structuring special needs trusts as ira beneficiaries...
TRANSCRIPT
Structuring Special Needs Trusts as IRA
Beneficiaries: Avoiding Tax Traps in Funding
SNTs With Retirement Accounts
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Evan H. Farr, CELA, Partner, Farr Law Firm, Fairfax, Va.
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Structuring Special Needs Trusts as IRA Beneficiaries
Presented by:Evan H. Farr, CELA, CAP
4-Time Best-Selling AuthorCertified Elder Law Attorney and CAPVirginia and DC Metro Super LawyerTop Lawyer – Washingtonian and Northern Virginia MagazinesNamed in Best Lawyers in AmericaMartindale-Hubbell Top RatingAvvo Top Rating 10/10 “Superb”Creator of the Living Trust Plus™ Asset Protection System
Evan H. Farr, CELA, CAP
10640 Main Street, Suite 200
Fairfax, VA 22030
703-691-1888www.FarrLawFirm.com
Additional Offices in Fredericksburg, VA; District of Columbia; and Rockville, MD
Why are IRAs and other Qualified Plans so
Important?
• Over $28 Trillion in Qualified Plans as of end of 2017 per https://www.ici.org/pdf/ten_facts_iras.pdf;
• Approximately $9.2 Trillion in IRAs;
• Second most popular account in households behind checking account;
• Comprise a large percentage of personal wealth;
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Why are Special Needs Trusts so Important?
SNTs avoid many of the costly mistakes people make when planning for achild with special needs, such as:
• Disinheriting your child
• Relying on your other children to provide for child with special needs
• Failing to provide privacy for the child with special needs
• Inheritances = over-resources
• Personal Injury settlements = over-resources / spending all the funds at young age, leaving child destitute later in life
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Criteria for Eligibility
– Generally < or = $2,000 Resources for SSI
(varies by state for Medicaid)
– Sometimes Low Income• SSI
• Health Insurance Medicaid
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Benefits of SNTs
– Protects eligibility for government benefits
i. Required to be disregarded as available income and
resources for eligibility purposes
ii. Assets in SNT are NOT owned by the beneficiary
iii. No transfer penalty period for funding the SNT
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Benefits of SNTs, continued
• Provides for a higher quality of life
• Provides framework for care and management of
assets
• Allows the parent to express his/her desires for child
with special needs (Memorandum of Intent)
• Protects assets from creditors and predators
• Extends life of assets
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Two Types of Special Needs Trusts
1. First-party SNT
• Self-settled Trust
• 1396p(d)(4)(A) Payback Trust or
• Pooled or (d)(4)(C) Trust
2. Third-party SNT
• Funded by parent or grandparent or other third-party
• No payback required
• This is the subject of today’s presentation
Third-Party Special Needs Trusts
• Can direct corpus at death of the beneficiary to
any individual (no payback requirement).
• Not described in any federal statute; technically falls under POMS SI 01120.200.B.1., which defines a “discretionary trust” as “a trust in which the trustee has full discretion as to the time, purpose, and amount of all distributions. The trustee may pay all or none of the trust as he or she considers appropriate to, or for the benefit of, the trust beneficiary. The trust beneficiary has no control over the trust.”
• Designed to supplement, rather than supplant, government benefits for which the individual is otherwise eligible (SSI and Medicaid)
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Why Create Third-Party Special Needs Trusts?
• Improves the quality of life of an individual with
disabilities
• Medicaid has no right of recovery / No
payback requirement
• Can be Inter-Vivos or Testamentary
• Can be for the benefit of an individual of any
age
• At death of the beneficiary, any remaining
money can go to other family members
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Drafting Practices
• A 3rd party SNT must be inaccessible by the
beneficiary.
• A revocable 3rd party SNT is allowed and often
preferred (greater flexibility) so long as the
beneficiary does not have access to the trust
assets.
• Provisions that enhance flexibility:
– Trust Protector
– Trust Advisory Committee
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Drafting Practices
• The advantages of the trust being revocable to
the grantor:
– Changes can easily be made
– No tax return required
– Income, if any, are taxed to the grantor
– Assets get a step up in basis upon the death of the
grantor (example – trust holding real estate)
• The disadvantage of the trust being revocable to
the grantor:
– Other family members may be reluctant to contribute to
a revocable SNT
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Special Allowance for Military Families
• Military retired generally pay stops upon death of the
retiree.
