Working the System – Parents Giving Up Custody of Their Kids to Get College Financial Aid

Aunt Becky’s legal woes arose from her efforts to get her children into the University of Southern California. However, for many families, the problem isn’t getting their kids into a college of their choice, the problem is paying for it.

Some enterprising parents in Illinois reportedly have given up custody of their children to help them get college scholarships. According to a news story at Probublica online, dozens of wealthy families in Illinois have given up legal guardianship of their children so the teenagers can claim dramatically lower incomes and earn need-based financial aid.

When the guardianship proceeding is completed — usually during junior or senior years of high school — students are able to declare themselves financially independent on college applications. In one instance detailed by the Wall Street Journal, a student whose parents owned a $1.2 million home only had to declare $4,200 in income from a summer job. That student was able to obtain about $47,000 in scholarships and federal Pell grants to attend a private university that costs $65,000 per year.

The practice is legal, but the United States Department of Education is looking into the matter. And some universities are pushing back against the practice, reducing university-based financial aid awards to some students.

The article notes that laws in Illinois governing the transfer of legal guardianship are broadly written and that as long as the parents, children and the court agree, a judge can approve the transfer even if parents are able to financially support their kids. It’s not clear if the tactic has been tried in other states.

You can read the entire Propublica article here.

How Will the SECURE Act Affect Your Retirement Savings?

Having passed the US House of Representatives and now moving quickly through the US Senate, the SECURE (Setting Every Community Up for Retirement Enhancement) Act appears to be on its way to soon becoming law. The SECURE Act will make numerous changes to how money is contributed to, and withdrawn from retirement accounts. While many of the Act’s provisions are administrative in nature, that is, they deal with the way retirement plans are administered, several provisions will directly affect retirement savings and withdrawals. Here are some of the more important ways the SECURE Act could affect your retirement savings:

First, the Act pushes back the time when retirement savers must begin taking distributions from their IRAs and other retirement accounts. Under current law, a person is required to begin taking retirement account distributions at age 70½, whether or not he or she wants to. The SECURE Act will push the age when required distributions must begin to age 72. This means that retirement savings may continue to grow untouched and untaxed for another year and a half before distributions must begin.

Next, the SECURE Act eliminates the age restrictions on IRA contributions. Americans are living and working longer. However, under current law a person may not contribute to an IRA after age 70½, even if still working. Under the SECURE Act, a person may continue to contribute to an IRA after age of 70½ if still working.

Finally, the SECURE Act changes the required minimum distribution rules with respect to IRA and other retirement account balances upon the death of the account owner. Under the Act, distributions to individuals other than the surviving spouse of the account owner, disabled or chronically ill individuals, individuals who are not more than 10 years younger than the account owner, or child of the account owner who has not reached the age of majority, are generally required to be distributed by the end of the tenth calendar year following the year of the account owner’s death.

Under current law, a non-spouse beneficiary of an IRA or defined contribution-type retirement account [such as a 401(k) or 403(b) account] may elect to “stretch” distributions from an inherited retirement account over his or her remaining life expectancy. For younger beneficiaries, this means that the remaining account balance has a longer time to grow tax deferred before being withdrawn, and the amounts withdrawn may be taxed at lower rates. The SECURE Act will accelerate distributions from inherited retirement accounts, reducing the time horizon for tax deferred growth and increasing the taxes that must be paid on the larger withdrawals.

This change will have an impact on beneficiary designations and estate plans, especially those situations in which a trust is named as a beneficiary of a retirement account.

Insofar as the SECURE Act will affect retirement saving and distributions in these and other ways, readers should plan to meet with a qualified legal or financial professional to determine the best way forward under the Act should it become law.

If you don’t have an attorney or financial planner, but would like to work with one, please give me a call. I can help.

DIY Estate Planning – Another Cautionary Tale

“I don’t need a lawyer. I don’t have an estate, just have a house and some bank accounts. My family can help me out, and look, here’s a form I found on the internet I can use. What can go wrong?”

Yet time and again, what appears to be a simple and effective way to avoid some legal fees ends up creating a legal quagmire costing tens of thousand of dollars to remedy. Do-it-yourselfers mostly turn to family members or the internet for help. A recent case out of Macomb County Probate Court gives us another example of just how “well” that can turn out:

In mid-2016, Martin met with several members of his family for the purpose of preparing his last will and testament. The meeting was attended by Martin’s brother, John, John’s son Paul, John’s daughter Elise, and Martin’s niece, Theresa.

