Dear Liza, I am the personal representative for my mother’s estate in Maryland. My mother, who is deceased, was the beneficiary of a small IRA. My mother’s estate is to be divided among her three grown daughters, myself included. Who pays the tax on the IRA when it is withdrawn? The beneficiaries (you and your sisters) will be responsible for the income tax due on the IRA when you withdraw it. You will each get what’s called an “Inherited IRA.” Check with your plan administrator to find out what your options are for those withdrawals. You probably will have to withdraw the money within five years of your mother’s death, you will definitely have to start withdrawing the money within the first year.
Category Archives: Retirement accounts
Dear Liza: I want to name my minor grandchildren as beneficiaries of my IRA account. How do I do that? Can I use my Will? It’s a smart idea to name minors as beneficiaries of your IRAs. Since they are young, they’ll be able to withdraw that money slowly over their life expectancy, and only pay taxes on the amounts withdrawn. But you are also correct in understanding that minors need some kind of property guardian or custodian named to manage those assets for them until they are 18–since minors can only own a minimal amount of property.
So, how do you do it?
Don’t try and name beneficiaries in your Will. It won’t work. Your Will is a legal document that governs the distribution of many of your assets, but NOT your retirement accounts. Those will pass only by the beneficiary designations on file with the plan administrator.
Here are the ways that I would advise you to let them know what you want them to do:
You can just name the minor as a beneficiary. Then, if you die while that child is a minor, their parent will need to ask the probate court in their county to name a Property Guardian to manage that account until the child is 18. (The property guardian could be the parent.) In some states, if the IRA is small enough, no property guardian need be appointed, but that will vary state to state. This isn’t ideal, since going to court takes time and some money for filing fees and it ends when the child turns 18 (at which point the money is theirs to manage and spend).
Alternatively, you can name a custodian under your state’s Uniform Transfer to Minor’s Act, which will make that person the custodian for those assets up to a certain age (21 in many states: 25 in others). A beneficiary designation like this would read, “Alan Smith, as custodian for Jane Smith, under ___’s Uniform Transfer to Minors Act to age 25.” Custodial accounts are inexpensive and easy to open at banks and brokerage accounts and end at 21 or 25 (usually), which is older than 18.
Finally, you can name a trust created for that minor as the beneficiary. That way, the trust will manage the money for that child and can last as long as you’d like it to last. A designation like this would read, “Trust created for the benefit of Jane Smith, under the SMITH FAMILY TRUST, under Agreement dated _______.” Trusts can have whatever terms you’d like to use and can last as long as you’d like them to last. IRA withdrawal rules are complicated when a trust has more than one beneficiary, so it’ s not a do-it-yourself project. Their main disadvantage is cost — you’ll have to work with an attorney to draft them.
If the plan administrator doesn’t have a form that makes it easy to name a custodian or a trust, you can do it anyway. Just attach a beneficiary designation form to their form, and make sure that they provide you with confirmation that your wishes have been properly received.
Dear Liza: I’ve read that I could create a trust for my children in a Will, then name that trust as a beneficiary of my retirement account. That way, as I understand it, my successor Trustee could manage those retirement assets for my children until they grow up. But if I do that, will my estate have to go through probate before that trust can be established? Yes, in order to establish a trust that’s created by a Will, your estate would have to go through probate first. What you are describing is called a ‘testamentary trust’ because the trust is created by a Will. The order issued by the court at the end of the probate will incorporate the terms of that trust.
To avoid probate altogether, you should use a living trust to create a trust for the benefit of your children, and put your assets in that trust before you die. You can name that trust as a beneficiary of your retirement account, and, after your death, the successor Trustee will work with the plan administrator for that retirement account to transfer the assets into the trust for your children. That being said, if your children are over eighteen, it’s easier to name them directly as beneficiaries, rather than work through the medium of a trust–which has a slightly different set of rules for how the required minimum distributions are calculated.
Dear Liza: I am trying to prepare a living trust on behalf of my father. He owns his home and vehicles outright and also has two bank accounts. I am the POD beneficiary of all of his accounts, as well as being a secondary signer on his checking and savings accounts. My confusion comes from not knowing what assets should be put in the living trust. Should it just be the home, since that has the highest value? Or should the cars and bank accounts also be included? Or can everything but the house be designated in the pour-over will that I also intend to create? Your father’s living trust has just one purpose: to allow his estate to avoid probate upon his death. If your father’s assets are owned by the trust, not by him, when he dies, then his estate won’t need to go through probate. Not all items are subject to probate, though: retirement accounts, life insurance policies and bank accounts with designated beneficiaries (that’s what a POD account is), go directly to the named beneficiary. Cars can be transferred via the DMV, and so don’t need to go through probate either. So, for your Dad, that leaves his house. You should transfer legal ownership of the house to his trust by filing a trust transfer deed with the county. When you record the deed, you’ll also need to file a Preliminary Change of Ownership Form (PCOR). This form tells the county assessor what kind of transfer just happened; the assessor wants to know if they can raise property taxes on that property, which they can’t, because a transfer to or from a living trust is NOT a change of ownership under Proposition 13. That pour-over Will is just a backup for your Dad. If he doesn’t transfer his house to the trust, and then dies, the Will says transfer whatever property he owned at death to this trust (that’s the pour-over part). But, if the value of that property is more than $150,000, you’ll need to go through probate to make the transfer. Put another way, the Will makes sure that all of your father’s assets get distributed as directed by the trust, but it won’t help his estate avoid probate first.
