SENATE, No. 2979







Sponsored by:


District 22 (Middlesex, Somerset and Union)






     Clarifies trustee’s discretionary authority concerning income tax liability.



     As introduced.


An Act concerning trusts and amending N.J.S.3B:11-1.


     Be It Enacted by the Senate and General Assembly of the State of New Jersey:


     1.    N.J.S.3B:11-1 is amended to read as follows:

     3B:11-1.  Creator's reserved interest in trust alienable subject to creditors' claims.

     a.     The right of any creator of a trust to receive either the income or the principal of the trust or any part of either thereof, presently or in the future, shall be freely alienable and shall be subject to the claims of his creditors, notwithstanding any provision to the contrary in the terms of the trust.

     b.    A trustee’s discretionary authority to pay trust income or principal to the creator of such trust in an amount equal to the income taxes on any portion of the trust principal chargeable to the creator shall not be considered to be a right of the trust creator to receive trust income or principal within the meaning of subsection a. of this section.  The trust creator shall not be considered to have the right to receive income or principal of the trust solely because the trustee is authorized under the trust instrument or any other provision of law to pay or reimburse the creator for any tax on trust income or trust principal that is payable by the creator under the law imposing such tax or to pay any such tax directly to the taxing authorities.  No creditor of a trust creator shall be entitled to reach any trust property based on the discretionary powers described in this subsection.

(cf: P.L.1981, c.405, s.3B:11-1)


     2.    This act shall take effect immediately and shall be applicable to any trust created on or after the effective date.





     This bill amends N.J.S.A.3B:11-1, which allows creditors to make claims against the assets of a trust from which the creator can receive income.  The bill specifies that the trustee’s discretion to pay taxes of the trust creator should not be considered the kind of right that would make the assets of the trust subject to the claims of the creditors of the trust’s creator.

     The amendment is in response to IRS revenue ruling 2004-64 (2004-2 C.B.7).  The ruling states that a trustee’s payment of trust income taxes attributed to the grantor of the trust, if made solely at the discretion of the trustee, is not a retained right of the creator in the trust assets that causes the trust assets to become part of the taxable estate of the creator, unless something more creates that right, such as state law subjecting the assets in the trust to the claims of the trust’s creditors. If the assets of the trust were to be subject to the claims of the creditors of the trust’s creator, the assets would, under the IRS ruling, become part of the creator’s taxable estate for federal estate tax purposes.  (Under federal tax law, a “grantor” is the person subject to income tax on trust earnings. Under New Jersey property law, a “creator” is an individual who establishes a trust.)

     Many states have modified their laws in response to the IRS ruling with regard to the trustee’s ability to utilize assets to satisfy income tax obligations of the trust creator. This bill is modeled on one of these state statutes, New York EPTL 7-3.1(d).