Over the years, you listened to your financial planner and put money aside for retirement. You took advantage of tax-deferred growth1 by maximizing contributions into employer-sponsored retirement plans. You generated sizeable wealth within your qualified accounts during your long career. You thought about whether to leave assets outright or in trust for your beneficiaries and made sure the beneficiary designations on your qualified accounts aligned with your estate planning documents.
Then the SECURE Act passed. Now what?
While the pre-SECURE Act rules are grandfathered and apply to retirement accounts of decedents who passed away before January 1, 2020, many of these rules don't apply to the retirement accounts of individuals who are still alive. Therefore, it is important to review your estate plan and see what, if any, changes may be needed.
How the SECURE Act impacts required minimum distributions
Although the SECURE Act helped improve retirement security for many Americans, it took away the ability for many beneficiaries of IRA accounts, upon inheriting them, to take distributions throughout the course of their lifetimes. Pre-SECURE Act, beneficiaries could stretch required minimum distributions (RMDs) over their life expectancy, while allowing the remaining balance to potentially grow tax-deferred in an inherited IRA account. Younger beneficiaries typically benefited the most as their longer life expectancies meant comparably lower RMDs each year. Now, most beneficiaries must withdraw the balance within a 10-year period2, which accelerates the income tax due and may impact your legacy goal intentions.
A hypothetical example of retirement assets left outright to children
A parent died in December 2019 at age 72 with a $1 million IRA and her 3 children, ages 47, 43, and 40, were named as beneficiaries. Each child inherited 1/3 of the account and will be required to withdraw approximately $9,000, $8,200, and $7,650, respectively, as the RMD, based on their life expectancies3, in the first year after inheriting the IRA. The stretch provisions result in 1) smaller distributions, as compared to the mother's RMD of approximately $65,000 in the year of her death, with the smallest calculated for the youngest child, 2) less of an annual tax impact, and 3) more of the account to continue to potentially grow income tax-deferred.
However, if the parent died in 2020, post-SECURE Act, all 3 children must withdraw the balance of the inherited IRA within a 10-year period4, regardless of their ages, resulting in accelerated income tax impacts and the loss of potential tax-deferred growth throughout their lifetimes. The children could generally pursue 3 options:
Option 1: Vary the amounts withdrawn each year or withdraw the entire balance of $333,333.33 (each) in one year.
Option 2: Spread it evenly over 10 years by withdrawing $33,333.335 to try and manage the tax impact in any given year in relation to their overall situation.
Option 3: Take various amounts each year based on their specific tax bracket in a given year.
Regardless of which option they choose, they must withdraw the entire amount by the 10th year. The cumulative tax impacts over the 10-year period could be much larger than the tax impacts of the life expectancy calculation, particularly when the beneficiary's other income is considered.
Leaving IRA assets outright versus in trust
Why would an IRA owner leave retirement assets to a trust rather than outright to a beneficiary? The IRA owner may be concerned that the beneficiary, upon inheriting the IRA, will deplete the assets immediately or not set aside funds to cover the taxes that might be due. As such, many people find the idea of leaving IRA assets to a trust, rather than to individual beneficiaries, appealing because they can include language in the trust directing when and how the assets can be distributed to the beneficiaries of the trust. The trust can also provide additional benefits, such as asset protection from creditors and centralized asset management.
See-through trust rules
Pre-SECURE Act, a trust needed to meet "see-through" requirements to ensure a retirement account held under a trust would qualify for life expectancy stretch provisions. There are 4 requirements to qualify as a see-through trust:
Post-SECURE Act, there is some uncertainty as to whether the "see-through" rules will apply because they were not specifically addressed in the SECURE Act legislation. If they do, the IRA assets must be withdrawn within a 10-year period, except under limited circumstances7. If the see-through rules do not apply, the IRA assets will need to be withdrawn within a 5-year period.
Conduit vs. accumulation trusts
Over the years, conduit and accumulation trusts have both been used to defer income tax payments by stretching distributions over a beneficiary's life expectancy. However, this tax benefit can only take place if each trust qualifies as a see-through trust under the Internal Revenue Code. The primary difference between the 2 trusts is whether the beneficiary or the trust would be responsible for the income taxes payable on the distribution.
Conduit trusts are designed to pay out all distributions, including RMDs, to the trust beneficiaries, with the beneficiaries paying the income taxes on the distributions. Pre-SECURE Act, if drafted properly, the trust would look to the life expectancy of each specific beneficiary and ensure the beneficiary's share of any RMD paid to the trust is distributed to that beneficiary.
Essentially these distributions would continue for the beneficiary's lifetime. The way conduit trusts work— with assets passing out of the inherited IRA, into the trust, and then out to the beneficiary—has not changed post-SECURE Act. However, the impact of the SECURE Act is such that all of the inherited IRA assets would be distributed to the beneficiary within 10 year period of time8. If the trust is a non-see-through trust, the period or time-frame is 5 years.
If we refer back to our prior example, all 3 children will still have to receive their respective share of the inherited IRA, even if it is held under a conduit trust. They will have the trust benefits of asset protection and tax deferral for as long as the assets remain in the IRA. Any withdrawals taken from the IRA will be paid outright to each of them through the trust. This may be contrary to the IRA owner’s original intent of leaving the retirement assets to a trust, with the expectation that small distributions will be made from the IRA, through the trust, and out to the beneficiary each year.
