust in which the grantor is treated as the owner of all portions of the trust.

A grantor needs to have one of the following powers for a trust to be considered a grantor trust.

The grantor usually is a trustee and beneficiary of the trust’s income and principal. This income from a grantor trust is taxable to the grantor and should be listed on the grantor's personal tax return.

The IRS allows grantor trusts to file taxes under the grantor’s personal Social Security Number (SSN) rather than a separate Tax Identification Number (TIN). A married couple who files joint taxes and who share the grantor’s trust powers may use either spouse’s SSN to file taxes for the trust. Grantors may request a TIN for the purpose of privacy. The trust will need to apply for its own TIN upon the death of the grantor(s).

grantor trust: kid with plantWhat is a Non-Grantor Trust?

A non-grantor trust is simply any trust that is not a grantor trust. That means that in a non-grantor trust, the person who established the trust has given up all right, title, and interest in the principal.

Only the trustee has the legal right to revoke or amend a non-grantor trust. Also, the grantor cannot serve as a trustee or as a beneficiary of the trust and cannot have any remainder interest in the trust.

The IRS requires a non-grantor trust to have its own TIN. As a separate tax entity, non-grantor trust must pay taxes on all income received.

What is an Intentionally Defective Grantor Trust?

Despite its ominous-sounding name, an intentionally defective grantor trust (IDGT) refers to an irrevocable trust where the grantor pays the trust’s income tax bill during their lifetime.

The grantor does this by making an irrevocable gift of property into a trust -- typically set up for the grantor’s children -- and names someone else as the trustee. In an IDGT, the grantor retains the right to substitute other property of equal value for the initial property.

The grantor of an IDGT must obtain a TIN and file an IRS Form 1041 with trust income reported every year. However, unlike with a standard grantor trust, a typical IDGT is not subject to estate tax upon the grantor’s death. Instead, the grantor pays a gift tax on the value of the property when it is transferred into the trust.

Are Land Trusts Seen As Grantor Trusts?

A Land Trust is a private legal agreement in which the trustee agrees to hold title to a piece of real estate for the benefit of another person (the beneficiary). The individual who establishes the entity is called the grantor.

For the most part, Land Trusts are structured as grantor trusts and are considered to be disregarded entities. A disregarded entity is an LLC or trust that is “disregarded” in the sense that the IRS does not recognize it as a separate taxpayer.

In other words, disregarded entities do not pay tax and do not file a tax return. Instead, the owner of the trust must report the entity’s income and deductions directly on their tax return.

Pros and Cons of Grantor Trusts

The main advantage of having a grantor trust in your financial plan is the opportunity to preserve your hard-earned wealth while minimizing the tax burden for your heirs. Typically, you pay less income tax on trust assets at your own personal tax rate instead of at a rate set for the trust.

A grantor trust can also serve to protect your assets against creditors in a lawsuit. You can transfer assets to a grantor trust for long-term care planning, and your assets held in a trust won’t be subject to the lengthy and costly probate process after your death.

On the other hand, setting up a grantor trust assumes that you have the financial resources to pay the income tax on trust assets throughout the rest of your life. A large capital gain inside the trust could significantly increase your tax burden.

Keep in mind that grantor trusts and IDGTs become non-grantor trusts upon the grantor’s death. On December 31 of the year of the grantor’s death, the administrator must obtain a TIN for the trust must then be obtained and become responsible for filing a Form 1041 for this now non-grantor trust.

Should I Set Up A Grantor's Trust?

There is no one-size-fits-all answer to this question. It depends on your individual financial situation. Talking to an estate planning attorney can help you determine whether you would benefit from a grantor trust and which type of trust is best for you and your family.

Can A Land Trust Borrow Money to Buy Property? Finance Your Next Investment

There are many advantages to setting up an anonymous Land Trust for your real estate investments. Did you know that you also can use these trusts to borrow money to buy additional property?

In this article, we will examine the advantages of a Land Trust mortgage and how to obtain one.

What is a Land Trust?

Over in our Tax, Legal, & Asset Protection Secrets For Real Estate Investors mastermind group, you'll hear me recommend this type of asset protection pretty often, but before we go much further, let’s make sure we are clear on some definitions.

A Land Trust is a legal entity that has control over a physical property and other real estate-related assets at the instruction of the property’s owner. As a living trust—one that is created during your lifetime—a Land Trust is typically revocable, meaning it can be amended or terminated at any time.

A Land Trust can protect both your assets and your privacy and prove to be a valuable part of your estate plan. Let’s say you own an investment property. If you deed the property to the trust, your name comes off the property deed as the owner, and the trust becomes the owner.

The terms of a Land Trust can be unique to the type of real estate it owns. You, as the grantor, then choose someone, called a trustee, to make sure your instructions in the trust agreement are carried out to benefit your heirs (beneficiaries). The trustee can be a friend or a relative, your attorney, or a professional appointed from a financial institution.

Unlike a will, which is a public document, a living trust is private. No one can know the details of your Land Trust other than the trustee.

land trust financingWhat Is A Land Trust Mortgage?

Now, let’s say you want to borrow money to make improvements or preserve assets that are held in a Land Trust. Or maybe you need to refinance a property held in the trust. As long as the trust is revocable, you can apply for a mortgage.

Not all lenders extend loans on trusts, so your first step is to notify the lender that the property is included in a trust and provide them with a copy of the trust agreement. If the lender is on board, you’ll next need to check the trust deed to determine if the trust allows the trustee to take out a mortgage on the property. (It is not always the case.) You’ll also need to confirm that the trust allows the property to be used as collateral or security for a loan.

How to Obtain Financing Through Your Land Trust

If the trust does allow the loan, the trustee will need to sign the mortgage or a promissory note. The note stipulates that the trust will be responsible for paying back the loan and that the refinanced property will be used as collateral for the loan. If the trustee won’t be signing personally, you will have to apply for the loan and sign the guarantee or the note.

