The Charitable Remainder Trust: Do Good and Get Tax Breaks

A charitable trust lets you donate generously to charity, and it gives you and your heirs a big tax break. If you just want to make a few small charitable gifts, then a charitable remainder trust probably isn't worth the bother. But a pooled income trust—another type of charitable trust discussed below—might be an option.

You need to do some serious thinking before you set up a charitable trust. Charitable trusts require that that you give up legal control of your property, and charitable trusts are irrevocable—once the trust becomes operational, you cannot change your mind and regain legal control of the trust property.

How It Works

Charitable remainder trusts and pooled income trusts both allow you to make charitable donations through a trust. But they work differently. Understanding how these trust work can help you decide which one is best for you.

Charitable Remainder Trust

The most common type of charitable trust is called a charitable remainder trust. Here's how it usually works.

First, you set up a trust and transfer to it the property you want to donate to a charity. The charity must be approved by the IRS, which usually means it has tax-exempt status under the Internal Revenue Code.

The charity serves as trustee of the trust, and manages or invests the property so it will produce income for you. The charity pays you (or someone you name) a portion of the income generated by the trust property for a certain number of years, or for your whole life—you specify the payment period in the trust document. Then, at your death or the end of the period you set, the property goes to the charity.

Pooled Income Trust

Traditionally, charitable trusts have been available only to people who can donate hundreds of thousands of dollars and hire a lawyer to set up a trust. But a pooled income trust allows you to contribute as little as $5,000 to $10,000.

The charity sets up the trust and then accepts donations from anyone who wished to give. All the donations are pooled into one big fund and invested, much like a mutual fund. The fund then pays income to you, based on its return on investment.

You also can make additional investments after you make the minimum initial donation. So, if you don't have a large portfolio or cash to donate all at once, you can still build a good retirement income—and benefit a good cause—by donating smaller amounts over a period of years.

What's in It for You—Tax Advantages

In addition to helping out your favorite charity, you get several big tax advantages from charitable remainder trusts (and pooled income trusts).

Income Tax

You can take an income tax deduction, spread over five years, for the value of your gift to the charity. Where things get tricky is determining the amount of your deduction. The value of your gift is not simply the value of the property; the IRS deducts from that value the amount of income you're likely to receive from the property. For example, if you donate $100,000 but can expect to get $25,000 in income back (based on your life expectancy, interest rates and how the trust document is set up), the value of your gift is $75,000.

Estate Tax

When the trust property eventually goes to the charity outright (at your death or the end of the payment period you specified), it's no longer in your estate—so it isn't subject to federal estate tax. (Most people don't need to worry about estate tax, however, because it is assessed only on large estates. See Nolo's Estate and Gift Tax FAQ.)

Capital Gains Tax

With a charitable remainder trust (or pooled income trust) you can turn appreciated property (property that has gone up significantly in value since you acquired it) into cash without paying capital gains tax on the profit.

A charity usually sells any non-income-producing asset in a charitable trust and uses the proceeds to buy property that will produce income for you. Because charities, unlike individuals, don't have to pay capital gains tax, if the charity sells your property, the proceeds stay in the trust and aren't taxed.

Receiving Income From the Trust

When you set up a charitable remainder trust, there are two basic ways to structure the payments you will receive. The income from a pooled trust varies depending on the performance of the trust's investments.

Fixed Annuity

With a charitable remainder trust, you can receive a fixed dollar amount (an annuity) each year. That way, if the trust has lower-than-expected income, you still receive the same annual income. Once you set the amount and the trust is operational, you can't change it. For instance, if you direct the charity to pay you $10,000 a year for life, you can't later say, "Oops, I forgot about inflation. How about $15,000?"

Theoretically, you can make the payments as high as you want. Practically, however, there are limits. First, the higher the payments, the lower your income tax deduction. Second, high payments might eat into principal, possibly even using it all up before the payment term is over and leaving nothing for the charity. Third, a charity is unlikely to accept a gift if it is likely, or even possible, that all the trust property will be paid back to you.

Percentage of Trust Assets

It's common to set your annual payment from a charitable remainder trust as a percentage of the value of the current worth of the trust property. For example, your trust document could specify that you will receive 7% of the value of the trust assets yearly. Each year the trust assets will be reappraised, and you will receive 7% of that amount.

Because you receive a percentage, not a flat dollar amount, if inflation (or wise investment) pushes up the dollar value of the assets, your payments go up accordingly. Under IRS rules, you must receive at least 5% of the value of the trust each year.

Income From a Pooled Income Trust

In a pooled income trust, the charity pays income to you (or the beneficiaries you've named) according to your contribution and the fund's earnings. The payments you receive are taxed as regular income. You can specify that your earnings be retained until you reach a certain age, such as a retirement age of 65 or 70, with payments to start then.

For help with choosing and planning a charitable trust—and tips on many other estate planning options—see Plan Your Estate, by Denis Clifford (Nolo).