Trust Dispositions of IRAs and Qualified Plans: Structuring - - PowerPoint PPT Presentation

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Trust Dispositions of IRAs and Qualified Plans: Structuring See-Through Trusts and Stretch Provisions

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific TUESDAY, JANUARY 17, 2017

Presenting a live 90-minute webinar with interactive Q&A Larry S. Hartley, Strauss Attorneys, Asheville, N.C. Carter B. Webb, Strauss Attorneys, Asheville, N.C.

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Trust Dispositions of IRAs and Qualified Plans: Structuring See-Through Trusts and Stretch Provisions

HOSTED BY ATTORNEYS LARRY S. HARTLEY & CARTER B. WEBB

Course Outline

I. Accumulation vs. Conduit Trusts for Holding Qualified Plans a. Overview b. Accumulation Trusts c. Conduit Trusts II. Drafting Trust Provisions to Ensure Tax-Efficient Disposition of Qualified Plans a. Language for Conduit Trusts b. Language for Accumulation Trusts III. QTIP Trusts a. QTIP Trust Defined b. QTIP Trust as a Beneficiary of an IRA c. Language Required for a QTIP Trust IV. Special Provisions for Spouses a. Spousal Rights After the Death of the First Spouse b. Divorce Concerns for Beneficiaries c. Special Needs Trusts and Medicaid Issues V. Required Minimum Distribution Considerations for Beneficiaries VI. Trust Advisor/Trust Protector

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Accumulation vs. Conduit Trusts for Holding Qualified Plans Overview of naming a trust as a beneficiary of an IRA – See- Through Trust

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Accumulation vs. Conduit Trusts for Holding Qualified Plans

Overview of naming a trust as a beneficiary of an IRA – See-Through Trust

The initial question in working with clients who own IRAs or other tax qualified retirement accounts (hereinafter just referred to as IRAs, for convenience) is as follows:

What do you want your IRA to do for your beneficiaries after your death?

If the answer to that question is that you want your IRA to benefit your loved ones and not be taken away from them by ex-spouses or creditors and you do not want your loved ones to blow it all in short order after your death, then you are a client who needs sophisticated IRA planning. Simply leaving the IRA at death to the beneficiary as an outright distribution or as transfer to the beneficiary as an inherited IRA will not accomplish these goals.

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Frequently, the solution to this issue is to leave the IRA to a trust share for certain beneficiaries. However, without sophisticated drafting, the tax advantaged stretch out of the IRA for the life expectancy of the beneficiary after the death of the original owner could be lost. The IRS has strict rules regarding how long an inherited IRA can last after the original owner’s death. Required Minimum Distributions (RMDs) are fairly easily calculated using the IRS’s Uniform Lifetime Tables. However, when a trustee of a trust is the beneficiary, then language of the trust will determine whether that trust will be able to enjoy an extended period of years over which IRA withdrawals may be stretched, thus continuing tax deferred (for a Traditional IRA) or tax free growth (for a Roth IRA).

Accumulation vs. Conduit Trusts for Holding Qualified Plans

Overview of naming a trust as a beneficiary of an IRA – See-Through Trust

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Accumulation vs. Conduit Trusts for Holding Qualified Plans

Overview of naming a trust as a beneficiary of an IRA – See-Through Trust

With many general practitioners, or with unsophisticated planning documents, one of two results will occur:

• 1. IRA may have to be liquidated in as little as five years;
• r
• 2. Trustee may have little or no control where IRA withdrawals must

land.