If the trust doesn’t allow for the loan, the trustee cannot sign the mortgage. If the property can still be used as collateral, however, the lender may require you to re-title the property. This requirement means you will have to take the property out of the trust and return it to your personal ownership before you can take out a new loan.

This process requires the preparation and recording of two deeds with your county recorder or registrar. One deed takes your property out of the Land Trust, and the other one puts it back.

Some lenders will accomplish this deed paperwork for you, or you can ask your attorney to handle it. Your attorney should then draw up a document that states the property can be used as collateral on the new loan.

Suppose your property is already in a Land Trust and you want to borrow against the beneficial interest. In that case, the lender must serve a Notice of Collateral Assignment on the trustee. Then the trustee will write an acknowledgment of the assignment. When this situation occurs, the trustee cannot transfer the property’s title in the trust or encumber or mortgage it without the lender’s written consent.

Now, here are the five steps the lender will take before granting the loan.

  1. The lender will review the trust instrument, also called a deed of trust.
  2. The lender will confirm the identities of both the grantor and trustee.
  3. The lender will establish whether the trust grants the trustee power to borrow money and pledge or encumber trust assets.
  4. The lender will determine if the trustee needs to sign a trustee certificate to stipulate the trust’s terms and confirm the trustee’s authority to apply for a loan.
  5. The lender will require the deed on record as legal evidence that the trust actually owns the property. (You’ll need to provide the deed on record for this step.)

Advantages of Land Trust Mortgages

Borrowing money on property held in a Land Trust gives you more options than a conventional loan can provide. In addition, selling property held in a Land Trust to current tenants is often more secure and less risky than conventional sales.

In addition to maintaining your privacy as an investor, you also can avoid transfer taxes because the sale of a beneficial interest in a Land Trust does not involve the property itself. Another advantage is that tax assessments are lower because the sale price of the property is not publicly available for real estate assessors to view. You also can skip lengthy and costly probate procedures after the death of an owner.

What About The Due On Sale Clause?

Many investors worry that they will sacrifice their anonymity by triggering the due on sale clause if they finance a property purchase through a Land Trust. This clause in a loan or note states that the full balance of a loan may be called due upon sale or transfer of ownership of the property used to secure the note.

It's important to understand that banks rarely invoke the due on sale clause if mortgage payments are being made regularly on a property. After all, banks profit from your mortgage payments.

You are able to transfer your property or obtain better financing for an investment property without the worry of triggering this clause. Here are the basic—and perfectly legal—steps to take.

I like to encourage my clients with this advice–a Land Trust is simply a tool for an investor. You can use this tool to protect your anonymity, prevent frivolous lawsuits, or manage certain pieces of property. Yes, an unethical person can use a Land Trust in a dishonest way, but that reveals more about that individual’s integrity (or lack thereof) than it does about the Land Trust as an investment entity.

Finally, if you’re seeking to obtain a loan against your Land Trust assets, you’ll need the advice of an expert trust administration attorney. Our dedicated professional team at Royal Legal will prevent you from taking any action that might harm the assets of the trust.

Without An Anonymous Trust, Your LLC (And Investments) May Be At Risk

When it comes to protecting your property, you should build a castle, not a fence. This is where an asset protection plan comes into play. Think of an LLC's protection as being on par with a fence. It offers you decent protection, but you could do better.

How? By getting an Anonymous Trust. When you compare a trust to an LLC, it's like comparing a castle to a fence. A trust offers superior asset protection you can't get from an LLC alone.

Protecting your assets is about building legal walls. When you get a trust, you're putting up high walls to defend against an attacking litigation attorney. A trust isolates your assets so even if an attorney files and wins a lawsuit against you or your LLC, they can’t get at the prize assets. Poor guys, all that work for nothing!

Why An LLC Doesn't Completely Protect You

Are you a real estate investor with one or more properties held in an LLC? If so, listen up: There are many tricky ways litigators are able to break into an LLC and get access to all your assets—even when the lawsuit pertains to a single property. The LLC will protect the properties from suits against you individually, but a lawsuit relating to the sale or lease of property will go against the owner (the LLC).

In a landlord/tenant dispute or a dispute relating to the sale of a property, the LLC is liable as the owner. If the opposing party is successful in the lawsuit, they will be able to collect on their judgment against the assets of the LLC (as in ALL of your properties). They will be able to foreclose and auction off your properties at a discount until they have collected enough money to satisfy their judgment.

Poof. There went your years of hard work, into the pocket of an attorney.

asset protection: 3-legged stoolAnonymous Trusts Stop Lawsuits Dead

The more walls you have, the harder it is for the other side to recover your hard-earned assets and the more likely it is that they will not even bother filing suit. Lawsuits are a three legged stool, and a trust destroys one of the legs, which causes the lawsuit to crumble. The three stool legs which support a successful lawsuit are:

In layman's terms it translates respectively to:

  1. The law recognizes liability either by common law or statute,
  2. The facts show that the party suffered money damages because of the defendant's conduct, and
  3. Assuming that previous two are true, there are assets which we can take from the defendant to satisfy the judgement.

A Trust Makes Attorneys Think Twice Before Suing You

An attorney won’t file a lawsuit without all three legs being in place. Using an Anonymous Trust/LLC combination cripples litigation because it makes the pool of assets for recovery, the third leg of our stool, unattractive. Ten properties held in an LLC makes an attorney drool like a hungry dog. That’s a lot of assets, and likely some equity an attorney can get a hold of.

A single property held in trust doesn’t even get an attorney to the keyboard to type out a petition to file suit. There just isn’t enough equity to recover against.

A Trust Is The Castle Protecting Your LLC's Assets

Let's say you have all your property held in an LLC and want to transfer each of those properties into individual trusts.

The first step toward developing your asset protection plan is to establish an irrevocable trust. You can hold property in the name of this trust instead of your LLC or personal name. Now that the trust owns the property, you or your LLC are merely beneficiaries. This entitles you to the income from the property without exposing you to liability.

In a dispute regarding the property, the opposing party will only be able to collect against the asset of the trust, the trust property, which hopefully has limited equity. Why do I hope that the trust property has limited equity? The lawsuit that is filed against the trust is limited to recovery against the trust property.

