Reading the fine print of a custodial agreement for an individual
retirement account is about as exciting as the idea of having
blood drawn. You’re probably more focused on the IRA’s
investment options or rolling your 401(k) plan account into
the IRA without running afoul of tax rules. Those are worthy
issues, to be sure, but don’t ignore that custodial
agreement.
One reason to thoroughly read your custodial agreement—or
have your financial planner read it and explain it to you—is
that custodial agreements don’t necessarily have to
match the Internal Revenue Service rules and regulations.
Custodial agreements can be more restrictive.
For example, IRS rules allow the beneficiary or beneficiaries
who inherit an IRA to name their own beneficiaries. Commonly
a parent will name a child the beneficiary on an IRA inherited
from the parent’s parent. If Joe inherits his dad’s
IRA, he can “stretch out” the tax deferral by
making minimum distributions over his life. By naming his
daughter Sally as his beneficiary, she can do the same thing
after Joe dies, thus continuing tax deferral.
But the custodian of the IRA, such as a bank, brokerage
firm, or mutual fund, doesn’t have to permit the beneficiary
to name a successor beneficiary. When the owner dies, some
custodians require the IRA assets to be paid out to the owner’s
estate in a lump sum, causing the loss of deferral and an
immediate, and potentially large, tax bill. Fortunately,
most custodians allow such stretch IRAs, but not all do,
so read the agreement carefully.
Another provision to check for is what happens if you have
multiple beneficiaries named to an IRA, such as your adult
children, and one of them dies before you do. The standard
language of custodial agreements call for IRA assets to pass
to the remaining beneficiary or beneficiaries upon the owner’s
death “per capita.” That means the assets are
divided only among the surviving beneficiaries.
But what if a prematurely deceased beneficiary had children?
Under the per capita default, no IRA assets would pass to
those children. The assets would pass only to the surviving
beneficiaries. Essentially, you disinherited some of your
grandchildren.
This oversight can be avoided if the language of the agreement
says “per stirpes” instead of per capita. Per
stirpes allows the share that would have gone to the deceased
beneficiary to be passed to the deceased’s children
(or other designated heirs of the deceased).
Some custodial agreements that have the per capita provision
as a default allow you to check a box on the agreement form
changing it to per stirpes. In other cases, you may have
to draft a signed and witnessed custom addendum instructing
the custodian to distribute on a per stirpes basis. It is
a good idea to have the custodian sign the addendum acknowledging
receipt. If the custodian won’t accept addendums, you
may want to consider a different custodian.
Does the custodial agreement allow multiple beneficiaries
to your IRA? The default language of some agreements limits
owners to a single primary beneficiary or is simply silent
on the issue. Furthermore, custodial agreements that allow
multiple beneficiaries may prescribe equal distribution of
the assets, but you may prefer different percentages for
different beneficiaries. Again, if allowed by the custodian,
you may need to attach separate language detailing multiple
beneficiaries by name and how you want the assets distributed
among them.
What is the agreement’s default language regarding
a divorce or legal separation in which you forget to remove
the name of your former spouse as beneficiary? Agreements
typically are silent, though a few will automatically revoke
the divorced spouse as beneficiary unless otherwise directed
by a divorce decree.
Does the agreement allow the custodian to discuss the IRA
with the owner’s estate executor or successor trustee
who isn’t a named IRA beneficiary? If not, you may
have to write that provision into an addendum.
Does the agreement allow the beneficiaries to make a trustee-to-trustee
transfer of the IRA assets to another financial institution
after the owner dies (thus avoiding the payment of income
taxes)? If the custodian does not permit the transfer, beneficiaries
either are stuck with that custodian or would have to cash
in the IRA and pay potentially substantial taxes on the lump
sum.