John downloaded and printed a will form off the internet, and Elise completed the fill-in-the-blank form according to Martin’s instructions. The form provided that all of Martin’s assets were to be distributed equally among Martin’s 3 siblings. The family members also discussed the status of Martin’s bank accounts. After completing the form, the group went to Comerica Bank so Martin could sign the will before a notary. While there, Martin and Theresa also signed new signature cards for each of Martin’s 6 accounts at the bank to give Theresa access to the accounts as the family explained to Martin. Unfortunately, Martin died about 4 months later.

As you may have guessed, a dispute arose after Martin’s death over ownership of the Comerica bank accounts, a dispute which ended up in the Macomb County Probate Court.

At trial, Theresa asserted the funds belonged to her as the surviving joint owner. According to Comerica, signing the new cards by Martin and Theresa established them as joint owners of all 6 accounts (containing about $680,000). Martin’s niece, Elise, now personal representative of Martin’s estate, countered that the funds belonged to the estate for distribution to his siblings per the terms of Martin’s will. Martin had discussed this with the family and that certainly was his understanding and intention when he added Theresa onto the accounts. Following a bench trial, the probate judge sided with Elise that the money belonged to Martin’s estate.

Not satisfied with the probate court loss Theresa appealed to the Michigan Court of Appeals, which again sided with Elise and Martin’s estate. The court opined that although creation of the accounts in Martin and Theresa’s names was prima facia evidence of Martin’s intention to vest title of the accounts in Theresa’s name upon his death, Elise was able to overcome Theresa’s prima facia case that Theresa was entitled to survivor rights to Martin’s accounts. The court noted that Martin did not seek independent counsel and was advised only by his family. Further, the evidence at the trial showed Martin discussed creating “convenience accounts” with his family members and may have mistakenly believed that by adding Theresa as a co-owner, she was only going to be a signer on the accounts, which was consistent with what Martin and his family discussed.

Nothing is simple and straightforward when it comes to estate planning or any other legal matter. You may think you are doing one thing, but the result is something completely unexpected, which can lead to disastrous, and costly, results. (Imagine what it cost in legal fees to settle Martin’s mess.) You should look to family members for a referral, not legal advice. Yes, attorneys cost money, but you are paying for their expertise and advice, which can save you or your family much more in the long run.

Engage knowledgeable legal counsel whatever your problem. Work with an attorney you trust. Don’t be afraid to spend some money up front for good legal advice to save a lot more money later on.

The case is In re Estate of Martin Langer. You can read the full opinion of the Michigan Court of Appeals here.

UTMA Account Seized in Bankruptcy – What Can We Learn?

Uniform Transfers to Minors Act (UTMA) accounts are a popular tool for gifting assets to minors. They can easily be set up without the services of an attorney or accountant. A contribution to an UTMA account is considered a completed gift for tax purposes, but the minor beneficiary is prohibited from accessing the funds in the account until their 18th (or even 21st) birthday.

The account is managed and controlled by a custodian, who can be the minor beneficiary’s parent, guardian, or some other responsible adult. Once an UTMA account is created, any funds or other property transferred to the account cannot be returned to the person making the gift. When the minor reaches age 18 or 21, depending upon the state in which the account was created, he is entitled to access the funds in the account.

However, UTMA accounts are not without their drawbacks. Like other planning tools, unforseen circumstances can arise that defeat the good intentions of the gift maker.

One such example is illustrated in a recent bankruptcy case out of Rhode Island, In re Marcus Soori-Arachi. In 1998, when Marcus was 15, his father purchased an UTMA annuity for him with Fidelity in Nebraska. Under Nebraska law, the UTMA annuity should have terminated when Marcus turned 19 and the proceeds distributed to him. However, Marcus’s 19th birthday came and went and the account went undisturbed for another 10 years.

In 2017 Marcus, then married and living in Rhode Island, filed a petition for bankruptcy under Chapter 7 of the bankruptcy code. As required by bankruptcy law, the trustee appointed to administer Marcus’s case began the process of gathering and liquidating all of Marcus’s non-exempt assets.

