How to Protect an IRA From Heirs’ Creditors

family

When a person declares bankruptcy, an individual retirement account (IRA) is one of the assets that is beyond the reach of creditors, but what about an IRA that has been inherited? Resolving a conflict between lower courts, the U.S. Supreme Court recently (and unanimously) ruled that funds held in an inherited IRA are not exempt from creditors in a bankruptcy proceeding because they are not really retirement funds. Clark v. Rameker (U.S., No. 13- 299, June 13, 2014).

This ruling has significant estate planning implications for those who intend to leave their IRAs to their children. If the child inherits the IRA and then declares bankruptcy sometime in the future, as a result of the Supreme Court ruling the child’s creditors could take the IRA funds. Fortunately, there is a way to still protect the IRA funds from a child’s potential creditors. The way to do this is to leave the IRA not to the child but to a “spendthrift” trust for the child, under which an independent trustee makes decisions as to how the trust funds may be spent for the benefit of the beneficiary. However, the trust cannot be a traditional revocable living trust; it must be a properly drafted IRA trust set up by an attorney who is familiar with the issues specific to inherited IRAs.

The impact of the Supreme Court’s ruling may be different in some states, such as Florida, that specifically exempt inherited IRAs from creditor claims. As Florida attorney Joseph S. Karp explains in a recent blog post, Florida’s rule protecting inherited IRAs will bump up against federal bankruptcy law, and no one knows yet which set of rules will prevail. While a debtor who lives in Florida could keep a creditor from attaching her inherited IRA, it is unknown whether that debtor would succeed in having her debts discharged in bankruptcy while still retaining an inherited IRA. We will have to wait for the courts to rule on this issue. In the meantime, no matter what state you are in, the safest course if you want to protect a child’s IRA from creditors is to leave it to a properly drafted trust.

How to Talk About Moving to a Retirement Home: ‘It’s a Journey’

Having a conversation about moving — whether it’s with a relative,
even a spouse — brings up lots of anxiety. Here’s how to go about it.

Did You Know Choosing Retirement Account Beneficiaries Can Have Tax Implications?

While the execution of Wills requires formalities like witnesses and a notary, the reality is that most property passes to heirs through other, less formal means.

Many bank and investments accounts, as well as real estate, have joint owners who take ownership automatically at the death of the primary owner. Other banks and investment companies offer payable on death accounts that permit owners to name the person or people who will receive them when the owners die. Life insurance, of course, permits the owner to name beneficiaries.

All of these types of ownership and beneficiary designations permit these accounts and types of property to avoid probate, meaning that they will not be governed by the terms of a Will. When taking advantage of these simplified procedures, owners need to be sure that the decisions they make are consistent with their overall estate planning. It’s not unusual for a Will to direct that an estate be equally divided among the decedent’s children, but to find that because of joint accounts or beneficiary designations the estate is distributed totally unequally, or even to non-family members, such as new boyfriends and girlfriends.

It’s also important to review beneficiary designations every few years to make sure that they are still correct. An out-of-date designation may leave property to an ex-spouse, to ex-girlfriends or -boyfriends, and to people who died before the owner. All of these can thoroughly undermine an estate plan and leave a legacy of resentment that most people would prefer to avoid.

These concerns are heightened when dealing with retirement plans, whether IRAs, SEPs or 401(k) plans, because the choice of beneficiary can have significant tax implications. These types of retirement plans benefit from deferred taxation in that the income deposited into them as well as the earnings on the investments are not taxed until the funds are withdrawn. In addition, owners may withdraw funds based more or less on their life expectancy, so the younger the owner the smaller the annual required distribution.  Further, in most cases, withdrawals do not have to begin until after the owner reaches age 70 1/2. However, this is not always the case for inherited IRAs.

Following are some of the rules and concerns when designating retirement account beneficiaries:

