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Chapter 1 — Introduction to the Use of Retirement Benefits in Estate Planning - Chapter 2 — Income, Estate, and Other Tax Considerations
- I. [2.1] Introduction
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II. Income Tax Considerations - [2.2] Overview
- [2.3] General Rule
- [2.4] Nondeductible Contributions
- [2.5] Calculation of Nondeductible Portion
- [2.6] Annuity Starting Date
- [2.7] Annuity Payments and Installment Payments
- [2.8] Nonperiodic Payments
- [2.9] Roth IRAs and Roth 401(k) Plan Accounts
- [2.10] Qualified Distributions
- [2.11] Contributions, Conversions, and Roth Rollovers
- [2.12] Rollover Treatment
- [2.13] Inherited IRA Treatment After the Pension Protection Act
- [2.14] Eligible Rollover Distribution
- [2.15] Capital Gains/Ten-Year Income Averaging
- [2.16] Net Unrealized Appreciation on Employer Securities
- [2.17] Annuity Contracts
- [2.18] Life Insurance
- III. Estate Tax Considerations
- IV. Generation-Skipping Transfer Tax Considerations
- V. Excise Tax Considerations
- VI. [2.26] Conclusion
- Chapter 3 — Minimum Distribution Rules: Methods and Elections
- I. [3.1] Introduction
- II. [3.2] Background
- III. Minimum Distribution Rules
- [3.3] Terminology
- [3.4] Distributions During Lifetime of Participant/Owner
- [3.5] Distributions After Death of Participant/Owner
- [3.6] Death Before Required Beginning Date
- [3.7] Death After Required Beginning Date
- [3.8] Determining the Designated Beneficiary
- [3.9] Multiple Beneficiaries
- [3.10] Roth IRAs
- [3.11] Minimum Distributions Under Retirement Annuity Contracts
- [3.12] TEFRA 242(b) Election
- [3.13] Rollovers
- Chapter 4 — Beneficiary Designations for Individual Retirement Accounts and Qualified Plans
- I. [4.1] Introduction
- II. Client’s Goals and Tax Factors
- [4.2] Client’s Goals in Planning for IRAs
- Tax Factors Affecting IRAs
- [4.3] Minimum Distribution Rules
- [4.4] Living Client
- [4.5] Year of Client’s Death
- [4.6] After Client’s Death
- [4.7] Designated Beneficiary
- [4.8] Trust as Beneficiary of IRA: The Trust Look-Through Rule
- [4.9] September 30 Date
- [4.10] Multiple Beneficiaries: The Separate Account Rule
- [4.11] Income in Respect of a Decedent
- III. Beneficiary Designations for IRAs
- [4.12] Beneficiary Designations for Married Client
- [4.13] Relinquishing Control of IRA to Surviving Spouse After Death: Spouse Is Outright Beneficiary of IRA
- [4.14] Retaining Control of IRA After Death: QTIP Trust Is Beneficiary of IRA
- “All Income” Requirement
- [4.15] In general
- [4.16] Revenue Ruling 2006-26
- [4.17] State principal and income acts
- [4.18] Drafting approaches to satisfy all income requirement
- [4.19] Simple approach: Pay all income out of IRA to surviving spouse
- [4.20] More complicated approach: Spouse may withdraw income from IRA
- [4.21] Evaluation of two QTIPing approaches
- [4.22] Naming a QTIP Trust as Beneficiary of an IRA
- [4.23] Income Tax Problem
- [4.24] Conduit Trust
- [4.25] IRA Itself Is a QTIP Trust
- [4.26] Alternative to QTIPing the IRA: Give IRA in Shares to Spouse and Children
- [4.27] Funding Bypass Trust with IRA
- [4.28] Disclaimer Approach
- [4.29] Client’s Revocable Trust or Testamentary Trust; Rule of Thumb
- [4.30] Pitfalls of Revocable Trust as Beneficiary of IRA
- [4.31] Postmortem IRA planning
