IRA TRAPS AT DEATH

IRA Owner Dies - What Happens? As IRA owners age, death of an IRA owner will become a frequent event. What challenges and decisions confront the beneficiaries, family members, and their professional advisors?

Our thanks go out to Attorney Robert Anderson of Marquette, who published a succinct summary of the decisions facing advisors and beneficiaries in a 2009 edition of the NAELA News. This newsletter will recap some of those decisions and problems that need to be confronted.

Owner Over Age 70-1/2. The issue here is the Required Minimum Distribution (RMD) for the year of death. The RMD for the year of death has to be taken by December 31 by the designated beneficiary if the owner had not taken his or her RMD prior to death.

Owner's RMD has to be taken by the beneficiary, and the beneficiary pays the tax regardless of stretch or rollover possibilities discussed below. Tax is paid by the beneficiary making the withdrawal. If there is more than one beneficiary, any beneficiary can make the required RMD withdrawal.

If RMD is not taken by December 31 of the year of death, a steep 50% penalty applies.

Is Disclaimer Advisable? Some estate planning attorneys use disclaimers as an active estate planning device. A disclaimer is legal action by the beneficiary to refuse to accept a property right (IRA account ownership) by a "disclaimer." A disclaimer has the effect of passing the property right to the contingent beneficiary, if one is named. If there is no contingent beneficiary, the disclaimed interest would pass to the owner's estate (which is usually not a good option).

Why Would A Beneficiary Disclaim? A disclaimer can transfer ownership of property to a younger or lower-tax beneficiary, which could save estate, gift or income taxes, depending on the family circumstances.

The disclaimer should be considered by beneficiaries and their advisors. However, note the requirements:

1) A qualified disclaimer must be made within nine months of death;
2) The disclaimant cannot receive any funds from the account before disclaiming, including the RMD.
3) A disclaimer can be made for the beneficiary's total share, a specific dollar amount, or a percentage;

Decisions in the Year After Year of Death. If not made before, there are certain decisions that need to be made before September 30 of the year after the year of death. First, and most common, is a spousal rollover. A surviving spouse can "rollover" a spouse' IRA into the survivor's own IRA. The survivor can designate new beneficiaries and obtain a new stretch payout option.

Why Would a Surviving Spouse Not Do a "Rollover"? One reason would be if the surviving spouse is under 59-1/2 and wants to start taking withdrawals. Another reason might be that the beneficiary is older than the owner and would have a less advantageous stretch option.

Keep in mind that the Five Year Rule is a default option in just about all situations. In smaller IRAs this might be a good choice.

September 30 Cleanup Deadline. The September 30 year after year of death deadline is important to get rid of unqualified beneficiaries, whose existence might taint the whole IRA and prevent utilizing the stretch. This can be done by paying off any non-individual beneficiary, such as a charity or estate. Remember all IRA distributions are subject to income tax at ordinary tax rates. It is advantageous from an income tax standpoint to delay distributions as long as possible and accumulate appreciation and income in the IRA account, income tax free. However, this can be done only if there are no "unqualified beneficiaries", which would be charities, estate or unqualified trusts. Only individual beneficiaries get the stretch. (Trusts can qualify if properly drafted.)

Conclusion. IRA accounts are an increasingly important part of family wealth. The death of an IRA owner requires consultation with professional advisors to make sure that the proper decisions are made on a timely basis. If your IRA account is important part of your estate plan, contact Jim Modrall, Priscilla Hirt, or Tom Pezzetti or any of the attorneys listed below.

BFAR is proud to announce the addition of Attorney Priscilla Hirt to its roster of qualified professionals. Priscilla has over 30 years experience in probate, trusts and estate planning in Southeast Michigan and brings the benefits of her knowledge and experience to the probate, estate planning and elder law practice of the firm.

Donald A. Brandt, Joseph C. Fisher, Thomas R. Alward, Matthew D. Vermetten, Susan Jill Rice, Gary D. Popovits, H. Douglas Shepherd, Laura E. Garneau, David H. Rowe and Nicole R. Graf at (231) 941-9660.

BRANDT, FISHER, ALWARD & PEZZETTI, P.C.
This newsletter is provided for informational purposes and should not be acted upon without professional advice.