I’ve consulted many clients over the years who used their IRA funds to buy an annuity investment. The most common questions I get are as follows.
- What is an annuity? Now mind you, these are persons who already own an annuity.
- Can I cancel it and get my money back to invest in something else, and is there a penalty?
Most of our clients who own an annuity with an IRA are seeking to use those retirement plan dollars in a new investment opportunity with the goal of increasing returns. However, “getting rid” of an annuity owned by your IRA isn’t as easy as selling a mutual fund or stock investment.
WHAT IS AN ANNUITY?
An annuity is a contract with an insurance company whereby the person invests a lump-sum (or a series of payments) with an insurance company and the insurance company agrees to pay certain sums to the owner over their life. There are many variations of annuities but the simple explanation is that you give up money now to an insurance company and they promise to pay you money later. The longer you wait to get paid the more they will pay you later on.
CAN I CANCEL MY ANNUITY?
You can cancel an annuity but you may be subject to a surrender penalty. Most annuities have a surrender penalty whereby the owner of the annuity is penalized for requesting a return of the investment within a certain period of years of the initial investment. This time period is known as the surrender period and on average will last from 5 to 10 years. The surrender penalty on a 10 year surrender time period is usually 10% and decreases by 1% each year thereafter until it goes to zero after 10 years.
So, if you invested a lump-sum of $100,000 into an annuity and one-year later (in years 2) you wanted to get the entire $100,000 back out, you would be subject to a 9% surrender penalty of $9,000. That would mean you could get back $91,000 but would forfeit the remainder. Some penalty schedules are more punitive and they all vary. The surrender schedule is in the annuity contract documents and can also be requested at any time from the company holding the annuity.
KEEP IT IN AN IRA TO AVOID TAXES
Once you cancel an annuity owned by your IRA, the funds need to stay within an IRA (e.g. self-directed IRA) in order to avoid taxes and penalties from the IRS. You can request the annuity company to transfer the IRA annuity cash balance over to a new IRA custodian of your choosing. Once you’ve taken these steps, you’re retirement plan funds will be in an IRA and available to invest in stock, bonds, mutual funds, real estate, private companies, precious metals, and all other investments available to IRAs.
The United States Supreme Court recently issued a 9-0 opinion holding that inherited IRAs are not exempt and protected from creditors in bankruptcy. As a general rule, IRAs receive special protections from creditors and cannot be reached by the creditors of the account owner. In Clark v. Rameker Trustee, Clark inherited her mother’s large IRA upon her mother’s death. Nine years later, Clark filed bankruptcy and sought to protect the inherited IRA from the reach of her own creditors. Under the bankruptcy code, “retirement funds” are protected from the reach of creditors and may generally be kept by the owner following bankruptcy. Justice Sotomayor, who wrote the opinion of the Court, wrote that inherited IRAs (not to include spousal inherited accounts) do not constitute “retirement funds” for three reasons. First, the owner cannot continue to contribute to the account. Inherited IRAs remain in the deceased owner’s name and cannot receive additional contributions from an heir. Second, the new owner is forced to take required minimum distributions from the account under a different set of rules than typical retirement accounts. And third, the account owner may withdraw the balance at any time without a 10% early withdrawal penalty. Because of these reasons the Court held that inherited IRAs are not “retirement funds” within the meaning of IRC 408 and as a result they are not protected from creditors. Consequently, the Clark’s entire inherited IRA is subject to the claims of creditors in bankruptcy.
In addition to the Court’s ruling in Clark, it is important to note three other facts regarding inherited retirement accounts and creditors.
- IRAs Inherited From a Spouse. When a surviving spouse inherits a retirement plan from a deceased spouse, the surviving spouse may simply roll over the deceased spouses account into an IRA owned by the surviving spouse and the retirement funds become a new account or add to an existing account of the surviving spouse. This is different from a non-spousal inherited account that was involved in the Clark case. Spousal inherited IRA funds go into the surviving spouses own IRA and are subject to the typical retirement plan rules. Because of this, inherited spousal retirement plans funds are different than that of non-spousal inherited funds and are not subject to the Court’s holding in Clark.
- Certain States Specifically Protect Inherited IRAs. When in bankruptcy a creditor can seek the protection of certain assets from creditors under federal exemptions and/or they can seek the protection of certain assets (such as IRAs) under the laws of their State. Under the laws of a few states, inherited IRAs are specifically protected from creditors and as a result the Court’s opinion in Clark would likely not apply. Those states include, Arizona, Texas, and Florida.
- Consider an IRA Trust For Large IRAs. If you have an estate comprised of significant IRA holdings, you may be able to establish a special IRA Trust, which can be used to shelter your IRA funds from your heir’s creditors. A trust should only be listed as a beneficiary of an IRA upon careful planning and consideration as the Trust needs to contain certain provisions in order to qualify as a valid trust under retirement plan rules.
Since inherited IRAs have special rules and procedures, it is recommended that person’s with large IRAs seek the guidance and assistance of an attorney in planning their estate and retirement fund’s future. Also, if you have an inherited IRA and are considering bankruptcy, stop, consult, and plan with the proper counsel lest you lose the account to creditors.
By: Mat Sorensen, Attorney and Author of The Self Directed IRA Handbook