Using Trusts as IRA Beneficiaries Jeffrey Levine IRA Technical Consultant Ed Slott and Company, LLC Copyright © 2012 Ed Slott and Company, LLC

Overview of Beneficiary Rules IRAs pass by way of beneficiary form Avoid time and expense of probate Overrides a beneficiary named in the will (for that IRA only) In absence of a named beneficiary, the IRA will pass according to the custodial document Often the owner’s estate May be owner’s spouse and/or children Copyright © 2012 Ed Slott and Company, LLC

Two Types of IRA Beneficiaries Designated Beneficiary Non-Designated Beneficiary Copyright © 2012 Ed Slott and Company, LLC

Two Types of IRA Beneficiaries (Cont.) IRA Beneficiary Any person or entity that inherits an IRA Non-Designated Beneficiary Estate Charity Non See-through Trusts No stretch IRA 5 Year Rule or IRA owner’s remaining life expectancy Copyright © 2012 Ed Slott and Company, LLC

Two Types of IRA Beneficiaries (Cont.) IRA Beneficiary Any person or entity that inherits an IRA Designated Beneficiary A living, breathing person Has a life expectancy See-through trusts Stretch IRA is able to be used Copyright © 2012 Ed Slott and Company, LLC

The Stretch IRA A term used by practitioners to describe how distributions from some inherited IRAs can be extended over the life expectancy of the beneficiary Keeps tax-deferral of account intact for as long as possible Helps minimize impact of income taxes Copyright © 2012 Ed Slott and Company, LLC

The Stretch IRA (Cont.) Distributions must begin by December 31st of the year following the year of death All beneficiaries calculate RMDs using the Single Lifetime Table Beneficiary is always able to take more than the RMD No credit in current year for amounts taken in excess of RMDs during previous years Copyright © 2012 Ed Slott and Company, LLC

What Happens if There is More Than One Beneficiary? General Rule All beneficiaries must take RMDs based on the age of the oldest beneficiary If one of the beneficiaries is not a designated beneficiary, the stretch is lost for all beneficiaries Copyright © 2012 Ed Slott and Company, LLC

What Happens if There Is More Than One Beneficiary? (Cont.) Separate Account Rule Allows each beneficiary to use their own life expectancy September 30th “cash out” date Separate accounts must be established by December 31st of year following year of death Copyright © 2012 Ed Slott and Company, LLC

Reasons to Name a Trust as an IRA Beneficiary The primary reason to name a trust as the beneficiary of an IRA should be some form of control. Common scenarios where a trust might be considered include: Situations involving beneficiaries who are Minors Disabled Incompetent Unsophisticated Concerns when there is a second marriage Copyright © 2012 Ed Slott and Company, LLC

Reasons to Name a Trust as an IRA Beneficiary (Cont.) Other common scenarios where a trust might be considered include: Cases where the owner wants to guarantee the stretch IRA is used Planning to help avoid federal and/or state estate taxes* *Can also be done without a trust Situations where creditor protection may be an issue Clients who are concerned about beneficiaries’ spouses Plans that involve the use of charitable trusts Copyright © 2012 Ed Slott and Company, LLC

Reasons NOT to Name a Trust as an IRA Beneficiary To save money on income taxes Top federal income tax rate for single and joint filers in 2012 kicks in at income over $388,350 Top federal income tax rate for trusts and estates in 2012 kicks in at income over $11,650 To save money on estate taxes “Because my attorney told me so” Copyright © 2012 Ed Slott and Company, LLC

See-Through Trusts Also known as look-through trusts Allow trust beneficiaries to use oldest applicable trust beneficiary’s life expectancy to calculate RMDs There is no separate account treatment for trust beneficiaries Must meet certain requirements Copyright © 2012 Ed Slott and Company, LLC

See-Through Trust Requirements Regulation 1.401(a)(9)-4, A-5 Valid under state law Irrevocable at death Trust beneficiaries are identifiable Proper documentation is provided to the custodian by October 31st of the year following the year of death Copyright © 2012 Ed Slott and Company, LLC

Life Cycle of an IRA Trust Owner determines there is a post-death control issue that requires the use of a trust Trust is drafted by a qualified estate planning attorney (can be a testamentary trust) The trust is named as the beneficiary on the beneficiary form John Doe IRA trust John Doe IRA trust established under Article X Section X of John Doe Last Will and Testament Copyright © 2012 Ed Slott and Company, LLC

Life Cycle of an IRA Trust (Cont.) IRA Owner Dies Properly titled inherited IRA is established FBO the trust John Smith (deceased January 3, 2010) IRA fbo John Smith Trust Distributions go from the inherited IRA to the trust Distributions go from the trust to the trust beneficiaries per the terms of the trust Copyright © 2012 Ed Slott and Company, LLC

Life Cycle of an IRA Trust (Cont.) Trust Beneficiary Trust Trust Distributions Trust Distributions Trust Beneficiary IRA Distributions Including RMDs Inherited IRA Trust Distributions Trust Beneficiary Copyright © 2012 Ed Slott and Company, LLC

