Updated: Oct 12, 2021
This column first appeared in the San Antonio Express News and in other Hearst Newspapers on April 13, 2020.
Dear Mr. Premack: My wife and I are in our late 70’s. We have been married for 51 years, have two daughters, and most of our estate is in my Roth IRA. We have comprehensive wills, a living trust. Our concern is how do we insure that, after the first death, the ultimate beneficiaries of the IRA (currently our two daughters in their individual IRA trusts) are not changed by the survivor, for whatever reason, and the IRA diverted to a someone else? How would we prevent the beneficiaries from being changed after the first death? A.K.
IRAs require a designation of beneficiary. When you establish your IRA, be it a traditional or a Roth, the custodian institution should provide a form so you can tell them who receives the funds when you die. By their legal nature, IRAs are non-testamentary assets which pass upon your death without the need for probate of your Will.
Ordinarily the non-testamentary nature of an IRA is a very good thing. It simplifies the transition in ownership of the account when you die. But sometimes, the simplicity of the non-testamentary designation interferes with planning for a more complex goal. Specifically, you want to ensure that a) when you die your spouse gets your IRA, and b) that your spouse cannot change the beneficiary to someone else, and c) consequently your children will get what is left of the IRA when your spouse dies. Usually that is accomplished informally by relying on your surviving spouse to follow your plan.
But relying on your surviving spouse as IRA beneficiary is not guaranteed, because after you die your surviving spouse becomes the owner of the IRA. The owner has the legal right to change the beneficiaries. If your surviving spouse were to remarry or were to have a falling out with one of your children, under current law, she could change the IRA to be paid in a way different than you had desired.
Your IRA is a Roth, which means that the income taxes have already been paid. So, all the income tax issues discussed below don’t apply to your Roth (though the other complexities do apply). For those who have traditional IRAs, income tax consequences are a major issue.
You might accomplish your control goal by changing the beneficiary to the Trustee of a Trust, so your surviving spouse has no control. But there are significant potential downsides to the upsides of using this legal tool. First, you cannot use your existing Living Trust since it very likely names your spouse as Trustee with the very power you seek to take away. So, you will have to set up an entirely different trust. For a traditional IRA, that trust must include provisions that tell the IRS and your IRA custodian the identity of your designated beneficiary. Without the proper legal clauses, paying the traditional IRA to a trust would result in all the income taxes being due in the year of your death.
Second, income taxes on a traditional IRA may be accelerated even if you structure the trust properly. Under President Trump’s tax act, effective January 1, 2020, traditional IRAs which do not name surviving spouses as beneficiary must be fully distributed and all taxes must be paid no later than 10 years after you die. Contrast that to naming your spouse directly: she may take only the required minimum distribution (RMD) each year for the rest of her life. That could draw out paying the taxes much longer than 10 years.
Third, in community property states like Texas and Washington your spouse already owns a one-half share of your IRA, whether Roth or traditional. You cannot legally take away her share by changing the beneficiary. So, at most you could designate your half to a restrictive trust or to your children, but she must receive her half.
Finally, you state your daughters will receive their shares (after both of you have died) in their own IRA trusts. Those control the funds your daughters get from the IRA, likely placing control into the hands of an independent Trustee. Since your IRA is a Roth, there are no negative tax consequences. But for a traditional IRA, before 2020 your daughters would pay the income taxes by making annual RMDs over their entire lifetimes while now, due to President Trump’s changes, all income taxes must be paid within the first ten years after you die.
Paul Premack is a Certified Elder Law Attorney, handling Wills and Trusts, Probate, and Elder Law issues. He is licensed to practice law in Texas and Washington. View past legal columns or submit free questions on those legal issues via www.Premack.com.