- [4.32] Joint Trust Approach
- [4.33] Portability
- [4.34] Noncitizen Spouse
- [4.35] IRA as Community Property
- [4.36] IRA Participant Dies First
- [4.37] Spouse Dies First; IRA Participant Is Still Alive
- [4.38] Designating a Secondary Beneficiary
- [4.39] Beneficiary Designations for Unmarried Client
- [4.40] Charitable Giving with IRAs
- Outright Gift to Charity at Death
- [4.41] Entire IRA to Charity
- [4.42] Part of IRA to Charity; Percentage or Dollar Amount
- [4.43] Split-Interest Trusts
- [4.44] Regular Trust
- [4.45] Charitable-Remainder Trust Under Code §664
- Use of Beneficiary Designation Forms
- [4.46] Poorly Drafted Commercial Forms
- [4.47] Solution: Custom-Drafted Beneficiary Designation
- [4.48] Tax Apportionment Problems
- IV. [4.49] Beneficiary Designations for Qualified Plans
- V. [4.53] Roth IRAs
- Chapter 5 — Naming a Trust as a Beneficiary
- Chapter 6 — Charitable Giving with Retirement Plan Assets
- I. Introduction
- II. [6.3] Income in Respect of a Decedent
- III. [6.4] Required Minimum Distribution Rules
- IV. [6.5] Different Types of Charitable Organizations
- V. Lifetime Gifts to Charity
- VI. Basic Testamentary Gifts to Charity
- VII. [6.17] Testamentary Gifts to Charity Through an Estate or Trust
- [6.18] Trusts and Estates with Charitable and Noncharitable Beneficiaries and the Required Minimum Distribution Rules
- [6.19] Prohibiting Certain Uses of Retirement Benefits
- [6.20] Charity Is Remainder Beneficiary
- [6.21] Conduit Trust
- [6.22] Form of Conduit Trust
- [6.23] Trust Income Tax Issues
- [6.24] No DNI Deduction for Income Distributed to Charity
- [6.25] The Separate Share Rule
- [6.26] Trust Requires Funding Charitable Gift with Retirement Benefits
- [6.27] Trustee May Choose Funding
- [6.28] Pro Rata Distribution Required
- [6.29] Assignment of Entire Plan
- [6.30] Distribution to Charity in Year Other Than Year of Receipt of Proceeds by Trust
- [6.31] Charitable-Remainder Trusts
- [6.32] Credit-Shelter Charitable-Remainder Trusts
- [6.33] Charitable Lead Trusts
- VIII. Postmortem “Planning”
- IX. Miscellaneous
- X. [6.39] Bibliography
- Chapter 7 — QDROs and Spousal Rights
- I. [7.1] Introduction
- II. Qualified Domestic-Relations Orders
- [7.2] QDROs — The Exception to ERISA Spendthrift Provisions
- [7.3] Overview of Applicable Law and Guidance
- [7.4] Effective Date of QDRO Rules
- [7.5] Employee Benefit Plans to Which QDROs Apply
- [7.6] Alternate Payees
- [7.7] QDRO Requirements
- [7.8] Administrative Procedures for Qualification
- [7.9] DOL Interim Final Regulations
- [7.10] Subsequent DROs
- [7.11] Timing of DROs
- Plan Features To Consider in Drafting QDROs
- [7.12] Defined-Contribution Plan
- [7.13] Retroactive Assignment Dates in Defined-Contribution QDROs
- [7.14] Defined-Benefit Plan
- [7.15] Divorce Decree as a QDRO
- [7.16] Pitfalls to Qualification
- [7.17] QDRO After Death of Participant
- [7.18] Contrary Beneficiary Designations
- [7.19] QDRO Modification
- [7.20] Bankruptcy of Participant
- [7.21] Receipt of Benefits
- [7.22] Dividing the Benefit — Shared Payment or Separate Interest
- [7.23] Taxation of Benefits
- III. Qualified Retirement Plan Obligations Regarding Spouses
- IV. Benefits Issues for Domestic Partners
- V. Sample Forms
- Chapter 8 — Special Considerations for ESOPs
- I. What Is an ESOP?
