Both workers and retirees may need to rethink some of their estate planning in light of the newest spending bill. The Setting Every Community Up for Retirement Enhancement (SECURE) Act, part of the massive bill, makes major changes to retirement plan rules, including inherited plans.
Passed in December 2019, the SECURE Act changes the law surrounding retirement plans in several ways, but the biggest change eliminates “stretch” IRAs. Under the previous law, if you named anyone other than a spouse as the beneficiary of your IRA (or other tax-favored retirement account, such as a 401(k)), that beneficiary could choose to take required minimum distributions (RMDs) over his or her lifetime and pass what was left on to future generations (called the “stretch” option). The required minimum distributions were calculated based on the beneficiary’s life expectancy. This allowed the money to grow tax-deferred over the course of the beneficiary’s life and to be passed on to his or her own beneficiaries.
The SECURE Act requires that most non-spouse beneficiaries of an IRA withdraw all the money in the IRA within 10 years of the IRA holder’s death. In many cases, these withdrawals would take place during the beneficiary’s highest tax years, meaning that the elimination of the stretch IRA is effectively a tax increase on many Americans. This provision will apply to those who inherit IRAs starting on January 1, 2020.
Spouses who inherit an IRA are still able to treat the IRA as their own (and take distributions over their lifetime), and the following non-spouse beneficiaries are also treated like spouses:
• Disabled or chronically ill individuals
• Individuals who are not more than 10 years younger than the account owner
• Minor children. But once the child reaches the age of majority, he or she has 10 years to withdraw the money from the account.
Given these changes, those with retirement accounts need to immediately reevaluate their estate plans.
Look at Disclaiming
With regard to estates of certain people who died during 2019, there is a planning option for individuals who are inheriting a large IRA. Beneficiaries of large IRAs have the option of disclaiming them and allowing their beneficiaries to stretch their withdrawals. The disclaimer has to be done within nine months of the IRA owner’s death. Disclaimed property is treated as if the person inheriting it had actually died before the decedent.
For example, assume that Robert died on September 1, 2019, leaving a $1 million IRA to his wife, Stacy. The contingent beneficiaries are their three children. Stacy could choose to disclaim the IRA (or a portion of it) so that it passes directly to her three children. They then could stretch the withdrawals over their life expectancies, postponing the bulk of their withdrawals until they are older and presumably retired and subject to lower tax brackets. Stacy has to execute her disclaimer by March 31st so that it’s within nine months of Robert’s death. The window for this option will continue to narrow until it closes completely on October 1, 2020.
Review Your Conduit Trust
Your estate plan may have been designed to have your retirement plans pass into trust for the benefit of your spouse, your children, or others. If your spouse is the only beneficiary, your trust is fine because the SECURE Act did not change any of the rules for spouses inheriting IRAs. But the rules did change for just about everyone else in a way that could affect how the trust would work. 
Under the previous rules, so-called “conduit” trusts were set up to pay out RMDs to the beneficiaries. Under the new law, RMDs are not required but the IRA must be completely withdrawn by the end of the 10th year after the owner’s death, and if it’s held by a conduit trust, it must be completely distributed to the trust beneficiaries. If you created the trust to protect assets in the event of divorce or bankruptcy, or simply so they will be professionally managed, the new rules could undermine the purpose of the trust by distributing all of the assets out of the trust. If your IRA names a trust as a beneficiary, you should review the trust with your estate planning attorney.
Check Your Special Needs Trust
Special needs trusts, unlike most other trusts, are usually drafted as so-called “accumulation” trusts. Unlike conduit trusts, accumulation trusts do not require that the RMDs be distributed. Instead, they can be retained by the trust and distributed as the trustees deem appropriate. Automatically distributing RMDs could undermine eligibility for public benefits the disabled beneficiary may be receiving.
Under the new law, disabled beneficiaries are deemed “eligible designated beneficiaries” and fall under an exception that permits them to continue to stretch withdrawals under the old inherited IRA age-based schedule. But the trust will only qualify for this treatment if the disabled individual is the only beneficiary of the trust during his or her life. If the trust also permits distributions to a spouse or children, it won’t qualify and the IRA will have to be completely withdrawn under the 10-year rule.
One of the problems with the 10-year rule for accumulation trusts, as opposed to conduit trusts, is that the withdrawn funds if held by the trust will pay taxes at trust tax rates, which are much higher than individual tax rates in most cases. As a result, if your estate plan includes a special needs trust that could be a beneficiary of your retirement plan assets, it’s important to review the trust with your estate planning attorney.
