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IRA Beneficiary Trusts

IRAs May Now Represent The Largest Single Asset Your Loved Ones Will Inherit!


 As more "baby boomers" are retiring and rolling over large 401 (k) and other retirement plans to IRAs, proper tax and estate planning for IRAs have become increasingly important.

When an IRA owner becomes age 70 1/2, he or she must soon begin to take required minimum withdrawals ("RMDs") and pay federal and state income taxes on those withdrawals at his or her highest rate brackets (unless it is a Roth IRA, in which case the withdrawals may be income tax free).

The IRS now allows a non-spouse beneficiary (i.e., a child) to take or "stretchout" the taxable RMDs over a much longer period, using his or her own life expectancy rather than the shorter life expectancy of the original IRA owner (the parent). This means that money inside an inherited IRA may now compound much longer, tax deferred.

For example, suppose a surviving child aged 45 (at the time of his parent's death) inherits a $200,000 IRA and withdraws only RMDs. If the IRA grows, from both income and principal appreciation, at the rate of 6% a year, then 30 years later when the child is age 75 the child will have taken over $400,000 in RMDs and will still have almost $300,000 left in the IRA to use over his or her later years or pass down to his or her children (the original IRA owner's grandchildren).

In this example, the original $200,000 inherited IRA became worth over $700,000 to that family! (And that doesn't include the future value of the RMDs if they are placed into an investment account.) If we assume the IRA will be worth over $200,000 when the owner passes, or will earn a higher rate of annual return, or will go to a younger beneficiary, that IRA may eventually be worth well over $1 Million!

In other words, IRAs may now be a huge part of a family's financial future, perhaps for generations… and now large IRAs require a higher level of tax and estate planning.

Warning: This New IRA Tax "Stretchout" is Not Automatic!

 Many IRA owners and their professional advisors "assume" or hope that their IRA beneficiaries will make the right "stretchout" decisions or at least seek the advisor's help before they take withdrawals.  Unfortunately, we have found, after handling thousands of estates, that this is often not the case when the IRA owner dies.

Within the IRA Beneficiary Trust, the beneficiaries are not prohibited from withdrawing more than the RMDs and may instead decide to cash out the IRA earlier than required, eliminating the stretchout. This happens because beneficiaries are:

  • Not aware of the RMD rules and their choices.
  • See themselves listed as beneficiaries on an account and immediately transfer it into their own names.
  • Go to the custodian asking what to do, are given a check, and then immediately cash and deposit it in their own accounts.
  • Do what they think (wrongly) is a tax-free rollover into their own IRAs.
  • Just can't wait to get their hands on the IRA money or are influenced by a spouse or some other third-party to grab and spend it.

Withdrawing the IRA funds out too quickly… resulting in what we call the "blowout"… may force a family to pay all of the taxes up front and lose over one-third of the IRA's future value… literally throwing away hundreds of thousands of dollars or even millions over one’s lifetime!

Even if the IRA Owner Has Smart, Responsible Beneficiaries And Thinks the "Stretchout" Is Not a Concern, Consider This...

Let's assume the IRA beneficiary will properly do the RMD "stretchout" and pay the taxes gradually over his or her lifetime.  Many problems may still arise.

When a beneficiary receives an inheritance directly, as is the case when an individual is named directly as the beneficiary of an IRA, his or her inheritance can then be exposed to a number of significant problems:

  • The wrong people may later inherit the IRA (the child, as initial beneficiary, could name his or her spouse as next beneficiary and thereafter that spouse's next husband or wife or that spouse's children of another marriage could inherit the account)!
  • The beneficiary, his or her spouse, and/or children may have poor spending habits ("spendthrifts").
  • The beneficiary may lack good money management/investment skills.
  • A beneficiary's spouse may take some or all of the IRA in a DIVORCE! (The income tax laws, allowing an IRA transfer in a divorce to be tax-free, actually encourage the spouse to grab it… keep in mind the statistical chance of a divorce is now over 50%!).
  • If the beneficiary is too young, elderly or disabled, he or she may not be able to properly manage his or her own affairs without unwanted court intervention.
  • A beneficiary who now or later in life receives needs-based government benefits (like MediCaid nursing care benefits or supplemental disability income) may not qualify for or lose those benefits.
  • In California, an IRA is not creditor protected and can be attached in a lawsuit, even a nuisance lawsuit that forces a beneficiary to settle.

An inherited IRA should not only take advantage of "stretchout" but needs protection too… the kind that a trust can provide (which now leads us to the significance of the IRS approval of the IRA Beneficiary Trust strategy).