• The Survivor Benefit Plan (SBP) allows a retiree to direct,
after death, a continuous lifetime annuity for their
dependents. The annuity is based on a percentage of
retirement pay.
• With the passage of the National Defense Authorization
Act of 2015, Congress finally allowed military members to
name third-party SNTs as beneficiaries of Survivor Benefit
Plans (SBP).
• This means that a military retirees can direct their SBPs to
a child with special needs without compromising the
child’s ability to access SSI and Medicaid.16
What Laws Govern IRAs?
• Federal Law:
– IRC §408 and §408A – Requirements
– IRC §401 – Distribution Rules
– Private Letter Rulings, Revenue Rulings, etc.
– Other Tax Law – Income Tax, Estate Tax, GST
– Federal Bankruptcy Law
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What Governs IRAs Post-Death?
▪ Wills control probate assets
▪ Trusts control trust assets
▪ IRAs and qualified retirement plans are controlled by
beneficiary designation form or default provisions of
contract
▪Estate? Surviving Spouse?
▪Per Stirpes? Per Capita?
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Advantages of Making IRAs Payable to a Trust
▪ Special Needs beneficiaries
▪ Spendthrift protection
▪ Creditor protection (IRA funds held in a trust can
provide ongoing creditor protection for the beneficiaries;
directly inherited IRAs are NOT subject to creditor
protection – see Clark, et ux v. Rameker, 134 S.Ct.
2242 (2014), holding that inherited IRA are not
“retirement funds”)
▪ Divorce protection
▪ Re-marriage protection
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Post-Death IRA Issues
▪ Post-death RMDs based on whether “designatedbeneficiary” exists
• Generally only “individuals” with quantifiable lifeexpectancy can be “designated beneficiaries”
• Spouse, Child, Grandchild• Parent, Sibling, Niece/Nephew• Friend
• But with proper drafting, a trust can qualify bylooking through to the underlying trustbeneficiaries
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Permissible “designated beneficiaries”:▪ Individuals▪ See-though trusts (in order to be treated as a “see-through
trust” and qualify as a designated beneficiary, the trust must meet 4 very specific requirements, as stipulated in Treasury Regulation 1.401(a)(9)-4, Q&A-5:• Must be irrevocable or became irrevocable when the
account holder died;• Must be valid under state law;• The trust’s underlying beneficiaries must all be
identifiable as being eligible to be designated beneficiaries themselves;
• A copy of “trust documentation” must be provided to the IRA custodian by October 31st of the year following the year of the IRA owner’s death.
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Defining Designated Beneficiaries
• If these four tests are met, then the trust is a Designated
Beneficiary.
• These four conditions are easily satisfied except for the
multiple beneficiary rules.
• If there are multiple beneficiaries, none are deemed to be a
Designated Beneficiary, unless all of the beneficiaries are
individuals. Treas. Reg. § 1.401(a)(9)-4 Q&A (3).
• If all of the beneficiaries are individuals, then the RMD is
based on the life expectancy of the oldest beneficiary.
• Therefore, there is in essence a fifth requirement – drafting
the trust so it is possible to determine the identity of the
oldest beneficiary, and ensuring only individuals are
beneficiaries of the trust.
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Defining Designated Beneficiaries
Please Note that a “see-through” trust and a “conduit trust,” though often confused, are two different things.
• A see-through trust sees through the trust to the individual who is the designated beneficiary, effectively turning the trust into a designated beneficiary;
• A conduit trust is one that distributes RMDs to the named beneficiary as opposed to an accumulation trust that accumulates RMDs inside the trust.
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Defining Designated Beneficiaries
Options When Spouse Inherits an IRA
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• Option 1: Roll over the inherited assets into your own Traditional IRA, so both the amount and the timing of required minimum distributions (RMDs) are based on your own age.
• Preserves some creditor protection.• Option 2: Transfer your inherited assets to an Inherited IRA
• The timing of the initial distribution may be based on your spouse's age at the time of his/her death. If your spouse was:
• Older than age 70½, you must begin taking RMDs by December 31 of the year following your spouse's death.
