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Planning Opportunities Created by Roth IRA Conversions ________________________________________________________________________________________________________ Presented by: Robert S. Keebler, CPA, MST, AEP (Distinguished) Baker Tilly Virchow Krause, LLP Phone: (920) 739-3345 E-Mail: [email protected] Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication, including attachments, was not written to be used and cannot be used for the purpose of (i) avoiding tax- related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matters addressed herein. If you would like a written opinion upon which you can rely for the purpose of avoiding penalties, please contact us. 1

Planning Opportunities Created by Roth IRA Conversions ________________________________________________________________________________________________________

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Page 1: Planning Opportunities Created by Roth IRA Conversions ________________________________________________________________________________________________________

Planning Opportunities Created by Roth IRA Conversions

________________________________________________________________________________________________________

Presented by:Robert S. Keebler, CPA, MST, AEP (Distinguished)

Baker Tilly Virchow Krause, LLP Phone: (920) 739-3345

E-Mail: [email protected]

Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication, including attachments, was not written to be used and cannot be used for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matters addressed herein.  If you would like a written opinion upon which you can rely for the purpose of avoiding penalties, please contact us.

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Income Tax Planning Issues

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Taxpayers may “recharacterize” (i.e., undo) the Roth IRA conversion in current year or by the filing date of the current year’s tax return> Recharacterization can take place as late as 10/15 in the year

following the year of conversion

Taxpayers may choose to “reconvert” their recharacterization> Reconversion may only take place at the later of the following

two dates:(1) The tax year following the original conversion OR

(2) 30 days after the recharacterization

RecharacterizationsTactical Considerations

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> Taxpayers cannot recharacterize a portion of a Roth conversion by “cherry picking” only those stocks that decline in value (IRS Notice 2000-39)

> All gains and losses to the entire Roth IRA, regardless of the actual stock or fund recharacterized, must be pro-rated

Recharacterizations Tactical Considerations – “Anti-Cherry Picking” Rule

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Traditional IRAABC Fund: $250,000XYZ Fund: $250,000

Traditional IRA #1ABC Fund: $250,000

Traditional IRA #2XYZ Fund: $250,000

STEP 1: Create separate IRAs for each asset, asset class or investment sector

Recharacterizations Tactical Considerations – Roth Segregation Conversion Strategy

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Traditional IRA #1ABC Fund: $250,000

Roth IRA #2XYZ Fund: $250,000

STEP 2: Convert IRAs to separate Roth IRAs

Roth IRA #1ABC Fund: $250,000

Traditional IRA #2XYZ Fund: $250,000

Recharacterizations Tactical Considerations – Roth Segregation Conversion Strategy

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IRSTaxpayerIncome tax liability due on $500,000

conversion amount

April 15, 2011*

* NOTE: Either a tax return or an extension must be filed by this date. Regardless of what is chosen, the tax liability due on the Roth IRA conversion must be remitted by this date in order to avoid late payment penalties and interest (unless the two-year spread option is elected on a 2010 conversion).

STEP 3: Pay income tax on Roth IRA conversion

Recharacterizations Tactical Considerations – Roth Segregation Conversion Strategy

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Roth IRA #1ABC Fund: $100,000

(Current Value)

Roth IRA #2XYZ Fund: $300,000

(Current Value)

Traditional IRA #1ABC Fund: $100,000

(Current Value)

Recharacterization of IRA using the value at the date of conversion

(e.g. $250,000)

October 17, 2011*

* NOTE: October 17, 2011 is the latest date for which a 2010 recharacterization can take place (either by filing extensions or by filing an amended return).

STEP 4: Recharacterize Roth IRA conversion

Recharacterizations Tactical Considerations – Roth Segregation Conversion Strategy

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October 15, 2011Refund of overpayment on

recharacterization of Roth IRA conversion

STEP 5: File (or amend) income tax return claiming refund for recharacterization

Taxpayer IRS

Recharacterizations Tactical Considerations – Roth Segregation Conversion Strategy

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Charitable Remainder Trust (CRT)

A Charitable Remainder Trust (CRT) is a split interest trust consisting of a lead interest and a remainder interest. During the term of the trust, the lead interest is usually paid out to the donor (or some other named beneficiary). At the end of the trust term, the remainder (whatever is left in the trust) is paid to the charity or charities that have been designated in the trust document.

