Nevada law provides an efficient way for successful families to manage their business and family affairs for multiple generations by using a Nevada Family Trust Company (NFTC or FTC). Nevada Revised Statutes Chapter 669 (NRS 669) allows families to create an NFTC to serve as a private fiduciary as part of the family office. The NFTC is a unique organization utilized to manage and hold family assets through corporate entities and associated trusts. The private trust company offers significant estate planning and asset protection advantages for a family office. An FTC provides increased privacy, flexibility, and control compared to traditional commercial trustee services. A private trust company also fosters intangible benefits like promoting family leadership, cultural and business succession, and family cohesion when dealing with family business interests.
This article outlines the necessary requirements to establish an NFTC and examines the core features and benefits an FTC offers clients.
A. What is a Family Trust Company?
Nevada is one of the few states with specific legislation permitting families to establish a private FTC. Nevada FTCs are governed by NRS Chapters 669A and 669, which provide the statutory framework for their creation and oversight. Further, the law provides for broad definitions of ‘family members’ in the context of FTCs. This is very helpful as it permits an NFTC to serve as a trustee for family trusts while maintaining flexibility in managing and overseeing ongoing concerns with business holdings.
NRS 669 generally requires that any company offering services as a fiduciary (e.g., trustee, personal representative, guardian of an estate, etc.) be licensed by the Nevada Financial Institutions Division (NFID). However, NRS 669A provides an exception for the FTC. An FTC may operate without licensing by the NFID. If licensing the FTC is desired, then the licensing requirements are much less stringent and easier to satisfy compared to a “retail” trust company. The FTC can be utilized as a cornerstone of a family’s business operations, trust management, and succession planning. Nevada law emphasizes flexibility in the administration and interpretation of laws associated with FTCs, which greatly simplifies management and oversight of business holdings.
In short, an NFTC is set up to provide fiduciary services to a single family and its trusts, charities, and businesses. Generally, for most entrepreneurs these are closely held illiquid business assets not easily managed by professional retail trust companies. NRS 669.042 defines the FTC as a corporation or limited-liability company that does not act as a fiduciary with respect to or solicit business as a fiduciary from anyone other than a “family member.” The scope of the people or entities that can benefit from the NFTC services is broad. The definition of “family member” is very detailed, and includes “designated relatives,” inter vivos (while alive) and testamentary trusts, as well as charitable foundations and organizations. Further, family members can include their trusts and estates under the umbrella of services provided by the FTC. Unlicensed NFTCs are unregulated and unsupervised except by the family itself. Unlike public banks and trust companies, an FTC cannot accept outside deposits or offer fiduciary services to the general public. If it does, then it is not an FTC and licensing by the NFID is required.
Privacy is one of the core benefits for establishing an FTC. Whether licensed or not, the FTC permits a family to direct and manage the family assets and business ventures discreetly. An FTC functions much like a regular corporation. It has bylaws, officers, directors or managers, and operating agreements. It would typically employ both family members and outside experts to manage the assets in the FTC. However, unlike an institutional trust company with a for-profit motive, the FTC exists only to serve the family and need not generate fees or profits beyond its expenses. An FTC can be the trustee of the founder’s trusts, which may be designed to exist for multiple generations. This helps protect against the risks that an individual trustee may die or become incapacitated; or from an institutional trustee that can change services, refuse to offer services for complex holdings, or go out of business.
Founders of an FTC have the ability to codify the family’s values and purpose through the FTC operating agreement, bylaws, and organizational documents to ensure family business objectives are properly understood by all generations. When structured in this manner, the FTC values and purpose inform every decision and aspect of the family office. This in turn guides a client’s advisors on the investment strategy for better returns and risk management. Moreover, this can foster learning and development in younger generations who are just learning about the family holdings. Properly utilizing an FTC, in conjunction with asset protection trusts, provides a truly shock-resilient approach through active independent asset management.
What’s more, when past management approaches become dated because of changes in family dynamics, feuds, or market conditions, current advisors can be relied on to ensure the underlying spirit and core values of the FTC mirror the founder’s original business objectives.