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Accumulation vs. Conduit Trusts for Holding Qualified Plans

Overview of naming a trust as a beneficiary of an IRA – See-Through Trust

Treasury Regulation §1.401(a)(9)-4, A-5(a-b) allows trusts to be named as beneficiaries and states the following: (a) If the requirements of paragraph (b) of this A–5 are met with respect to a trust that is named as the beneficiary of an employee under the plan, the beneficiaries of the trust (and not the trust itself) will be treated as having been designated as beneficiaries of the employee under the plan for purposes of determining the distribution period under section 401(a)(9). (b) The requirements of this paragraph (b) are met if, during any period during which required minimum distributions are being determined by treating the beneficiaries of the trust as designated beneficiaries of the employee, the following requirements are met — 1. The trust is a valid trust under state law, or would be but for the fact that there is no corpus. 2. The trust is irrevocable or will, by its terms, become irrevocable upon the death of the employee. 3. The beneficiaries of the trust who are beneficiaries with respect to the trust's interest in the employee's benefit are identifiable within the meaning of A–1 of this section from the trust instrument. 4. The documentation described in A–6 of this section has been provided to the plan administrator. If a trust meets the above four requirements, then it is considered a ‘See-Through Trust’.

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Accumulation vs. Conduit Trusts for Holding Qualified Plans

Overview of naming a trust as a beneficiary of an IRA – See-Through Trust

A-1 and A-6 of Treasury Regulation §1.401(a)(9)-4 referenced above are copied below: Q-1. Who is a designated beneficiary under section 401(a)(9)(E)? A-1. A designated beneficiary is an individual who is designated as a beneficiary under the plan. An individual may be designated as a beneficiary under the plan either by the terms of the plan or, if the plan so provides, by an affirmative election by the employee (or the employee's surviving spouse) specifying the beneficiary. A beneficiary designated as such under the plan is an individual who is entitled to a portion of an employee's benefit, contingent on the employee's death or another specified event. For example, if a distribution is in the form of a joint and survivor annuity over the life of the employee and another individual, the plan does not satisfy section 401(a)(9) unless such other individual is a designated beneficiary under the plan. A designated beneficiary need not be specified by name in the plan or by the employee to the plan in order to be a designated beneficiary so long as the individual who is to be the beneficiary is identifiable under the plan. The members of a class of beneficiaries capable of expansion or contraction will be treated as being identifiable if it is possible, to identify the class member with the shortest life expectancy. The fact that an employee's interest under the plan passes to a certain individual under a will or otherwise under applicable state law does not make that individual a designated beneficiary unless the individual is designated as a beneficiary under the plan. See A-6 of § 1.401(a)(9)-8 for rules which apply to qualified domestic relation orders.

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Accumulation vs. Conduit Trusts for Holding Qualified Plans

Overview of naming a trust as a beneficiary of an IRA – See-Through Trust

(continued from previous slide)

Q-6. If a trust is named as a beneficiary of an employee, what documentation must be provided to the plan administrator? A-6. (a) Required minimum distributions before death. If an employee designates a trust as the beneficiary of his

• r her entire benefit and the employee's spouse is the sole beneficiary of the trust, in order to satisfy the

documentation requirements of this A-6 so that the spouse can be treated as the sole designated beneficiary of the employee's benefits (if the other requirements of paragraph (b) of A-5 of this section are satisfied), the employee must either - (1) Provide to the plan administrator a copy of the trust instrument and agree that if the trust instrument is amended at any time in the future, the employee will, within a reasonable time, provide to the plan administrator a copy of each such amendment; or (2) Provide to the plan administrator a list of all of the beneficiaries of the trust (including contingent and remaindermen beneficiaries with a description of the conditions on their entitlement sufficient to establish that the spouse is the sole beneficiary) for purposes of section 401(a)(9); certify that, to the best of the employee's knowledge, this list is correct and complete and that the requirements of paragraph (b)(1), (2), and (3) of A-5 of this section are satisfied; agree that, if the trust instrument is amended at any time in the future, the employee will, within a reasonable time, provide to the plan administrator corrected certifications to the extent that the amendment changes any information previously certified; and agree to provide a copy of the trust instrument to the plan administrator upon demand.

