In many states, Living Trusts are a person’s key estate planning document. Living Trusts are created to hold assets during life and then dispose of those assets at death according to the person’s directions (here, we will call the person making the Living Trust the “Grantor.” Living Trusts thus operate much like a Will, but, unlike a Will, Living Trusts have the benefit of avoiding probate. This makes them common in states where it is favorable to avoid the probate process.

In order for a Living Trust to function as intended, it must be funded with the Grantor’s assets. In other words, those assets must be retitled in the name of the Living Trust so that the Trust owns them at death rather than the Grantor. This requires the Grantor not only to retitle real property, bank, and investment accounts, but also any business interests owned by the Grantor such as LLC interests or stock in an S corporation. When a Living Trust becomes the owner of S corporation stock, there can be resulting difficulties for the Grantor’s heirs and for the S corporation itself.

The fundamental problem is that trusts and S corporations do not play well together.

Although a trust (including a Living Trust) can be a permitted shareholder in an S corporation, only certain kinds of trusts are so permitted under Section 1361 of the Internal Revenue Code. With a few exceptions, those trusts are known as either a “grantor” trust, a “QSST” (or qualified subchapter S trust), or an “ESBT” (or electing small business trust). If a trust is a grantor trust, a QSST, or an ESBT, it can be a qualified shareholder in an S corporation. If a trust is not one of the trusts specifically authorized by the Internal Revenue Code, however, and becomes a shareholder, the Corporation ceases to be a qualified S corporation and will be taxed as an ordinary C corporation.

Unfortunately, a trust may initially be a qualified shareholder but, as time passes and circumstances change, it can lose its status as a qualified shareholder. This can easily happen unbeknownst to the Grantor, the Grantor’s heirs, or the Company, and can cause real headaches (and back taxes) when it is discovered.

This is a particular problem for a Living Trust. The rules and regulations regarding trust shareholders in S corporations are detailed and complex, and many good CPAs, attorneys, and other professionals are unaware of how these rules impact a Living Trust over time. A Living Trust is normally a long-lived trust that sees significant changes when the person who creates the Trust either becomes incapacitated or dies. These major events can have significant tax ramifications.

For example, almost all Living Trusts are, at the time they are created, grantor trusts. This is because a person who creates a Living Trust normally retains the right to revoke the Living Trust and retains the right to benefit from the Living Trust’s income and principal during life. Those retained rights are what make a Living Trust a grantor trust under the grantor trust rules of the Internal Revenue Code.

These retained rights, however, can and do change. Consider the example of a single woman (“Ms. Jones”) who creates a Living Trust. As with most Living Trusts, Ms. Jones names herself as the initial Trustee and retains the right to revoke the Living Trust as long as she has capacity. But what happens if Ms. Jones becomes incapacitated? If she no longer has the power to revoke the Trust, and if her power of attorney (or applicable state law) does not specifically provide that the Trust can be revoked by her agent, the Trust may no longer be revocable, causing it to lose grantor trust status. Fortunately, in many cases, Ms. Jones would still retain the right to benefit from the income and principal of the Trust for her lifetime, in the discretion of the successor Trustee—another way in which the Living Trust would typically continue as a grantor trust. But, for that rule to apply, the successor Trustee authorized to make discretionary distributions to Ms. Jones, after she becomes incapacitated, must be considered a “nonadverse” party under Section 677 of the Internal Revenue Code. If Ms. Jones’ only daughter is named as the successor Trustee, and is also the sole recipient of the Living Trust’s assets when Ms. Jones dies, her daughter would likely be considered an adverse party for tax purposes! Thus, Ms. Jones’ incapacity could still result in a loss of grantor trust status for the Living Trust.

There are even more serious risks when a Grantor dies. For example, consider what happens when a married couple creates a Living Trust and one spouse dies. At that point, many (if not most) Living Trusts enter an administrative period until the Trust assets can be divided and distributed in two separate shares—a share for the surviving spouse and a share for the deceased spouse. The surviving spouse’s share usually continues to be held in a new revocable “Survivor’s Trust” while the deceased spouse’s share is often held in one or more new irrevocable trusts for the survivor’s benefit, referred to as the “Credit Shelter Trust” or “Bypass Trust” and/or a “Marital Trust.” At this point, any number of issues can arise. If S corporation stock stays titled in the name of the original Living Trust for more than 2 years from the date of death, the Company’s S corporation status could be lost because the Living Trust ceased to be a grantor trust at death (at least as to the deceased spouse’s share of the Trust) and such former grantor trusts have only a 2-year grace period under the Internal Revenue Code to continue to hold S corporation Stock. Furthermore, if S corporation stock is used to fund the Credit Shelter or Marital Trust, those trusts are, by definition, not grantor trusts and must qualify as either a QSST or an ESBT. This includes making a timely QSST or ESBT election with the IRS. Advisors sometimes assume a trust qualifies as a QSST or ESBT when it does not (for example, a trust may meet all the basic requirements of a QSST but if the trust gives the beneficiary a lifetime power of appointment, the trust clearly will not qualify as a QSST under the Treasury Regulations) or may be unaware a formal election must be made and filed with the IRS. Lastly, many attorneys anticipate that a Credit Shelter or Marital Trust may be the recipient of S corporation stock and thus include “savings” language in the boilerplate provisions of the Living Trust document to ensure that such Trusts qualify as either a QSST or ESBT. A little-known IRS Revenue Ruling, however, demonstrates that many QSST savings clauses are technically deficient, and may force an ESBT election in circumstances when a QSST election would be preferable or, worse, may leave no election available.

Fortunately, a little bit of review and foresight with respect to a Living Trust that owns S corporation stock can prevent these types of issues from arising. And, even when an issue has already arisen and S corporation status appears to have been lost, specific relief procedures are provided by the IRS. Relief can thus often be obtained when there has been an inadvertent termination of a Company’s S corporation status.