  • Name your spouse, usually. Surviving husbands and wives may roll over retirement plans inherited from their spouses into their own plans. This means that they can defer withdrawals until after they reach age 70 1/2 and take minimum distributions based on their age. Non-spouses of retirement plans must begin taking distributions immediately, but they can base them on their own presumably younger ages.
  • But not always. There are a few reasons you might not want to name your spouse, including the following:
    • He or she is incapacitated and can’t manage the account
    • Doing so would add to his or her taxable estate
    • You are in a second marriage and want the investments to benefit your first family
    • Your children need the money more than your spouse
  • Consider a trust. In a number of the above circumstances, a trust can solve the problem, providing for management in the case of an incapacitated spouse, permitting assets to benefit a surviving spouse while being preserved for the next generation, and providing estate tax planning opportunities. Those in first marriages may want to name their spouse as the primary beneficiary and a trust as the secondary, or contingent, beneficiary. This permits the surviving spouse, or spouse’s agent if the spouse is incapacitated, to refuse some or all of the inheritance through a “disclaimer” so it will pass to the trust. Known as “post mortem” estate planning, this approach permits flexibility to respond to “facts on the ground” after the death of the first spouse.
  • But check the trust. Most trusts are not designed to accept retirement fund assets. If they are missing key provisions, they might not be treated as “designated beneficiaries” for retirement plan purposes. In such cases, rather than being able to stretch out distributions during the beneficiary’s lifetime, the IRA or 401(k) will have to be liquidated within five years of the decedent’s death, resulting in accelerated taxation.
  • Be careful with charities. While there are some tax benefits to naming charities as beneficiaries of retirement plans, if a charity is a partial beneficiary of an account or of a trust, the other beneficiaries may not be able to stretch the distributions during their life expectancies and will have to withdraw the funds and pay the taxes within five years of the owner’s death. One solution is to dedicate some retirement plans exclusively to charities and others to family members.
  • Consider special needs planning. It can be unfortunate if retirement plans pass to individuals with special needs who cannot manage the accounts or who may lose vital public benefits as a result of receiving the funds. This can be resolved by naming a special needs trust as the beneficiary of the funds, although this gets a bit more complicated than most trusts designed to receive retirement funds. Another alternative is not to name the individual with special needs or his trust as beneficiary, but to make up the difference with other assets of the estate or through life insurance.
  • Keep copies of your beneficiary designation forms. Don’t count on your retirement plan administrator to maintain records of your beneficiary designations, especially if the plan is connected with a company you worked for in the past, which may or may not still exist upon your death. Keep copies of all of your forms and provide your estate planning attorney with a copy to keep with your estate plan.
  • But name beneficiaries! The biggest mistake many people make is not to name beneficiaries at all, or they end up in this position by not updating their plan after the originally-named beneficiary passes away. This means that the plan will have to go through probate at some expense and delay and that the funds will have to be withdrawn and taxes paid within five years of the owner’s death.

In short, while Wills are important, in large part because they name a personal representative to take charge of your estate and they name guardians for minor children, they are only a small part of the picture. A comprehensive plan needs to include consideration of beneficiary designations, especially those for retirement plans.

If you have any question or planning needs, feel free to contact me.

Regards,

Brian

Be Aware of the Kiddie Tax Before Leaving an IRA to Children

family

Grandparents may be tempted to leave an IRA to a grandchild because children have a low tax rate, but the “kiddie tax” could make doing this less beneficial.

An IRA can be a great gift for a grandchild. A young person who inherits an IRA has to take minimum distributions, but because the distributions are based on the beneficiary’s life expectancy, grandchildren’s distributions will be small and allow the IRA to continue to grow. In addition, children are taxed at a lower rate than adults—usually 10 percent.

However, the lower tax rate does not apply to all unearned income. Enacted to prevent parents from lowering their tax burden by shifting investment (unearned) income to children, the so-called “kiddie tax” allows some of a child’s investment income to be taxed at the parent’s rate. For 2017, the first $1,050 of unearned income is tax-free, and the next $1,050 is taxed at the child’s rate. Any additional income is taxed at the parent’s rate, which could be as high as 35 percent. The kiddie tax applies to individuals under age 18, individuals who are age 18 and have earned income that is less than or equal to half their support for the year, and individuals who are age 19 to 23 and full-time students.

If a grandparent leaves an IRA to a grandchild, the grandchild must begin taking required minimum distributions within a year after the grandparent dies. These distributions are unearned income that will be taxed at the parent’s rate if the child receives more than $2,100 of income (in 2017). In addition to IRAs, the kiddie tax applies to other investments that supply income, such as cash, stocks, bonds, mutual funds, and real estate.

If grandparents want to leave investments to their grandchildren, they are better off leaving investments that appreciate in value, but don’t supply income until the investment is sold. Grandparents can also leave grandchildren a Roth IRA because the distributions are tax-free.

For more information about leaving an IRA to grandchildren from Kiplinger, click here.

Is your family getting the VA support they deserve?

screen-shot-2017-03-01-at-5-35-47-pm

Individuals who have risked their lives to serve and protect the United States of America and its citizens are entitled to a variety of benefits through the U.S. Department of Veterans Affairs (VA). Eligibility requirements vary for these benefits, but many veterans (and their family caregivers) are able to receive some level of coverage, financial assistance or support. This guide will help direct veterans and their family members to VA programs that may assist in paying for or providing long-term care, burials, pensions, and other benefits.