Dear Liza: Do you have any recommendations on naming children as secondary beneficiaries for life insurance/investments? Why, as a matter of fact, I do! If your children are minors (under 18 in most states), your estate plan should establish some way of managing money for them until they are old enough to handle money responsibly. This is usually accomplished by creating a trust for them until a certain age, say twenty-seven. Until then, you would name a trustee to manage and distribute the child’s assets for them; after that, the money’s theirs to manage and invest. If you have created a living trust, you would name that trust as the beneficiary for your life insurance and the secondary beneficiary for your retirement accounts — that way, the money will be available to your children, but be managed by your trustee.
You can instead use a Will as your main estate planning document and your Will can set up exactly the same structure of a trust for children managed by a trustee until the children reach a certain age. However, if you use a Will, your estate will go through probate BEFORE the trust for the kids can be funded (don’t worry, the kids will have access to your estate during the probate process). Think of this as two roads to the same place — one road (the living trust) just gets you there faster.
If, however, you name minor children directly as beneficiaries on those forms, and you die while they are still minors, a guardian of the estate will have to appointed to manage these assets, and, when a child reaches the age of 18, they money will be all theirs.
If your children are adults, you can and should name them directly. It makes it easier for them to deal with these assets after your death and there are special advantages to doing this with respect to retirement accounts.
Dear Liza: My father just died. He left his Roth IRA to ten family members, thrilled to be leaving us with a long-term retirement investment. But two of the beneficiaries are under 18, and our credit union is saying that the minors can’t keep the Roth IRA, but have to cash out their shares and open custodial accounts. That’s not what my Dad would have wanted. Are they right? Yes, most likely. Here’s the deal: a minor can inherit property, but under state law, minors can’t control that property until they’re legal adults. In California, where I practice, a minor cannot own more than $5,000 without some form of legal control and management by an adult, like a property guardianship, a custodial account, or a trust for that minor’s benefit. A property guardian is appointed by the court, and may be a child’s parent or any person nominated by the parent. The guardianship terminates when the child becomes a legal adult — 18 in my state, but this varies by state law as well. So, check with your credit union to see if they’d permit you to keep those accounts under a property guardianship to age 18. If so, it may be worth it to you get yourself appointed as property guardian. Alternatively, cash those accounts out, open up a custodial account at the credit union, and don’t let those kids touch that money. When the custodial accounts end (25 in my state; varies by state law), make them open up IRA’s with the money because that was your father’s wish. You can’t legally require that they do so, but you can make them feel really, really guilty if they don’t.
Dear Liza: My husband just died. Our main asset is his IRA. I just found out that my husband named our living trust as the beneficiary, not me. The guy at the brokerage account where the account is held told me that this is a big problem and that I will not be able to roll my husband’s IRA into my own IRA, but will instead have to take money out based on my husband’s age. My husband was 12 years older than I am, so this means I have to take a lot more out, sooner, than I want to, and pay taxes on it before I’m ready. Is that guy right? Oh argh. I hate it when brokerage guys scare people like that. I also hate it when clients don’t follow the instructions that their lawyers give them. (Of course, lots of lawyers don’t actually tell their clients what to do, so who knows exactly where the instructions got garbled here). So, ideally, your husband should have named you as the beneficiary for his IRA, not the trust. That would have made it easier all around. Spouses can rollover IRA’s from their spouses, and that lets them defer taking any money out until they are 70 1/2–which is exactly what you want to do. But here’s the thing: people get this step wrong a lot. And the IRS has issued rulings that say that if certain conditions are met, such as the surviving spouse being the only beneficiary of the trust during his or her lifetime, they will permit the rollover, even though it’s not exactly by the book. Here’s what you should do: go on the brokerage company’s website and search for estate services or inheritance specialists. The big companies all have special offices that help heirs deal with inherited assets. Those people know the rules and they know about this exception procedure. Give them a call and see if they will assist you in accomplishing the rollover. Forget about the first guy you spoke with. In his defense, the rules are complicated and it’s hard to keep them straight. Talk to the experts. But keep in mind that it’s up to the plan administrator to decide how this gets resolved — the IRS sets out the regulations, but companies can and do differ in what they offer to their clients.
Dear Liza: My father recently died. My mother died years ago. I just assumed that I’d be the beneficiary of my father’s IRA, and I paid all of the funeral costs and other costs associated with my father’s death. Altogether, that came to about $8,000. When I contacted the IRA plan administrator, they told me that I wasn’t the beneficiary. They wouldn’t even tell me who the beneficiary was! Turns out it is my uncle. Can I open a case in probate court to challenge this? That should be my money. I hate to be the bearer of bad news, but you really can’t go to court to challenge this unless you think there is something fraudulent about the beneficiary designation that named your uncle (for example, the signature was forged or your father was forced to do it). And even then, it wouldn’t be a probate matter, as assets passing by beneficiary designation don’t go through probate. Your father had the right to name anyone he pleased as the beneficiary of his IRA. Maybe he named his brother long ago, and just forgot to change it to you. That happens sometimes. But whatever reason he had, the money goes to the named beneficiary, period. You might appeal to your uncle’s good nature and sense of fairness, but you can’t obligate him to share.