Whether you have a Traditional or Roth Individual Retirement Account (IRA), the tax benefits allow your savings to grow and compound more quickly than in a taxable account. Another benefit is creditor protection in the event of a bankruptcy. But what about when you pass away, are your beneficiaries protected?
The Supreme Court has helped clear up this issue in recent years. Just like protection offered to pensions, 401(k)s and Social Security, IRAs are protected from creditors in bankruptcy proceedings. This means that if you declare bankruptcy, your IRA assets are usually safeguarded and cannot be seized.
Another benefit to IRAs is the simplicity in selecting a beneficiary (or beneficiaries) who will receive the money once you pass. However, beneficiaries are not always afforded the same creditor protection as the original account owner, and this is something to consider when determining who your IRA beneficiary should be.
The U.S. Supreme Court has ruled that an inherited IRA for a non-spouse beneficiary no longer is protected from creditor’s claims when the beneficiary files for bankruptcy. The rationale is that once the owner dies and the non-spouse beneficiary takes ownership of the account, the assets are no longer considered retirement funds, and can thus be seized in bankruptcy.
The reason this only applies to non-spouse beneficiaries is because a spouse is able to roll over inherited IRA assets into their own account. When this type of transfer occurs, the assets are once again protected. However, a non-spouse cannot combine inherited IRA assets with their own retirement assets.
Many parents list their children as beneficiaries of their IRA accounts, but this can present a problem if the children have financial issues or file for bankruptcy. One of the best ways to get around this is to establish a trust, such as a conduit trust, and list the trust as beneficiary of the IRA instead of the child. As the assets are not legally owned by the beneficiary, but instead owned by the trust, the assets are protected from creditors in many cases. However, keep in mind once the income is paid out to the beneficiary (i.e. – leaves the trust), that income is no longer protected.
If you have any questions on this topic or are in financial crisis and considering filing for bankruptcy, contact an experienced Miami bankruptcy attorney who can advise you of all of your options. As an experienced CPA as well as a proven bankruptcy lawyer, Timothy Kingcade knows how to help clients take full advantage of the bankruptcy laws to protect their assets and get successful results. Since 1996 Kingcade & Garcia, P.A. has been helping people from all walks of life build a better tomorrow. Our attorneys’ help thousands of people every year take advantage of their rights under bankruptcy protection to restart, rebuild and recover. The day you hire our firm, we will contact your creditors to stop the harassment. You can also find useful consumer information on the Kingcade & Garcia website at www.miamibankruptcy.com.