"The standard beneficiary instruction form says, 'NOTE: if you name a trust as beneficiary, you must also provide additional information to the Administrator. The Administrator will notify you as to what additional information is needed.' The standard designation of beneficiary form itself says, 'Trust beneficiary. If you name a trust as beneficiary, the trustee must satisfy additional documentation requirements no later than October 31 of the calendar year following the calendar year of your death. The Administrator will provide you or the trustee with the additional forms you must complete.' (My emphasis.)

Now, spousal consent, if applicable, would require an additional form. The Administrator would need a copy of the trust. What else might be required?

For RMD purposes, you have the requirements that the trust must be irrevocable, must be valid under state law, that the beneficiaries must be identifiable under the trust, and that the plan administrator needs either a copy of the trust or a certified list of beneficiaries under the trust.

Do you normally direct all this to the plan sponsor's attorney to determine what 'additional forms' might be needed, if any?"

"A DB plan terminates on December 31, 2021. The distribution for the owner (who is the only participant) will take place in early 2022. (Owner will be age 63 or so.) Highest 3 year average = $285K so benefit will be based on 415 dollar limit. Is the calculation of the maximum lump sum benefit to be paid in 2022 based on $230,000 (in effect on plan termination date) or $245,000 (the new limit for 2022 since will be paid in 2022)?"

"Got a client that signed a plan document but never did anything with it and terminated it in the same year it was effective. Do you think a 5500 should be filed for this one and only plan year?"

"A calendar plan has 2 owner HCEs, one non-owner HCE and one non-HCE as participants. All but one owner HCE terminated in June 2021. Doing some testing for 2021. If I can switch to top-paid group, the testing will be OK. The question is, can the plan be amended now to make the non-owner HCE a non-HCE?"

"Top-hat plans, gotta love em. I came across this ...

https://www.thompsoncoburn.com/insights/publications/item/2018-11-07/a-top-hat-plan-checklist-for-employers ... which suggests something I had not seen before:

Give your Plan Administrator the Power to Issue Binding Determinations

In the Firestone case, the U.S. Supreme Court held that, if a plan administrator has been given the discretion to interpret and apply the provisions of a plan subject to ERISA, then judicial review of a benefits denial by the plan administrator will be conducted applying an arbitrary and capricious standard of review.

There is a split in the federal Circuits regarding the standard of review that should be applied in cases involving top hat plans. The Seventh and Ninth Circuits have applied the arbitrary and capricious standard if the plan administrator has been granted the requisite discretion required under Firestone.[3] In contrast, the Third and Eighth Circuits have held that a de novo standard applies since plan administrators of top hat plans are not subject to the ERISA fiduciary rules.[4]

Notwithstanding the split in the Circuits on this issue, a top hat plan document should grant to the plan administrator the discretion to determine eligibility for benefits and to make all other determinations necessary for the administration of the plan. In addition, the plan should provide that all determinations by the plan administrator are binding unless determined to be arbitrary and capricious by a court having jurisdiction. Even if a court holds that ERISA rules relating to the applicable standard of review do not apply, it may decide to enforce such plan provisions as a matter of contract law.

So, has anyone done this in practice? Our document allows for additional eligibility requirements such as 'in order to become an eligible employee, the employee must be approved by the CEO of the plan sponsor.' In the past I have just clearly labeled the employee classes that would be eligible (usually officers and a certain level of management). Thoughts on this?"

"A little confused on how the timing works on what Datair is providing as additional PPA document amendments (Expanded Hardship, Qualified Plan Loan Offset, Forfeiture Allocation, and Disability Claims Procedure) that need to be in place by 12/31/21 (though only Expanded Hardship and QPLO need to be signed by the plan sponsor; the rest are adopted at our level or above).

We're restating our plans effective 1/1/22, signed (hopefully!) in December 2021. We're getting unclear information from Datair themselves as to whether this means that these amendments need to be executed separately in 2021 because they belong to the PPA document, or if they are considered 'wrapped up' in the restatement because the restatement is executed prior to 12/31/21. Any thoughts from other Datair users? Or in general? Thanks. For a post-PPA restatement not signed by 12/31/21, I believe they would need these amendments executed separately."