In short, the overriding goal of the FTC is to provide formal structure for the management and governance of the family’s wealth:
- To promote the family’s legacy, vision, charitable endeavors, and values.
- To retain a board of directors and trustees with meaningful outside involvement.
- To integrate and consolidate customized professional estate planning services.
- To protect assets by managing economic and personal risks for the family.
- To capitalize on economies of scale gained from consolidated family wealth accumulation, such as preferential investment access and lower professional fee rates.
- To maintain confidentiality and privacy of personal and business affairs.
- To provide a family a greater level of management control through flexible governance structures. A family can hand-pick and personally manage its own professionals and staff of the company.
- To provide guidance and experience to the younger generations to further the family legacy. For those heirs interested in participating in investment decisions, family members may also serve on the Investment Committee, which is responsible for the financial management of trust assets.
B. Enhanced Management of Assets Held in A Family Trust Company
The FTC is best suited to holding title to closely held companies, securities, or real estate investments, or managing trust assets already being run by family members. A family typically funds trusts with interests in family-established businesses or securities that may or may not be readily marketable or manageable by commercial trust companies.
Depending on the size of the family fortune being managed, the FTC can be a rather large business with many employees including in-house counsel, accountants, and licensed investment advisors.
Existing companies and trusts with controlling interests in active businesses place the typical commercial trustees in the position of control over the business assets and potential liability for business activity. As compared with a corporate trustee, a private trust company may be better suited to manage a portfolio with heavily concentrated or illiquid assets, such as real estate, stock in nonpublic companies, or other family-owned business.
Institutional trustees typically prefer managing diversified publicly traded stock portfolios on national exchanges and they may not be willing or capable of acting as trustees for companies or trusts requiring active business oversight. For those commercial trust companies willing to take on the tasks, they will simply increase their fees to cover the “perceived” risk and workload – and that workload is often very intense. While the prudent investor rule theoretically permits an investment strategy allowing commercial trustees to hold such assets, a corporate trustee may otherwise have an obligation to diversify the trust assets to avoid any potential liability for investment losses. This could hasten the sale of profitable but difficult-to-manage assets a founder would otherwise want to avoid. Absent an FTC, a corporate trustee may deem an investment directive to retain and maintain a family business too risky or burdensome and therefore be unwilling or incapable of effectively carrying out the task. To eliminate this, the FTC can employ private business directors/officers and purchase errors/omissions insurance to encourage active management of assets while offsetting future transition expense upon a founder’s death.
A well-established private FTC, however, will have already been running the businesses well in advance of the founder’s passing and as such be comfortable with the ongoing responsibilities as they have essentially worked in the active management of the business. Those private managers have a better understanding of an asset’s special relationship or value to the purposes of the underlying family trust company and the beneficiaries.
Further, private trust companies can offer stronger confidentiality and communication with beneficiaries because only a family’s personal team of professionals handles and reviews the families’ confidential information, versus employees at a public company where attorney or accountant client privileges may be lost. Lastly, an FTC may be a suitable alternative for management of interests in regulated privileged licensed businesses, such as gaming establishments, those holding liquor licenses, or marijuana dispensaries, for which the typical commercial trustee could itself be subject to regulatory oversight depending on its degree of control over those business.
C. Types of Family Trust Companies Under Nevada Law
Unlicensed FTC. Nevada law gives families the option of creating an unlicensed FTC with almost no formal requirements. If the FTC is not engaging in offering investment services, an unlicensed FTC may be appropriate.
Licensed FTC. If the investments to be made by the FTC will otherwise require compliance with the licensing pertinent to securities under NRS Chapter 90, or if the FTC provides some investment services like a stockbroker, a licensed FTC is more appropriate.
Retail Trust Company. When an FTC is not appropriate because a broader market is desired (providing services to the general public), a retail (licensed) trust company is needed. A retail trust company is a financial institution, and its formation and operation will be carefully scrutinized, monitored, and audited.
Structure of A Nevada Family Trust Company
A Nevada FTC generally contains four primary working groups (though depending on a family’s objectives the bylaws and operating agreement structure may be much more complex):
- Board of directors.
