Get Your Estate Plan in Gear
Estate planning laws have undergone swift
changes over the past several years and may change again in the years ahead. If
you're creating or updating an estate plan, it's essential that you seek the
advice of an attorney who's well versed in this area. Before you hire an
estate-planning attorney to draft or update your estate plan, it's important to
understand your role in the estate-planning process.
Find a qualified attorney: Because your
estate plan will likely need to be updated as the years go by and your personal
circumstances change, it makes sense to find an attorney who practices in the
community where you live. This can help you meet with him/her on an ongoing
basis.
Take stock of your assets: Before you meet
with your attorney, spend some time enumerating your assets and their value:
your investment accounts, life insurance, personal assets such as your home,
and your share of any businesses that you own. Also gather current information
about any debts outstanding. Your estate-planning attorney is likely to provide
you with a worksheet to document your assets and liabilities, but it's helpful
to collect this information in advance.
Identify key individuals: Another
important aspect of estate planning is identifying the individuals you trust to
ensure that your wishes are carried out once you're gone.
Executor: A person who gathers all of your
assets and makes sure that they are distributed as spelled out in your will.
Durable (Financial) Power of Attorney: A
person you entrust with making financial decisions on your behalf if you should
become disabled and unable to manage your own financial affairs.
Power of Attorney for Health Care: A
person you entrust with making health-care decisions on your behalf if you are
disabled and unable to make them on your own.
Guardian: A person who would look after
your children if you and your spouse were to die when your children are minors.
Know the key documents you need: When you
meet with your estate-planning attorney, he or she will make recommendations
about your estate plan. At a minimum, you should ask your attorney to draft the
following documents.
Last Will and Testament: A legal document
that tells everyone, including your heirs, how you would like your assets
distributed after you're gone.
Living Will: A document that tells your
loved ones and your health-care providers how you would like to be cared for if
you should become terminally ill; usually includes details about your views
toward life-support equipment.
Durable (Financial) Power of Attorney: A
document that gives an individual the power to make financial decisions and
execute financial transactions on your behalf if you are unable to do so.
Medical Power of Attorney: A document that
gives an individual the power to make health-care decisions on your behalf if
you are unable to do so.
Manage your documents: Once your
estate-planning documents are drafted, destroy any older versions of them.
Notify your executor of the whereabouts of your estate-planning documents, and
provide copies of the relevant documents to your executor, powers of attorney,
and the guardian for your children.
Plan to keep your plan current: Last but not
least, plan to keep your estate plan current. One of the biggest
estate-planning pitfalls is drafting an estate plan but not keeping it up to
date. Changes may include change in marital status, assets, financial status,
death or ill health of your beneficiaries, executor, power of attorneys, or
guardian.
More 72(t) Questions: Modifying a 'SOSEPP'
by Natalie Choate, June 15 2013
Taking an IRA or plan distribution prior to age 59 1/2 normally results in a
10% penalty--in addition to the income tax on the distribution. There are more
than a dozen exceptions to this "premature distributions" penalty, but they are
tough to qualify for.
One that every IRA owner can use (but that can be difficult to stick to) is
the "series of substantially equal periodic payments," or "SOSEPP." The series
of payments are sometimes called "72(t)" payments, but that's a misnomer.
§ 72(t) of the Internal Revenue Code is the section that imposes the 10%
penalty. The SOSEPP exception is actually found in § 72(t)(2)(A)(iv).
Under the SOSEPP exception, payments made before age 59 1/2 that are part of
a SOSEPP are exempt from penalty. The series can be designed using any of
several IRS-approved methods. However, if the series is "modified" in any way
prior to attaining age 59 1/2 (or within five years of starting the series, if
later), the exemption is lost retroactively.
Frequent questions arise around what constitutes this dreaded "modification" of a SOSEPP. Here are two that came in
this month.
Question: "Wolfgang," age 57, has been taking a "series of
substantially equal periodic payments" (SOSEPP) from his IRA for the last eight
years. The SOSEPP payments of $3,000 per month were determined using the IRS
"annuity" method. Unfortunately, due to low interest rates and unfavorable
investment results, the IRA is now down to $12,000, and it clearly is going to
run out of money before he reaches age 59½. If he stops taking the payments
because the IRA runs out of money, would that be considered a "modification" of
the SOSEPP, making him liable for the 10% penalty retroactively on all prior
payments?
Answer: Here is good news about your bad investment results:
The IRS anticipated this problem and lets Wolfgang off the hook if his account
runs out of money.
The IRS recognizes that, if investment performance is poor, fixed payments
under the amortization or annuitization method might exhaust the account.
Accordingly, the IRS has ruled that running out of money due to taking the
payments called for by the SOSEPP will not be considered a
"modification" of the series. See Rev. Rul. 2002‑62, § 2.03(a).
There is actually a similar exception under the
minimum distribution rules: An individual's minimum required distribution from a
particular IRA or account is, in any year, the amount determined under the usual
minimum distribution formula for such year (see Chapter 1 of Life and Death Planning for
Retirement Benefits for how to compute annual required distributions)
or, if less, the entire value of the account at the time of the
distribution. If the account value has plunged (whether due to investment
results or some other cause--such as a divorce court awarding the entire account
to your ex-spouse) so that the total value has shrunk below the amount of the
required distribution, the required distribution is reduced to not exceed the
account value. See Treas. Reg. § 1.401(a)(9)-5, A-1(a).
Question: My new client "Mathilda" has an IRA at ABC Bank.
She has been taking a "SOSEPP" from this account for six years. She is now age
58; she will turn age 59 1/2 in eight months.
We want to transfer her IRA to a new IRA at XYZ Bank, where all my clients'
IRAs are held. This would be done by means of a direct IRA-to-IRA transfer into
a new separate IRA. There would be no commingling of this SOSEPP-supporting IRA
with any other IRA. Can this be done without causing a modification of her
SOSEPP?
Answer: I would not recommend doing such a transfer without
getting an advance favorable ruling from the IRS. Since that process would
probably take at least a year and cost many thousands of dollars in IRS filing
fees and professional fees, it is obviously not cost effective, and Mathilda
would be better off to just wait eight more months (i.e., until she reaches age
59 1/2) before transferring her IRA to your firm.
Here's why I say this. The IRS regulation defining what constitutes a
modification of the SOSEPP provides that "... a modification to the series of
payments will occur if...there is...any nontaxable transfer of a portion of the
account balance to another retirement plan... ." Rev. Rul. 2002-62,
§ 2.02(e)(ii).
Now maybe what the IRS meant to say, and maybe what they should
have said, was that a transfer that caused the SOSEPP account funds to
be commingled with other funds would be considered a modification. And the
IRS has actually issued four PLRs (private letter rulings) supporting the
conclusion that a SOSEPP-paying IRA may be transferred tax-free to a new,
otherwise-empty, IRA account with a different custodian, without causing a
modification of the SOSEPP. See PLRs 2006-16046, 2006-31025, 2009-29021, and
2009-30053.
But the regulation still says that any nontaxable transfer is a
modification, and the IRS has never stated in any form that can be relied upon
as "authority" that such a transfer actually is permissible if there is no
commingling with other funds. Therefore it would be unwise, in my opinion, to do
such a transfer without getting an advance ruling.
Resources: For more detail on the
10% penalty applicable to distributions before age 59 1/2, and on all the
exceptions to the penalty including the SOSEPP, see Chapter 9 of Natalie
Choate's book Life and Death Planning for Retirement Benefits (7th ed.
2011).