Life and Death Planning for Retirement Benefits

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Chapter 6: Leaving Retirement Benefits in Trust 311
Under this model, the trust beneficiary would be given the unlimited right to withdraw the
benefits (and any proceeds thereof) from the trust at any time. Until the beneficiary chose to
exercise this right, the trustee would exercise ownership rights and responsibilities on the
beneficiary’s behalf, for example, by investing the trust funds, choosing distribution options, and
distributing income and/or principal to or for the benefit of the beneficiary.
This type of trust would be uncommon, since anyone wanting to give such broad rights to
the beneficiary would presumably leave the benefits outright to the beneficiary rather than in trust.
However, this model could be useful for certain disabled beneficiaries (see C)) or for a
“qualified domestic trust” (QDOT) for the benefit of a noncitizen spouse ; see the
Special Report: Retirement Benefits and the Marital Deduction, Including Planning for the
Noncitizen Spouse .
6.3.11 Powers of appointment
If a remainder interest is subject to a power of appointment upon the death of the life
beneficiary of the trust, all potential appointees, as well as those who would take in default of
exercise of the power, are considered “beneficiaries,” unless they can be disregarded under the
rules discussed in this ¶ 6.3.
Under a conduit trust for a single beneficiary, the trust’s remainder beneficiaries are
disregarded. B). Thus, the conduit beneficiary (or the trustee or anyone) can be given the
power to appoint the trust assets remaining at the conduit beneficiary’s death to anyone, even a
charity, a non-see-through trust, an estate, or an older individual, and the trust will still qualify as
a see-through with the ADP based on the conduit beneficiary’s life expectancy. See, e.g., PLR
2006-20026. For a trust with multiple conduit beneficiaries, it is more difficult to apply this rule;
see
With an accumulation trust, remainder beneficiaries generally must be counted. (The
presumed exception is the 100 percent grantor trust; see ) Thus, if an accumulation trust
(other than, presumably, a 100 percent grantor trust) is to qualify as a see-through, all such
potential appointees, as well as those who will take in default of exercise of the power, should be:
(1) identifiable , (2) individuals , who are (3) younger than the beneficiary
whose life expectancy is the one the participant wants used as the ADP. The following examples
illustrate the possibilities:
A. Power to appoint to “issue” of the participant and/or spouse apparently is acceptable,
because the power is limited to a small, clearly-defined group of “identifiable” younger
individuals. See PLR 1999-03050 (“Trust B”) approving a trust that granted the surviving
spouse a testamentary power to appoint the principal “to and among the issue” of the
participant and his spouse. If the power were not exercised, the property would pass at the
surviving spouse’s death to “the children or their issue, under the terms set forth in Trust
M”; thus the potential appointees and the takers in default were the same group. A defect
of this ruling is that the “terms” of “Trust M” under which the issue would take are not
specified; see “E” below. Presumably the participant had some issue living at the time of
his death, though curiously the PLR does not so state.
B. Power to appoint to spouses of issue. A power to appoint property to someone’s “spouse”
is a classic example of creating a nonidentifiable beneficiary (unless it is limited to a