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Accumulation vs. Conduit Trusts for Holding Qualified Plans Accumulation Trusts

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Accumulation vs. Conduit Trusts for Holding Qualified Plans

Accumulation Trusts

If the trust does not contain provisions making it a conduit trust share for IRA purposes, then the trust will be considered by the IRS to be an “accumulation trust.” If the trust is an accumulation trust and the IRS cannot be assured of what the measuring life of the oldest possible beneficiary of the IRA is, or if some beneficiaries may not even be a human being, then the trust may have to liquidate the inherited IRA in as little as five years; that is if the original owner died prior to his or her required beginning date (see I.R.C. § 401(a)(9)(C)) for RMDs. If the original owner lived past the required beginning date, then after his or her death, the trust (trustee) would be required to make withdrawals based on the deceased owner’s age at the time of his death. If the deceased owner was at an advanced age, the withdrawal period would now be limited to just a few years.

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Accumulation vs. Conduit Trusts for Holding Qualified Plans

Accumulation Trusts

The advantage of an accumulation trust is that the trustee is not required to distribute the RMDs out of the trust and to the beneficiaries. The trust could pay the income taxes on the withdrawals, and keep the remaining assets in the trust, thereby preserving asset protections and controls that the original Grantor designed in the trust. However, without careful drafting, the downside to this is loss of tax deferral and tax advantaged growth.

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Accumulation vs. Conduit Trusts for Holding Qualified Plans

Accumulation Trusts

The practitioner must be sure that all trust beneficiaries, including contingent beneficiaries, are eligible designated beneficiaries pursuant to Treasury Regulation §1.401(a)(9)-4, A-3, A-5. The trust also must be considered a see-through trust so that the trust beneficiaries, rather than the trust, will be considered when determining the RMDs (see Section A above). The accumulated distributions are taxed at the trust’s income tax rates.

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Accumulation vs. Conduit Trusts for Holding Qualified Plans Conduit Trusts

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Accumulation vs. Conduit Trusts for Holding Qualified Plans

Conduit Trusts

In order to be considered a conduit trust, the trust document must provide that all

• f the RMDs are to be distributed immediately to the beneficiary of the trust.

In other words, the trustee is not permitted to accumulate any of the RMDs in the trust. Treasury Regulation § 1.401(a)(9)-5, A-7 provides that if the trust is a conduit trust, then the life expectancy of the income beneficiary of that trust is the only life expectancy that is to be considered when calculating the yearly RMDs. Therefore, no successor beneficiary’s life expectancy will be used to calculate the yearly RMD.

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Drafting Trust Provisions to Ensure Tax-Efficient Disposition

• f Qualified Plans

Language for Conduit Trusts

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Drafting Trust Provisions to Ensure Tax- Efficient Disposition of Qualified Plans

Language for Conduit Trusts

The critical drafting component for conduit/see-through provisions of the trust is to include clear language requiring all withdrawals from the inherited IRA to be distributed to the appropriate beneficiaries. The following is an excerpt of language used for creating conduit trust shares: Unless specifically stated otherwise, each year, beginning with the year of my death, if any trust created under this agreement

• ther than (Marital Trust shares) becomes the beneficiary of death benefits under any qualified retirement plan, my Trustee shall

withdraw from the trust’s share of the plan, in each year, the required minimum distribution required under Section 401(a)(9) of the Internal Revenue Code. My Trustee may withdraw such additional amounts from the trust’s share of the plan as my Trustee deems advisable; but, only if the dispositive terms of the trust authorize the Trustee to immediately distribute the withdrawn amount as provided below. My Trustee shall immediately distribute all amounts withdrawn to: My wife, if a beneficiary of the trust; and If my wife is not a beneficiary of the trust, to my descendants, per stirpes, who are beneficiaries of the trust; and If my wife is not a beneficiary of the trust and no descendant of mine is a beneficiary of the trust, then to the income beneficiaries

• f the trust in equal shares.

Amounts required to be withdrawn and distributed under this Section will, to the extent they are withdrawn and distributed, reduce mandatory distribution amounts under other provisions of this agreement that otherwise require distribution of all of the income of the trust. The purpose of this Section is to insure that the life expectancy of the beneficiaries of the trust may be used to calculate the minimum distributions required by the Internal Revenue Code. This Section is to be interpreted consistent with my intent despite any direction to the contrary in this agreement.

