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It's very clear that once you are in the PBGC term process you cannot do an auto cash out. Missing and unresponsive under cashout go to PBGC. Missing over cashout go to PBGC. Unresponsive over cashout must have an annuity purchased.

Hello, I have a client interested in acquiring or merging with a small to mid-size 401(k) TPA firm. Their services include, but are not limited to, plan designing, plan valuation, preparing renewal packages, census scrubbing, contribution calculation (including profit sharing), and compliance testing (Coverage, ADP/ACP, 416 top-heavy tests, 401(a)(4), and top-heavy). They are open to opportunities in any location. If you know of any firms available for acquisition or merger, please send me a direct message. Best regards, John

Tom, ignoring it might work, but then again months from now a participant, or all the participants, could make a claim along the lines that Peter Gulia explains above. If liability for the amount is clear and it's not you, risk mitigation might suggest striking while iron is hot.

Jakyasar: As a Defined Benefit Plan, Fully Insured Plans under Section 412(e)(3) are subject to the same RMD rules with the exception of the RMD is based only on the vested portion of the account balance. These Plans also usually use the annuity mentod and the terms and conditions of the annuity (or annuity and life insurnace) contracts would dictate the payout. Another method I've experienced, which is the norm, is either the contracts are surrender, the first RMD taken, and the remainder transferred to an IRA, or in some cases the annuity contract is "non-transferrable" (or some Carriers have IRA amendments written into their contracts) and removed from the Plan then annuitized.

I can't *imagine* your plan document requires it to be tested for nondiscrimination solely on a benefits basis. Do your rate groups on an allocations basis, and all the rate groups will pass > 70%. And then (except for the random possible exceptions which we as a pension community will remind you of in subsequent comments) you should be good.

This 401k plan uses for a PS allocation individual groups - one group per participant. The plan has 3 HCEs and 1 NHCE. The desired allocation is for the owner to hit his 415 max (he makes $330,000). But, he wants to give a lot to the others. It just so happens that the owners PS contribution rate is 9.03%. The other 2 HCEs and the NHCE is 28.83%. The plan passes the non-discriminatory classification test and the average benefits test, but only on a contribution basis, not on an equivalent benefit basis. 401(a)(4) rate group passes as well. Because of the plan's allocation method in the document, do we have to pass the average benefits test using the equivalent benefit basis, or can we rely on the contribution rate passing, even though this is a cross-tested plan? Thank you

If the plan provides participant-directed investment regarding that contribution: Might not following a participant’s investment direction be a breach of the fiduciary’s ERISA § 404(a)(1)(D) duty of obedience to the plan’s governing documents? Might not following a participant’s investment direction be a tax-qualification defect of not administering the plan according to the written plan? If the securities broker-dealer or a custodian associated with it had the money and the instructions and had an obligation to allocate the contribution among participants’ accounts, should it be the broker-dealer that ought to restore participants’ accounts at the broker-dealer’s expense?

Let’s restate jsample’s query: Is anyone aware of a plan’s administrator that interprets a beneficiary designation by looking to its description of the named person’s relation to the participant as a condition of the designation? For example, might an administrator interpret that a named person the beneficiary-designation document describes as the participant’s spouse is not the participant’s beneficiary if the named person was not or is not at a relevant time the participant’s spouse?

Employer contribution for 2022 of about $9,000 was paid in Sept 2023 in time for tax deduction purposes. The plan is a dreaded separate brokerage account for each person, granted a small plan. Despite us providing the participant allocation of the money to the broker (more than once - the brokerage firm had personnel changes) they did not implement the allocation so the funds sat in an unallocated account until just now. The broker is asking about makeup earnings. While that seems to be the right thing to do, I'm not certain it is required. It is likely a fiduciary issue. It's just another thing to do, explain to the client, he will ask who should pay (I'm guessing it could be $1,000), and it won't be us but we'll have to go round and round and take a lot of time and we will want to bill for the time. I'd like to ignore it. Thoughts?

Thanks Brian. Very helpful, as always.

If a terminated plan's administrator can put this burden on the Pension Benefit Guaranty Corporation, is there a reason a plan's sponsor or administrator might prefer not to?