• Younger than 70½, you may be able to delay RMDs until your spouse would have turned 70½.
• Transferring your assets to an Inherited IRA may be advantageous if you are not concerned about creditor protection issues and are:
• Older than your spouse and your spouse died before age 70½, since this option would allow you to delay taking the RMDs until the year your spouse would have turned age 70½.
• Younger than age 59½ and you need access to these assets immediately, since you would not be subject to a 10% early withdrawal penalty.
Options When Non-Spouse Person Inherits an IRA
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• Option 1: Roll over the inherited assets to an Inherited IRA account and begin taking required minimum distributions by December 31 of the year following the account owner's death.
• Option 2: Take a cash distribution of your share of the inherited amount. In order to do so, the assets must first be transferred to you via an Inherited IRA.
• Note that this will have tax consequences, as the amount will be included in your gross income.
• Note: If the decedent was 70½ or older at the time of death, any RMD amounts due prior to or during the year of death cannot be rolled over; the beneficiary must generally withdraw the appropriate amount by December 31 of the year the original owner died. The RMD amount is distributed to the beneficiary under the beneficiary’s SSN in the year of death, but is based on the original owner's RMD schedule.
Options When Trust Inherits an IRA
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• When the beneficiary is a trust and the trust qualifies as an IRS-defined see-through trust, the trust's oldest beneficiary may then be deemed to be the IRA's designated beneficiary for RMD calculation purposes and that beneficiary's life expectancy is then used in the calculation.
• Four Requirements for a see-through trust:• Trust is valid under state law
• Treas. Reg. § 1.401(a)(9)-4, Q&A 5(b)(1)
• Trust is irrevocable upon death of owner• Treas. Reg. § 1.401(a)(9)-4, Q&A 5(b)(2)
• Beneficiaries of the trust are identifiable from the trust instrument
• Treas. Reg. § 1.401(a)(9)-4, Q&A 5(b)(3)
• Documentation requirement is satisfied• Treas. Reg. § 1.401(a)(9)-4, Q&A 5(b)(4)
Life Expectancy
Rule
Five-Year Rule
Death Before Required
Beginning Date
Death On or After Required
Beginning Date
Designated
Beneficiary
Non-
Designated
Beneficiary
“Ghost” Life
Expectancy Rule
Foundation Concepts
Life Expectancy
Rule
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Payout of IRA Funds After Death
Types of IRA Trusts
▪ Conduit trusts
▪ A trust in which all distributions (RMDs and any
other distributions/withdrawals) from the IRA are
required to be distributed to or for the benefit of
the trust beneficiary, and cannot be accumulated
by the trustee
▪ Generally does not work for a Special Needs
Trust because the distributions will knock the
beneficiary off of SSI and Medicaid.
▪ Accumulation trusts
▪ A trust in which distributions from the IRA are
allowed to accumulate within the trust
▪ Stronger asset protection than a conduit trust28
PLRs on the Subject of IRA Trusts
• PLR 201021038 shows how the typical provisions of a family revocable trust, inserted to obtain maximum flexibility, can defeat the Participant’s goal to stretch the IRA.
• In this ruling, the Internal Revenue Service rejected a post-mortem reformation of a trust and concluded that the designated beneficiary of an IRA must be identifiable on the IRA owner’s date of death.
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PLRs on the Subject of IRA Trusts
• PLR 201203033 shows what must be addressed to enable a family trust to qualify as a conduit trust to permit a spousal rollover and permit children to transfer their shares to inherited IRAs.
• This PLR also shows how retirement benefits payable to a trust can qualify for the stretch out notwithstanding a broad power of appointment exercisable in favor of a class of permissible appointees, along with a charity as the ultimate beneficiary.
• This PLR allowed the use of a release of a Power of Appointment to preserve the “stretch-out” of RMDs over a beneficiary’s life expectancy.
• This PLR provides a good road map for cleaning up a problem trust.
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PLRs on the Subject of IRA Trusts
• PLR 201210045 reinforces the necessity to comply with the
“separate account” rule when naming of the beneficiaries of
an individual’s IRA account.