If the mortgage on the property is close to the value of the property, then there isn’t enough equity in the property to justify a lawsuit. Remember, the litigation attorney only gets paid after he auctions off the property and pays off all the liens including the mortgage. And it just so happens that there are several ways to hide the equity in your property.

An Auction Can Work In Your Favor

The fees for the auction and the costs in litigation to get it to auction are also subtracted from the equity. In the end, there is hopefully little hope that an attorney and his or her client will make any profit.  Same goes for the client, who also pays large litigation fees. If neither the attorney nor the client can make money, they won’t file suit.

Can A Trustee Sell Trust Property To Himself or Herself?

A land trust can be a simple and effective tool for real estate investors who want to maintain privacy in their investments. With a land trust, you appoint a trustee to hold legal title and manage the property for your benefit or the benefit of a third party. 

But what happens when trustees take advantage of their positions of power and start using trust property to benefit themselves? Can a trustee sell trust property to himself or herself?

What Is A Land Trust?

To answer whether trustees can sell trust properties to themselves, we need to start at the beginning.

A trust is a type of agreement where someone holds the legal title to someone else's property and manages it to benefit another person. 

Here are a few standard terms that will help you understand how trusts work:

If you place real estate investments into a land trust, you will sign a trust deed that transfers your property’s legal ownership to the trust. When you establish a land trust, you can specify in the trust document how the trustee should manage the property and how to distribute any income generated by the property to the beneficiaries.

Real estate investors use land trusts for various reasons, but the primary advantage is the ability to protect your privacy. When you purchase real estate through a land trust, your name and the price you paid for the property do not become public records like they do when you buy real estate in your own name. You can also use the anonymity that a land trust can offer to keep your identity confidential when making strategic real estate investments.

sealing cards: Can A Trustee Sell Trust Property To Himself or Herself?What Are The Legal Duties Of A Trustee?

The trustee is responsible for holding property title and managing it for the beneficiaries' benefit. (We've also written about the roles of the trustee and beneficiary in case you want to know more). When the trust document includes specific instructions for managing the property or distributing income, the trustee is obligated to follow them. Trustees should ensure that they understand all of the trust instructions and obey them to a "T."

Because of the dependent nature of the relationship between trustees and beneficiaries, trustees have a fiduciary duty to the beneficiaries of any trust they manage. A fiduciary duty is an ethical and legal obligation to act solely for the beneficiary's interests when controlling the trust. The trustee cannot use trust property to primarily benefit themselves or third parties who are not beneficiaries. This responsibility is sometimes called a duty of loyalty. 

Self-Dealing

Because of their fiduciary duties to protect the beneficiaries' interests, trustees cannot self-deal. Self-dealing is when a fiduciary acts in their own best interests in transactions instead of in the beneficiaries' best interests. This means that trustees cannot use trust assets in transactions that serve their own interests more than the trust's interests. The trustee should make decisions to benefit the trust—not to benefit himself or herself. 

Some of the most common ways that a trustee can self-deal include:

Can A Trustee Sell Trust Property to Himself or Herself?

If a trustee were to sell trust property to himself or herself, there would be a conflict of interest, as the trustee would be both the buyer and the seller of the property. The trustee cannot act in the beneficiaries' best interest by getting the maximum price for the property while also pursuing his or her own interests, which is paying less than fair market value for the property.

Unless the trust document expressly authorizes it, a trustee generally cannot:

When the trustee is also a trust beneficiary, that does not change the trustee's obligations to the other beneficiaries.

So the answer to our original question is an emphatic "NO." A trustee cannot legally sell trust property to himself or herself unless the terms of the trust specifically allow it. 

 

 

Does A Revocable Trust File A Tax Return?

Where legal issues are concerned, the answers to most questions are  rarely simple. This blog post provides the full answer (the yes/no, the why, the exceptions and other related issues) to the question: Does a revocable trust file a tax return?

In transferring properties to beneficiaries, avoiding probate is one benefit that makes a revocable trust, also known as the grantor's trust, a better option than a simple will. Therefore, the property owner (the grantor) is saved the hassles of an expensive legal process of distributing the assets of a will (probate).

What Is A Revocable Trust?

A revocable trust a kind of living/land trust where the grantor can alter, amend, or cancel its provisions as they deem fit. The grantor has this power throughout his/her lifetime, after which it will be transferred to the beneficiary or beneficiaries, as stated in the trust. However, before this transfer, all income earned by the trust is owned by the grantor alone. The characteristic of the revocable trust to be solely alterable by the grantor is what makes it a grantor's trust.

What Is A Living Trust?

Another classification of trust instrumental to the question "Does a revocable trust file a tax return" is that of a living trust.

A living trust is a trust that is created while an individual (the grantor) is alive. Like with every other form of trust, a person is chosen to be responsible for managing the grantor's assets for the beneficiary's benefit. Living trusts are either revocable or irrevocable. Living revocable trusts are the point of focus in this post.

Why Use A Revocable Trust?

A revocable trust is an excellent alternative to a will. With a revocable trust, taxpayers can manage their assets and distribute them to whomever they choose as beneficiaries.

A revocable trust is great for estate planning because the grantor does not have to take his/her assets through the expensive and sometimes public probate process in the event of the grantor's death.

Revocable Trust Taxes

The effect of a revocable trust on tax liability is rather interesting. In a revocable trust, the grantor retains the right to receive the trust's income and principal (because of his power to manage his assets).

Consequently, the Internal Revenue Service views a revocable trust as a grantor's trust and, therefore, not a separate entity. The income from a revocable trust is not reported separately; instead, it must be reported on the grantor's personal tax return.

Does A Revocable Trust Need To File A Tax Return?