If the plan’s administrator considers that any slayer-rule provision or law might apply or that a claimant might argue that a slayer-rule law applies, the administrator might consider also possible interpretations of the plan’s governing-law provision (if any), exclusive-forum provision (if any), and arbitration provision (if any). If the administrator denies any claim, the administrator should follow its claims procedure and ERISA § 503. Even if the administrator later might seek an interpleader, an administrator might first follow its claims procedure and decide a claim (at least for as much as the administrator can decide). An interpleader does not undo a court’s deference to a plan administrator’s discretionary decisions, at least for those decisions made before the interpleader. For example, Alliant Techsystems, Inc. v. Marks, 465 F.3d 864, 39 Empl. Benefits Cas. (BL) 1428 (8th Cir. 2006); see also Metro. Life Ins. Co. v. Waddell, 697 F. App’x 989 (11th Cir. 2017) (recognizing, even on interpleader, deference to a claims administrator’s discretionary authority); Liss v. Fid. Emp. Servs. Co., 516 F. App’x 468, 56 Empl. Benefits Cas. (BL) 3042 (6th Cir. 2013) (deferring to the administrator’s discretionary finding on whether a participant had made a beneficiary designation). If circumstances surrounding a participant’s death suggest some possibility of a slayer situation, an administrator might balance competing interests. A fiduciary should not deprive a rightful beneficiary of the beneficiary’s right to a distribution. But a fiduciary also must exercise the care, skill, caution, and diligence ERISA § 404(a)(1) requires to protect the plan against paying or delivering a distribution to someone other than the rightful beneficiary. Some courts’ opinions suggest a plan’s administrator might breach a fiduciary duty if it approves a claim without considering whether the claimant is a slayer if: (i) a plan’s provision or applicable law deprives a slayer of the benefit claimed; (ii) the administrator or other decision-making fiduciary knew (or, had it used the care, skill, caution, and diligence required of the fiduciary, ought to have known) that the claimant is suspected of killing the participant or another person regarding whom the claimant would take; and (iii) a prudent fiduciary acting with the required care would delay its evaluation of the claim until it could find whether the claimant is a slayer. See, for example, First Nat’l Bank & Tr. Co. v. Stonebridge Life Ins. Co., 502 F. Supp. 2d 811, 815 (E.D. Ark. 2007); Atwater v. Nortel Networks, Inc., 388 F. Supp. 2d 610, 616 (M.D.N.C. 2005); Estate of Curtis v. Prudential Ins. Co., 839 F. Supp. 491, 495 (E.D. Mich. 1993). None of this is advice to anyone.

Thanks Luke.

Make sure that you are not simply referring to the J&S, but rather that the plan permits designating nonspouse beneficiaries for a benefit.

Theoretically, a refinanced loan can have a full 5-year term, but under Treas. Reg. 1.72(p)-1, Q&A-20 the $50k limit is going to be reduced by the highest outstanding balance of the old loan in the prior year. More daunting still, you would need to add the outstanding amount of the old loan at the date the new loan is taken out to the amount of the new loan and test that against the reduced $50k limit. The reg implies that if the replacement loan is for the same period as is left on the refinanced loan (so here, 4 years) then you would not need to add together the amounts of the refinanced and replacement loans in determining whether you were under the $50k limit as reduced by the highest outstanding balance in previous 12 months. The same reg explains that if the refinanced loan is designed so that the payments during an initial period of the refinanced loan equal to the remaining period of the replaced loan (so here, 4 years) are equal to the sum of the amount needed to pay off the replaced loan plus the amount needed to amortize the excess of the replacement loan over the refinanced loan over its maximum term (here, 5 years), and the payments during the remaining period of the replacement loan (here, 1 year) continue for that period in the amount necessary to amortize the remaining balance of the excess of the replacement loan over the refinanced loan, then you're OK. The reg is not a masterpiece of clarity, nor is my explanation above, unfortunately.

Yes, two year cliff vesting is allowed for safe harbor QACA matching and nonelective contributions.

I agree with Bill Presson. Facts don't seem right. My guess is that they did an autopsy and ordered a toxicology report. That may take a couple of months to be completed, but this was done before cremation so eventually the death certificate will show cause of death. Plan administrator should contact the medical examiner's office.

The QACA employer safe harbor contributions have to vest over no more than 2 years, but it can be 2 year cliff if I recall correctly. as Belgarath points out other employer contributions such as a profit sharing contribution could use a different schedule such as 2/20 if provide in the document. God bless the job security of piece meal retirement legislation that brings us multiple different vesting rules for different types of plans and sources or money.