• This PLR describes an IRA whose only named beneficiary is
a trust, with the deceased IRA owner’s spouse and two
children named as the trust’s beneficiaries.
• Upon the taxpayers’ request, the IRS granted each the option
to set up an inherited IRA. For required minimum distribution
purposes, all were required to use the life expectancy of the
spouse, the oldest beneficiary of the trust.
– The spouse was able to use the uniform lifetime table for
calculating distributions.
– The two children had to use the single life expectancy
table for calculating distributions.31
PLRs on the Subject of IRAs Going into SNTs
• Can an SNT taxed as a grantor trust for income tax purposes be an IRA beneficiary?
• PLR 200620025 says yes – it’s okay to transfer an inherited IRA to a First-Party SNT. Does not help with Third-Party SNTs, which is today’s topic.
• PLR 200826008 says it’s okay to transfer a minor’s beneficiary share of decedent’s IRA to a grantor trust.
• But…
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PLRs on the Subject of IRA Trusts
• PLR 201117042 says no when the Participant wanted to transfer his IRA to an SNT that was a grantor trust for income tax purposes.
• There is a legitimate IRS rationale. The rationale is that IRAs while owned by the original account holder are considered "retirement funds," whereas inherited IRAs are not considered retirement funds because the person inheriting the IRA did not save that money for retirement.
• It is because an inherited IRA is not a "retirement fund" that it is allowed to be assigned to a grantor trust.
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Possible Option for Estates with Large IRAs
and a Disabled Child
• Asset Allocation: Sometimes a client can allocate assets in
such a way so that only non-IRA assets are payable to the
SNT.
• In the case of a client who has both a disabled child and one
or more non-disabled children, and who has a significant
amount of both retirement and non-retirement assets, the
non-retirement assets alone can be distributed to the SNT
for the disabled child and the retirement assets get
distributed to the non-disabled child or children (or a conduit
trust for their benefit).
• This will result in the RMDs being taxed at the non-disabled
child’s individual income tax rates.
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Disadvantages of IRAs Payable to an SNT
▪ If a client’s portfolio makes it impossible to equalize
assets among heirs without naming an SNT as an IRA
beneficiary, the SNT must be structured as an
accumulation trust and the RMD will therefore be paid
to the SNT and will not be distributed out to the
beneficiary.
▪ More compressed Trust tax rates
▪ Legal and trustee fees
▪ Greater complexity -- managing an SNT and an
inherited IRA.
▪ Trust income tax returns
• 1041
• K-135
Conduit Trusts as SNTs
Is a conduit trust appropriate for a
special needs beneficiary who is
receiving and depends upon means
tested government benefits (SSI and
Medicaid)?
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Conduit Trusts as SNTs
Generally NO.
Because the RMDs and other distributions
from the IRA must be distributed to or for
the benefit of the beneficiary of a conduit
trust, the conduit trust distributions would
likely cause the special needs beneficiary to
lose his or her benefits.
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Exceptions . . . When Conduit
Trusts as SNTs Make Sense
If loss of means tested benefits is not an
issue (perhaps the disabled beneficiary is on
SSDI and Medicare and merely needs help
managing his funds), a conduit trust could
be used to insure the benefits are paid over
the special needs beneficiary’s life
expectancy.
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Conduit Trusts as SNTs
In this case, trust should be drafted to give the trustee broad powers to invade the IRA for changing medical, psychological, and social needs of the special needs beneficiary.
Trust should also give the trustee power to spend down the assets, as opposed to continuing the stretch-out, if the receipt of SSI and Medicaid benefits would be of greater benefit to the special needs beneficiary.
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A Two-Trust Approach When
Using Conduit Trusts as SNTs
Trust 1: Conduit SNT to inherit IRA
Trust 2: Regular 3rd Party SNT to hold non-
retirement assets.
• If spend down of the Conduit SNT is needed
or simply occurs, the regular 3rd-party SNT
will then permit the special needs beneficiary
to qualify for and receive SSI and Medicaid.
• Can be drafted as a single trust with two
shares.
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IRAs Payable to Accumulation Trusts
▪ An “accumulation trust” is any trust that is not a
conduit trust, which means the trustee has the
power to “accumulate” plan distributions within the
trust.