Having understood the characteristics of the revocable trust, people want to know the tax implications and the question that pops up in the mind of many, more often than not, is "Does a trust need to file a tax return?" A revocable trust or grantor's trust is a land trust, an agreement between two individuals: the property owner and the beneficiary. Before the grantor's death, taxes paid over the assets and their capital gains are made by the grantor. As seen on the Internal Revenue Service website, the grantor has to correctly input the taxes in the Form 1040 if he is the trustee:

The effect of this is that the trust will not exist for tax purposes as long as it remains a Grantor trust.

Taxes After Death

Upon the death of the owner, the trust changes entirely and becomes an irrevocable trust. The closest explanation that can be given for this is the testamentary trust, a type of irrevocable land trust. Once the grantor is dead, his rights over the trust properties are automatically transferred to the beneficiaries.

However, for proper distribution, a  trustee specified in the trust documents gets all the powers and rights the grantor used to possess. This trustee might be one of the beneficiaries. The revocable trust taxes will then be known as irrevocable trust taxes, and these are the kinds of taxes that require the filing of a tax return. The process to be carried out by the specified trustee is as follows.

Land Trusts, Living Trusts & Standard Trusts

A living trust is a trust that is helpful in avoiding probate. The name of the trust, living trust, comes from the fact that decisions about how a person's properties will be distributed are made while they are alive. Land trust means the same thing, except the properties involved are real estate or related assets. 

Both the land trust and living trust have revocable and irrevocable types and similar benefits, distinguishing land trust when you have a land trust vs. standard trust comparison.

Conclusion

 

Land Trust: What To Know About Your Eligibility, Rules & Regulations

We get frequent questions about rules and regulations of all legal tools used for asset protection. Land trust eligibility is no different. 

Let’s just be clear that you don’t have to pass any eligibility requirements beyond being of legal age to get a land trust. That said, there are some issues to be aware of.

Are Land Trusts Available in Every State?

Regardless of where you live, you (as an investor or business owner) can enjoy the benefits of the land trust. But not all states offer land trusts--in fact, only these six have local options:

But any investor can have a land trust or its equivalent--the only possible exception being those living in Louisiana, who may wish to use other types of trust or asset protection options.

Fun fact for the legal eagles in the crowd: Louisiana is “special” from a legal standpoint because they rely on Napoleonic law, more based in older French legal systems, than the rest of U.S. states which are more closely related to British common law. As a result, Louisiana REIs who wish to keep their business and entities in-state are likely to need attorneys familiar with state-specific tools and laws. The rest of us in the other 49 states (and D.C.--by the way, fantastic City Flag you guys have there!) have things a little easier.

Even states lacking land trusts have similar options by different names, “Title-holding trust” is common, but each state will have its own lingo.

Even if your state doesn’t offer a local option, it likely will default to the laws of Indiana’s land trust, which have set the tone for land trust legislation and regulation nationwide. 

As with entities, you aren’t required to form your land trust in-state. At RLS we always tell our clients: if you don’t like your jurisdiction’s rules, change jurisdictions. It really is that easy. Many of our, say, Alaska investors decide to form Texas Series LLCs because they like Texas’ costs and laws better. You can do the same thing with land trusts. 

What Rules and Regulations Should My Land Trust Follow?

As far as legal vehicles go, the land trust is not particularly heavily regulated. Anyone can have one, and there aren’t many restrictions at all. But not everyone will use the land trust in the same way, and there are some limits and rules-of-thumb to keep in mind.

The most obvious limitation of all land trusts is the fact that they aren’t incredibly useful beyond the realm of real estate law. The land trust, often simply called the title holding trust, can’t hold just any asset--it must be a real estate asset. If you have cash to stash, consider your off-shore banking options. As for other assets, different strategies will work for them.

The best you can do to “play by the rules” is ensure your land trust conforms to all local laws. Next, ensure your use is appropriate and lawful.  If you need help determining your compliance, understanding how trust properties are taxed, or learning how your land trust works in the context of your asset protection plan, check with an attorney, CPA, or even both. Other investors can help you get ideas for using your land trust, but ultimately, counting on pros hip to your personal situation when it comes to matters of legal compliance is the smartest move.

Land Trust Best Practices

When you deed a property to a land trust, you’re removing it from your personal possession. This makes some investors nervous, but it need not, since you still receive your funds as the beneficiary. Here are a few best practices to keep in mind when using land trusts to protect real estate assets:

This last point is one we should stress: land trusts offer anonymity, while entities offer compartmentalization, and the ideal plan has both. Select the best liability-limiting entities for you, whether that’s a Traditional LLC, Series LLC, or both.

Bottom Land: With Few Limitations, Most Investors Can Benefit from Land Trusts

While the land trust has limits, so does every tool. Even non-legal tools are only good for their intended jobs. Try screwing anything in with a hammer if you don’t believe us. As for land trusts, they’re excellent for their designed purposes. To get the most out of the land trust, use it appropriately for your situation and get advice if you’re unsure what role it should play in your asset protection plan.

Land Trust: Basics for Real Estate Investors to Know

Land trusts are often the unsung heroes of the real estate investing world. You can use them to control assets rather than own them yourself.

You’re almost always better off controlling an asset than owning it in your name outright.

And that’s where the land trust really gets to strut its stuff. After all, the land trust is also called a “title holding trust” because that’s it’s main job: hold title to the property in your place. But you still get to stay in control of any property associated with your trust, and of course, any earnings the real estate investment generates. Let’s take a closer look at land trust basics you should know.

What is a Land Trust and How Does it Work? 

The land trust is an asset protection tool that doesn’t get a lot of respect. There is surprisingly little buzz around this real estate tool, though it can save your assets from unnecessary legal risk. 

Land trusts can form a critical part of your asset protection strategy well outside the limelight, and in fact, we prefer creating them anonymously for additional benefits. This type of revocable trust takes the critical first step in asset protection: stripping the title out of your name.

When you establish a land trust, you’re using its trustee-beneficiary structure. Your trustee may then provide for you as a beneficiary of the trust. Lawyers make great trustees because of attorney-client privilege, but you get to choose. This is how you maintain control and enjoy the benefits of property ownership while sidestepping its liabilities. It’s a pretty cool thing, in our opinion.

Why are Land Trusts Helpful for Real Estate Investors?