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Drafting Trust Provisions to Ensure Tax- Efficient Disposition of Qualified Plans

Language for Conduit Trusts

(continued from previous slide) a) Minimum Required Distribution

In administering my trust, the minimum required distribution for each qualified retirement plan for any year is the greater of (1) the value of the qualified retirement plan determined as of the preceding year-end, divided by the applicable distribution period; and (2) the amount that my Trustee is required to withdraw under the laws then applicable to the trust to avoid penalty. If I die before my required beginning date with respect to a qualified retirement plan, the applicable distribution period means the life expectancy of the beneficiary. If I die on or after my required beginning date with respect to a qualified retirement plan, the applicable distribution period means the life expectancy of the beneficiary, or (if longer) my remaining life expectancy. Notwithstanding the foregoing, if I die on or after my required beginning date with respect to a qualified retirement plan, the minimum required distribution for the year of my death means (a) the amount that was required to be distributed to me with respect to the qualified retirement plan during the year, minus (b) amounts actually distributed to me with respect to the qualified retirement plan during the year. “Life expectancy,” “required beginning date” and other similar terms used in this subsection, is to be determined in accordance with Section 401(a)(9) of the Internal Revenue Code. The above language is designed for trust shares such as Family Trust shares, or shares for children or grandchildren, when a conduit trust is acceptable. Keep in mind that as time goes on, for large inherited IRAs, the percentage of the remaining IRA that must be distributed continues to increase until the last year when the last distribution is made and the inherited IRA is depleted.

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Drafting Trust Provisions to Ensure Tax- Efficient Disposition of Qualified Plans

Language for Accumulation Trusts If the trust does not contain the language required to be treated as a conduit trust, then it is automatically considered to be an accumulation trust. It would be good practice to simply place language in the share stating that it is an accumulation trust, although this would not be required.

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QTIP Trusts QTIP Trust Defined

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QTIP Trusts

QTIP Trust Defined

The definition of a QTIP Trust according to Black’s Legal Dictionary, 6th Edition is as follows: Q-Tip trust. Refers to qualified terminal interest property trust. A type of marital deduction bequest in which the surviving spouse receives all of the income for life but is not given a general power of

• appointment. Property qualifies for marital deduction only to the

extent that the executor so elects on the Federal estate tax return. I.R.C. § 2056(b)(7)(B)(i)(III). The Economic Recovery Tax Act of 1981 (ERTA) qualified the Q-TIP trust for the marital deduction.

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QTIP Trusts QTIP Trust as a Beneficiary of an IRA

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QTIP Trusts

QTIP Trust as a Beneficiary of an IRA

In drafting a QTIP Trust, the practitioner must keep in mind the requirement of the surviving spouse to be able to receive all income from the marital trust in

• rder to qualify for the marital deduction.

The other side of the coin for IRA planning is that in a conduit trust, all of the IRA withdrawals flow out to the surviving spouse during her lifetime. If she lives to a ripe old age, all of the IRA may come out of the trust (whether it was a Family trust, or a Marital trust) and land in her lap. After she receives the proceeds, they are now fair game for her creditors or others.

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QTIP Trusts Language Required for a QTIP Trust

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QTIP Trusts

Language Required for a QTIP Trust

When there is a marital share and conduit language is used, the language may look something like the following: a) Distributions from Qualified Retirement Plans to the Marital Trust If the Marital Trust becomes the beneficiary of death benefits under any qualified retirement plan, each year, beginning with the year of my death, my Trustee shall withdraw at least the greater of: The net income earned on the Marital Trust’s share of the plan during the year; and The required minimum distribution required to be withdrawn from the Marital Trust’s share of the plan under Section 401(a)(9) of the Internal Revenue Code. My Trustee may withdraw additional amounts from the Marital Trust’s share of the plan as my Trustee deems advisable; but only if the dispositive terms of the trust authorize my Trustee to immediately distribute the withdrawn amount as provided in this subsection. My Trustee shall immediately distribute all amounts withdrawn to my wife. If my wife is then deceased, my Trustee shall instead distribute to the remainder beneficiary, the amount which would have been distributed to my wife had she then been living. The purpose of this Section is to insure that the life expectancy of my wife may be used to calculate the minimum distributions required by the Internal Revenue Code. This Section is to be interpreted consistent with my intent despite any direction to the contrary in this agreement.