The IRS Hasn't Liked Trusts As IRA Beneficiaries Until Now!

In its RMD regulations and previous rulings, the IRS has made it very difficult for an IRA inherited through a trust to both qualify for maximum tax "stretchout" using each primary beneficiary's own life expectancy and also achieve the higher level of asset protection afforded by a trust that may accumulate the RMDs and hold them for future distribution. Generally, one benefit had to be traded off for the other.

The IRA Beneficiary Trust now permits the IRA owner and his or her family to enjoy maximum "stretchout" and protection benefits at the same time. The protective features of this trust have previously been tested and proven over many years of court decisions. And now, finally, the IRS has approved the income tax "stretchout" feature as well (see PLR 200537044). The IRA beneficiary trust is not the "garden variety" trust that has existed for some time, but rather represents a huge breakthrough. The IRA Beneficiary Trust is the most advanced "next generation" trust that solves many earlier tricky drafting problems associated with maximizing both the stretchout and protection benefits.

Pension Protection Act of 2006 Makes the IRA Beneficiary Trust Even Better!

Effective January 1, 2007, the Pension Protection Act (PPA) significantly widened the application of the IRA Beneficiary Trust to people who may never have considered this valuable planning tool before.

Previously, this Trust had no application to a company retirement plan - 401(k), 403(a), 403(b), 457, pension or profit-sharing plan, etc. - unless and until the worker/participant reached normal retirement age and took an "in-service" distribution or retired and then rolled over the company plan into an IRA. Company plans usually forced a non-spouse beneficiary to take the entire taxable distribution in 1 to 5 years, overriding the income tax "stretchout" rules available to IRAs.

Now, if someone has more than $150,000 in company plans and is still working but has not reached normal retirement age or has retired but left these funds in the company plan, this plan participant can take advantage of the stretchout and protection benefits for his or her family available through the IRA Beneficiary Trust.

New laws permit non-spouse beneficiaries of company plans or a Trust established on the beneficiaries' behalves, to do a rollover into an "inherited IRA" after the plan participant passes away. In other words, a company plan participant can set up the IRA Beneficiary Trust now, make it the beneficiary of the plan, and let the IRA rollover occur later!

If you have not seriously considered implementing the IRA Beneficiary Trust because you are still working or have retired but still have funds in the company plan, you definitely need to investigate this strategy!

Who Needs an IRA Beneficiary Trust?

For anyone who has IRAs (including those owned by one’s spouse) and/or 401(k) or other retirement plans that total over $150,000 - this IRA Beneficiary Trust is virtually a "no brainer" decision.

Simply stated, the income tax reduction and asset protection planning that this trust now provides may save a million dollars or more for that IRA owner's (or retirement plan participant's) family!

Tell Your Advisors!

Tell your financial advisor or insurance professional about this "fresh" IRS-approved strategy!

Consider all of these various ways this trust strategy can help you:

  • Reposition IRA investments to emphasize more growth, in order to take advantage of maximum "stretchout" (Note: New equity indexed annuities and variable annuity products with "living benefit" and "enhanced death benefit" features are particularly attractive options!).
  • Obtain life insurance to "super-charge" the "stretchout" (using your grandchildren, with longer life expectancies, as IRA beneficiaries, while the children receive the life insurance proceeds income tax-free).
  • Get retirees to finally rollout their 401(k)'s and other company retirement plans into IRAs and help them do "stretchout" planning (although the Pension Protection Act of 2006 now allows post-death rollovers and many 401(k)'s and other plans must be amended to take advantage of this Act… doing the rollover now guarantees the stretchout will be available!).

Seek a Qualified Professional Advisor!

All advisors are not necessarily skilled in the complex areas of RMD rules, estate planning and asset protection. The Littorno Law Group offers an IRA Beneficiary Trust.  We have all of the technical training and trust document forms you will need to begin implementing this trust strategy today!


Littorno Law Group assists clients throughout Contra Costa County from our offices in Pittsburg and Walnut Creek including Antioch, Brentwood, Clayton, Concord, Lafayette, Moraga, Martinez, Danville, San Ramon, Pleasanton, Livermore, Fremont, Oakland, Piedmont, San Diego, Escondido, San Marcos, Vista, Oceanside, Carlsbad, Fallbrook, Bonsall, Encinitas, La Jolla, Poway, Rancho Bernardo, Del Mar, and the surrounding areas and suburbs.



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