The case trustee notified Fidelity that the UTMA annuity (now worth $105,000) should be turned over to the trustee. Marcus objected in the bankruptcy court, arguing that the UTMA annuity was not part of his bankruptcy estate and could not be liquidated by the trustee. (Marcus did claim a basic exemption protecting about $6,500 from the trustee.)

The bankruptcy court disagreed, finding that the UTMA annuity belonged to Marcus when he turned 19. The court ruled that it did not matter that the annuity was still in the account as of the date Marcus filed bankruptcy. Under Nebraska’s UTMA law, the custodial nature of the account terminated on his 19th birthday. Marcus gained an immediate right of ownership, possession, and control of the annuity, regardless of whether he actually exercised that right. The UTMA annuity could not be sheltered from his creditors in bankruptcy.

While this case interpreted Nebraska law, a bankruptcy court interpreting Michigan law would reach the same conclusion. While Michigan law protects the proceeds of an annuity from the claims of the creditors of a beneficiary, it does not protect the annuity proceeds from the claims of the creditors of the annuity owner, which Marcus became at age 19.

The facts of this case are unusual in that the annuity remained untouched in the UTMA for so long after Marcus reached age 19. When Marcus turned 19, he more than likely didn’t have any debts. But as time went on, he acquired a debt burden that grew to the point that he had to seek bankruptcy court protection, losing about $99,000 in the process.

Still, the case serves as an important reminder for those of you planning your estates. How well do you really know your children or other beneficiaries? Do they have excessive debt? Have they filed bankruptcy in the past? Are they being sued, or is a lawsuit threatened? What about a divorce – is a child’s marriage on the rocks? Knowing the answers to questions like these can help you structure or revise your estate plan, including beneficiary designations, to protect an inheritance from being lost to a beneficiary’s creditors.

The bankruptcy court’s opinion can be accessed here.

Middle Aged Man Dies Leaving Substantial IRA With No Beneficiary – What Happens Next?

A client, “Susan,” contacted me recently to help settle the affairs of her recently deceased son, “Frank.” Frank owned a traditional IRA that has a fairly substantial balance. Unfortunately, Frank did not list a beneficiary for the account. Shelly is Frank’s only living heir. Frank was 57 when he died in 2018. What are Susan’s options with regard to Frank’s IRA?

Because Frank’s IRA had no identifiable beneficiary, by default the IRA is payable to his estate. And since Frank died before age 70½, a special 5-year rule applies to the distribution of his IRA. In general, the entire balance of Frank’s IRA must be distributed by December 31 of the year containing the fifth anniversary of Frank’s death. In this case, the entire balance of Frank’s IRA must be distributed by December 31, 2023.

An estate does not have a life expectancy, so distributions cannot be “stretched” beyond the 5 years. However, the entire account balance does not have to be taken in one distribution, it can be broken up over multiple years to reduce the taxes payable as long as the entire account balance is distributed before the end of the fifth year following the year of the account owner’s death.

(Now, had Frank died after April 1 following the year he attained the age of 70½, Susan would have been able to stretch distributions from Frank’s IRA to the estate over his remaining life expectancy, avoiding the special 5-year distribution rule.)

If the entire account balance is not withdrawn by the end of the fifth year following Frank’s death, then the IRS could impose a penalty equal to 50% of the balance remaining. The penalty could be waived by the IRS if it finds there was a reasonable basis for the error.

Failing to designate a beneficiary of an IRA (or other retirement account for that matter) is one of the costliest mistakes you can make. Two problems are created: First, because distributions cannot be “stretched” beyond 5 years, there is little tax-deferred growth that can be achieved in such a short period of time. Second, since distributions from the account must be accelerated, the larger distributions create larger income tax bills.

It always pays to double check beneficiary designations on your retirement accounts (and life insurance, too). I recommend at least annually. Make sure you have beneficiaries named on all of your accounts, and to make sure those beneficiary designations are up to date. Has a beneficiary died, or is there some other reason to replace a beneficiary? If so, update your beneficiary designations immediately.

Do you have an issue concerning distributions from a retirement account, or planning for distributions from a retirement account? If so, call me, I can help.

April 1 Deadline to Receive first RMD Looms.

For all of you out there who turned age 70½ in 2018, you must start receiving required minimum distributions (RMDs) from your traditional IRAs and employer sponsored plans [401(k), 403(b), etc.,] by April 1, 2019.