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QTIP Trusts

Language Required for a QTIP Trust

(continued from previous slide) Notwithstanding any other provision of this agreement, my Trustee shall treat annuity and other periodic payments from any qualified retirement plans in any given year as income to the extent the distribution represents income generated and treated as generated by any qualified retirement plan for that year; if income information is not available then my Trustee shall apportion the annuity and other periodic payments between principal and income in a fair, equitable and practical manner in accordance with Section _______. The above provisions enable the Marital trust to qualify for the marital deduction and receive a long stretch out, but also may end up forcing all of the IRA out of the trust during the surviving spouse’s lifetime.

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Special Provisions for Spouses Spousal Rights After the Death

• f the First Spouse

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Special Provisions for Spouses

Spousal Rights After the Death of the First Spouse At death, surviving spouses typically have rights to an elective share of a deceased spouse’s estate, unless those rights were waived under a valid premarital or postnuptial agreement. In North Carolina that share could be half of the deceased spouse’s estate.

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Special Provisions for Spouses Divorce Concerns for Beneficiaries

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Special Provisions for Spouses

Divorce Concerns for Beneficiaries

Drafting considerations for spouses, or frankly even for children who may have spouses or become married later, should be considered from the stand point of death, divorce, remarriage, or other concerns. Divorcing spouses may try to lay claim to the other spouse’s assets including in some cases some portion of inherited IRAs. Parents or grandparents of such beneficiaries can draft trust shares for their loved

• nes that are less susceptible to marital claims.

These shares may need to be accumulation shares in order to provide more protection from ex-spouses or others. Accumulation shares allow the trustee to make IRA withdrawals, without distributing proceeds of the withdrawals to the trust beneficiary.

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Special Provisions for Spouses Special Needs Trusts and Medicaid Issues

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Special Provisions for Spouses

Special Needs Trusts and Medicaid Issues

It is critically important to properly draft trusts if there is a disabled beneficiary

• n a means tested government program.

Typically Special Needs Trusts, or Supplemental Needs Trusts, will be drafted not to qualify as conduit trusts. In these cases, a long stretch out may be sacrificed in order to protect assets from having to be used for purposes that may have been otherwise covered by the needs tested public benefits programs.

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Special Provisions for Spouses

Special Needs Trusts and Medicaid Issues

Keep in mind that for one’s own spouse, in regards to Medicaid benefits for the surviving spouse, such trust shares must be created through a testamentary trust created through the deceased spouse’s Last Will. This requirement was mysteriously placed in the federal Medicaid statutes when Medicaid was first established. It has never been changed. No other beneficiary except a spouse, is subject to this requirement.

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RMD Considerations for Named Beneficiaries

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RMDs for named beneficiaries, are not a distant cousin to WMDs (Weapon of Mass Destruction), but financially, if not handled properly, can be a pretty explosive disaster as well.

RMD Considerations for Named Beneficiaries

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Consider poorly crafted beneficiary designations that place large sums of highly income taxable assets in the hands of a young, or inexperienced beneficiary. There could be an 18 year old or a 21 year old (or a 51 year old) beneficiary who receives an inherited IRA. The beneficiary takes withdrawals and does not have any state or federal income tax withheld. Say he or she does this in the summer

• f 2015. On April 15th of 2016, the beneficiary is informed of a massive income

tax liability. Of course the beneficiary has spent every dime of this IRA distribution the previous summer. That beneficiary has just been hit by a financial WMD. If instead the beneficiary was the recipient of an IRA withdrawal, passed through the hands of an experienced trustee, it is more likely that taxes would have been withheld and sent off to the proper channels.

RMD Considerations for Named Beneficiaries

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Keep in mind that federal law does not protect inherited IRAs as much as the original IRA owner. Some states provide good asset protection for inherited IRAs but the states are far from uniform in such regard. A well drafted trust can provide needed asset protection for those inherited IRAs.