Conduit Trusts Discretionary Trusts Two Types of IRA Trusts Also known as accumulation trusts Copyright © 2012 Ed Slott and Company, LLC

Conduit Trusts No less than the RMD is required to be distributed to the trust beneficiaries each year Trust beneficiaries pay income tax on RMDs at their own personal rates Only income beneficiaries of the trust are looked at to consider oldest age for RMDs Copyright © 2012 Ed Slott and Company, LLC

Conduit Trusts (Cont.) Advantages of conduit trusts include: Potentially more tax efficient than discretionary trusts Any remainder beneficiary can be used without ruining the stretch IRA Disadvantages of conduit trusts include: Less post-death control Copyright © 2012 Ed Slott and Company, LLC

Discretionary Trusts RMDs from the inherited IRA may be accumulated in the trust RMDs may also be distributed out of the trust, depending on the language of the trust Distributions from an inherited IRA not passed along to trust beneficiaries within the same year are taxed at trust tax rates Funds distributed from a trust to a beneficiary during the first 65 days of the year can be treated as distributed in the prior year if the trustee elects All current and potential beneficiaries of the trust are looked at to consider oldest age for RMDs Current beneficiaries Remaindermen Copyright © 2012 Ed Slott and Company, LLC

Discretionary Trusts (Cont.) Advantages of discretionary trusts include: Greater control over trust assets Easier to keep assets away from: Creditors Ex-spouses Disadvantages of discretionary trusts include: Greater possibility for conflict between trustee and trust beneficiaries Distributions may be taxed at compressed trust tax brackets Non-designated remaindermen beneficiaries will cause stretch to be blown Copyright © 2012 Ed Slott and Company, LLC

Discretionary Trusts (Cont.) Discretionary Trust Idea: Consider Roth conversions during owner’s lifetime Inherited IRAs cannot be converted to inherited Roth IRAs Inherited plans (e.g. inherited 401(k)) can be converted to inherited Roth IRAs Inherited Roth IRAs can generally avoid the tax issues that are present with traditional IRAs Copyright © 2012 Ed Slott and Company, LLC

When Does it All End? When there is no money left in the inherited IRA When the trust terminates When there is $X or less in the trust After X years When the beneficiary is X years old When X dies Check with the custodian to see if the trust assets can be assigned out to the trust beneficiaries if the trust terminates, but there are still funds in the inherited IRA Copyright © 2012 Ed Slott and Company, LLC

5 Costly IRA Trust Mistakes Moving an IRA “into” the trust Trust language that calls for debts and expenses of the estate to be paid from trust assets Not understanding what constitutes trust income Naming a trust as an IRA beneficiary without first considering alternatives Failing to add flexibility to the overall plan Copyright © 2012 Ed Slott and Company, LLC

Mistake #1- Moving an IRA “Into” the Trust IRAs/Inherited IRAs cannot be moved into trusts Causes the IRA/inherited IRA to be taxable IRAs cannot be owned by trusts during an owner’s lifetime A common mistake occurs when clients try to fund revocable living trusts with IRA assets For owners, the mistake can only be fixed if caught within 60 days If this mistake is made by a beneficiary, the mistake cannot be fixed Copyright © 2012 Ed Slott and Company, LLC

Mistake #2- Trust language that calls for debts and expenses of the estate to be paid from trust assets Estate is treated as a beneficiary of IRA An estate is not a designated beneficiary Stretch IRA can be blown Creditor protection of the inherited IRA may be compromised To remove an estate as a trust beneficiary, cash out the estate (pay off estate obligations) by September 30th of the year following the year of death PLRs 200432027, 200432028, 200432029 “Shall” vs. “may” vs. staying silent Trust expenses vs. estate expenses Copyright © 2012 Ed Slott and Company, LLC

Mistake #3 - Not Understanding What Constitutes Trust Income Inherited IRA distributions; What’s income? What’s principal? Uniform Principle and Income Act (UPAIA) Adopted by over 40 states Defines 10% of RMD as income, 90% principal Income using the Unitrust concept Must be allowed by state law Federal regulations allow for unitrust rate to be set between 3% and 5% Check to see if trust uses the term “income” or “RMDs” An attorney can use specific language to draft around income issues Copyright © 2012 Ed Slott and Company, LLC

Mistake #3 - Not Understanding What Constitutes Trust Income (Cont.) QTIP trusts as IRA beneficiaries Revenue Ruling 2006-26 Surviving spouse is entitled to trust income during their lifetime After surviving spouse’s death, the trust’s principal passes to beneficiaries named by original IRA owner Allows marital deduction to be used Copyright © 2012 Ed Slott and Company, LLC

Mistake #3 - Not Understanding What Constitutes Trust Income (Cont.) QTIP trusts create unique problems for IRAs QTIP trusts must use the word “income” Remainder beneficiaries may not inherit any assets for many years Inherited IRA might be completely exhausted prior to remainder beneficiaries inheriting assets Copyright © 2012 Ed Slott and Company, LLC