- Trust administrators.
Board of Directors or Board of Managers.
A board of directors or board of managers typically manages a Nevada FTC and is elected by family members and shareholders. Alternatively, a trust committee should be set up for this purpose. The Nevada statutes permit family and nonfamily members to serve on the board. Typical board responsibilities include:
- Managing the FTC’s operations.
- Regulatory compliance.
- Oversight of committees.
- Annual review of FTC policies and procedures.
- Designating a family member.
D. The Advantages of an Unlicensed Family Trust Company
The licensing of an FTC by the NFID is not required. Nevada law gives the FTC the choice to operate with or without a license. An unlicensed trust company will not need to complete lengthy personal and financial disclosure forms for every person who manages the company or who has an ownership interest of 10% or more, and there are no audits or examinations or their attendant fees. Beyond the formation of the corporation or LLC, the only requirement is that an unlicensed FTC must provide the Commissioner of the NFID (“the Commissioner”) with the name of the “designated relative.” A licensed FTC must submit a licensing application, together with other forms, as discussed below.
E. The Advantages of a Licensed Family Trust Company
- An FTC licensed by the Nevada Financial Institutions Division (NFID) has several advantages:
- A licensed trust company may include “trust” in its name, while an unlicensed trust company may not.
- A licensed trust company is exempt from certain licensing and regulation requirements, including the licensing requirements normally applicable to investment brokers and advisors under NRS Chapter 90.
- A licensed trust company may handle more services in-house without having to outsource those services.
- A licensed Nevada FTC, regulated by a state banking regulator, is not an investment adviser under the Investment Advisers Act of 1940
- As a consequence, a licensed FTC can avoid registration with the SEC as an investment adviser subject to compliance with the limitations associated with the family office rule, especially the limit on types of fiduciary relationships.
- A licensed Nevada FTC can provide access for the trusts under its administration to engage in alternative investments in common trust funds as permitted by states.
- A licensed FTC avoids many of the operational, ownership, and service limitations applicable to unlicensed FTCs that qualify for the SEC’s family office exception, which allows for a wider array of trust beneficiaries and participation by key employees of the licensed FTC investments.
- A licensed FTC is subject to regulatory overview and periodic examination by Nevada state or independent examiners, engendering more formalized risk management and greater accountability, including with family office interactions. Moreover, the key designated owners, officers, and directors are subject to background checks and fingerprinting.
- A licensed FTC is less susceptible to veil-piercing arguments in civil suits due to its required minimum capital, formality requirements, and regulatory supervision.
- As long as an office is located and licensed in Nevada, a licensed FTC can open branch offices in other FTC jurisdictions such as Florida, Texas, Tennessee, New Hampshire, or internationally. Nevada allows the FTC to select a situs outside of Nevada to administer trusts if the office is licensed in Nevada.
F. Formation of a Family Trust Company in Nevada
Applicable law requires the formation of an LLC or corporation to serve as the trust company. The FTC is also required to comply with all laws governing Nevada business entities, including laws related to workers’ compensation insurance and unemployment insurance.
LLC or Corporation. Forming a Nevada business entity is fairly simple and can be done online with the Nevada Secretary of State. As part of the formation of the LLC or corporation, the incorporator will pay the standard business filing fees and receive a Nevada state business license. The articles of organization or articles of incorporation must adopt a unique name not similar to another trust company’s name, and they must expressly state that the purpose of the formation of the company is to create an FTC.
Local Business License. Another requirement is that the FTC must obtain a business license from the county or city in which each place of business is located. If the FTC applies for licensing with the NFID, a copy of each local business license will need to be provided.
Tax Compliance. The FTC will need to comply with all federal tax laws. At a minimum, the company should apply for a tax identification number. If the company elects to be taxed under Subchapter S, the owners must file the appropriate election forms.
G. Family Trust Company Licensing by the NFID
To be licensed by the NFID, an FTC must meet these minimum requirements:
- At least one officer must be a resident of Nevada.
- The company must maintain a physical office in Nevada where its “material business records and accounts may be accessed and readily available for examination by the Financial Institutions Division.”
