A Retirement Protector Trust™ (also commonly known as a Retirement Plan Trust) is a specialized stand-alone revocable trust designed to receive and protect retirement account distributions such as IRAs, 401(k)s, and other qualified accounts upon your death. It insulates these assets from a beneficiary’s creditors, bankruptcy, lawsuits, or a divorcing spouse. This is accomplished by naming the Retirement Protector Trust as the primary or contingent beneficiary of your retirement account(s).
Why It Matters Under SECURE Act 2.0
The SECURE Act of 2019 and its 2022 update (SECURE Act 2.0) made significant changes to how retirement accounts are handled after death. Most non-spouse beneficiaries must now fully withdraw inherited IRA or 401(k) funds within 10 years of the account holder’s death (unless they are eligible designated beneficiaries such as minors, chronically ill individuals, or those not more than 10 years younger than the decedent).
This 10-year rule eliminated the ability for most beneficiaries to "stretch" distributions over their lifetime. As a result, planning for tax-efficient and creditor-protected withdrawals has become more important than ever.
Benefits of a Retirement Protector Trust
- Creditor Protection: Assets held in the trust are better protected from lawsuits, bankruptcies, and divorce proceedings.
- Tax Efficiency: With proper drafting, income distributed to the trust can be taxed at the beneficiary’s individual tax rate instead of the higher trust income tax rate.
- Control: You determine how and when distributions are made to your beneficiaries.
- Customization: Each beneficiary can have their own trust share with tailored provisions based on age, financial responsibility, or special needs.
Ownership Clarification
The trust is never the owner of your retirement account. Instead, it acts as the designated beneficiary. The trust receives distributions per the rules applicable to inherited retirement accounts and distributes (or retains) the proceeds according to the trust terms.
Should You Make the Trust Beneficiary-Controlled?
Some individuals choose to allow beneficiaries to manage their trust share once they reach a certain age (often 25-35). This gives beneficiaries more autonomy but could increase potential exposure to lawsuits, divorce, and creditors. A prudent solution may involve including a Trust Protector or Independent Trustee who can take over administration if risks arise.
Multiple Beneficiaries and Tailored Provisions
Retirement Protector Trusts also allow for multiple beneficiaries, each with customizable provisions. This is critical if:
- A beneficiary is a minor
- A beneficiary has substance abuse or spending issues
- A beneficiary has other creditor risks
- However, note that a beneficiary who is a “special needs” person should have a single beneficiary Retirement Protector Trust due to the complexity of the law
Establishing the Trust
If you're married, it is best practice to establish a separate Retirement Protector Trust for each spouse. Upon the death of the second spouse, the Retirement Protector Trust can become the beneficiary of your retirement account(s). If your beneficiary form names the Retirement Protector Trust and specifies individual shares for each child or grandchild, the Trustee can ensure distributions are managed separately for each beneficiary.
Accumulation Style Trust Example
If your IRA has $1 million and you name two adult children as equal beneficiaries of an accumulation-style Retirement Protector Trust, each child’s share will be allocated $500,000. Under SECURE Act 2.0, those funds must be fully distributed from the IRA to the trust by December 31 of the 10th year following your death. However, the Trustee has discretion to space the distributions over time to optimize tax impact and preserve assets (if the inheritance occurs after your required beginning date and you were already taking RMDs, the beneficiary must continue to take RMDs based on your life expectancy during the 10 year distribution period, with the entire balance required to be distributed by the end of the 10 year period after death).
Conduit Trust for Minor Beneficiaries
If the beneficiary is a minor, the Retirement Protector Trust can be drafted as a Conduit Trust. In this case, the required minimum distribution (RMD) from the inherited retirement account flows through the trust and is paid out to the child’s legal guardian annually until the child reaches the age of majority (age 21 under the Secure Act), after which time the 10-year rule begins for the account to be fully withdrawn. If you have multiple children and at least one of your children is under the age of 21, it may be worthwhile creating a common trust until the youngest child reaches age 21 to maximize the stretch out rules for eligible designated beneficiaries under the Secure Act. This could allow the retirement assets to remain in the tax deferred environment of your qualified retirement account for a longer period of time than the traditional 10 year rule.
Who Should Consider a Retirement Protector Trust?
- Individuals with retirement accounts exceeding $300,000
- Parents who want to protect their children’s inheritance from future ex-spouses, lawsuits, or financial mismanagement
- Anyone with beneficiaries who are minors, financially inexperienced, have special needs, or may desire creditor protection (especially when the amount of retirement funds is significant)
Real Life Example: John & Sandy
John, 57, and Sandy, 56, have two young adult children, Max (22) and Alexis (24). John’s IRA has a balance of $1,000,000. Concerned about protecting their children’s inheritance, John and Sandy each establish a Retirement Protector Trust. During their lifetimes, they each serve as Trustees of their respective trusts, which are funded with nominal amounts (i.e, $10).
John lists Sandy as the primary beneficiary of his IRA and his Retirement Protector Trust as the contingent beneficiary. After both John and Sandy pass, their named Successor Trustee manages the trust for Max and Alexis until they each turn 35. At that point, each child may serve as their own Trustee (beneficiary-controlled) and manage their sub-trust.
All retirement assets must be withdrawn from the inherited IRAs into the trust by the end of year 10. The children may take distributions gradually over that time. If the assets remain in the trust, special provisions can be drafted to allow trust income to be taxed at the child’s personal rate.
Maximizing Protection and Flexibility
To enhance protection, John and Sandy name an Independent Trustee to serve after their deaths and include a Trust Protector with powers to:
- Appoint a new Trustee during a vacancy or to remove and replace the existing Trustee
- Modify the trust for future tax law changes
- Maintain flexibility for changing circumstances through the ability to amend the trust in certain limited circumstances
- Move the trust to a new jurisdiction for administrative
- Interpret the terms of the trust if there is a discrepancy or disagreement among the Trustee and beneficiaries as to the meaning of a provision in the trust without court interference
With the SECURE Act 2.0 accelerating the timeline for retirement distributions for those who inherit them, now is the time to consider whether a Retirement Protector Trust should be part of your estate plan. It provides valuable control, protection, and tax advantages for your children or other loved ones.
If you or a friend or family member would like to explore estate planning for retirement accounts or needs help establishing or updating an estate plan, please contact our Intake Department at 760-448-2220 or visit us online at www.geigerlawoffice.com/contact.cfm. We proudly serve families across California from our offices in Carlsbad (San Diego County) and Laguna Niguel (Orange County).