RMD Considerations for Named Beneficiaries

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Because the typical trust is designed generically to receive and administer all types of assets, it is not specifically designed for the complex rules associated with Inherited IRAs. Fortunately, some Estate Planning attorneys have available in their arsenal specially drafted retirement plan trusts. Some forms of these trusts have trademarked specific names for these type of trusts – so be careful not to tread on those trademarks.

RMD Considerations for Named Beneficiaries

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These specialized trusts are designed to receive inherited IRAs after the death of an original IRA owner. They can be customized to be either conduit or accumulation trust shares as needed. They can be carefully drafted as accumulation shares, but still be given in some cases long withdrawal schedules under the RMD rules. This is done by limiting the contingent beneficiaries to persons who are not born prior to a particular date, and by preventing undistributed proceeds of inherited IRAs to any entity that does not have a human heartbeat.

RMD Considerations for Named Beneficiaries

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Trust Advisor/Trust Protector

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We recommend the inclusion of Trust Protector (also known as a Trust Advisor) language that may include the ability of the Trust Protector to trigger a switch between conduit or accumulation trust shares for a beneficiary.

Trust Advisor/Trust Protector

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The language for such a trigger may read something like the following: Whenever a separate trust established under this agreement will be a beneficiary of a Qualified Retirement Plan, my Trust Advisor may void or create conduit trust provisions applying to such trust share. If my Trust Advisor does void or create such conduit trust provisions for any separate trust share, my Trust Advisor may, at the same time, add such provisions that no accumulated income and/or principal shall be paid to or for the benefit of any person who is older than the primary beneficiary of such trust. My intent is to grant my Trust Advisor the power to convert a trust with conduit trust provisions to an Accumulation Trust when appropriate, following procedures such as those set forth in PLR 200537044 or any later applicable PLRs or other rulings or court decisions. Accordingly, when exercising the authority set forth in this paragraph my Trust Advisor should concurrently take whatever actions are necessary so that: (i) the affected trust continues to qualify as a “designated beneficiary” as that term is used in Section 401(a)(9) of the Internal Revenue Code; and

Trust Advisor/Trust Protector

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(continued from previous slide) (ii) the affected trust continues to qualify for required minimum distributions to be calculated using the beneficiary’s life expectancy; or (iii) may allow the affected trust share not to qualify as a designated beneficiary if preservation of principal is more important than maintaining designated beneficiary status. Notwithstanding the foregoing, my Trust Advisor may not amend this agreement in any manner that would result in a reduction in the estate tax marital deduction under Section 2056 of the Internal Revenue Code or the estate tax charitable deduction under Section 2055 to which my estate would otherwise be entitled. Further, my Trust Advisor may not limit or alter the rights of a beneficiary in any trust assets held by the trust before the amendment. Any practitioner would be well advised to seek more in depth training about drafting these specialized trusts in order to serve their clients well. This is a complex area of estate planning and it is not recommended to just dabble in such work, as mistakes can be costly.

Trust Advisor/Trust Protector

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Thank you.

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About the Speakers

Larry S. Hartley Strauss Attorneys, PLLC, Asheville, N.C., larry@strausslaw.com

• Mr. Hartley is a Certified Elder Law Attorney (CELA) by the National Elder

Law Foundation, which is the only national certification in this field recognized by the American Bar Association, and is a Board Certified Specialist in Elder Law by the North Carolina NC State Bar Board of Legal

• Specialization. He frequently speaks on nonservice connected Veterans

benefits and Medicaid eligibility planning for long-term care needs. Carter B. Webb Strauss Attorneys, PLLC, Asheville, N.C., carter@strausslaw.com Carter is in charge of the Estate Administration Department for the firm. His practice also includes helping individuals with their estate planning

• needs. He is also a North Carolina Bar Certified Mediator in Superior Court

and with the Clerk of Court. He is a member of both the North Carolina Bar and the South Carolina Bar.

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