- The company must designate a Nevada registered agent.
- The company must maintain a bank account with a state-charted or national bank have a principal or branch office in Nevada.
- The stockholders’ equity for an FTC must be $300,000 or more.
- The FTC must obtain fidelity bonds to indemnify it against loss (obtaining casualty insurance is optional).
The NFID’s website provides the necessary forms to obtain a license, which include the initial FTC application, initial branch application, and a personal history record. The FTC application includes a checklist of additional items that must be submitted along with the application paperwork, including:
- Payment of $3,000 in licensing fees for the family trust application.
- Payment of $500 in fees for each branch application.
- Personal information forms and fingerprints for key people, which will trigger an investigation of each applicant.
- Copies of documents showing that the business was formed with the Nevada Secretary of State (or qualified to do business in Nevada if formed elsewhere).
- Copies of all local business licenses, as described in section C above.
- Audited financial statements for the prior two years.
- Copy of the lease agreement for the physical office in Nevada.
- Copy of the current fidelity bond (and insurance, if applicable).
- Submission of completed appointment of agent form (this is part of the application) so that a spokesperson may represent the company before the Commissioner of the NFID.
H. Operational Concerns for a Family Trust Company
Management and operation of the company, including issues related to control and business succession, are the main concerns when forming an FTC. Setting up and operating an FTC can be expensive. The hard costs to run an FTC include paying a skilled team of in-house and outside advisors (CPAs, attorneys, investment advisors). Family leaders will need to oversee the day-to-day management of the enterprise, including supervising employees.
For licensed FTCs, the NFID has authority to conduct examinations and audits to ensure compliance with the law. As stated above, an unlicensed trust company is not regulated or supervised by the NFID. It is important to consider which family members are in a position to take control of the FTC, so that the assets are not mismanaged or dissipated. If the FTC does not have the right personnel to properly invest the assets that it holds, independent investment advisors should be considered. If the FTC is a fiduciary of estates and trusts that will exist in the future, there must be a plan to keep the company in existence and properly managed and controlled so it can fulfill that role into the future.
Also, the degree of family involvement in the leadership and ownership of the FTC must be assessed, written into the bylaws and managed in accordance with taxation goals, particularly where family members could be involved in discretionary distributions, which should be avoided. As with any company, a certified public accountant should be retained to maintain financial records, perform periodic audits, and to prepare and file all appropriate tax returns and other governmentally required financial reports. It may be advisable to involve one or more third-party directors or managers to avoid having the FTC fail because of mismanagement, disregard of financial and legal formalities, or more serious issues such as embezzlement.
Safeguards to Ensure Independent Management
If an FTC is the trustee of an irrevocable trust and the settlor of that trust controls the FTC, then the trust does not have an independent trustee. A trust controlled by a settlor- controlled FTC probably will be classified as a grantor trust for income tax purposes, and estate-tax inclusion in the settlor’s estate is virtually assured. A private trust company may serve as the trustee of a family trust and not cause the value of the trust assets to be included in a beneficiary’s estate under § 2041.
To avoid any adverse consequences of overreaching, the IRS Notice 2008-63.128 recommended a system of “firewalls” shielding grantors and beneficiaries from tax- sensitive complications. The Notice recommended creating a Discretionary Distribution Committee (DDC). Using a DDC will aid in preventing inclusion in any family member’s gross estate under §§ 2036(a) or 2038(a). The DDC must have the exclusive authority to make all decisions regarding discretionary distributions. The founders should also establish the use of independent investment committee as well.
Inclusion in Grantor’s Estate Under §§ 2036 and 2038
A private trust company may serve as the trustee of a family trust. This will avoid the value of the trust assets from being included in the grantor’s estate under §§ 2036 or 2038.
Utilizing firewalls will prevent family members from having a right or power under §§ 2036(a) or 2038(a), which would create an adverse tax consequence. Therefore, an FTC or the trusts under management should utilize a Distribution Committee, Investment Committee and Amendment Committee. The IRC defines an independent person as an individual who is not a grantor or beneficiary of a trust or estate administered by the private trust company, and who is not a related or subordinate party as defined in § 672© as to any grantor or beneficiary of any such trust Powers of Appointment Under § 2041.