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Charitable Remainder Trust (CRT)

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Donor(Lead Beneficiary)

Charity(Remainder Beneficiary)

Transfer of highly appreciated assets

Donor receives an immediate income tax deduction for

present value of the remainder interest (must be at least 10%

of the value of the assets originally contributed)

At the donor’s death (or at the end of the trust term), the charity receives the residual assets held in the trust

Annual (or more frequent) payments for life (or a

term of years)

CRT

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Charitable Remainder Trust (CRT)Two Main Types of CRTs

Charitable Remainder Annuity Trust (CRAT)> The beneficiaries receive a stated amount of the initial trust assets

each year > The amount received is established at the beginning of the trust and

will not change during the term of the trust regardless of investment performance (unless inadequate investment performance causes the trust to run out of assets)

Charitable Remainder Unitrust (CRUT) > Income beneficiaries receive a stated percentage of the trust’s assets

each year.> The distribution will vary from year to year depending on the

investment performance of the trust assets and the amount withdrawn

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Charitable Remainder Trust (CRT)Special Considerations

> Annual payout can neither be less than 5% nor more than 50%.

> The present value of the remainder interest must be at least 10% of the value of the assets contributed to the trust.

> The trust term cannot be more than 20 years (if a term interest is used)

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Charitable Lead Trust (CLT)

A Charitable Lead Trust (CLT) is a split interest trust consisting of a lead interest and a remainder interest. During the term of the trust, the lead interest is paid out to a named charity. At the end of the trust term, the remainder (whatever is left in the trust) is paid to non-charitable beneficiaries (e.g., children of the donor) that have been designated in the trust document.

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Charitable Lead Trust (CLT)

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Donor

Charity(Lead Beneficiary)

Transfer of cash, stock and/or other assets

At the donor’s death (or at the end of the trust term), the remainder

beneficiaries receive the residual assets held in the trust

Annual (or more frequent) payments for life (or a term of years)

CLT

Donor’s Children(Remainder Beneficiary)

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Charitable Lead Trust (CLT)Two Main Types of CLTs

Charitable Lead Annuity Trust (CLAT)> The charitable beneficiary receives a stated amount of the initial trust

assets each year

> The amount received is established at the beginning of the trust and will not change during the term of the trust regardless of investment performance (unless inadequate investment performance causes the trust to run out of assets)

Charitable Lead Unitrust (CLUT) > The charitable beneficiary receives a stated percentage of the trust’s

assets each year.

> The distribution will vary from year to year depending on the investment performance of the trust assets and the amount withdrawn

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Charitable Lead Trust (CLT)Income Tax Comparison

“Grantor” CLT> Donor receives an immediate income tax deduction for the present value for the

lead interest passing to charity

> Donor must pay income tax on the trust’s income each year

“Non-Grantor” CLT> Trust receives annual income tax deduction for the distributions made to charity

> Trust pays income tax on the trust’s income each year (to the extent that income exceeds distributions to charity)

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Estate Planning Issues

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Post-death critical questions:> Did the participant die before his RBD?

> Is the spouse the sole beneficiary?

> Are there multiple beneficiaries?

> Are all beneficiaries “designated beneficiaries”?

> What does the IRA/qualified plan allow?

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RMD Rules

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RMD Rules

Post-death RMDs based on whether “designated beneficiary” exists>Only “individuals” with quantifiable life expectancies can be “designated beneficiaries”

>If trust qualifies, look through to underlying trust beneficiaries

– Distribution out of trust to beneficiary does not make the beneficiary the “designated beneficiary”

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RMD Rules

Qualifying “designated beneficiaries”> Individuals (e.g., child, grandchild, parent, sibling, niece/nephew, friend, etc.)

> Certain trusts (e.g., “IRA Legacy Trust”)

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Non-Qualifying “designated beneficiaries”> Estate

> Charities

> Most trusts

> Partnerships, LLCs and corporations

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RMD Rules

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> Death before age 70½– Life expectancy distributions if you have a designated beneficiary– If no designated beneficiary, five-year rule– Delayed distributions – spousal beneficiary– Distributions must begin by December 31 of the year after death

»Failure to do so does not automatically cause the five-year rule to apply

> Death after age 70½– Life expectancy distributions if you have a designated beneficiary– Distributions must begin by December 31 of the year after death– Year of death distributions – life expectancy of IRA owner

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Life Expectancy Rule

Life Expectancy

Rule

Five-Year Rule

Death Before Required Beginning Date

Death On or After Required Beginning Date

Designated Beneficiary

Non-Designated Beneficiary

“Ghost” Life Expectancy

Rule

RMD Rules

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RMD Rules

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> Generally, if individual beneficiaries exist, post-death RMDs are based upon oldest designated beneficiary’s life expectancy under the Single Life Table

