Life and Death Planning for Retirement Benefits

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Appendix A: Tables 477
that varies from state to state. Although you cannot change the governing law of the “plan,” a
statement that the beneficiary designation will be interpreted according to the laws of a particular
state should be accepted in the sense that it will lead to the correct determination of the client’s
intent. See Section 3.03, Forms 2.1, 2.2.
8. DO name a contingent as well as a primary beneficiary. DO consider whether different
contingent beneficiaries should be named depending on whether the primary beneficiary actually
dies before the participant, or merely disclaims the benefits. See Form 3.1. When choosing among
competing considerations in naming a primary beneficiary (such as “financial security of spouse”
versus “saving estate taxes for children”), name the primary beneficiary based on the relative
priorities the client assigns to the choices. For maximum flexibility after the client’s death, name
the second choice as contingent beneficiary; see
9. Whenever a trust is named as beneficiary, see the Trust Drafting Checklist at
Some beneficiary designation forms in this book in which benefits are left to a trust describe the
trust as “the [TRUST NAME] Trust [optional:, a copy of which is attached hereto].” The phrase
“a copy of which is attached hereto” is optional, and would be used solely to identify the trust that
is named as beneficiary. You could choose to identify the trust by other means (e.g., “under
agreement dated 9/2/10”) instead of attaching a copy of the trust to the beneficiary designation
form. No matter how you choose to identify the trust, you ALSO must comply with the
documentation requirement; see
10. DO include contact information (address and phone) for the beneficiaries, or they and the
administrator may never find each other; for reasons of space, not every Form in this Appendix
recites the inclusion of contact information. Confirm the administrator’s policy regarding whether
it will notify the beneficiary; if the administrator declines any responsibility to notify the
beneficiary, arrange an alternative mechanism to notify them (or they may never know they have
inherited the benefits).
11. DO require the administrator to provide information to the participant’s executor. See
Section 3.02 of Forms 2.1 and 2.2.
12. DON’T focus on taxes and minimum distributions to the exclusion of basic drafting issues.
For example, if a beneficiary predeceases the participant, does his share pass instead to the
surviving beneficiaries, or to his own issue, or to someone else?
13. Finally, DO get a receipt or other written acknowledgment from the administrator
confirming that they have received and accepted the beneficiary designation form. Confirm that
the administrator has the beneficiary designation form each time you update the client’s estate plan
(even if the beneficiary designation is not to change; administrators have a way of losing these
documents, especially when there is a corporate acquisition). Admonish the client to see you
regarding a new beneficiary designation form, even in between estate plan-update visits, whenever
the benefits are moved to a different plan or account (for example, when an IRA is converted to a
Roth IRA).
Introduction to the Forms
The rest of this Appendix consists of sample estate planning forms dealing with retirement
benefits. [Brackets] indicate instructions to the drafter. [ALL CAPS] in brackets indicate