There are many ways land trusts can help out real estate investors. Let’s just consider some of these common uses of the land trust:

How Land Trusts Best Protect Real Estate Assets

As previously mentioned, a land trust is a great tool but can be limited if used alone. It’s not intended to be your entire asset protection strategy, but rather a piece of it. Recall that properties in LLCs are generally ‘pooled’ legally, unless you use a Series LLC of course. 

We’ve found that asset protection works best in layers. A land trust is a great first layer of anonymity. If your land-trust-owned property is also owned by an LLC or a Series within a Series LLC, that’s another layer. From there, attorneys and CPAs can pile on even more layers such as enhanced anonymity, the addition of a shell corporation, and plenty of other legal and tax tricks.

What Do I Do to Form a Land Trust?

Land trust eligibility isn't the same in all states. The only universal pieces of the land trust formation process are these:

Your lawyer will be able to give personalized advice upon agreeing to help you. Thanks for learning about the benefits of land trusts with us today, and please leave any questions you still have in the comments if they aren’t addressed in our Land Trust FAQ.

Land Trust: The FAQs

If you’ve started learning about the land trust recently, questions are common. We’ve gone ahead and made some primers on what a land trust is and the benefits of the structure, but today, we’re going to answer your most Frequently Asked Questions about the land trust. The inboxes here at Royal Legal HQ are regularly flooded with the same questions--so we plan to start with those. If you have more, just let us know, because we’re always happy to answer your questions--in email or blog format. Let’s dive in.

Land Trust FAQ #1: I Heard Land Trusts Can “Get Around” the Due-on-Sale Clause for Easy LLC Transfers. Is it True?

Yes. Really. We have clients use land trusts for this purpose regularly: to obtain better financing  for an investment property. We’ve outlined the basic method before, but here are the broad strokes:

  1. Let your lawyer know what you’re up to.
  2. Buy in your own name for optimal loan terms.
  3. Transfer your property into a land trust.
  4. If desired, move the property from your anonymous land trust to the LLC of your choosing
  5. Enjoy the sweet relief of never worrying about the DoS again.

It really is that simple. We’ve never known someone who got in “trouble” because the worst thing that can happen with this method is receiving a love note from the bank. If this happens, your property can revert back to your name. You know, where it was in the first place. 

If you still want to protect the asset, it’s likely you made a misstep the first time. When executed with professional help, few investors ever get a letter from their bank because the bank is none the wiser. Breathe. Due-on-sale violations aren’t punishable by hard labor It’s not a crime to get better deals, and each piece of this plan is perfectly legal.

Land Trust FAQ #2: Do I Need Separate Land Trusts For Each Property?

Ideally, yes. While one land trust is better than none, the optimal strategy is to use one per property. That way, you can really enjoy each land trust benefit for each and every property, whether the benefit you want is:

Land Trust FAQ #3: Some Blogger Said Land Trusts Aren’t the Same Thing As Asset Protection? WTF? 

Regular readers now wondering if we’ve been lying about everything all along like scorned spouses, slow your roll. Actually, anyone with this question can slow their roll. First of all, was Some Blogger a credentialed asset protection attorney? If not, exactly what makes them an expert on the topic? You can look up our credentials, read our reviews, etc. Do the same and check your source. 

Considering the Source of Legal Opinions

You’re looking to see if their opinion on asset protection is any more valuable than say, our opinion on the best color for your living room we’ve never seen (Coral. Totally go with coral). 

See the problem there? We don’t know what we’re matching to, what you like, or anything about you. Also, we’re lawyers, not interior decorators. Our lead attorney Scott Smith freely admits lacking interior decorating expertise--perhaps it was this lack of talent that forced him to turn to law, which he’s pretty darn good at. Remember, he used a land trust to offset law school costs. Did Some Blogger?

Scott’s opinion is the same as everyone else’s at RLS’s. Land trusts are a valuable component of an asset protection plan. That’s it.

By the way, even if Some Blogger is or claims to be a lawyer, remember this: no blog should create some kind of surprise attorney-client relationship. So, they aren’t your lawyer even if they are a lawyer. And just for the record, that same concept applies to this blog, even if you think our pearls of wisdom are awesome. That doesn’t make you a client; it makes you a passionate reader. We love both at RLS.

Bottom line: land trusts alone won’t always protect assets, but an asset is better protected in an land trust than in your own name. Land trusts aren’t an entire asset protection plan, but rather part of one.

Land Trust FAQ #4: Same Thing As Asset Protection? WTF? 

This ties back into #3. Land trusts aren’t a complete asset protection plan, but they have their place. What role the land trust will play in your plan is a professional’s place to help you decide. Regardless, this lesser-known tool can help most investors achieve their goals.

Land Trust: The Benefits Of The Structure

As we continue our series on the land trust, it’s time to turn our attention toward the major benefits of this structure. Whether you are old friends with this time-tested real estate tool or have never heard of it in your life, the land trust or title-holding trust can truly be the real estate investor’s best friend. Let’s get right into the three most essential benefits of the land trust, an under appreciated yet powerful legal tool.

Benefit #1: Land Trusts Protect Your Anonymity

If most intelligent people are given the choice between anonymity and oversharing, they tend to like the former. Anonymity makes lawsuits a serious pain, and can actually prevent them if the other party isn’t particularly motivated. Learn more about the inherent benefits of anonymity for asset protection. Or, learn how to get even better protection from the next tip.

Benefit #2: Land Trusts Make Lawsuits Against You Harder

The land trust’s anonymity powers help it prevent lawsuits. Anonymity alone is rarely a good asset protection plan. But by the same logic, it’s impossible to have a highly effective, what we like to call “judgment-proof” package.

Trusts are more difficult to sue than individuals. Trusts paired with entities are even more difficult, and we’re about to explain why in detail. Pay attention if you’re looking for an ironclad asset protection strategy that stops suits before they start at all.

Benefit #3: Land Trusts Kick Ass at Preventing Lawsuits When Paired With Entities.