By prohibiting both beneficiaries from involvement in sensitive discretionary distributions and family members from entering into reciprocal arrangements that affect distribution decisions, the firewalls ensure that beneficiaries are not deemed to have a general power of appointment, i.e., the power to distribute trust assets to themselves. However, they can serve as officers, directors, and members of the DDC without triggering § 2041 concerns, so long as they cannot participate in distributions for their own benefit.
The Notice addressed five common issues posed by family trusts administered by a private trust company:
(1) inclusion of the value of trust assets in a grantor’s gross estate under §§ 2036 or 2038 clawback rules, (2) inclusion of the value of trust assets in a beneficiary’s gross estate due to a general power of appointment under § 2041, (3) treatment of transfers to trusts as completed gifts, (4) effect on the status of a GST-exempt trust, and (5) treatment of a grantor or beneficiary as the owner of a trust for income tax purposes.
Nevada Asset Protection Trusts
If the settlor of an irrevocable spendthrift trust (i.e., an asset-protection trust) is also a permissive beneficiary of that trust, then the distributions to the settlor must be “subject to the discretion of another person,” usually designated as a “distribution trustee” in the trust document. The FTC would need to honor this arrangement. This type of trust, which is often called a self-settled spendthrift trust (SSST), also requires one of the trustees to be a Nevada resident or a Nevada bank or trust company. Some families want to create a Nevada FTC so that the FTC can act as distribution trustee and qualify as the Nevada trustee. However, if the settlor retains control over the FTC, then the trust will not be a spendthrift trust because the settlor can unilaterally make distributions to himself/herself. In other words, if a Nevada FTC is to be the distribution trustee for an SSST, it is imperative that the trust company be organized and operated so that the settlor will never be able to approve a distribution from the SSST to themselves.
Care should be taken to preserve generation-skipping transfer tax exemptions as family control of an FTC could also negate the “grandfathering” of a trust otherwise exempt from the generation-skipping transfer tax. Again, following the guidelines of IRS Notice 2008-63 would prevent unintended consequences of having family members interfering with decisions regarding discretionary trust distributions and limiting the ability of family members to participate in personnel decisions.
I. Retail Trust Company
Under NRS 669, a retail trust company is one that is licensed to do business as a trust company and that is not an FTC. Also, a retail trust company is a financial institution, and is required to be licensed by NFID.
To be licensed by the NFID, a retail trust company must meet these minimum requirements:
- Nevada law requires a minimum stockholders’ equity of at least $1 million, and there are minimum cash and cash equivalents that must be held. Maintenance of any cash as a portion of the required stockholders’ equity in accounts with one or more banks or other financial institutions in Nevada.
- The management team of the company must be qualified to operate a financial institution. Experience with trust administration is required. At least one employee must be “a resident of Nevada in the principal office who has experience that is satisfactory to the Commissioner in accepting and administering trusts.” Directors and managers must be competent in financial matters and must have “a financial status consistent with his or her responsibilities to the public.”
- The NFID’s website provides the forms needed to obtain a license, which include the retail trust company application and appointment of agent, initial branch application, trust company contact information, personal history record, and background investigation release form. The retail trust company application has a checklist of items and fees due at the time the application is submitted and before the application receives final approval.
- Once the documents of the application package have been submitted, the approval process includes background checks on the company’s principals and a check of the financial status of the company and the company’s officers and directors. NRS 669.085 outlines what factors the Commissioner considers when reviewing a retail trust company application.
Maximize Estate Planning Options by Integrating a Family Trust Company into the Family Office
The private trust company can be combined with the family office to manage a family’s long-term estate planning and asset protection goals. Nevada is well known for having favorable dynasty trust, tax, and asset protection laws. Utilizing an FTC as the trustee of the Nevada Asset Protection Trust ensures the founding settlor avoids discretionary distributions to themselves, it provides veil-piercing protection, and ensures the underlying asset protection trust is independently managed for the Settlor’s benefit.
