Can Assets in a Trust Be Used to Make a Charitable Gift?

This question arises all the time. How do we think about it?

The starting point is the trustee of the trust. The trustee holds legal title to all trust assets. That is, holds legal title for local law purposes. If the trust is revocable by its creator, the creator is deemed to own all the trust assets for federal tax purposes.

Wow. Already we’re deep in the weeds. But that’s OK.

We go back to the fact that the trustee holds legal title to all trust assets. That means if assets held in the trust are to be transferred directly from the trust to charity, the trustee will make the transfer.

Which raises this question: Does the trustee have authority to make the transfer? The answer to this question exists possibly in the trust instrument, possibly in local law. Which means we may have to look at both. Local law is unlikely to empower trustees to make charitable gifts, so that’s a very long shot. If the trustee is given power to make charitable gifts of trust assets, the grant of power almost surely will be found in the trust instrument (at least, that’s the first place to look).

The call here may need to be made by a lawyer familiar with both the trust instrument and local law. Local law may be silent on a trustee’s power to make charitable gifts but may provide rules for interpreting a trust instrument. That’s where the lawyer comes in.

If you’ve got a situation like this and are unsure how to go forward, contact a pro. Your Sharpe Group representative is a good place to start.


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