Go to Top

When And How To Establish A Foundation

Private foundations may help you achieve your philanthropic goals, but while they can prove deeply rewarding, they can also be time-consuming, expensive and complex.

A private foundation is a not-for-profit entity that is run by a single individual, family or business (in contrast to a public charity). It must be operated exclusively for purposes that the Internal Revenue Service deems appropriate for a charitable entity, such as educational and scientific purposes or prevention of cruelty to animals or children. Many, but not all, private foundations support their cause or causes of choice by making grants to existing public charities.

Several key characteristics of private foundations may make establishing one the most attractive option for a given donor:

Control. A private foundation puts more control in the hands of the person or group that creates it than do most other forms of charitable giving. When the foundation is established, the donor or donors specify its purpose and often take an active part in drafting the bylaws that govern how and when grants are made. The foundation’s directors will often include donors and their family members. That board will determine the specific beneficiaries of the foundation’s gifts. In many cases, the board will also determine the investment policy governing the foundation’s assets.

Tax advantages. When donors give to a private foundation, whether at the time it is established or later, they receive income tax deductions, subject to certain percentage limitations relative to adjusted gross income. That makes this a powerful estate-planning tool, because estate tax deductions for bequests to a foundation are unlimited. And once the foundation invests its contributions, the assets grow tax-free.

Flexibility. Given the extended time horizon for most foundations, their focus on an objective rather than a particular organization allows them to adapt as individual charities come and go. Since distributions are made in accordance with the foundation’s mission, there is no need for those who establish it to select particular beneficiaries. Instead, the board of directors can determine which recipients qualify at any given time.

Family involvement. Foundations often bear the names of the people or families who founded them, and this is not coincidental. Many donors are drawn to private foundations specifically because they can be used to encourage their families to become involved in their philanthropic work. Foundations can provide employment to adult children and grandchildren, as well as visibility or prestige for individuals involved at high levels. A foundation can also establish a legacy that may outlast the original donor or donors by generations.

Once you decide to establish a foundation, there is some preliminary work. Planning is critical to ensure that your foundation begins with a solid framework that reflects your goals. Ask yourself some key questions before you sit down to draft any establishing documents: What is your primary goal in creating this foundation? Who will do most of the work in establishing it? Where will the start-up capital come from? Who will run it once it is established, and how will it sustain itself?

Perhaps the most common type of foundation is a “private endowed foundation,” in which the assets form a principal, or endowment, that is invested by the board of directors. Annual distributions are intended to be made from the investment income, leaving the principal alone. The foundation must make annual gifts that meet or exceed 5 percent of the assets’ overall fair market value.

A “pass-through foundation,” by contrast, distributes all of the contributions it receives in a given year, whether cash or property. This status can be made or revoked on a year-to-year basis, and offers certain tax advantages.

A “private operating foundation” uses the bulk of its income to run its own charitable programs or services, such as to operate a museum or research facility, rather than to make grants to other organizations. Donors to operating foundations can generally take advantage of the more liberal limits relating to income tax deductions that apply to gifts to public charities.

No matter what sort of foundation you decide to create, you will want to enlist competent professionals to help you establish it. At a minimum, you will want legal counsel to ensure that your documentation is in order. You should also involve your financial adviser, who can offer perspective on the foundation in the context of your overall financial goals and your estate plan, especially if you expect to make bequests to the organization once it is established.

When you and your team are ready to begin the process of formal incorporation, it is important to recognize that state law will directly govern your foundation’s structure. Some states, such as Delaware, Arizona, Nevada and Wisconsin, offer especially beneficial legal frameworks. However, you will generally need a legal representative in the state in which you establish the foundation. Also, since complications can arise if you conduct significant business elsewhere, the state in which you reside or do business may prove to be the simpler choice.

A foundation can generally be established as a charitable trust or as a corporation. My colleague Melinda Kibler provided an overview of both types in her April 2014 Sentinel article, “Private Foundations Can Work For Some.” A trust-based foundation is generally set up through an irrevocable trust document and offers less flexibility than a corporation, but also generally involves less paperwork and is governed by slightly more lenient regulations.

If you decide to set up your foundation as a corporation, you will need to draft and adopt bylaws. These should include provisions for the organization’s governance, the process for selecting board members, required meetings and conflict-of-interest policies. Many online resources offer sample bylaws for private foundations. Note, however, that the specific rules for bylaws will vary from state to state. Be certain to follow any applicable legal requirements.

You will also want to decide whether you can afford paid staff. A rule of thumb is that no more than 15 percent of the total annual charitable budget of a foundation should be used for administrative expenses, including employee salaries. However, hiring professionals also offers some advantages over relying exclusively on volunteers, so each situation is unique. It is also possible to hire organizations that specialize in providing support to foundations. Relying on family members, paid or unpaid, can offer advantages such as encouraging a philanthropic mindset and providing work experience, but relying too much on family can limit networking opportunities and can leave you without experienced support in critical areas. Note, too, that some states limit the percentage of a foundation’s governing body that may be composed of “interested directors,” meaning family members as well as people who receive compensation.

As for succession planning, begin with the end in mind. Most donors who establish foundations expect them to last well beyond their direct involvement, or even their lifetimes. By drawing up plans at the outset for passing control in an orderly fashion, you will simplify your own eventual exit, and do the same for changes in leadership that will follow you.

Similarly, while many states do not require your bylaws to specifically lay out the criteria for grants, doing so has many advantages. By determining clear award criteria, you can remove some ambiguity while leaving the foundation’s flexibility intact. Ideally, clear direction of this sort can also head off disagreements among officers or board members down the road.

In addition to creating your bylaws (or trust document) in accordance with state requirements, you will also need to obtain tax-exempt status from the Internal Revenue Service. To do so, you must submit Form 1023, “Application for Recognition of Exemption.” You will also need a federal Employer Identification Number, or EIN, even if your foundation will not have employees. If the IRS approves your application, your foundation will become a Section 501(c)(3) organization, making it exempt from income tax.

Once a foundation is up and running, there are many rules and reporting requirements to keep in mind, some of which Melinda touched upon in her earlier article. With assistance and planning, however, a foundation can offer a long-lived philanthropic channel, helping you and your successors meet your charitable goals for years to come.

Print Friendly, PDF & Email
,