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How should I leave a 401K to my minor children if I die?

Coeur D Alene, ID |

I have a 401K and an IRA that I need to do estate planning for. I think I am going to list my minor children as benficiaries to my life insurance through an UTMA. My understanding is that would allow the money to be used for their expenses and education through a "trustee" that I would name. But that they won't get the rest of the money until they are 21.

Is that correct? Can I do the same thing with the retirement accounts?

Attorney Answers 2


You should execute a will that has trust built into it in which your minor children would be the beneficiaries, and could receive the income and principal for their health, education, maintenance and support. They would receive chunks of the trust, outright free of trust, at ages you decide: a third at 25, a third at 30 and the last third at 35 (as an example). The beneficiary designation of your 401k, IRA would be the "Residuary Trust Created under the Will of John Doe executed on the blank day of blank, 2011."

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Be careful here as the IRS has something called qualified trusts when it comes to being named beneficiaries of retirement assets. If you fail to structure this trust in accordance with these very technical and tricky qualified trust rules, you risk an acceleration of the distributions thereunder and an immediate tax of all monies in the 401(k) plan. The trust suggested by the prior attorney may not meet all the tests. You need to meet with a tax/estates attorney who knows how to structure these types of trusts and to discuss the merits of this trust or other mechanisms.
As for the life insurance, the UTMA is very restrictive and may not meet all your needs. You should consider a living trust and perhaps an irrevocable life insurance trust (ILIT) should be considered. Do not do estate planning on your own. You or your family will be hurt by such self-lawyering. Get with an estate planning attorney immediately.

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