- II. Transactions with ESOPs
- [8.5] 1042 Rollover of Sale Proceeds
- [8.6] Requirements
- [8.7] Qualified Replacement Property
- [8.8] Disposition of Qualified Replacement Property
- [8.9] Planning with Qualified Replacement Property
- [8.10] Selection of Qualified Replacement Property
- [8.11] Charitable Gifts
- [8.12] Family Limited Partnerships
- [8.13] Grantor-Retained Annuity Trusts
- [8.14] Charitable-Remainder Trusts
- [8.15] Noncharitable Gifts
- Using an ESOP To Transition Ownership of a Family Business
- [8.16] Transition Within a Family
- [8.17] Transition to Management Control
- III. Distributions from ESOPs
- IV. Forms
- Chapter 9 — Retirement Plans and Creditor Protection
- I. [9.1] Introduction
- II. [9.2] Applicable Bankruptcy Laws
- III. [9.3] Basics of Asset Protection in Bankruptcy
- IV. Retirement Plans and the Bankruptcy Estate
- V. Application of the Bankruptcy Code to Retirement Plans
- VI. [9.14] Retirement Plans and the Illinois Debtor
- VII. Spouse’s Rights Under Retirement Plans
- VIII. [9.19] Conclusion
- Chapter 10 — The Efficacy of IRA Planning and Investments: Allocating Assets Between Taxable and Tax-Deferred Accounts
- Chapter 11 — Advanced Estate Planning with IRAs
- I. Use of Individual Retirement Accounts in Family Limited Partnerships
- [11.1] Introduction
- [11.2] DOL Adv.Op.Ltr. No. 2000-10A
- [11.3] Prohibited Transactions
- [11.4] The Strategy in a Nutshell
- [11.5] Comparison of an IRA and an IRA That Has Invested in an FLP
- [11.6] Definition of “Disqualified Person” Under the Internal Revenue Code
- [11.7] Application of Code Definitions
- [11.8] Consequences of Engaging in a Prohibited Transaction
- [11.9] Unrelated-Business Taxable Income
- [11.10] Self-Dealing
- [11.11] Nutshell Review
- [11.12] Conclusion
- II. [11.13] Restricted Management Accounts
- Chapter 12 — Handling Individual Retirement Accounts and Qualified Plans After the IRA Owner or Participant Is Deceased
- I. [12.1] Introduction
- II. Administering IRAs and Qualified Plans at Death
- Options of Surviving Spouse as Outright Beneficiary of Decedent’s IRA or Qualified Plan
- [12.2] Spouse Is Beneficiary of Decedent’s IRA
- [12.3] Spouse Rolls over Decedent’s IRA to Spouse’s Own IRA
- [12.4] Spouse Remains as Beneficiary of Decedent’s IRA
- Spouse Is Beneficiary of Decedent’s Interest in Qualified Plan
- [12.5] Lump-Sum Distribution Necessitates Spousal IRA Rollover
- [12.6] Avoiding Ten-Percent Penalty Tax for Withdrawing Property from Spouse’s IRA Before Age 59½
- [12.7] Net Unrealized Appreciation in Employer Securities
- [12.8] Disclaimer of Part of IRA by Spouse To Fund Bypass Trust
- Collecting Assets After Death
- [12.9] Consolidating Multiple IRAs into Single IRA
- [12.10] Moving IRA Account to Different Financial Institution After IRA Owner Is Deceased
- [12.11] IRA’s Required Minimum Distribution for Year of Death Was Not Withdrawn
- [12.12] How the Minimum Distribution Rules Work: An Explanation in Plain English
- [12.13] What Is a “Designated Beneficiary” for Purposes of the Minimum Distribution Rules?