I find that aspect of the COBRA regs to be way more technical than it needs to be because it's so common to have coverage run through the end of the month, with the 18-month maximum coverage period beginning as of the first of the following month. The rules say you can measure from the date of loss of coverage (rather than the date of the triggering event) if the plan states that the 30-day notice period to notify the plan administrator (who then has 14 days to notify the employee) and that the maximum coverage period is measured from that loss of coverage date (instead of the date of termination of employment or other triggering event). I find this somewhat misaligned with the real world because: From my brief experience at the DOL, they enforce this based solely on the date of loss of coverage; They also didn't care about he 30/14 day distinction since it's usually the same entity anyway, they just enforced as a combined 44 day limit from loss of coverage; Most employers are using template documents, and it's unlikely those documents are customized for something as intricate as this; and The rules are clear that it's fine to have a longer maximum coverage period than is required by law. So are they really going to punish an employer for being more generous without perfectly clarifying in the plan terms? Our template doc does try to address this issue with some generic language: "(If coverage is lost at a date later than the date of the qualifying event and the Plan measures the maximum coverage period and notice period from the date of health coverage loss, then the maximum continuation period will be 18 months from the date of health coverage loss.)" Not perfectly customized, but at least it tackles the issue. Here's the regs: Treas. Reg. §54.4980B-7: Q-4. When does the maximum coverage period end? A-4. (a) Except as otherwise provided in this Q&A-4, the maximum coverage period ends 36 months after the qualifying event. The maximum coverage period for a qualified beneficiary who is a child born to or placed for adoption with a covered employee during a period of COBRA continuation coverage is the maximum coverage period for the qualifying event giving rise to the period of COBRA continuation coverage during which the child was born or placed for adoption. Paragraph (b) of this Q&A-4 describes the starting point from which the end of the maximum coverage period is measured. The date that the maximum coverage period ends is described in paragraph (c) of this Q&A-4 in a case where the qualifying event is a termination of employment or reduction of hours of employment, in paragraph (d) of this Q&A-4 in a case where a covered employee becomes entitled to Medicare benefits under Title XVIII of the Social Security Act (42 U.S.C. 1395-1395ggg) before experiencing a qualifying event that is a termination of employment or reduction of hours of employment, and in paragraph (e) of this Q&A-4 in the case of a qualifying event that is the bankruptcy of the employer. See Q&A-8 of §54.4980B-2 for limitations that apply to certain health flexible spending arrangements. See also Q&A-6 of this section in the case of multiple qualifying events. Nothing in §§54.4980B-1 through 54.4980B-10 prohibits a group health plan from providing coverage that continues beyond the end of the maximum coverage period. (b)(1) The end of the maximum coverage period is measured from the date of the qualifying event even if the qualifying event does not result in a loss of coverage under the plan until a later date. If, however, coverage under the plan is lost at a later date and the plan provides for the extension of the required periods, then the maximum coverage period is measured from the date when coverage is lost. A plan provides for the extension of the required periods if it provides both— (i) That the 30-day notice period (during which the employer is required to notify the plan administrator of the occurrence of certain qualifying events such as the death of the covered employee or the termination of employment or reduction of hours of employment of the covered employee) begins on the date of the loss of coverage rather than on the date of the qualifying event; and (ii) That the end of the maximum coverage period is measured from the date of the loss of coverage rather than from the date of the qualifying event. (2) In the case of a plan that provides for the extension of the required periods, whenever the rules of §§54.4980B-1 through 54.4980B-10 refer to the measurement of a period from the date of the qualifying event, those rules apply in such a case by measuring the period instead from the date of the loss of coverage.

I am under the impression that QACAs could have a three year cliff vesting schedule but six year graded is not allowed..