Of course the asset protection folks save the asset protection benefits for last. But think about it: anonymity is something you need, and the land trust removes property from your own name. It doesn’t have to stay there, though. You can reduce your chances of a lawsuit against you to almost “none” by simply pairing the land trust with an appropriate entity. We’ll give you the play-by-play of both why you need to do this and how.

To build  a high quality asset protection system, pair the humble land trust with a liability-limiting entity. This is a highly intelligent, easy-to-manage, cost-effective way to approach a basic asset protection strategy. Here are the very broad strokes of real estate investors effectively pairing entities and land trusts actually looks like.

Protecting Assets With One-Property-Per-LLC Strategy

First, think of one of your investments. If you don’t have one, imagine your dream spot--maybe in a place you’d like to vacation to. Now, we don’t want anyone coming after that badass property in court. So you might stick it in a Traditional LLC. An ideal strategy is compartmentalized as well as anonymous. 

Compartmentalization is the second key of your plan, and it’s your entity’s main job. One Traditional LLC can protect one asset completely as a holding company, or you may choose to use it as a shell company to assume operations for a Series LLC.

Series LLCs are ideal for the investor or multi-property owner because you can have as many “compartments” (Series, miniature liability-protected companies) as you like. Learn more from our educational Series LLC content on this structure’s benefits, uses, and FAQs. But for now, just understand that the Series LLC achieves perfect compartmentalization, with each of your assets snugly secured inside its own Series.

Compartmentalization compliments anonymity brilliantly, and is indeed what we call one of the pillars of asset protection. If your assets aren’t connected to you, and nobody can figure out who the hell you are, you because a righteous pain to sue.

Bottom Line: Land Trusts Have Many Benefits for Real Estate Investors

The list above is far from exhaustive. There are many more nuances and benefits to land trusts, some of which may apply only in certain situations. For instance, some married couples love them because they allow for a legal ownership method known as tenancy-by-the-entireties. Land trusts can be used like savings accounts backed by appreciating assets, as estate planning tools, for executing transfers around the due-on-sale clause, and many more cool legal tricks.

Just know that using this tool can get you all sorts of perks, and don’t overlook land trusts when constructing your asset protection strategy. You’d just be cheating yourself.

Is a Land Trust a Disregarded Entity?

A land trust can provide anonymity and asset protection, but how are they treated for tax purposes?

It will depend on the type of trust you decide to form. Land trusts can be “simple, complex, or grantor trust[s] depending on the terms of the trust instrument.”

In this article we will explain the "disregarded entity," tell you what type of land trust is a disregarded entity, and explain other ways land trusts can be taxed.

What is a Disregarded Entity?

Before we jump right into what types of trusts are disregarded for tax purposes, let’s recap what disregarded entities are.

Disregarded Entities are “pass-through entities” that do not pay tax at the entity level, and do not file a tax return. Instead, you report the entity’s income and deductions are reported directly on your tax return (or whoever owns the trust).

This is good news is you don’t need to file an additional tax return for the trust, which of course would cost more money.

What Type of Land Trusts are Disregarded Entities?

For the most part, land trusts are structured as grantor trusts (also called revocable trusts), which are disregarded.

That is because you, the grantor of the trust, remain in control of the trust and its assets. You’re considered the owner of the trust for tax purposes.

This differs from an irrevocable land trust, where you give up all ownership rights of the trust and its assets. In this case the trust would be considered its own entity, and need its own tax return.

Series LLCs, Land Trusts, and Taxes

If your land trust is incorporated using a series LLC, its tax treatment will be determined by the tax treatment of the LLC.


Author: Thomas Castelli, CPA is a Tax Strategist and member of The Real Estate CPA, an accounting firm that helps real estate investors keep more of their hard-earned dollars in their pockets, and out of the government’s, by using creative tax strategies and planning.

Pay for College With a Real Estate Investment Trust

Whether you have kids now or plan to in the future, paying for college is something you've no doubt thought about.

Real estate investors should be aware of the options they have when it comes to using their property to help pay for college tuition. In this article, we’ll discuss one method of paying for college tuition that doesn’t get much attention. This method involves utilizing a land trust to hold title to investment properties.

Set Up a Land Trust For Each Child

Once you’ve identified the investment property you’d like to use to fund future college expenses, make sure that the title to each of those properties is held in separate land trust. This is especially important if you have multiple kids because each child will serve as the beneficiary of his or her own separate land trust. Also, we’ve seen several cases where separating assets into their own individual entities, such as multiple “child LLCs” within a series LLC, has helped investors manage the impact of lawsuits.

Have Each Property Appraised

After ensuring that each child has their own land trust and is named beneficiary to that trust, have each property appraised at its current market value. Afterwards, sell an option on each investment property. Each child’s land trust will hold these options and accumulate the appreciation value of their respective properties.

Cash in on Your Real Estate Investment Trust for College

Whenever your kids are ready to head to college, you’ll be presented with two options. First, the kids can exercise their contractual right to sell the property in their land trust, using the money earned for tuition. Alternatively, you can buy the options back and use the profits for college expenses. Either way, parents can put their properties to work in accumulating funds for college rather than taking funds from their current income.

Manage Multiple Land Trusts With a Series LLC

As you can see, a land trust is not only useful in providing privacy when it comes to your wealth and assets, it can also be used to pay for your child’s college expenses. However, key to this method is putting each property in its own trust. This insulates each property from each other, so that a negative hit on one doesn’t impact the others. We specialize in managing multiple land trusts and LLCs within an entity called a series LLC. The land trust combined with a series LLC provides maximum asset protection. However, you’ll want to work with an experienced team of legal professionals to devise an overall asset protection strategy.

Three Reasons to Title Your Investment Property in a Land Trust and Not An LLC

In previous articles, we’ve discussed the main benefits of holding title to real estate investment property in a land trust. A land trust is just like a standard trust, except as the name implies, this type of trust holds title to real estate or real estate related assets.