Get Your FREE Veterans Benefits Guide from AgingCare: Click Here

This guide includes the most up‑to‑date information on getting VA benefits.
  • BONUS: Caregivers’ Newsletter subscription

About AgingCare.com

AgingCare.com is the go-to destination for family caregivers, providing trusted information, practical answers to real-life questions, and ongoing support. Our mission is to help families prepare for and navigate the care of an elderly loved one. AgingCare.com has been recognized in both national and local media as an expert resource on elder care. AgingCare.com is paid by our participating providers, so we are able to offer you a completely cost-free service with no hidden fees.

4 things to put on your to-do list for retirement prep

You may think you need a long and complicated list of tasks to accomplish your retirement goal. But a good place to start is with these four simple steps.

JUNE 20, 2016; Via Vanguard

Determine how much you need to save

Here’s where a bit of list-making—or the help of a financial professional—can make the process easier. Grab a piece of paper (or pull up a blank screen if that’s easier) and jot down some expenses associated with your retirement vision.

No matter what you see yourself doing once you retire, figure out some rough estimates for expenses you’re likely to have.

Mary Ryan“Common expenses—regardless of your plans— include housing, food, utility, and health care costs,” said Mary Ryan, a financial planner with Vanguard Personal Advisor Services.

No time for a checklist?

Consider working with a financial advisor, such as the professionals in Vanguard Personal Advisor Services®.

An advisor works closely with you to develop a customized goals-based financial plan according to your unique situation—and can manage your portfolio throughout your retirement years.

Learn more about how Vanguard Personal Advisor Services can help »

“The goal is to determine a general target of how much you’ll need to meet those expenditures, using the income you expect from things like Social Security, a pension, or annuity, along with the sum you’ll need tucked away in retirement or investment accounts,” she said.

Invest for retirement with an appropriate asset mix

Put your savings to work for your future through investing. A best practice is to invest in the right mix of stocks, bonds, and short-term cash reserves (your asset allocation), based on your goals, the length of time before you’ll need to use your savings, and your comfort with risk. Vanguard research shows that, even more than specific investment selections, asset allocation is a key component of investment success.

Anish Patel“A crucial part of determining your asset mix means being honest with yourself about how comfortable you are with risk, including when you might have to challenge your comfort level a bit for your long-term benefit,” said Anish Patel, also a planner with Vanguard Personal Advisor Services.

“Returns are the incentive to attract investors; that’s why investments with low risks also have low returns—because there’s less need to entice someone to make that investment. But risk comfort can be highly dependent on the market environment. When markets are good, many people think they have a high tolerance for risk, only to find when downturns occur, as they always do, that they have very little tolerance,” he said.

Review and adjust investments regularly, even when markets are turbulent

Markets don’t tend to move in slow-and-steady progressions. And when they shift, the changes can pull your asset allocation out of alignment with your set strategy.

“Regular reviews that focus on whether or not your asset mix is on target can help you know when to make adjustments so you can stick to your long-term plan,” said Ms. Ryan.

“Rebalancing aims to minimize risk rather than maximize returns,” Mr. Patel added.

Without rebalancing, “it’s possible for a portfolio to become overweighted with one type of investment. More often, this situation occurs with stock holdings when equity markets are strong. When stocks appreciate quickly and shift a portfolio’s balance, it’s more vulnerable to market corrections, putting it at risk of greater potential losses when compared with the original asset allocation,” Ms. Ryan said.

Minimize taxes

The saying, “Location, location, location” applies to more than just real estate. As Vanguard’s IRA investment research notes, the type of account in which you hold your assets can make a difference in the amount of taxes you owe.

“Investments that generate capital gains distributions or taxable income are better held in tax-advantaged accounts. For example, taxable bond returns are almost all income and thus subject to income taxes, so holding them in an IRA is a smart strategy,” said Mr. Patel.

Ms. Ryan added, “Conversely, tax-efficient investments make more sense held in taxable accounts. So it often makes more sense to hold equity index funds, which generally have less turnover and fewer capital gains distributions, in taxable accounts.”

Get help

If you need a sounding board as you complete the tasks on your to-do list, a financially savvy family member may fit the bill. An advisor can also serve as that sounding board. And, if you don’t have the inclination—or the time—to perform these steps, it makes sense to enlist professional help. (Vanguard has a team of financial planners, including Certified Financial Planner™ (CFP®) professionals, who don’t receive extra compensation for their recommendations; they work solely to help you reach your goals.)

Whether you work in partnership with a financial planner or act independently, checking these items off your to-do list can help you be more prepared for retirement.