Mistake #4 - Naming a Trust as an IRA Beneficiary Without First Considering Alternatives Is an UGMA/UTMA account sufficient for minor beneficiaries Beneficiary will have access to funds at 18 or 21 “Jim Smith as custodian for John Doe, under the State X Uniform Transfers to Minors Act” Can disclaimer planning be used to avoid estate taxes? QTIP trusts Can the IRA be split between the surviving spouse and the children? Can life insurance be used to provide a benefit to the surviving spouse and/or other beneficiaries? Copyright © 2012 Ed Slott and Company, LLC

Mistake #5 – Failing to Keep the Plan Up to Date Is a trust still needed as beneficiary? Is the beneficiary still a minor? Is creditor protection still an issue? Are there enough other assets to fund the credit shelter trust? Have trust beneficiaries predeceased the owner? Has the trust been named on the beneficiary form for any new accounts opened? Do all IRA custodians allow for trusts as IRA beneficiaries? Copyright © 2012 Ed Slott and Company, LLC

Recent Rulings and Updates PLRs 200317041, 200317043 and 200317044 No separate account treatment for trust that splits into subtrusts PLR 200537044 Separate account treatment when subtrusts are named as the beneficiaries “Subtrust X established under Article X, Section X of the John Doe IRA Trust” PLRs 200634068, 200634069, 200634070 No separate account treatment when primary trust is named beneficiary Copyright © 2012 Ed Slott and Company, LLC

Recent Rulings and Updates (Cont.) PLR 201116005 IRS allowed a disabled beneficiary to transfer an inherited IRA to special needs trust (of which they were the beneficiary) Inherited IRA still not moved into trust Properly titled inherited IRA FBO special needs trust established Distributions from inherited IRA payable to special needs trust Considered a 1st party trust Entitlement programs reimbursed after death of beneficiary before any remaining assets can pass to remaindermen IRS reiterated that such a transfer cannot occur during an IRA owner’s lifetime Followed previous IRS decisions in: PLR 200620025 PLR 200826008 (minor beneficiary) Copyright © 2012 Ed Slott and Company, LLC

Recent Rulings and Updates (Cont.) PLR 200915063 A trust was named as the beneficiary of each account Financial advisor incorrectly told client that the entire IRA/Roth IRA had to be distributed to the trust An extension of the 60-day rollover window was granted and the spouse was allowed to rollover three traditional IRAs and a Roth IRA to her own IRA and Roth IRA Spouse had “total control over the disposition of said IRAs” Copyright © 2012 Ed Slott and Company, LLC

Recent Rulings and Updates (Cont.) PLR 200915063 Numerous other PLRs have been granted for similar requests Spouse must have complete “dominion and control” To avoid these situations, consider naming The trust as the IRA’s primary beneficiary and the spouse as the contingent beneficiary or The spouse as the IRA’s primary beneficiary and the trust as the contingent beneficiary Copyright © 2012 Ed Slott and Company, LLC

Recent Rulings and Updates (Cont.) PLR 200944059 IRS denied spousal rollover of IRA left to trust Spouse was sole trustee and was able to take distributions from the trust for her health, maintenance and support Remaining principal was to pass to couple’s son Ruling was denied because spouse did not have complete and total control over inherited IRA Distributions were subject to “ascertainable standards” Copyright © 2012 Ed Slott and Company, LLC

Recent Rulings and Updates (Cont.) PLR 201125047 Landmark ruling allowing community property to be rolled over by surviving spouse even though trust was partial IRA beneficiary Trust divided into several subtrusts, with spouse having total access to assets in “Marital Share One” Trustee had full discretion to divide trust property using non-pro- rata allocation Trustee exchanged decedent’s IRA with spouse’s property of equal value such that Marital Share One held entire IRA Copyright © 2012 Ed Slott and Company, LLC

Recent Rulings and Updates (Cont.) PLR 201210045 Trust was beneficiary of decedent’s IRA Trust created separate 1/3 share for decedent’s surviving spouse and left remaining 2/3 to decedent’s surviving children There were 2 surviving children Spouse was able to rollover her share to an inherited IRA The decedent’s children were able to make trustee-to-trustee transfers of their separate trust shares of the inherited IRA to separate inherited IRAs benefiting the trust RMDs still needed to be determined using surviving spouse’s life expectancy Copyright © 2012 Ed Slott and Company, LLC

Your Immediate Action Plan Review the IRA trust rules as soon as possible to reinforce what we’ve covered today Make a list of clients who have named trusts as their IRA beneficiary Review their situation and see if a trust should, in fact, be named as the beneficiary Make a list of clients who may want to consider naming a trust as an IRA beneficiary

Your Immediate Action Plan Learn the rules that apply in your state Age of majority Definition(s) of income IRA creditor protections Find a qualified estate planning attorney, who also has knowledge about IRA rules, that you can feel confident in recommending to clients

www.IRAhelp.com THANK YOU!!! For more information about Ed Slott and Company’s IRA training programs and products, please visit our website: www.IRAhelp.com Copyright © 2012 Ed Slott and Company, LLC