Brighton, MA asked in Estate Planning and Tax Law for Massachusetts

Q: Does this clause in a irrevocable trust I am trustee to allow me the right to make trust rental income distributions?

Does this clause in a irrevocable trust I am trustee to allow me the legal right to make distributions of commercial rental income the trust produces to beneficiaries to avoid the trust paying high estate taxes on that income? Thankyou

"POWER OF TRUSTEE: To make allocations, divisions and distributions of trust property in cash or kind, to allocate different kinds of disproportionate shares of property or undivided interests in property among the beneficiaries or separate trusts , without liability for or obligation to make compensating adjustments by reason of disproportionate allocations of unrealized gain for federal income tax purposes and determine the value of any property so allocated, divided or distributed")

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1 Lawyer Answer
James L. Arrasmith
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  • Estate Planning Lawyer
  • Sacramento, CA

A: Based on the trust clause you have provided, it does appear that as trustee you have fairly broad discretion to make distributions of trust income to beneficiaries. The language specifically gives you power as trustee to "make allocations, divisions and distributions of trust property" without liability. And commercial rental income would qualify as trust property and income.

However, it is important to note a few things:

- Distributions must be made to beneficiaries of the irrevocable trust. As trustee, you cannot simply distribute funds to anyone.

- The intent behind distributions should align with the purpose of the trust and the interests of beneficiaries. Drastic changes in distribution patterns could be questioned.

- There are rules limiting income tax shifting between trusts and beneficiaries. The IRS may still attribute tax liability back to the trust if distribution patterns appear abusive purely to avoid tax.

- Accounts and records should be kept to document and justify any significant changes in income distributions.

So in summary - yes, this clause does suggest you have broad discretion as trustee to distribute rental income to beneficiaries. But that discretion is not unlimited, distributions should be thoughtful and well-documented, and tax avoidance cannot be the sole or primary purpose. Consultation with an estate planning attorney is recommended as well. But the clause does provide flexibility for income distribution as trustee.

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