- [12.14] The IRA Has More than One Beneficiary
- [12.15] The Beneficiary of the IRA Is a Trust
- How the Minimum Distribution Rules Work, Viewed Chronologically
- [12.16] Client Is Alive and Under Age 70½
- [12.17] Client Dies Before Age 70½
- [12.18] Client Is Alive and over Age 70½
- [12.19] Client Dies After Age 70½
- [12.20] The Beneficiary Dies
- Revocable Trust as Beneficiary of Decedent’s IRA
- Income in Respect of a Decedent
- [12.21] Traditional IRA
- [12.22] Avoiding Recognition of IRD When Forced To Fund Pecuniary Amount Trust with IRA
- [12.23] Revocable Trust Is Undesirable Beneficiary Designation
- [12.24] Postmortem IRA Planning To Obtain Designated Beneficiary
- [12.25] Rollover to Spouse’s IRA When Revocable Trust (and Not Spouse) Is Beneficiary of Decedent’s IRA
- [12.26] Estate Tax Apportionment Against IRA
- [12.27] Multiple Owners of IRA After Death of Client
- [12.28] Noncitizen Spouse
- [12.29] Special-Needs Beneficiary
- [12.30] IRA as Community Property
- [12.31] IRA Grantor Dies First
- [12.32] Spouse Dies First; IRA Grantor Is Still Alive
- [12.33] Disproportionate Allocation of Community Property IRA
- [12.34] Qualified Plans
- III. Administering IRAs After Death
- IRA as Asset of Irrevocable Trust — In General
- [12.35] Educating IRA Custodians That Decedent’s IRA May Be Owned by Series of Trusts, Individuals, and Estates
- [12.36] Trust Accounting for Principal and Income When IRA Is Asset of Trust
- Determining Trust Accounting Income from IRA
- [12.37] Trust instrument
- [12.38] State law
- [12.39] 2000 Uniform Principal and Income Act
- [12.40] Other state statutes, including Illinois
- Trust Accounting Income of IRA Will Be More or Less Than Required Minimum Distribution
- [12.41] For calendar year, trust accounting income of IRA is greater than required minimum distribution
- [12.42] For calendar year, trust accounting income of IRA is less than required minimum distribution
- [12.43] Creditor Protection
- IRA as Asset of Irrevocable Trust — QTIP Marital Trust
- [12.44] “All Income” Requirement
- [12.45] Conduit Trust
- IV. [12.46] Appendix
- Chapter 13 — Roth IRAs
- I. [13.1] Overview of Roth IRAs and Roth Conversions
- II. Creating a Roth IRA — The Basics
- III. Advantages and Disadvantages of Roth IRAs Compared with Traditional IRAs
- IV. [13.10] Distributions from a Roth IRA
- V. [13.15] Converting Various Retirement Assets to Roth IRAs
- [13.16] Traditional IRA to Roth IRA
- [13.17] Benefits
- Typical Conversion Methods
- [13.18] Rollover
- [13.19] Trustee-to-Trustee Transfer
- [13.20] Same-Trustee Transfer
- [13.21] Types of Funds That May Be Converted
- [13.22] Converted Distributions Are Still Taxable
- [13.23] Determining What Amount To Convert
- Employer Plan to Roth IRA
- [13.24] Types of Eligible Employer Plans
- [13.25] Timing
- [13.26] Subsequent Distributions of Conversion Contributions
- [13.27] Roth IRA to Roth IRA
- VI. [13.28] Taxable Distributions Within Five Years of a Roth Contribution or Conversion
- VII. [13.33] Planning Strategies for the Year of Conversion
- VIII. Recharacterization
- IX. [13.37] Conclusion
- Chapter 14 — Postmortem Planning
- I. [14.1] Introduction
- II. [14.2] Why Postmortem Changes Are Needed
- III. [14.3] First Steps After Participant’s Death
- [14.4] Contact the Plan Administrator
- [14.5] Review the Beneficiary Designation
- [14.6] Assess Disclaimer Possibilities
- [14.7] Distribute RMD for Year of Death
- [14.8] Sixty-Day Rollovers
- [14.9] General Rule
- [14.10] Exceptions to the Rule
- [14.11] Hardship Waiver
- [14.12] No-DB Status Postmortem
- [14.13] Waiver Considerations
- IV. [14.14] Critical Postmortem Dates
- V. [14.15] Spousal Options/Spousal Rollover
- VI. [14.16] Disclaimers
- [14.17] Disclaimer Rules
- [14.18] Year-of-Death RMD and Partial Disclaimers
- [14.19] Using Disclaimers in Postmortem Planning
- [14.20] Multiple Disclaimers
- [14.21] Eliminating a Trust
- [14.22] Using Exemption
- [14.23] Younger Beneficiaries or Beneficiaries That Qualify as DBs
- [14.24] Disclaimer by Estate
- [14.25] Exercise Care When Exercising Disclaimers
- VII. [14.26] Separate Accounts
- VIII. [14.30] Pay out Non-DBs and Older DBs
- IX. [14.31] Renunciation and Elective Share
- X. [14.32] Reformation
- XI. [14.33] Trusts as Plan Beneficiaries
- XII. [14.39] Planning Prior to Death
- Chapter 15 — Nonmarketable Investments in IRAs
- Index
- List of Forms
- Svetlana V. Bekman
Svetlana V. Bekman
Svetlana V. Bekman is a senior trust attorney at the Legal Department of The Northern Trust Company in Chicago. Prior to joining The Northern Trust Company, Ms. Bekman was a partner in the Private Clients Group of Schiff Hardin LLP. She speaks and publishes articles and chapters on various aspects of IRAs and other retirement plans. Most recently, she wrote an article entitled IRA Administration for High Net Worth Clients and Their Beneficiaries — Unique Challenges and Best Practices for Financial Institutions for the ACTEC Law Journal, and spoke on “Protecting Inherited IRA Assets From Creditors” at the Annual Estate Planning Short Course for the Illinois Institute for Continuing Legal Education. Ms. Bekman received her law degree from the Northwestern University School of Law and served as a clerk to the Honorable Elaine E. Bucklo (U.S. District Court for the Northern District of Illinois).