> If separate shares are created by 12/31 of the year following the year of death, then each beneficiary’s life is used

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RMD Calculation

> RMDs are calculated based upon prior year ending account balance divided by life expectancy factor

RMD = Prior Year12/31 Balance Life Expectancy Factor

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Single-Life Table

Age Divisor Age Divisor Age Divisor Age Divisor Age Divisor Age Divisor Age Divisor

0 82.4 16 66.9 32 51.4 48 36.0 64 21.8 80 10.2 96 3.8

1 81.6 17 66.0 33 50.4 49 35.1 65 21.0 81 9.7 97 3.6

2 80.6 18 65.0 34 49.4 50 34.2 66 20.2 82 9.1 98 3.4

3 79.7 19 64.0 35 48.5 51 33.3 67 19.4 83 8.6 99 3.1

4 78.7 20 63.0 36 47.5 52 32.3 68 18.6 84 8.1 100 2.9

5 77.7 21 62.1 37 46.5 53 31.4 69 17.8 85 7.6 101 2.7

6 76.7 22 61.1 38 45.6 54 30.5 70 17.0 86 7.1 102 2.5

7 75.8 23 60.1 39 44.6 55 29.6 71 16.3 87 6.7 103 2.3

8 74.8 24 59.1 40 43.6 56 28.7 72 15.5 88 6.3 104 2.1

9 73.8 25 58.2 41 42.7 57 27.9 73 14.8 89 5.9 105 1.9

10 72.8 26 57.2 42 41.7 58 27.0 74 14.1 90 5.5 106 1.7

11 71.8 27 56.2 43 40.7 59 26.1 75 13.4 91 5.2 107 1.5

12 70.8 28 55.3 44 39.8 60 25.2 76 12.7 92 4.9 108 1.4

13 69.9 29 54.3 45 38.8 61 24.4 77 12.1 93 4.6 109 1.2

14 68.9 30 53.3 46 37.9 62 23.5 78 11.4 94 4.3 110 1.1

15 67.9 31 52.4 47 37.0 63 22.7 79 10.8 95 4.1 111 1.0

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RMD Rules – Important Dates

Critical dates:> September 30 of the year following the year of death

– Date at which the beneficiaries are identified

> October 31 of the year following the year of death– Date at which trust documentation (in the case where as trust is named as a designated beneficiary) must be filed

> December 31 of the year following the year of death– Date at which the first distribution must be made by each IRA beneficiary– Date at which separate shares must be created

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September 30 Determination Date

> “Designated beneficiary” is not determined until September 30 of the year following the year of the IRA owner’s death– Allows for disclaimer planning

> If a beneficiary dies before the September 30 date without disclaiming, such beneficiary continues to be treated as a beneficiary in determining the designated beneficiary

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“Inherited IRA”Child/Grandchild Beneficiary

> Utilizes the exemption to the five-year rule.> Avoids IRA assets being subject to estate tax in spouse’s estate.> Achieves “Inherited IRA” to the degree that distributions occur

over life expectancy of the designated beneficiary.> The life expectancy factor of beneficiary is determined by

reference to the Single Life Table beginning in the year following the year of death. Each year thereafter the life expectancy divisor is reduced by one.

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> Life expectancy of child and/or grandchild determined in year after year of the IRA owner’s death by reference to the Single Life Table and then is reduced by a value of one each subsequent year.

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“Inherited IRA”Child/Grandchild Beneficiary

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“Inherited IRA”Pension Protection Act of 2006

> Beginning in tax years after 12/31/2006 non-spousal beneficiaries (e.g., children, grandchildren, friends, etc.) are permitted to roll over a qualified retirement plan (e.g., 401(k)), via a trustee-to-trustee transfer, into an “inherited” IRA

> “Designated beneficiary” trusts are also permitted to roll over qualified retirement plans to “inherited” IRAs

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“Inherited IRA”Common Mistakes to Avoid

> Incorrect titling

> Failure to take RMDs

> Failure to utilize disclaimers when appropriate

> Failure to analyze contingent beneficiaries when utilizing disclaimers

> Spousal rollover before age 59 ½

> Taking a lump-sum distribution

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Inherited IRA Title

For non-spousal beneficiaries, it is critical to keep inherited IRA in the name of the deceased IRA owner.