Real estate notes, deeds and other agreements can be held in a land trust. A land trust can be recorded as either a revocable or irrevocable land trust. The majority of land trust are structured as revocable trusts. However, we’ve also had several inquiries lately about holding title to real estate investment property in an LLC.

While this is an option, based on our own experiences as real estate investors, we know of a few reasons why a land trust is a better title holding vehicle. In this article, we’ll discuss three reasons why you should title your property in a land trust rather than an LLC.

Land Trusts Offer Privacy

One of the main benefits of a land trust is that it offers privacy that you can’t find in an LLC. When you set up a land trust, you’re given the choice to create a name for each trust. This name can be anything, as long as it doesn’t infringe on copyrighted material. In the past, we’ve advised clients to name their trust wisely and in such a way that no personal connections can be drawn from the land trust title and those parties involved in the trust. This creates a layer of protection, since even if someone wants to attack one of your assets, they would have trouble connecting those assets to you. For record keeping purposes, a land trust is documented under its official land trust name. Uncovering ownership details behind a mysterious sounding trust like 321 CWL Land Trust may be more trouble than it’s worth. This is why a vague land trust name can be the secret to preventing lawsuits before they even start.

Land Trusts Can Help You Avoid Losing Everything With A Single Lawsuit

When you put the title to each property you own in its own individual land trust, it separates the liability associated with each. In contrast, if you hold all your property in a single LLC, it not only doesn’t provide anonymity but it also creates a scenario where an attack on one property can lead to an attack on the other properties. This is because all the property is held under the same shared entity. With a land trust, your potential losses are capped at each individual asset. Thus, potential lawsuits are managed, rather than in an LLC where all your hard earned assets are up for grabs.

Land Trust Titles Provide Efficiency

Lastly, a land trust provides efficiency when it comes to financing and selling your property. When each property is held in its own separate land trust, the financing or sale of one property doesn’t impact the other properties, as it may in an LLC holding multiple properties. Our legal team is highly experienced in how to protect and streamline the management of multiple properties. We can help you create a comprehensive asset protection strategy today.

How is A Land Trust Different From A Standard Trust?

A land trust is defined as an entity used to hold title to real estate. Unlike the standard trust, usually land trust doesn’t involve family. Also, a land trust offers versatility for real estate investors since they are allowed to hold not only real estate but real estate related assets such as real estate notes. A land trust can also hold deeds and financial agreements.

Land trusts also provide several benefits:

  1. A land trust doesn’t go through probate court. As personal property, land in a trust doesn’t go through the usual tedious court proceedings required to sell, rent and otherwise manage property in the land trust.
  2. A land trust offers anonymity. This is one of the most attractive facets of a land trust and a critical component in preventing lawsuits. The name recorded on a trust is not attached to the parties involved in the trust, thus any worth or personal information attached to that property is hidden. As a result, lawsuits don’t appear to have much monetary incentive and seem more of a hassle to pursuit.

Revocable and Irrevocable Land Trust

However, there are some important tax considerations to keep in mind. Tax treatment depends on the type of trust that’s established. According to IRS definitions: “The land trust has no special distinction in the Internal Revenue Code and would be a simple, complex, or grantor trust depending on the terms of the trust instrument. Filing requirements would depend on the type of trust.” Here are the two types of trust:

  1. Revocable Trust. Most land trusts are revocable. A revocable trust is one in which the provisions can be either canceled or adjusted.
  2. Irrevocable Trust. An irrevocable trust is where the grantor, or creator of the trust has forfeited his rights of ownership.

Land Trusts as Pass Through Entities

Because most land trusts are revocable, they don’t have to file a separate return. This is because a revocable land trust is seen as a pass through entity by the IRS. Any income on the land trusts is treated as personal income and thus reported only on a personal tax return. As a pass through entity, a land trust doesn’t lead to the grantor being taxed twice. It also saves time and money, since additional tax filing documents and fees aren’t required.

For instance, Jane is recorded as the individual who has the power to revoke the land trust named Oak Tree 123. This may seem like a vague and uninteresting name, but this can actually work to Jane’s advantage. Names that are vague and uninteresting are bad for your Tinder profile, but creative trust names are great for your land trust. When tax time rolls around, Jane will simply report any income from her Oak Tree 123 trust on her own personal income form, reporting it just like it was any other type of income.

Incorporating Your Land Trust with a Series LLC

When you incorporate your land trust within a series LLC, the tax filing process not only remains simple because it’s a pass through entity, but you also enjoy maximum asset protection. Remember, a land trust is just like a regular trust in that it provides anonymity. The anonymity of a trust can help prevent lawsuits from even starting. Meanwhile, the series LLC structure separates assets under individual “child” LLCs, so an attack on one LLC doesn’t spread to others. However, a land trust can be incorporated within a variety of entities such as an LLC or S-Corp. Each will have its own tax implications to consider and cost, especially if you’re managing multiple LLCs.

When a Land Trust Requires a Trust Tax Return

There are a few exceptions to the tax filing procedure mentioned above with Jane’s revocable land trust. In cases where the landowner passes, the beneficiary will be required to file both a tax return on the trust and estate. In addition, in the more uncommon case of a land trust being irrevocable, the usual tax filing procedure mentioned above won’t apply. Instead, the trust creator may have to file a separate trust tax return. This would require filing out tax form 1041.

Steps to Filing Taxes With a Land Trust

Whether you have a revocable or irrevocable land trust, the following steps are essential to staying out of trouble with Uncle Sam.

  1. Keep accurate records of income. This will be reported along with information about gains and losses.
  2. Consult with a legal team. Our team of experts are real estate investors themselves. We can help you setup a land trust that provides maximum asset protection as well as potential tax benefits.
  3. Ensure all tax documents are copied and shared with the main parties of the land trust. These include the beneficiary, grantor, and trustee.

Combine Asset Protection and Tax Efficiency

We hope this article has been useful in explaining some of the important tax considerations to be mindful of when working with a land trust. We are one of the few firms in America to regularly manage land trusts. Our expertise allows us to provide a combination of asset protection and tax efficiency.