The April 1 deadline applies to all employer sponsored plans and traditional IRAs and IRA-type plans, such as SEPs, SIMPLEs, etc. The deadline does not apply to Roth IRAs.

The April 1 deadline only applies if you did not receive your initial RMD in 2018. In addition, the April 1 deadline only applies to the RMD for the first year (2018). For all subsequent years, beginning with 2019, RMDs must be received by December 31. If you turned 70½ in 2018, but did not receive the first RMD from your IRA or other employer sponsored plan accounts by December 31, 2018, then you must take the RMD for 2018 before April 1, 2019. You still must receive the RMD for 2019 by December 31, 2019. So you will have to take two distributions in 2019, one for 2018 by April 1, and the second for 2019 before December 31.

Even though the April 1 deadline is mandatory for all owners of traditional IRAs and most participants in workplace retirement plans, those who are still employed may (if the plan allows) delay taking RMD distributions from their workplace plans until April 1 of the year after the year they retire. Still-working employees cannot, however, delay taking RMD from traditional IRAs beyond April 1 after the year they turn age 70½ . This “still-working” exception only applies to workplace plans that permit a delay.

There is less than 1 month to the April 1 deadline. It is important to remember that the distribution must be received by April 1. It isn’t good enough to request the distribution from your IRA custodian. If it isn’t received by April 1, you will still be taxed on the amount of the first year RMD that should have been received, and the IRS will impose a penalty equal to 50% of that RMD. Ouch!

If you are faced with the April 1, deadline to receive your first RMD, and are not sure how much you are required to take or how to do it, give me a call, I can help.

Frozen Pension Benefit – Do You Take the Lump Sum?

It’s a difficult question without an easy answer. For many, income security in retirement depends upon getting the answer right.

Employers have been fazing out pension programs for many years now, replacing them with 401(k) and similar employee-contribution type plans. Many of these fazed out pensions were frozen, leaving participant employees eligible to receive at least some benefit from the pension plan. For those who are entitled to a benefit from a frozen pension plan, many have the option to receive an up-front lump sum payment of their accrued pension benefit in lieu of a lifetime monthly annuity payment.

Faced with that option, do you take the money, or settle for the lifetime annuity? The knee-jerk reaction of many is to take the lump sum. I’ve seen lump sum offerings in the six-figures, a pretty significant chunk of change. But even then it’s not an easy question to answer, especially for those who have limited savings or other income resources beyond Social Security. Will that lump sum be enough to see you through for the rest of your life?

When you retire, a primary goal is to have sufficient income to cover living expenses for the rest of your life, regardless of how long you live, factoring in economic conditions such as inflation, and fluctuations in the financial markets. For married couples, that income must last for two lifetimes. To complicate things further, if you are like most people that I’ve work with, you will underestimate how long you will live in retirement. (Everyone faced with the lump sum payment question thinks they’re going to die in a car accident tomorrow so they want the money today.) But for a married couple in their middle sixties, it is reasonable to expect at least one spouse will live into their 90s. Living 3 decades in retirement is becoming commonplace.

If you elect the annuity, you (and even your spouse with certain elections) will get a check every month for the rest of your life, no matter how long you live. You bear no risk.

Suppose you decide to take the lump sum. You’ll receive a single payment from the pension plan regardless of how long you end up living. Now you have to invest that money to generate an income stream that will last the rest of your lifetime. How long will that be; and how confident are you the money will last that long? It depends upon many factors, but that risk is on you. And you don’t want to run out of money during retirement.

So what’s the answer – do you take the lump sum or settle for the annuity? Let’s look at some of the factors that can play into that decision:

If you (and your spouse if married) are in good health, and the security of a lifetime income stream is important to you, the annuity makes sense. If you are not comfortable handling your own investments, the annuity lets you leave investment decisions to the pension plan. If you are pessimistic about the economy, inflation, or other risk factors in the future, you can leave that risk with the pension plan choosing the annuity option.

The lump sum option may make sense if you (and your spouse if married) are older and in poor health. If you have sufficient savings and investments that the annuity would not be a needed source of lifetime income to make ends meet, then the lump sum may be the better choice. Also, if you are confident in your abilities to manage your investments to generate a good rate of return, and can prudently manage withdrawals from savings and investment over your retirement years, the lump sum may be appropriate.