Example: “John Smith, deceased, IRA, for the benefit of James Smith”

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> The key to transferring a greater amount of wealth to heirs is to ensure that little to no estate tax, or other estate expenses, are apportioned to IRAs (either traditional or Roth IRAs)

> In many states, estate taxes and other estate expenses are deemed to be apportioned pro-rata between probate assets and non-probate assets (i.e., IRAs)

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Tax Apportionment

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Tax Apportionment

> Thus, in order to prevent estate taxes and other expenses being apportioned to IRAs, make sure that:P The IRAs are payable to someone other than the probate estate

(e.g., children), and

P The will/revocable trust language provides that such taxes and expenses are apportioned only to the probate estate

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W/O APPORTIONMENT WITH APPORTIONMENTOther Assets Roth IRA TOTAL Other Assets Roth IRA TOTAL DIFFERENCE

Gross Estate $ 5,000,000 $ 2,000,000 $ 7,000,000 $ 5,000,000 $ 2,000,000 $ 7,000,000 $ -

Less: Estate Taxes (2,250,000) (900,000) (3,150,000) (3,150,000) - (3,150,000) -

Net Estate $ 2,750,000 $ 1,100,000 $ 3,850,000 $ 1,850,000 $ 2,000,000 $ 3,850,000 $ -

FMV of Net Estate in 10 Years $ 5,346,676 $ 1,472,784 $ 6,819,460 $ 4,340,575 $ 2,677,789 $ 7,018,364 $ 198,904

FMV of Net Estate in 20 Years $ 10,455,882 $ 1,489,336 $ 11,945,218 $ 9,819,759 $ 2,707,884 $ 12,527,642 $ 582,424

FMV of Net Estate in 30 Years $ 20,611,469 $ - $ 20,611,469 $ 21,775,951 $ - $ 21,775,951 $ 1,164,482

Key Assumptions

Pre-Tax Rate of Return = 7.00%

After-Tax Rate of Return = 5.50%

Age of Roth IRA Beneficiary = 55

Tax Apportionment

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> Perhaps the best asset to use to fund a Unified Credit/GST trust is a Roth IRA

> If executed properly, distributions can be stretched-out over each IRA beneficiary’s life expectancy, transferring significantly more wealth to heirs than if “other” assets (e.g., non-qualified investments) are used

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Unified Credit Trust/GST Trust Planning

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Unified Credit Trust/GST Trust Planning

FUND W/"OTHER" ASSETS FUND W/ROTH IRA

Other Assets Roth IRA TOTAL Other Assets Roth IRA TOTAL DIFFERENCE

FMV of Net Estate in 10 Years $ 5,978,506 $ - $ 5,978,506 $ 2,065,888 $ 4,686,131 $ 6,752,019 $ 773,514

FMV of Net Estate in 20 Years $ 10,212,151 $ - $ 10,212,151 $ 7,738,338 $ 4,738,796 $ 12,477,134 $ 2,264,983

FMV of Net Estate in 30 Years $ 17,443,830 $ - $ 17,443,830 $ 21,972,372 $ - $ 21,972,372 $ 4,528,542

Key Assumptions

Initial Trust Funding Amount = $3,500,000

Pre-Tax Rate of Return = 7.00%

After-Tax Rate of Return = 5.50%

Age of Roth IRA Beneficiary = 55

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Asset Protection Issues

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11 U.S.C. §522 > Retirement asset protection

– IRA and Roth IRA limitations– $1 Million

> Rollover IRA protection– Separate Accounts

> Protection for Business Owners

Asset ProtectionBankruptcy/Creditor Protection2005 Bankruptcy Act

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Qualified Plan

Traditional IRA

Roth IRA

Bankruptcy and creditor protection may be lost as a result of the following series of transactions

Asset ProtectionBankruptcy/Creditor Protection

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Asset ProtectionBankruptcy & IRAs

> Rollover and contributory IRAs should not be commingled− Keep rollover IRAs pristine

> Roth IRAs and traditional IRAs protection are afforded the same protection− Analyze conversions before bankruptcy

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Asset Protection

An IRA where the beneficiary is limited on the amount of distributions that can be taken based on the restrictions placed on the account by the IRA owner.

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“Trusteed IRA” At Death

“Trusteed IRA” During Life

An IRA held in a trust not a custodial agreement.> Asset protection under state tax law.

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Asset ProtectionRecent Developments

> Revocable trust named as beneficiary of IRA.

> Trust became irrevocable at death of IRA owner.

> Ruling: IRA subject to deceased IRA owner’s creditor claims because trust was revocable before death.