- Jane Gorman Ditelberg
Jane Gorman Ditelberg
Jane Gorman Ditelberg is Assistant General Counsel and Senior Vice President at The Northern Trust Company in Chicago. As a member of Northern Trust’s Legal Department, she provides legal counsel to the bank in its role as executor, trustee, and guardian. She is a Fellow of the American College of Trust and Estate Counsel (Committees on Amicus Briefs (Vice Chair), State Laws, Employee Benefits, and Diversity and Inclusivity). She is a member of the Chicago Bar Association, where she served on the Task Force for the Illinois Trust Code and as Chair of the Estate and Gift Tax Subcommittee, and of the Chicago Estate Planning Council. She is a frequent author and lecturer on a wide range of estate and tax planning topics for groups including ACTEC, IICLE®, the Heckerling Estate Planning Institute, and the University of Notre Dame Estate Planning Conference.
- Mary C. Downie
Mary C. Downie
Mary C. Downie is Executive Vice President and Assistant General Counsel at The Northern Trust Company, in Chicago, where she advises Northern Trust, as trustee and in its corporate capacity, on complex legal, fiduciary, and regulatory issues involving trusts, decedents’ estates, and guardianship estates. She is a Fellow of the American College of Trust and Estate Counsel since 2008 and a member of the American Bankers Association. Ms. Downie received her B.A. summa cum laude from Albion College, where she was a Fellow, and her J.D. magna cum laude from the University of Illinois Chicago School of Law, where she was a member of the Law Review.
- Hugh F. Drake
Hugh F. Drake
No bio available.
- Robert S. Held
Robert S. Held
Robert S. Held, a partner at Harrison & Held, LLP, is a litigator who represents corporate and individual fiduciaries – as well as beneficiaries – in complex estate and trust disputes. Rob’s published articles include “Temporary Guardians Are Not Always Temporary,” an article published by the Illinois State Bar Association which concerns an appellate court’s failure to exercise jurisdiction over guardians who are appointed temporarily but who serve substantially longer than the statutory limit of 120-days. Mr. Held is a board member for Chicago Appleseed Fund for Justice and is the Past Chair of the Chicago Bar Association’s Federal Taxation Committee. He received his B.A. from the State University of New York at Buffalo, his M.B.A. from Eastern New Mexico University, and his J.D. from DePaul University.
- MacKenzie A. Hyde
MacKenzie A. Hyde
Mackenzie A. Hyde is a Partner at Clark Hill PLC in Chicago, where she focuses on estate and trust litigation. She is a member of the Trust & Estate Section Council of the Illinois State Bar Association and was featured in Crain’s Chicago Business’s Notable Women in Law in September 2022. Ms. Hyde received her B.A. summa cum laude from the University of Arizona and her J.D. from the Loyola University Chicago School of Law.
- Sally D. King
Sally D. King
No bio available.
- Steven R. Lifson
Steven R. Lifson
Steven R. Lifson is a retired Partner with Seyfarth Shaw LLP, in Chicago, and concentrated his practice on employee benefits and ERISA. Mr. Lifson is a member of the ESOP Association; the National Center for Employee Ownership; and the American, Illinois, and Chicago Bar Associations. Mr. Lifson obtained his undergraduate degree with honors from Boston University. He received his J.D. from the University of Illinois College of Law and his M.S. with honors from the University of Illinois Chicago College of Law.
