Planning Options and Consequences for Retirement Plans

Posted on

May 07, 2016

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There are several types of qualified retirement plans (QRP) including: 1. Employer plans such as defined benefit plans that are funded by the employer with no contribution by the employee (401(k), 403(b) and 457(b)), and defined contribution plans that are funded by contributions from the employees wages; and, personal retirement plans such as the traditional IRA, Roth IRA, SEP-IRA and Inherited IRA.

QRPs defer the income tax owed until distributions are made. The Roth IRA rules are different because Roth IRAs are considered post-tax contribution and are exempt from income tax upon distribution. This Article is limited to the rules governing QRP excluding the Roth IRA rules. The law governing the QRP imposes penalties if money is withdrawn before the owner is age 59 (typically a 10% penalty) or when the owner fails to make the Required Minimum Distribution (RMD) from the QRP before the last day of the year the owner turns 70 (50% penalty). The amount of the RMD is determined by a calculation based on the owners life expectancy.

Beneficiaries of QRP are treated differently for the surviving spouse compared to a non-spouse beneficiary. A spouse beneficiary can Rollover the QRP into a new or existing QRP owned by the surviving spouse that is paid out based on the surviving spouses life expectancy. Non-spouse beneficiaries are not permitted to do a Rollover, instead the QRP is converted into an Inherited IRA that has a different set of rules and RMDs. In 2014, the U.S. Supreme Court ruled in Clark v. Rameker that Inherited IRAs are not retirement funds and thus are not an exempt asset in bankruptcy and are available to pay the beneficiaries creditor claims. To avoid the risk that the Inherited IRA could be consumed by the beneficiaries creditors or for other estate planning reasons, the QRP owner may create a trust as beneficiary with special QRP terms. The QRP owner should work with an estate planning attorney to create a trust that contains special provisions dealing with QRP. A trust drafted to receive QRP funds can have subtrusts for the benefit of different beneficiaries.

Editors Note: This article was submitted by Jennifer S. Gormley, JD, LLM an attorney with the Law Office of Jennifer S. Gormley, P.C. who can be reached at 303-783-9600 or by email at info@elderlawsource.com.

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