In any event, if you are offered a lump sum payment as an option from a frozen pension plan, it is crucial to work with a competent advisor who can help you make a proper decision that meets your goals and objectives in light of your financial situation. Avoid an advisor who has a vested interest in your opting for the lump sum – like they want to manage and invest the money (for a fee).

If you are struggling with the lump sum vs. annuity question, give me a call, I can help.

Retirement Savers Get a Boost – IRA Contribution Limits Increased for 2019.

There is good news for those of you who are actively saving for retirement. The IRA contribution limit, presently $5,500 for 2018, will increase to $6,000 for 2019. If you are age 50 or older in 2019, you can add an additional $1,000 to your IRA, for a total contribution of $7,000 for 2019. The increase applies to both traditional and Roth IRAs. This increase applies to contributions for the 2019 tax year, not for contributions made in 2019 for the 2018 tax year.  Non-working spouses may also benefit by making contributions to their own IRAs to boost retirement savings.

The increase is the result of cost-of-living adjustments made recently by the IRS to retirement account limits. This increase is the first since 2013!

Don’t forget, other IRA eligibility rules still apply. You must have earned income to contribute to an IRA. Generally, earned income is income from employment. Investment income and Social Security income is excluded. Furthermore, there are income limits that will affect your ability to make a fully deductible contribution to a traditional IRA. Your income may be too high to contribute to a Roth IRA. Finally, you cannot make a contribution to a traditional IRA in 2019 if you will be age 70½ or older.

For those of you participating in an employer sponsored 401(k) or 403(b) plan, the limit for salary deferrals into those types of plans will go up to $19,000 in 2019 ($25,000 if you are age 50 or older).

You can see all of the COLA increases for retirement accounts and other retirement related items HERE.

Having trouble putting together a retirement plan, or looking for ways to boost retirement savings?  Give me a call, I can help.

Costly IRA Rollover Mistake – Easily Made; Impossible to Fix.

The rules governing IRA accounts are maddeningly complex, especially the rules for inherited IRAs. I was working with a client on an issue involving the control of an inherited IRA account when I was reminded of a case that shows just how easy it is to make a mistake that cannot be fixed.

Mrs. Beech was the adult beneficiary of her deceased mother’s traditional IRA. The account was managed by a professional money management firm, Citi Smith Barney. Citi made two distributions to Mrs. Beech from the IRA – one for $2,828, and the second for $35,358. The larger distribution was made on May 23, 2008, and the check was made out to Mrs. Beech.

Mrs. Beech deposited the $35,358 into the inherited IRA with American Funds in June 2008. Mrs. Beech reported both distributions on her 2008 income tax return, and reported the smaller $2,828 amount as the taxable amount of the distribution. Thereafter, the IRS issued Mrs. Beech a notice of deficiency for income taxes due in the amount of $9,212 for the $35,358 distribution, plus penalties in the amount of $1,842. The deficiency and penalties were sustained by the United States Tax Court.

Wait a second! Mrs. Beech deposited the distribution check for $35,358 into a new inherited IRA account well within 60 days from the date the check was issued by Citi. What did she do wrong?

Amounts paid or distributed from a traditional IRA are generally includible in gross income by the recipient payee. The Internal Revenue Code (the “Code”) provides that a distribution is not includible in gross income if the entire amount of the distribution received by an individual is redeposited into a qualified IRA for the benefit of that individual within 60 days of the distribution. This redeposit is known as a “rollover contribution.”

However, rollover treatment is not available to a non-spouse beneficiary in the case of an inherited IRA. Any distribution from an inherited IRA is taxable if the distribution is paid to a non-spouse beneficiary. Under the Code, an IRA is treated as inherited if the individual for whose benefit the account or annuity is maintained acquired that account by reason of the death of another individual who was not his or her spouse.

In Mrs. Beech’s case, the $35,358 was paid from her mother’s IRA to Mrs. Beech as the named beneficiary. She then redeposited the funds into an inherited IRA account. Since the IRA account belonged to Mrs. Beech’s mother, it was deemed to be an inherited IRA for the benefit of Mrs. Beech and, therefore, rollover treatment was not available for the distribution.  The entire $35,358 distribution was taxable income to Mrs. Beech!