* A Vanguard advisor may add about 3% on average to your net portfolio returns over time by following the Advisor’s Alpha principles discussed in Putting a value on your value: Quantifying Vanguard Advisor’s AlphaThis research isn’t an exact science. Potential value added relative to “average” client experience (in percentage of net return) is as follows: Investment coaching may add 1.50%; rebalancing your portfolio may add 0.35%; asset location between taxable and tax-advantaged accounts may add up to 0.75%; low-cost funds may add 0.45%; and tax-smart retirement spending may add up to 0.70%. It’s not added over a specific time frame but can vary each year, and according to your situation. It can be added quickly and dramatically—especially during times of a rapidly rising or falling market, when you may be tempted to abandon your well-thought-out investment plan—but it may be added slowly.

Notes:

  • Please remember that all investments involve some risk. Be aware that fluctuations in the financial markets and other factors may cause declines in the value of your account. There is no guarantee that any particular asset allocation or mix of funds will meet your investment objectives or provide you with a given level of income.
  • Advisory services are provided by Vanguard Advisers, Inc. (VAI), a registered investment advisor.

 

Online Retirement Planning Calculators Measure Risk Poorly, Study Finds

If you are retired or are nearing retirement, the main questions on your mind are probably “Will I run out of money in retirement?” and “Will I be able to maintain my standard of living?” For answers, people often turn to free online retirement calculators that gauge how much users will need to save to achieve their retirement objectives, based on details about their finances.

elder law nyc

But how well do these calculators account for the inherent risks in retirement, such as how long you will live, how your investments will perform, what the inflation rate will be, and health care and long-term care costs? Not very well, according to a 2009 study by the Pension Research Council.

“We conclude,” the study’s authors write, “that on the whole, the tools do not highlight nor address retirement risk particularly well; rather, they mainly mask risk.”

The authors, retirement experts Anna M. Rappaport and John A. Turner, reviewed the available research on five leading Web-based calculators to see how they handle post-retirement risks. The calculators they looked at were Fidelity’s Retirement Income PlannerAARP’s retirement planning calculatorMetLife’s calculatorthe U.S. Department of Labor’s calculator and T. Rowe Price’s Retirement Income Calculator.

In their working paper “How Does Retirement Planning Software Handle Post-Retirement Realities?” Rappaport and Turner conclude that while the calculators “can provide a rough idea of whether the user is on target for retirement,” all inadequately assess the risk of running out of money.

For example, one calculator determines income sufficiency based on average life expectancy and overlooks the very real chances of living longer than the average. Another assumes that everyone, even if not married, receives the same Social Security benefits. Several do not permit calculations to take spouses into account. Among the authors’ other findings:

  • None of the consumer calculators they evaluated treat inflation as a risk, instead assuming that inflation is constant over the retirement period analyzed.
  • None treated expected medical and long-term care expenses as a risk factor or alerted users to the potentially huge impact such expenses could have on retirement plans.
  • Few have checks on inconsistent or outlandish assumptions. For example, many programs permit the user to specify long-term risk-free rates of return of 10 or even 20 percent.
  • Some calculators do not ask users to indicate expected inheritances or other one-time receipts of assets, and some do not include the value of housing as a source of retirement income.
  • Several of the programs ignore taxes, leading users to conclude that they have more retirement resources than they actually do.
  • The calculators cannot take account of extreme events such as the recent financial crisis, in which housing values have fallen and mortgage rates have risen — at the same time that people are losing jobs.

The authors note that “consumers or financial professionals working with them could benefit from trying alternative programs and scenarios within each program.”

The study also looked at retirement planning software for financial planning professionals. The authors concluded that while these tools are more complex than their consumer counterparts, they still contain flaws.

Read Our Monthly Email Newsletter>

 

The Full Retirement Age Is Increasing

Full retirement age (also called “normal retirement age”) had been 65 for many years. However, beginning with people born in 1938 or later, that age gradually increases until it reaches 67 for people born after 1959.

The 1983 Social Security Amendments included a provision for raising the full retirement age beginning with people born in 1938 or later. The Congress cited improvements in the health of older people and increases in average life expectancy as primary reasons for increasing the normal retirement age. Click the image below for the “FULL RETIREMENT CALCULATOR” and get more information for the SSA.

Retirement Calculator
Full Retirement Calculator

Also, for Social Security benefits for the surviving spouse see this link: http://www.socialsecurity.gov/survivorplan/survivorchartred.htm#about

Regards, Brian A. Raphan

http://www.RaphanLaw.com   info@RaphanLaw.com