Irrevocable trusts are very different from revocable trusts in the way they are taxed. An irrevocable trust needs to get a tax ID (EIN) number and pay taxes each year by filing a 1041 tax return. Trust tax rates are very high as you can see here. 

Table of Current Income Tax Rates for Estates and Trusts 2021

$0 – $ 2,65010% 
$2,651 – $ 9,550 24% 
$9,551 – $13,050 35% 
$13,051+ 37%

Irrevocable trusts have a major tax issue. At basically $13,000 in income, they hit the highest tax rate. Although irrevocable trusts are complex trusts, which means they can accumulate income they make on trust assets, the trustees normally reduce taxes by distributing all the trust income each year to the beneficiaries in the year the income is earned. The trust generally gets a tax deduction for the income it pays out to the beneficiaries. Thus, the trust doesn’t pay income tax and the income tax is paid by the beneficiary at his or her tax rate. More or less, it is just income to the beneficiary. 

Trusts are generally limited to making distributions of “distributable net income” (DNI). DNI includes dividends, interest, rents, etc., but DOES NOT include capital gains. Capital gains ordinarily are held by the trust and taxed at the trust level (BIG tax). 

Depending on how the trust is written and which state the trust is located (state laws apply), it may be possible to include capital gains in DNI. It may be possible to amend the trust to permit the inclusion of capital gains in DNI or the trustee may simply be able to exercise his or her discretion. How the trust handles the capital gains makes a big difference in the family’s tax outcome. 

For example, if the trust provides that the beneficiaries are to receive all the trust’s income (the trustee shall pay out all of the trust’s income out at least annually), and the trust also allows the trustee to use the principal of the trust in the trustee’s discretion for the beneficiaries’ benefit, then the trustee may be able to achieve the best tax result. 

Say the trust earned $12,300 in dividends and also earned $75,000 of long-term capital gains. The $12,300 is DNI and will be distributed. The trustee could distribute the $75,000 as principal. Assume there is one beneficiary who files as a single individual and the trust is his or her only income. Under these circumstances the beneficiary wouldn’t pay anything in income taxes, but the trust will pay about $16,000 in taxes on the capital gains income before it is given to the beneficiary as principal. 

Handled another way, the trust, in the trustee’s discretion, may be able to distribute the capital gains income as income to the beneficiary and the beneficiary would pay the tax. If that is possible, the beneficiary would pay about $6,000 instead of the $16,000 the trust would pay. That’s a big difference. 

It is important that the trust document gives the trustee the ability to make distributions of capital gain income and pass that through to the beneficiary(ies).

12 Comments
  1. Good Morning

    I am looking for help in creating a Irrevocable Trust with the Spendthrift Provision for my Kids. Would you be able to recommend or create one as a service.

    Thank you

    Richard T

  2. I live in Texas and have both a revocable and an irrevocable trust. I can transfer DNI funds from the irrevocable to the revocable trust. But can capital gains in the irrevocable trust be transferred (by use of form K-1) so that the capital gains are taxed by the much smaller revocable fund rates.

    • Clarence,
      Revocable trusts don’t have tax rates. All assets in the revocable living trust generally pass through to the beneficiaries and they take the income on their 1040. If a living revocable trust can accumulate income, its trust tax rates are the same as an irrevocable trust that can accumulate income. In both cases the tax rates for a trust are hellacious. In both cases the trust gets a deduction for income paid out to the beneficiaries.

  3. My mother had the irrevocable trust and when she died the lawyer had us quick deed the house into the trust. We let our brother live there until his son graduated for three years. Now he is gone and now the home has a pending sale, we want to know the capital gains tax could be and who pays, trust or beneficiaries.
    We live in Michigan, and have tried to contact the lawyer, and their accountant but they don’t return our calls.

    • David,
      If the reason you got the property was triggered by your mother’s death, then it got a step up in basis to the value on the day she died. You want the beneficiaries to pay the tax (trusts pay tax at a much higher rate than humans). The tax will be paid pro rata by the beneficiaries, if you do it right. I assume the trust is filing a tax return. How could you quit claim the property to the trust? How did you get the trust? if you could quit claim it, you may not have gotten it as a result of your mother’s death, and you would have to take the original basis. Did the house go through probate?

  4. Dad died 12 months ago
    I allocated all capital gains whuch included mutual fund capital gains and sale of stock to DNI on 1st return
    I sold his house in trust 2 months ago
    The Michigan living trust(1997) states”Our trustee shall have the power to allocate items of income to either income or principal” No further definition of income is found
    AM I ABLE TO ALLOCATE CAPITAL GAIN FROM HOUSE TO DNI?

  5. I have a similar question – I sold the family house(in trust) in 2021 in michigan(Michigan trust1997)
    I filed the first f1041 in 2020 – I allocated investment capital gains to DNI.
    The trust allows me to allocate all income to DNI but doesn’t mention capital gains
    WILL I BE ABLE TO ALLOCATE CAPITAL GAINS FROM THE SALE OF THE HOUSE?

  6. I have a similar question – I sold the family house(in Mich trust1997) in 2021
    I filed the first form1041 in 2020 – I allocated investment capital gains to DNI
    The trust document allows me to allocate all income to DNI – it doesn’t mention capital gains
    AM I ABLE TO ALLOCATE CAPITAL GAINS FROM THE SALE OF THE HOUSE TO DNI FOR 2021?

    • Michael Malago
      you want to make sure you distribute all of the income out of the trust after it becomes irrevocable, because taxes on a 1041 trust return are hell. you are at 39% by the time you hit like $11.500 in retained income. the trust gets a deduction for paying out distributions to the beneficiaries. The trust should be sure to distribute out all of its income (not principal) each year, so it has a zero tax bill. You don’t even need to make a physical distribution, just a K1, so the individuals pay the tax at their rate not the trust rate.

Leave a Reply