Mrs. Beech would not have been treated as having received a taxable distribution from an IRA, however, if the funds in the IRA were transferred directly from Citi to American Funds without her ever gaining control or use of the funds. This is commonly known as a “trustee-to-trustee transfer.”
A trustee-to-trustee transfer is the only way for the beneficiary of an inherited IRA to make a nontaxable transfer of funds in the IRA account.

What makes a case like Mrs. Beech’s so difficult is that there is no way in the Code for the mistake to be corrected. Once Citi issued the check, it became taxable income. Neither the tax court nor the Internal Revenue Service could grant Mrs. Beech any relief from the income taxes and penalties incurred for her mistake.

The lesson from Mrs. Beech’s mistake is that in every case where a non-spouse is the beneficiary of an IRA, a transfer should only be made via the trustee-to-trustee method to avoid income taxation of the transferred amount.

The case of Beech v. Commissioner of Internal Revenue can be read here.

IRA rules and regulations are extremely complex and costly mistakes can be easily made.  If you need help navigating the IRA rules and regulations, call me, I can help.

Year-End IRA Housekeeping

The end of the year is fast approaching, and with it several important deadlines for IRA account owners and beneficiaries. In my experience helping clients address year-end IRA matters, the following are the most problematic areas:

Required Minimum Distribution (RMD) Deadline:

December 31 is the deadline for taking RMDs from an IRA for an account owner who reached age 70½ before 2018. The RMD has to be withdrawn from the account before January 1. The account owner cannot merely request a distribution before year end. RMDs not withdrawn from the account are assessed a 50% penalty, in addition to regular income taxes. If you haven’t taken all of your RMDs yet for 2018, make sure you take them in time to avoid the 50% penalty.

RMDs for a Deceased IRA Owner:

If an IRA owner died in 2018 before all of his RMDs were taken for the year, the remaining RMDs must be paid to the account beneficiary before the end of 2018. This is not a pro-rated amount. The RMDs are calculated for the full year. This can often times be overlooked especially if the IRA owner died late in the calendar year. Undistributed RMDs from a decedent’s IRA are subject to the 50% penalty on missed distributions.

RMDs for Inherited Traditional IRAs or Roth IRAs:

A non-spouse beneficiary of an inherited IRA can elect to take annual RMDs over their remaining life expectancy. If they do, the first RMD distribution must be taken before December 31 of the year following the year of the IRA owner’s death, and then each year thereafter over their remaining life expectancy. If you are the beneficiary of an inherited IRA, you too must take an RMD before the end of 2018 if the account owner died in 2017 or earlier. Undistributed RMDs from an inherited IRA are also subject to the 50% penalty on missed distributions. This applies to the beneficiaries of Roth IRA accounts too. While a Roth IRA owner does not have to take distributions from a Roth IRA at any time, beneficiaries are subject to the same RMD rules as beneficiaries of traditional IRAs. So don’t get caught thinking you don’t have to take distributions from an inherited Roth IRA. You do!

Splitting Inherited Traditional IRAs or Roth IRAs:

If there are multiple beneficiaries of a traditional or Roth IRA account whose owner died in 2017, the account must be split into separate accounts for each beneficiary before December 31 of 2018. This is to ensure that each beneficiary gets to use his own life expectancy in determining annual RMDs for his share of the account. If the account is not split and the RMD taken before the end of 2018, the life expectancy of the oldest beneficiary will be used to calculate the annual RMDs for all of the beneficiaries. This results in younger beneficiaries paying more income taxes each year on their distribution from the account.

No “Still Working” Exception for Older and Still Working IRA Owners:

There is no “still working” exception to the RMD rules for traditional IRA owners who are still employed beyond age 70½. While an owner of a 401(k) account may work beyond age 70½ and delay RMDs from his 401(k) account while his employment continues, that same employee must take RMDs from his traditional IRA if he reached age 70½ before 2018. This includes owners of SEP-IRAs and SIMPLE IRAs.

While not exhaustive, these are the most common areas where mistakes are made.  Even if you’ve taken your RMDs for 2018, it won’t hurt to go back and review your situation and your math to avoid any negative consequences from unrealized errors.

The rules governing required distributions from IRAs are extremely complex.  The penalties for making a mistake can be severe.  If you need help navigating the year-end complexities of managing IRA distributions, please contact me.  I can help.