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Commerce Bank, N.A. v. Bolander(2007 WL 1041760 (Kan. App. 2007))

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NO

NO

NOYES

YES NO

Parent’sExempt

IRA

Subject to claims ofbeneficiary’s creditors

Subject to claims ofparent’s creditors YES

NO

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1Depends upon state law, however, see Commerce Bank v. Bolander, 2007 WL 1041760 (Kan. App. 2007) unpublished.

Child

Parent’sExempt

IRA

Estate

YES

YES

Parent’sExempt

IRA

TypicalRevocable

Trust

Parent’sExempt

IRA

Stand AloneRevocableIRA Trust

Parent’sExempt

IRA

SubtrustsUnder

Stand AloneTrust

Parent’sExempt

IRA

IrrevocableTrust

NO

Possibly NO

2

2

By naming a SubTrust that is irrevocable you may avoid the reach of the Commerce Bank Doctrine.

3

If the Estate is the Beneficiary and an outright distribution follows, then the IRA is subject to the claims of both sets of creditors.3

Asset ProtectionIRA Creditor Protection Against Claims of Parent’s Creditors and Beneficiary’s Creditors

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Beneficiary’s Level ofAsset

ProtectionSpendthriftProtection

Measuring Period for

RMDs

Direct Beneficiary Very low None Life Expectancy

“Trusteed IRA” Low Good Life Expectancy

Non Designated Trust Some Good Five-year rule or “ghost” life

expectancy rule

Conduit Trust Low Good Life Expectancy

Accumulation Trust – Restatement III Some Excellent Life Expectancy

Accumulation Trust – Restatement II Excellent Excellent Life Expectancy

Asset ProtectionPost-Mortem IRA Asset Protection

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Benefits of Utilizing a Trust> Spendthrift protection

> Creditor protection

> Divorce protection

> Special needs

> Investment management

> Estate planning

> “Dead-hand” control

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IRAs Payable to Trusts

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Disadvantages of utilizing a trust> Compressed income tax brackets

> Legal and trustee fees

> Annual income tax returns– 1041– 1099– K-1

> Greater complexity

IRAs Payable to Trusts

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Naming a Trust as a “Designated Beneficiary”

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IRABeneficiary Designation Form

Trust

Spouse

Children

IRA distributions over the life expectancy of the oldest

beneficiary

IRAs Payable to Trusts

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Four Requirements for ALL Trusts

> Trust is valid under state law

> Trust is irrevocable upon death of owner

> Beneficiaries of the trust are identifiable from the trust instrument

> Documentation requirement is satisfied

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Two Types of Trusts

> Conduit Trust– A trust in which all distributions from the IRA are immediately distributed to the trust beneficiary(ies)

> Accumulation trust– A trust in which distributions from the IRA are allowed to accumulate within the trust

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MotherAge 80

TrustDiscretionary Distributions, but no less than total withdrawals from IRA

Entire Trust outright upon Grandchildren reaching age 30

If Grandchildren die before reaching age 30

Mother is not “countable” for determining applicable life expectancy

Child – age 30

Child – age 30

IRA

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Conduit Trust

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IRA

SisterAge 67

Grandchildren

Trust

Discretionary Distributions

Grandchildren

Entire G Trust outright upon grandchildren reaching age 30

If Grandchildren die before reaching age 30 Sister measuring life

for determining required minimum distributions

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Accumulation Trust

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Accumulation Trust

> The key issue in analyzing an accumulation trust is to determine which beneficiaries are “countable”> All beneficiaries are countable unless such beneficiary is deemed to be a “mere potential successor” beneficiary

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Circular 230 Disclosure

Pursuant to the rules of professional conduct set forth in Circular 230, as promulgated by the United States Department of the Treasury, nothing contained in this communication was intended or written to be used by any taxpayer for the purpose of avoiding penalties that may be imposed on the taxpayer by the Internal Revenue Service, and it cannot be used by any taxpayer for such purpose. No one, without our express prior written permission, may use or refer to any tax advice in this communication in promoting, marketing, or recommending a partnership or other entity, investment plan or arrangement to any other party.

Although effort was taken to ensure the accuracy of these materials, Robert S. Keebler and Baker Tilly Virchow Krause, LLP assume no responsibility or liability for an individual’s reliance on these materials. These materials are being provided for educational and informational purposes only and are in no way to be construed as accounting, financial, tax, legal or other advice.

Individual readers must consult their own professional tax and legal advisors.

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