Historically, conduit trusts were used in 2 key ways: 1) to allow for beneficiaries to stretch out their payments over their lifetime while having the trustee maintain as much of the assets in trust as possible for control, and 2) for asset protection. Now, conduit trusts no longer protect assets from creditors or the beneficiaries themselves outside of the 10-year period unless the beneficiary is an eligible designated beneficiary.
Another potential pitfall: The specific language of the conduit trust may limit the trustee to make distributions based on the required minimum amount. Pre-SECURE Act, these required distributions were based on the life expectancy of the beneficiary. However, post-SECURE Act, depending on who the identifiable beneficiaries are, there may only be one required minimum distribution, which would be at the end of the 10-year period.
Referring back to our example, if the trustee is limited to only making distributions of the required minimum amount, the children will receive their entire share of the IRA in the 10th year. This could result in a large tax bill in year 10, at higher marginal rates, particularly as their other earned income for that given year is considered. The language in the trust could limit the ability of a beneficiary to manage their tax liabilities within the 10-year time frame.
Accumulation trusts differ from conduit trusts in that they provide the trustee with discretion in determining whether to pay out or retain any distributions taken from the inherited IRA. This flexibility allows for assets to remain in trust protected from any outside creditors. It also alleviates the IRA owner's concern of having beneficiaries receive assets either too soon or in too large an amount.
It is important to understand what your estate plan establishes and if it is properly structured to reflect your wishes for your heirs. For example, if inherited IRA assets are left to an accumulation trust and all 3 children are named beneficiaries of the trust, the trustee may then reinvest these assets within the trust and determine when and how to pay out the assets to the named beneficiaries based on the terms of the trust itself. If 2 of the 3 children are careful with their finances and one is not, the trustee may decide to distribute the assets to the 2 "responsible" children and retain the third child's share in trust with distributions being made at the sole discretion of the trustee.
However, accumulation trusts can likely trigger additional income taxation, particularly if the distributions from the IRA are retained in the trust. Trusts are taxed at compressed tax brackets and reach the top effective income tax rate sooner than individuals. For example, in 2021, a trust will reach the top effective income tax rate of 37% at income over $13,050, compared to an individual filer reaching the 37% bracket with over $523,601 of annual income or a married couple who files jointly reaching the 37% bracket with over $628,301 of annual income.
Eligible designated beneficiaries and exceptions to the "new" general rules
Like all general rules, there are some exceptions. Under the SECURE Act, if you are considered an eligible designated beneficiary (EDB), the 10-year payout does not apply, and the EDB can stretch payments out over the EDB’s lifetime, with some further exceptions. EDBs include surviving spouses, minor children of the original IRA owner (until the age of majority), disabled or chronically ill individuals, and beneficiaries who are no more than 10 years younger than the original IRA owner. Some EDBs may qualify for life expectancy stretch payouts provided the trust qualifies as a see-through trust. Otherwise the distribution time-frame would be accelerated to 5 years.
The stretch provision can also be used if the assets are held under a conduit trust for the surviving spouse's benefit, provided that the spouse is the only named beneficiary. Distributions can be stretched out over the spouse's lifetime, with RMDs beginning at the later of 1) the year after the year of the owner's death, or 2) when the owner would have been 72. Upon the surviving spouse's death, the remainder beneficiaries are subject to a 10-year payout period. If one or more of the remainder beneficiaries are minor children of the original owner, the 10-year payout will begin once the oldest minor reaches the age of majority. If separate shares can be created, 10-year payout periods begin as each minor reaches the age of majority.
IRA assets must be distributed within 10 years if the trust is structured as a conduit trust and the current beneficiaries are the surviving spouse and non-EDB children, or if the trust is structured as an accumulation trust9. But if the trustee retains assets in the trust, this may result in adverse tax implications.
Second marriages and inherited IRAs
What about second marriages or blended families? As a hypothetical example, let's consider a spouse who has adult children from a previous marriage and would like to leave his $1 million IRA to them while also providing for his second wife. He can leave his IRA to a conduit trust for the benefit of his spouse and name his children as remainder beneficiaries of the trust. The IRA would make distributions to the surviving spouse based on her life expectancy and, upon her death, the assets would pass to his children with the requirement that they be distributed from the IRA within 10 years. Post-SECURE Act, the children could potentially inherit an asset that is worth less as the taxation on the IRA is accelerated over 10 taxable years as compared to the pre-SECURE stretch provisions.
The importance of trust planning
Trust planning for retirement assets is still an effective tool even under the SECURE Act. If an IRA owner plans to leave retirement assets to trust, it is important to determine how to make this strategy work, based on their legacy wishes. For example, how important is control and asset protection compared to minimizing tax exposure? Are the beneficiaries able to handle large distributions? Answers to these questions can help influence the choice between a large outright distribution in a shorter period of time and tax deferral.
In summary, the SECURE Act changed the rules that govern the application of how qualified assets must be distributed to the trust beneficiaries. There is still ambiguity as to how the rules surrounding "see-through" trusts will apply post-SECURE Act. The IRS did not specifically address these in the regulations nor have they issued any clarifying guidance since. With any new law, it is important to review your estate plan with your tax advisor and estate planning attorney to help ensure that its outcome is aligned with your intentions.