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January 09, 2017 at 01:39 PM
A recent Forbes post explored the idea of establishing a “conduit trust” for a non-spousal IRA beneficiary, usually an adult child. In the article, an attorney recommended such a trust from a creditor protection standpoint relative to the IRA beneficiary.
In June of 2014, the Supreme Court ruled a non-spousal inheritance of an IRA isn’t protected as “retirement funds” relative to the non-spousal beneficiary. Therefore, inherited IRA funds may be seized in a bankruptcy action. If adult child creditor protection is a desired IRA benefit, the knee-jerk reaction is to possibly go the trust route. While attorneys are famous for recommending trusts, for many people, a simple joint and survivor immediate annuity (SPIA) will do the trick and any old annuity agent can get this going.
A simple SPIA avoids many of the mechanical issues associated with actually getting the trust in action after the IRA owner dies.
Trusts face many issues, including:
- Will the IRA have any actual value to be placed in trust at the time of the owner parent’s death?
- Will the trust be the actual beneficiary when IRA owner parent dies?
- Can the trustee produce the necessary investment results over many decades to yield the desired income?
- Will the trustee be able to avoid dissipation events significantly reducing the trust value or bring the balance to zero?
- What about incapacitation of the trustee? Is there a comparable alternative who can serve?
- While inherited property is exempt from marital property claims (see Uniform Marital Property Act 1983), under pressure from the beneficiary’s marriage, trust assets via ad hoc liquidations could be slowly converted over time to marital property.
A SPIA avoids all the above because, the contract is guaranteed by the carrier and the parties are irrevocable. Thus, the mechanics of the contract aren’t subject to all the issues outlined above. In this respect, the carrier acts as the de-facto trustee and the SPIA contract acts as the de-facto trust. So, in addition, there are no trustee proficiency and or continuation issues, and of course no attorney’s fees. The survivor benefit portion of the contract stays securely in the adult child’s separate property estate.
Potential drawbacks
Are there some possible problems with the annuity arrangement? Yes, of course.
If the survivor (adult child) predeceases the IRA owner (not too likely), the IRA owner is stuck with the same income rate. In some cases, this can be modified by an income “pop-up” to the surviving IRA owner. Upon the death of the adult child, annual IRA owner household income will increase to what the IRA owner’s single life annuity rate would have produced on the annuity purchase date but not for the survivor benefit (income) election.
The adult child has to be insurable and there is an initial annual premium cost for this benefit lowering overall household income. However, this premium cost would not be so substantial vs. a traditional life insurance premium because there is a lower likelihood of the adult child predeceasing the IRA owner as well as the IRA owner living a long enough duration to collect the additional monthly income to bring him/her up to the higher singe life annuity rate.
Also, there is no chance to name a new beneficiary to take the deceased adult child’s place. The SPIA pays a set an annual income unless priced and issued with an annual cost of living adjusment benefit.
Some annuity agents are not aware that a properly constructed IRA SPIA meets all the RMD requirements for maximizing the annual SPIA income for both the IRA owner parent and the eventual non-spousal IRA recipient when the IRA owner parent dies.
Advisors who want to work with qualified money SPIA cases should be careful to understand the implications of the DOL’s fiducary rule. (Photo: iStock)
So, how much annual income can such a contract produce? It will depend on several factors. SPIA current purchase rates reflect the attained age of both the IRA owner and the adult child, while the IRS age tables consider the IRA owner and the adult child ages on 12/31 in the year of purchase. Per the IRS table for this survivor benefit, the adult child’s maximum survivor benefit ranges from 100 percent to 52 percent (28 possible reductions) of the IRA owner’s benefit.
