Leaving assets in trust is key to asset protection
Mark F. Winn
If you have loved ones that might inherit from you and they are potentially subject to lawsuits, divorce or bankruptcy, then you owe it to them to make sure they receive their share pursuant to the terms of a spendthrift trust.
They can still have total control as trustee. So, it is not as if you are trying to protect the assets from them, but rather from their creditors.
If you want to, you can also make sure your assets will stay in your family and go down to grandchildren, not to in-laws.
In a Supreme Court decision, the court ruled in favor of creditors regarding access to IRAs to satisfy claims.
The issue presented in Clark, et ux v. Rameker 573 U.S. on June 12, 2014, was whether or not funds in inherited IRAs are protected from bankruptcy.
The highest court in the land ruled that they are NOT protected as "retirement funds" as they are defined in the bankruptcy code.
So, what does this mean for you? If you are leaving assets to a child who has or could have creditor problems, then it is advisable to leave his or her share in a trust. This would include the retirement assets.
When this is done, care is imperative to insure that the required minimum distributions from the inherited IRA will be stretched out as long as possible.
Careful coordination of beneficiary designations on file with the plan administrator is necessary.
With life insurance, however, we usually direct the proceeds via beneficiary designation to the trustee of the trust our clients create. That way, they can get the proceeds in their fiduciary capacity and it does not go through probate.
It also is good to do it this way because the trust has addressed all of the contingencies. Thus, when after-tax money like insurance proceeds are paid to a trust, you can be sure it will avoid probate and it will do what you wanted.
With real estate, we are often facing situations where a couple wants to ensure the house goes to one another, then it goes to their children, or, in second marriage (blended family) situations, half to the husband's children from prior marriage and half to the wife's children from prior marriage.
Using trusts to control the remainder interest is the key to successfully completing these important objectives.
Mark F. Winn, J.D., Master of Laws (LL.M.) in estate planning, is a local asset protection, estate planning and elder law attorney. www.mwinnesq.com