▪ As the name implies, an accumulation trust permits
the trustee to accumulate (not distribute) RMDs and
other withdrawals to the beneficiaries.
▪ Trustee still must be able to “see through” the trust
and determine which beneficiaries will receive the
retirement account proceeds, i.e., who is considered
the Designated Beneficiary.
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Accumulation Trusts as SNTs
▪ The key issue in analyzing an accumulation
trust is to determine which beneficiaries are
“countable” for see-through purposes, to be
considered a Designated Beneficiary.
▪ All beneficiaries are generally countable
unless such beneficiary is deemed to be a
“mere potential successor” beneficiary.
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Identifying the Designated Beneficiary of a Trust
▪ In all of the PLRs on this topic, the trust qualified as a see-through Accumulation Trust with the RMDs based on the life expectancy of the oldest trust beneficiary.
▪ In each PLR, the IRS only considered the current beneficiaries and the first line then living remainder beneficiaries, assuming those remainder beneficiaries would still be living when the current beneficiaries died.
▪ The IRS looked at who would receive the remainder of the trust when the current beneficiary dies – based on individuals who were alive at the account owner’s death. The IRS ignored the fact that those contingent remainder beneficiaries could predecease the current beneficiary of the trust.
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Accumulation Trust Potential Problems
Problem: Charity Named as Contingent
Beneficiary
If a charity is named as a default contingent
beneficiary, the trust will fail as a see-through
trust because the charity is not an individual,
unless the trustee can convince the contingent
beneficiary charity to disclaim its interest by
9/30 of the year following the year of the
participant’s death.
See PLR 9820021. 44
Accumulation Trust Potential Problems
Problem: Heirs at Law Named as Contingent
Benes
If the account holder’s heirs at law are much
older than the intended trust beneficiary, the
payout could be over a much shorter time frame.
Recall, unless the separate share rule applies,
you must use the oldest beneficiary as the
measuring life.45
Accumulation Trusts Savings Clause
The “savings clause” on page 24 of the supplement
materials is for a lifetime trust for a child takes into account
non-individual beneficiaries, older beneficiaries, and
applies to both the power of appointment and default
remainder beneficiaries.
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Accumulation Trusts as SNTs
Accumulation trusts, where drafted as a
third-party SNT, usually work well for a
special needs beneficiary because the
trustee can be given sole discretion to
accumulate or distribute income or principal
over the special needs beneficiary’s lifetime
in a manner that will not cause the loss or
reduction of means tested benefits.
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Accumulation Trusts as SNTs
Drafting Tips:
1. DO name as remainder beneficiaries only those individuals who are younger or close in age to the special needs beneficiary.
2. DO NOT name a charity, the beneficiary’s estate, or other entity as a beneficiary
3. DO NOT include a Power of Appointment that can be exercised in favor of a charity, the beneficiary’s estate, or another entity.
4. DO NOT give the special needs beneficiary a limited power of appointment without restricting the power to be exercised only in favor of individuals younger than the special needs beneficiary as of the date of the account owner’s death.
5. DO NOT give the special needs beneficiary a General Power of Appointment because that may cause the entire IRA to be treated as an available asset, thereby causing a reduction or loss of means-tested benefits.
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Toggle Provision
• What if the you want to start with a conduit trust but you
recognize that the primary beneficiary’s situation could
change over time because of divorce or other asset
protection issues?
• Or you have a beneficiary with special needs or asset
protection issues now who could become fine later and
you don’t want him or her stuck with a trust that may lose
the maximum stretch-out advantage?
• The solution is to use a “toggle switch” (a technique
approved in PLR200537044).
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Toggle Provision
• With a “toggle switch,” a third party (not the
beneficiary), such as a Trust Protector, can change the
beneficiary’s trust –– for a limited period after the IRA
owner’s death –– from a conduit to accumulation, or vice
versa, depending on the situation, needs, and
circumstances of the primary beneficiary.
• This gives the trust the benefit of “20/20 hindsight,” as
opposed to the attorney always having to guess at the
drafting stage which type of trust is best for each
beneficiary.
