IRA’s can represent a large portion of an individual’s retirement assets. For this reason, care should be taken to ensure these assets receive the best tax treatment and are protected from creditors such as divorcing spouses. Indeed, the divorce rate today is close to 50%. The hallmark of IRAs is “tax-deferral.” This means that the investment earnings such as interest, dividends and capital gains accumulate tax free while in the account. The ability to widen or “stretch-out” the IRA’s distributions over a beneficiary’s life expectancy yields more income than if the account was simply cashed out. It follows that the younger the beneficiary, such as a child or grandchild, the longer the tax-deferred growth exists; the very goal of this tax planning.
Required Minimum Distributions
In general, when an IRA holder turns 70 ½ years old, they must begin taking their distributions (often referred to as “Required Minimum Distributions”). Required Minimum Distributions are based upon the individual’s age and life expectancy. After the IRA holder passes away, and providing there is a designated beneficiary, that beneficiary gets to use their own life expectancy for taking Required Minimum Distributions. The failure to take a Required Minimum Distribution triggers a 50% penalty of the amount not properly withdrawn. Conversely, if there is no designated IRA beneficiary, the assets have to be withdrawn rather quickly; namely, within 5 years after the owner’s death. To illustrate, an IRA which is to be paid to the account holder’s estate or a charity is considered as having no designated beneficiary.
Married couples typically name the surviving spouse as the direct beneficiary of their IRA. The key benefit here is that following the first spouse’s death, the surviving spouse can rollover the IRA into his or her own IRA (commonly known as a “Spousal Rollover”). The rollover allows the assets and perhaps most importantly, any growth or appreciation therein to remain tax-deferred. At the age 70 ½, the surviving spouse can then begin taking their Required Minimum Distributions based upon their own life expectancy.
Planning for Widows, Widowers and Single Individuals
Estate planning for the single client presents unique challenges. It is noteworthy that IRAs are exempt from the reach of creditors; as such, they afford asset protection. To illustrate, if an individual pursues bankruptcy or is named in a lawsuit, the funds held in their IRA are protected from creditors.
However, when an IRA is left to a child, grandchild or other beneficiary, it is treated as an “Inherited IRA.” Unfortunately, Inherited IRAs do not receive the same favorable asset protection afforded Spousal Rollovers. Courts have opined that Inherited IRAs are not precisely “retirement funds” and as a result, they are not exempt from an individual’s creditors such as divorcing spouses. Most individuals do not want a child’s ex-spouse to get their IRA. The question thus becomes what can be done to protect this wealth.
The “Conduit Trust”
One effective strategy is to name a “Conduit Trust” as the beneficiary of the IRA. With a Conduit Trust, all distributions from the IRA are required to be immediately distributed to the trust’s beneficiaries. In general, where a trust is named as the beneficiary of an IRA, the beneficiary with the shortest life expectancy is deemed by the IRS to be the beneficiary; as such, this beneficiary’s life expectancy is then used to determine the Required Minimum Distributions. However, qualifying a Conduit Trust as a designated beneficiary under the tax rules is quite taxpayer friendly as the beneficiary to receive distributions is considered the only beneficiary which the IRS will construe in assessing which beneficiary of the trust has the shortest life expectancy. This makes compliance much easier and helps maximize tax deferral.
Most importantly, Conduit Trusts afford asset protection as the IRA will now be exempt from the reach of creditors such as divorcing spouses. Furthermore, it will allow the IRA to remain tax deferred thereby stretching the Required Minimum Distributions over the lifetime of the trust’s beneficiary which could be a young child or grandchild. As the Conduit Trust is the named beneficiary, minor children will not require a guardianship proceeding. The establishment of a trust also affords the grantor control over how the asset will be inherited and prevents a beneficiary from simply cashing it out thus defeating the tax-deferred benefits. As with any estate planning, such benefits should be weighed against the potential drawbacks which include for example, the additional cost of setting up a trust, the added complexity and trust accounting.
By not designating a Conduit Trust as the beneficiary of an Inherited IRA or by simply having the IRA pass outright, one may face serious setbacks. First, if the intended beneficiary passes away and the new beneficiary is a minor, the parties will have to go to court for the appointment of a legal guardian. Thereafter, and following this potentially burdensome process, any distributions must be paid to a court appointed guardian. Second, even providing the beneficiary is an adult, they may seek to liquidate the entire account, which will trigger a substantial tax and end any tax-deferred growth. All of these outcomes may very well contradict the original owner’s final wishes. Moreover, and equally problematic, the funds themselves are readily available to the beneficiary’s creditors, which include a divorcing spouse. In light of the high divorce rate, this is a very real concern today.
In summary, naming a Conduit Trust as the beneficiary of an IRA affords creditor protection, spendthrift protection, control over estate planning and maximizes tax-deferral. In addition to maximizing the tax objectives, using a trust in this context helps prevent the chance of unintentional beneficiaries inheriting the asset thereby keeping it in the family.
For more information or if you have any questions about estate planning, please contact Judson M. Stein, Esq., Chair of the Trusts & Estates Practice Group, at 973-230-2080 or firstname.lastname@example.org or John A. Grey, Esq., member of the Trusts & Estates Practice Group, at 973-230-2088 or email@example.com.