Protecting your IRA

By Stephen J. Silverberg
New York Elder Law Attorney

Thanks to Forbes for this excellent look at creditor protection for IRAs and Beneficiaries. Individual Retirement Accounts (IRAs) are great tax-deferred savings vehicles, but tax deferral isn’t the only benefit IRAs offer.

One potential benefit of IRAs is creditor protection in the case of a bankruptcy. However, when you die, you may wonder if your beneficiaries are protected. Forbes recently published an article, “Estate Planning Tip: Creditor Protection for IRAs & Beneficiaries,” that says investors need to know how their assets can be better protected in the event of bankruptcy or lawsuits. We’ll look at some of the issues facing IRA investors and their beneficiaries when it comes to bankruptcy and items to think about when naming an IRA beneficiary.

Bankruptcy. Similar to the protection offered to pensions, 401(k)s and Social Security benefits, IRAs can be protected from creditors in bankruptcy. If you declare bankruptcy, your IRA assets will typically be safeguarded and can’t be taken. However, this doesn’t extend to other types of judgments, civil lawsuits, or IRS levies. State laws will vary, but your IRA assets may be protected from other creditors. There is a $1 million inflation-adjusted limit that applies to federal bankruptcy protection rules for the aggregate value of Contributory and Roth IRAs (with inflation, the limit is $1,283,025 as of April 1, 2016). Assets rolled over to an IRA from a qualified plan, like a 401(k), aren’t subject to the same dollar limits and can be fully protected.

Beneficiaries Protection. A big benefit to IRAs is the simplicity in selecting a beneficiary to receive the money when you die. This can be a great estate planning tool because these assets are not subject to probate and pass directly to the beneficiary. Make sure that your beneficiary designations line up with your overall estate planning goals. However, beneficiaries of IRAs are not always given the same creditor protection as the original account owner, so you need to consider this when selecting your IRA beneficiary. An inherited IRA for a non-spouse beneficiary is no longer automatically protected from creditor’s claims when the beneficiary files for bankruptcy. When the owner dies, and the non-spouse beneficiary takes ownership of the account, the assets are no longer deemed retirement funds, and can be seized in bankruptcy. This only applies to non-spouse beneficiaries because a spouse can roll over inherited IRA assets into his or her own account. When this transfer occurs to a surviving spouse, the assets are once again protected. However, a non-spouse beneficiary can’t comingle inherited IRA assets with their own retirement assets. Check your state laws on the degree of protection over non-spousal inherited retirement funds.

Children as beneficiaries. Many parents opt for their children to be beneficiaries of their IRA accounts. This can be an issue if the children have financial issues or face debt collectors. You can get around this be creating a conduit trust, and by listing the trust as beneficiary of the IRA and not the child. As a result, an inherited IRA payable to a trust can be protected from the child’s creditors while still allowing the child to benefit from the inheritance. The IRA’s required minimum distributions are calculated on the trust beneficiary’s life expectancy, and income is taxed at the beneficiary’s tax rate. Since the assets aren’t legally owned by the beneficiary, they’re protected from creditors in most instances. However, keep in mind that once the income is paid out to the beneficiary, that income isn’t protected.

It is important to review your beneficiary designations regularly because your goals and circumstances may change over the years. If a beneficiary is experiencing financial difficulties, you may want to try to protect them and to protect your legacy.

If you have questions about these issues, please call the office at 516-307-1236.

About the Author
Stephen J. Silverberg is nationally recognized as a leader in the areas of estate planning, estate administration, asset preservation planning, and elder law. He is a past president of the prestigious National Academy of Elder Law Attorneys (NAELA), and a founding member and past president of the New York State chapter of NAELA.
Posted in IRA