SLAYER STATUTES - PREEMPTION? In Maryland, Section 11-112 of the Estates and Trusts Article (the “slayer statute”) provides, inter alia: "(c)(1) The survivorship interest of a disqualified person in property held with the decedent, including a form of co-ownership with incidents of survivorship, is severed at the time of the death of the decedent and the property passes as if the decedent and the disqualified person have no rights by survivorship." In Laborers’ Pension Fund v. Miscevic , 880 F.3d 927 (7th Cir. 2018) https://scholar.google.com/scholar_case?case=17460001952525060856&q=+Laborers%27+Pension+Fund+v.+Miscevic,+880+F.3d+927+(7th+Cir.+2018)&hl=en&lr=lang_en&as_sdt=20003&as_vis=1 the US Court of Appeals for the 7th Circuit issued an interesting opinion: "In January 2014, Anka Miscevic ("Anka") killed her husband, Zeljko Miscevic ("Zeljko"). At a state criminal proceeding, the court determined that Anka intended to kill Zeljko without legal justification. However, the court also determined that Anka was insane at the time of the killing and found her not guilty of first degree murder by reason of insanity. Following the criminal trial, the Laborers' Pension Fund (the "Fund") brought an interpleader action to determine the proper beneficiary of Zeljko's pension benefits. Anka claimed she was entitled to a Surviving Spouse Pension. The Estate of M.M. (Anka and Zeljko's child) argued that Anka was barred from recovering from the Fund by the Illinois slayer statute. After both parties filed motions seeking a judgment on the pleadings, the district court ruled in favor of the Estate of M.M. It determined that the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. §§ 1001-1461, did not preempt the Illinois slayer statute, and that the statute barred even those found not guilty by reason of insanity from recovering from the deceased." Query: Who is the winner in this case? The pension that need not pay survivor annuity benefits to the insane wife. Query: Who are the losers? The insane wife who will not have income for her support, (and will most likely be incapable of finding employment except as an elected official), whoever will wind up paying for her future support - maybe the State? Query: Redeeming feature of the decision? A good discussion of Federal preemption under ERISA. See also the 2020 case of Prudential Insurance Company of America v. McFadden, Civil Action No. 6:19-CV-051-CHB, (USDC, ED Ky 2020) discussing Federal preemption - https://scholar.google.com/scholar_case?case=17925077709511382629&hl=en&lr=lang_en&as_sdt=20006&as_vis=1&oi=scholaralrt&hist=bY5nDLcAAAAJ:17102308171145443235:AAGBfm2dXJvPo0nUQKlDLqIPUBXxyXMitw&html= In Hartford Life Insurance Company v. LeCou, et al., No. CV 19-17-BLG-SPW, 2021 WL 1312516 (D. Mont. Apr. 8, 2021), the US District Court for the District of Montana considered whether the Employee Retirement Income Security Act of 1974 (“ERISA”) preempts the Montana Code Annotated § 72-2-813, which states that an individual who “feloniously and intentionally kills the decedent forfeits all benefits under this chapter [Chapter 2 UPC—Intestacy, Wills, and Donative Transfers] with respect to the decedent’s estate.” Mont. Code Ann. § 72-2-813 (2). In this case, Cross-Claim Defendant Robert LeCou was convicted of deliberate homicide for killing his wife and two of her siblings. The sole issue for the court was whether the wife’s qualifying plan benefits pass to her estate under Montana’s slayer statute. It would not pass to her estate if the Montana statute were preempted by ERISA. The court noted that this issue has not been addressed by Montana’s Supreme Court or the 9th Circuit. It also noted, however, that the U.S. Supreme Court, in Egelhoff v. Egelhoff, 532 U.S. 141, 152 (2001), explained that the underlying principle of slayer statutes and their uniformity across jurisdictions, leaned toward a finding that ERISA does not preempt such laws. Further, the Seventh Circuit in Laborers’ Pension Fund v. Miscevic, 880 F.3d 927, 934 (7th Cir. 2018) determined that Congress did not intend to supplant slayer statutes with ERISA because such statutes are a well-established legal principle that long-predates ERISA. “Congress could not have intended ERISA to allow one spouse to recover benefits after intentionally killing the other spouse.” Id. (citing Conn. Gen. Life Ins. Co. v. Riner, 351 F. Supp. 2d 492, 497 (W.D. Va. 2005). Consistent with those decisions, the court found that ERISA does not preempt Montana Code Annotated § 72-2-813 (2). In Munger v. Intel Corporation, No. 3:22-cv-00263-HZ, United States District Court, D. Oregon, (October 5, 2023) - https://scholar.google.com/scholar_case?case=1046225108905078771&hl=en&lr=lang_en&as_sdt=20006&as_vis=1&oi=scholaralrt&hist=bY5nDLcAAAAJ:17102308171145443235:AFWwaea94w7XgMVkZLP-Q4RdIOLK&html=&pos=0&folt=kw discussed whether or not the California slayer law was preempted by ERISA and by the case of Egelhoff v. Egelhoff, 532 U.S. 141 (2001). But the real question is who has the burden of proof in your state? If the surviving spouse files suit the slayer statute would be an affirmative defense. The burden on the surviving spouse is show that the Participant is dead. A litigant is not required to disprove every possible explanation. The burden then shifts to the Plan to prove that he was a victim of a homicide by the surviving spouse that would then invoke the slayer statute. How will that happen under the facts of your case. The body was cremated. Any evidence of wrongdoing - bullet hole, knife wounds, crush injuries. Somebody needs to explain the situation to the coroner and urge him to make the call and issue a report. I have had friends that were taking blood thinners and fell and hit their heads on a piece of furniture and died of a cerebral hemorrhage. David

I believe the relatively new (last few years) PBGC instructions require you to submit ANYONE that you cannot locate, or who doesn't respond, to the missing participant program. Once you have started the process, you cannot force them into IRAs. There may be an exception if < $200, but I would need to double check the rules. So, I agree with Hojo's initial post - you need to submit them to the missing participant program.

It includes plans terminated in the last five years, not currently active ones.

Plan sponsor has had 401(k) plan in which a participant is 100% in profit sharing. He wants to adopt a DB plan for 2023 and the employee terminated in 2024. Can years of service be prior to DB adoption be excluded for DB vesting? The plan document says service for vesting must be recognized for a "predecessor" plan. Does predecessor include K plan or only a prior DB plan? Thank you