- Kenneth F. Lorch
Kenneth F. Lorch
Kenneth F. Lorch, a Partner in the firm of Hamilton Thies & Lorch LLP in Chicago, concentrates his practice in business and financial planning and estate administration. Mr. Lorch is on the Professional Advisory Committees of the Lincoln Park Zoo, Jewish Federation of Chicago, and Chicago Community Trust. He has received the Chicago Bar Association’s David C. Hilliard Award for Outstanding Service to the Legal Community, has been selected an Illinois Super Lawyer since its inception, and has been selected an Illinois Leading Lawyer since 2001. Mr. Lorch is a member of the Chicago Bar Association, the Chicago Estate Planning Council, and the Chicago Council on Planned Giving and is admitted in Illinois as a certified public account. He received his B.S.B.A. from Washington University in St. Louis and his J.D. from The John Marshall Law School.
- Rita E. Luce
Rita E. Luce
Rita E. Luce is a Partner at Harrison & Held, LLP, in Chicago, concentrating her practice in estate planning and estate and trust administration. She is rated AV Preeminent by Martindale-Hubbell and is included in the Bar Register of Preeminent Women Lawyers, and she has given numerous speeches and presentations to bar association groups, continuing legal education programs, law schools, financial planners, brokers, and social clubs. Ms. Luce received her B.S. from Michigan State University and her J.D. cum laude from Chicago-Kent College of Law.
- Stephanie M. Radliff
Stephanie M. Radliff
No bio available.
- Jay P. Tarshis
Jay P. Tarshis
Jay P. Tarshis is a Partner at Arnstein & Lehr LLP in Chicago, where he concentrates his practice on estate planning and administration, taxation, and general corporate law. Mr. Tarshis has been selected a Leading Lawyer and frequently speaks on tax, estate planning, asset protection, family wealth planning, and related issues. He is admitted to the bars of the State of Illinois, U.S. District Court for the Northern District of Illinois, and the U.S. Tax Court. Mr. Tarshis received his B.S. from Northwestern University and his J.D., cum laude, from the University of Illinois College of Law.
- Ryan A. Walsh
Ryan A. Walsh
Ryan A. Walsh is a Partner at Hamilton Thies & Lorch LLP, in Chicago, where he concentrates his practice on estate planning and trust and estate administration. Mr. Walsh is a member of the Chicago Estate Planning Council, the American Bar Association (Section of Taxation, Section of Real Property, Trust and Estate Law, Estate and Gift Tax Committee Vice-Chair), the Illinois State Bar Association (Federal Taxation Section Council and Trusts and Estates Section), the Chicago Bar Association (Trust Law Executive Committee), and the American Cancer Society Planned Giving Sub-Committee. He was named an Illinois Super Lawyer Rising Star in 2012, 2013, and 2014. He received his B.S. from the University of Notre Dame and his J.D. magna cum laude from Loyola University Chicago School of Law, where he was a staff editor of the Loyola University Chicago Consumer Law Review.
- Steven B. Weinstein
Steven B. Weinstein
Steven B. Weinstein founded the independent investment advisory firm Altair Advisers LLC in Chicago in 2002 after nearly two decades with Arthur Andersen. He is a member of the CFA Society Chicago, the Chicago Estate Planning Council, and the Economic Club of Chicago. He has been named one of Barron’s top 100 independent financial advisers, a Worth magazine top wealth adviser, and one of Chicago Magazine’s top 10 financial advisers. He received his B.A. with distinction, Phi Beta Kappa, from Stanford University and his J.D. cum laude and M.B.A. with distinction from Northwestern University.
- Mary-Ann Wilson
Mary-Ann Wilson
Mary-Ann Wilson is a Partner at Harrison & Held, LLP, in Chicago, where she concentrates her practice in estate planning and estate and trust administration. She is a member of the Chicago Estate Planning Council and has been recognized as a Leading Lawyer in estate planning (2006 – 2015). She presented Buy-Sell Agreements and Sales Strategies for Succession Plans and Other Estate Planning Techniques Uniquely Applicable to Small Businesses at IICLE®’s BUSINESS SUCCESSION PLANNING FOR THE FAMILY BUSINESS course (2010 and 2011). Ms. Wilson received her B.A. from Brown University and her J.D. from the University of Denver Sturm College of Law, where she was a member of the Law Review and the Order of Coif.
Retirement Benefits Issues in Estate Planning (ARCHIVED 2012 EDITION)
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