hammers and tools hanging in garage

Three Parties

I’ve previously written about the three parties necessary for every trust: (1) the settlor (sometimes called the donor or grantor); (2) the trustee; and (3) the beneficiary.

Two Other Elements

Besides three parties, at least two other elements are necessary for a valid trust.

  1. The trust instrument is the document that sets forth the terms of the trust.
  2. The other necessary element is property. After all, the trustee must be holding something for the benefit of the beneficiary.

Property of the Trust

When laypersons use the word “property,” I believe they usually mean real estate. But, lawyers use the term “property” much, much more broadly, to mean literally any transferable interest. Sometimes trust property is also referred to as the res or corpus or assets of the trust. (Bonus words!)

Any property can be held in trust. Seriously, check out this list of 101 assets which would fit in a trust. You could likely think of literally hundreds more types or categories of property to place in your own individual trust.

Pour Over Trust

How about an unfunded trust that will receive property at some point in the future? Can you even do that?

Yes, that can certainly be done. This is usually called a pour over trust. (More bonus words!) The pour over trust deserves its own blog post. Briefly, a pour over trust is usually set up by language in a will. A will may validly devise property to a trust, established during the testator’s lifetime, and then funded at her death.


Let’s take a very simple example. Kate has a lawyer write her will, including language that at her death all her Monster Truck memorabilia be placed in a trust for the benefit of her nieces and nephews. Only at Kate’s death will the property be transferred into the trust, not before.

monster truck as a type of property

Take Aways

The important points are that property is necessary, at some point, to make a trust valid, and that literally any transferable interest in property – anything! – can be held in a trust.

Let’s Talk Trusts

It can be difficult to determine on your own if a trust may be right for your personal situation. It certainly doesn’t hurt to take me up on my offer for a free one-hour consultation. Give me a call at 515-371-6077 or shoot me an email at

Money sign against black screen

Charitable remainder unitrusts (CRUTs) are an important charitable giving tool. CRUTs can provide both an income stream and income tax deduction to you as well as a contribution to your favorite charity. In certain situations, though, a traditional CRUT may be limited in effectiveness. Two other types of CRUTs: the NIMCRUT and the Flip CRUT, can be useful alternatives. I’ll explain more about those below and have also written on them in the past.

How CRUTs Work

In a simple CRUT, the donor contributes assets to a trust and may take a current income tax deduction equal to the present value of the gift that will eventually be distributed to a worthy charity. The CRUT pays the non-charity beneficiary (the annuitant can be the donor, or someone else) a percentage of the trust assets, valued each year either for the annuitant’s life or for a term of years (not more than 20 years). At the end of the trust term, the remaining assets go to the charity (or charities) the donor named as beneficiary.


Giving flowers in open hands

Simple Example of a CRUT

Let’s say Jill Donor starts a CRUT, funding it with $1 million. Assume that the CRUT terms require the trust to pay Donor seven percent of the value of the trust assets each year for 20 years. Donor will receive a distribution of $70,000 in the first year. If the trust assets grow to $1.1 million in the second year, Donor will receive $77,000. At the end of the trust term, Donor’s favorite charity will receive the balance of the trust assets.

CRUT Defers Taxes on Appreciated Assets

CRUTs can be ideal vehicles to defer tax liabilities on appreciated assets. Why? Because the trustee of a CRUT can sell the appreciated assets transferred to the trust without incurring capital gains tax, although the annuitant is responsible for income tax on the payment she receives each year.

Going back to our example, if Donor sells $1 million of stock, for which she had paid $100,000, she will pay $180,000 in tax, leaving her $820,000. To receive the $70,000 annual income stream she needs, she will have to earn a 9 percent return. If instead she funds a CRUT with the stock, and the CRUT sells it, the full $1 million will be available to invest because the CRUT will pay no immediate capital gains tax.

Stock market sheet

CRUTs and Currently Unproductive Assets

A traditional CRUT won’t work as well when funded with assets that produce no income, such as real estate. If the assets held by a CRUT do not produce enough income to meet the annual payment obligation, the trustee will be forced to use the trust corpus to transfer a portion of the assets back to the annuitant as a part of the payment. Of course, this will reduce the trust’s ability to produce income in the future and leave less for the charity at the end of the trust term.

NIMCRUT Can Hold Currently Unproductive Assets

If Jill Donor in the example were interested in funding a CRUT with assets that are currently unproductive, but likely to be productive at some point over the trust term, she should consider using the net income with make-up CRUT (NIMCRUT) instead.

Under a NIMCRUT, the annuitant receives the lesser of either the net income earned by the trust during the year or a fixed-percentage amount. A make-up account is established for years when the trust pays less than the percentage amount, and any shortfall is made up in years the trust earns more income than the percentage amount.

Using our previous example, if the NIMCRUT earns $60,000 in the first year, Donor will receive a payment in that year of $60,000, because this is less than the seven percent required amount. If the trust earns $90,000 in the following year, and assuming the value of the trust is still $1 million, Donor will receive a payment of $80,000—the $70,000 percentage amount, plus an additional $10,000 to make up for the prior year’s $10,000 shortfall.

By using a NIMCRUT, the trustee avoids having to distribute a portion of the trust corpus to an annuitant as part of the annual payment in years in which the trust does not produce enough income. Thus, a NIMCRUT preserves trust corpus while still, over time, paying the annuitant the percentage he or she is entitled to under the trust.

The trustee, however, may face another issue if the unproductive asset is sold. Generally, the terms of a NIMCRUT forbid the trustee to pay the fixed-percentage amount from capital gains or trust principal. Therefore, the trustee may feel pressured to invest for current yield, and produce additional income to make up prior shortfalls to the annuitant, rather than to invest for total return, which may better serve the long-term interest of the charitable beneficiary.

Money Rubix cube being twisted by haneds

Flip CRUT Can Benefit Annuity and Charity More Equally

To benefit the annuitant and the charitable beneficiary more “equally,” Donor, in our example, might be wise consider a Flip CRUT. The Flip CRUT begins as a NIMCRUT and can be funded with an unproductive asset. This allows the trustee to make small or even no payments to the annuitant in years the trust is earning little or no income. Once the asset is sold, however, the trust flips to a traditional CRUT, which then pays the annuitant the fixed-percentage amount, allowing the trustee to invest for total return.

For instance, using our prior example, if Donor funds a Flip CRUT with an unproductive asset valued at $1 million, the trust will earn no income and Donor will receive no annual payments. When the trust assets are sold and invested in income-producing assets, Donor will begin to receive fixed percentage payments of 7 percent of the trust assets as valued each year, but will receive no make-up for payments not received in prior years.

To qualify as a Flip CRUT, though, at least 90 percent of the fair market value of the trust assets must be unmarketable at the time of trust funding, and the trust’s governing instrument must provide that it will be a NIMCRUT until the unmarketable assets are sold. At that point, it will flip to a standard CRUT and the annuitant will forfeit any make-up payments.


If you want to make a charitable donation while retaining an income stream that can continue for the benefit of your spouse or children? CRUTs, NIMCRUTs and Flip CRUTs can all be effective estate planning techniques to reach these worthy goals.

Wealth is of the heart and mind

Let’s Talk

This concept can be confusing, so don’t hesitate to reach out for more information and explore how a charitable remainder unitrust could be beneficial to you. Feel free to contact me at any time at or by phone at 515-371-6077.