Interested in learning more? Check out our article How Honest is it to Use a Land Trust for Asset Protection?

Understanding Land Trusts and Foreclosures

We’ve all known someone who has gone through the complicated foreclosure process. Over the past year the amount of monthly foreclosures has hovered between 60,000 and 80,000. Holding property in a land trust can add an extra layer of complexity to the already confusing foreclosure process. We are one of the only firms in the nation to regularly manage land trusts. As a result, we’ve developed a wealth of expertise in dealing with the complex nature of land trust and foreclosures. In this article, we’ll help you understand land trust and foreclosures and provide examples of how a land trust can impact the foreclosure process.

Land Trusts and Foreclosure Misconceptions

One of the most important steps in understanding either a legal process or financial product is clearing up common misconceptions. A major misconception is that holding land in a land trust won’t affect the foreclosure process. The laws that govern land trusts vary from state to state. Thus, blanket statements about land trusts and foreclosures can be misleading. Also, this is a dangerous misconception in that it limits one’s openness to the potential benefits of a land trust when going through foreclosure.

Benefits of a Land Trust in Foreclosure

One of the biggest potential benefits of using a land trust is that in case of foreclosure it can slow down the process. In the case of both personal property or real estate investment property, the land trust structure throws lenders out of their usual operating procedure. There have been cases where lenders need extra time to serve all parties in the foreclosure case. Not being able to serve one party in the case, such as one of the trustees, can stall the foreclosure process. While stalling the foreclosure process is a potential benefit in that in can keep one from making payments, stalling is far from the ideal strategy. For real estate investors, a total asset protection plan is the best strategy.

Asset Protection for Real Estate Investors

Asset protection involves isolating the risk away from yourself and the assets you own. Asset protection isn’t about defeating a lawsuit already in progress or strengthening one’s defense in the case of a lawsuit. It also isn’t about relying on insurance. Insurance isn’t enough because most companies will go to great lengths to deny a claim, especially a large one. We believe in an extremely proactive and effective asset protection strategy that involves preventing lawsuits before they even begin. Anonymity stops a lawsuit before it ever starts. This anonymity is achieved through a trust structure. The trust owns title to investment property. For government records, the trust is listed as the title of the trust, rather than an investor’s personal name. A public search won’t reveal an investor’s name. This is extremely important in preventing lawsuits before they even begin. If an opposing lawyer can’t connect your name to assets and those asset’s associated value, then pursuing a lawsuit will no longer seem like a sure profit. In fact, a lawsuit may seem like more trouble than it’s worth. Keep in mind lawyers, like any other profession have a bottom line to look after.

Combining a Trust With a Series LLC

In case a lawsuit does continue, limiting liability is very important. This is achieved through a business structure we specialize in called a series LLC. A series LLC consists of one head or “parent” LLC which holds a number of individual or “child” LLCs. In this structure, assets are spread out into multiple independent entities. This is key in limiting liability because if one child LLC is hit with a lawsuit, the other child LLCs aren’t exposed to that lawsuit. Potential loss is stopped or contained within each child LLC. For instance, Randy has already taken our advice in using an anonymous trust to hold his assets. However, a lawsuit still progressed against one of his assets. Randy can enjoy an extra layer of protection knowing that a lawsuit against one of his assets won’t impact his properties. Alternatively, if all these assets weren’t compartmentalized, then a single lawsuit related to one asset can put them all in jeopardy. For litigators, this would be considered a jackpot scenario. For real estate investors, failing to compartmentalize assets with a series LLC can wipeout their entire portfolio of investments.

Get Help From a Fellow Real Estate Investor

As you can see, a basic land trust does provide the benefits of potentially stalling foreclosure proceedings, but an ideal asset protection plan involves a more advanced approach. Whether you are dealing with foreclosure on one of your properties or are an investor looking to strengthen your asset protection plan, our legal team of experts can help. Besides being legal experts, we are also real estate investors. Thus, we know all the nuances of managing multiple properties, while also being proactive in preventing lawsuits.  

Land Trusts and the Garn-St. Germain Depository Institutions Act of 1982

As real estate investors ourselves, we understand how difficult it can be to keep up with all the compex legislation surrounding real estate. Today, we’ll discuss a piece of legislation that can seem intimidating at first, but is actually straight forward in its application.

The Garn-St. Germain Depository Institutions Act (Garn-St. Germain Act) was enacted October 15, 1982. The act, which was an initiative of the Reagan administration, enjoyed vast support and passed 272–91 in the House. Below is a quick guide on the connection between the Garn-St. Germain Depository Institutions Act of 1982 and land trusts, as well as how this act can impact your bottom line.

Avoiding the Due on Sale Clause with a Land Trust

The purpose of the Garn-St. Germain Depository Institutions Act is: "to revitalize the housing industry by strengthening the financial stability of home mortgage lending institutions and ensuring the availability of home mortgage loans." In pursuit of this, the act allows individuals to place their personal property in a land trust without triggering a due on sale clause.

A key exception found in the act that some use as a basis for avoiding the due on sale clause states: “A lender may not exercise its option pursuant to a due-on-sale clause upon a transfer into an inter vivos trust in which the borrower is and remains a beneficiary and which does not relate to a transfer of rights of occupancy in the property.” (The Garn St. Germain Depository Institutions Act of 1982, (U.S.C.) 1701j-3(d)). Thus, the Garn-St. Germain Depository Institutions Act freed individuals to put their property in a land trust for estate planning and anonymous property ownership without fear of lenders calling their loan due.

Why You Shouldn’t Worry About the Due on Sale Clause

Banks rarely apply the due on sale clause if payments are being made regularly on a property. Banks profit of mortgage payments, thus if an individual is making timely payments, enacting the due on sale clause and possibly foreclosing on a property doesn’t make business sense. However, we don’t recommend relying on the individual business decisions of each bank. A more proactive approach would be to hold title to your property in a land trust, which provides anonymity, a savings on transfer taxes and potential avoidance of the due on sale clause. Our expert legal team can answer any questions you have regarding transferring property and establishing an asset protection strategy.