Nevada Trust Situs Ensures Asset Protection, Tax Savings & Longevity
Nevada is well known for the protections offered by self-settled spendthrift trusts or Nevada asset protection trusts (NAPTs). By statute as borne out in case law, Nevada protects wealth more than any other state. It is one of two states that has no exception creditors, including divorcing spouses. See generally Klabacka v. Nelson, 133 Nev. 164, 394 P.3d 940 (2017), where the court held the parties’ self-settled spendthrift trusts were validly created trusts funded with separate property stemming from the parties’ valid separate property agreement. The court denied the ex-wife’s attempt to pierce this arrangement and protected the husband’s assets. These protections have been extended to other situations as well. Further, the settlor of the trust does not need to live in Nevada to use a Nevada asset protection trust where a Nevada trustee is used. The Nevada FTC satisfies these requirements.
Tax Saving Features of a NING
Nevada has no state or corporate income tax. Therefore, income generated from the trust is never taxed at the state level. This advantage allows out-of-state residents to establish a Nevada FTC to manage their assets in a Nevada Incomplete Non-Grantor Trust (NING). A NING may be very useful to minimize state taxes or gift taxes for the future sale of business interests or assets subject to high state income tax rates. An FTC can serve as the trustee of a NING.
Business owners contemplating a business sale should consider utilizing a NING. By transferring intangible assets into a Nevada NING as incomplete gifts, the transferred assets are considered a separate taxpayer, giving a grantor the tax benefits of Nevada, which can help out-of-state residents minimize state income tax in high-tax states such as California upon the sale of business interest not otherwise held in NING trusts.
Generally, NINGs are not subject to taxes in the grantor’s home state, and the grantor’s domicile does not determine the trust residence. As a separate taxpayer, if a grantor lives in a high-income-tax state, they can form a NING and then transfer the stock to the NING in advance of the liquidity event. In turn, the FTC can sell the shares to mitigate the risk that higher state income taxes will be due upon the future sale. However, NING trusts are subject to strict administrative rules to ensure the trust is treated as a separate taxpayer. By utilizing a NING a grantor can create an irrevocable trust without sacrificing a basis adjustment for the trust’s assets at death or having to pay gift tax. Assets in a NING are included in the grantor’s gross estate where the basis is adjusted to the date of death and transfers are not completed gifts, nor do they require a federal gift tax exclusion.
With income accumulated in and capital gains realized by an irrevocable trust, Nevada does not impose any state income tax. Nevada does not tax the trust income that a trustee distributes to beneficiaries. The recent United States Supreme Court decision in North
Carolina Department of Revenue v. Kimberly Rice Kaestner 1992 Family Trust reaffirmed the constitutional limits on U.S. state laws governing the taxation of trusts and thus reinforces the potential state tax advantage of having a Nevada trustee administer a discretionary trust for the benefit of beneficiaries residing in high-state-tax jurisdictions.
Many states limit the duration of a trust, but Nevada allows longer-term trusts to remain in effect for up to 365 years. Assets held in a dynasty trust, a type of ‘generation-skipping’ trust, can benefit generations of descendants without incurring estate, gift, or generation-skipping transfer taxes. The compound effect of interest and continued management allows the assets held in these trusts to grow exponentially.
Moreover, to ease administration Nevada law permits trust decanting, which allows the trustee and the family to benefit from future administrative amendments to manage existing trust documents that may be problematic if future trust or tax laws change. Additionally, utilizing decanting provisions a trustee may modify the provisions of a trust without obtaining court approval. However, modifications to trust provisions or decanting a trust would need to be done using a notice of proposed action or a nonjudicial settlement agreement to avoid court-ordered modification proceedings.
Forming a Nevada FTC has many inherent advantages that address administrative challenges clients face in an increasingly complex and volatile global business environment. An FTC can provide key management oversight where family members work together with professionals to personally oversee and preserve their legacy to ensure continuation of family values. In turn, future generations have the ability to learn about the family businesses from their elders and, if desired, participate in managing those assets into the future. The family trust founders can maintain privacy while continuing to grow and preserve the family dynasty over multiple generations.
This article was first published on advisorperspectives.com.