• Still, most disabled beneficiaries are not going to get
better, so the accumulation trust is still most often used
with an SNT. 50
• IRA payable to multiple trusts
• Each trust or separate share of trust named in beneficiary designation form
• IRA paid over each separate trust beneficiary’s life expectancy
Separate Share Rule
51
• Payable to single trust
• No separate trusts or shares identified in the beneficiary
designation form
• IRA paid over oldest life expectancy
Separate Share Rule
52
• Ruling 1: Each Beneficiary’s Trust Share Qualified for Maximum Stretch-out.
– Upon the death of the Settlor, the IRA stand-alone trust creates separate shares for each beneficiary (in this case, separate shares for 9 beneficiaries), each trust share “treated effective abinitio to the date of the Decedent’s death” and each share functioned as a “separate and distinct trust” for the beneficiary.
– The beneficiary designation form named each separate share as a primary beneficiary of the IRA.
– Before the December 31st deadline, the IRA was divided into separate accounts for each share.
– Held: Separate account treatment permitted; MRD of the IRA for each separate trust share measured by the lifetime of its sole beneficiary for whom the share was created.
Separate Share Rule
PLR 200537044
53
• Ruling 2: Allowance of One-Time “Toggle” Between Accumulation and Conduit Trust.
– Each separate share in the IRA stand-alone trust had language structuring the separate share as a conduit trust.
– The trust provided for an independent 3rd party, as “trust protector” to transform each sub-trust to an accumulation trust in the trust protector’s sole discretion by voiding the conduit provisions ab initio.
– Trust Protector had the authority to limit the initial trust beneficiary ab initio.
– After Participant’s date of death, Trust Protector exercised “toggle” and converted one share to an accumulation trust.
– Held: Toggle allowed and each share can use that the life expectancy of its initial beneficiary to measure the MRD for that share.
Separate Share Rule
PLR 200537044
54
• Ruling 3: Payment of Expenses from IRA not considered an accumulation.
– The trust provided that “Trust expenses may be deducted prior to any such payment to or for the benefit of the beneficiary of the trust share if the deduction does not disqualify the status of the trust as a conduit trust. This paragraph may be rendered void, ab initio, by the Trust Protector. . .”
– Held: Each share can use that the life expectancy of its initial beneficiary to measure the MRD for that share.
– Why? Even with the deduction for payment of trust expenses, no amounts distributed to the trust during the beneficiary’s lifetime would be accumulated in the trust, and thus would not be kept in the trust for the benefit of any future beneficiaries. Treas. Reg. § 1.401(a)(9)-5 Q&A 7(c)(3), Example 2.
Separate Share Rule
PLR 200537044
55
• Ruling 4: The trust assets will not be included in the estate of the primary beneficiary of a share upon that beneficiary’s death.
– Each trust share would accumulate the net income of the trust, and distributions of income and principal could distribute accumulated income and principal to the primary beneficiary for his or her health, education, maintenance and support only.
– The document did not grant any beneficiary a general power of appointment over his or her share.
– Held: The provisions of the trust could not result in estate inclusion for the estate of a primary beneficiary upon his death.
Separate Share Rule
PLR 200537044
56
Resources on IRA Rules
• Life and Death Planning for Retirement
Benefits by Natalie Choate 2011- 7th Ed.
www.ataxplan.com
• www.irahelp.com (Ed Slott, CPA)
• Robert Keebler, CPA
www.keeblerandassociates.com
• IRS Publication 590
http://www.irs.gov/pub/irs-pdf/p590.pdf
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Resources on Estate Planning for
Special Needs Beneficiaries
• Estate Planning for a Family with a Special
Needs Child, Sebastian V. Grassi, Jr., Probate
and Property (July/August 2009)
• Estate Planning for a Family with a Special
Needs Child: Part 2 – Trusts as Beneficiaries
of Retirement Plan Benefits, Sebastian V.
Grassi and Nancy H. Welber, Jr., Probate and
Property (September/October 2009)
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Contact Information:
Evan H. Farr, CELA, CAP*
Farr Law Firm
(703) 691-1888
www.FarrLawFirm.com
Thank you for attending!
* Admitted in Virginia, DC, and Maryland
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