Understanding the Risks of Being a 3(38) Fiduciary

3(38) fiduciary

Retirement plan sponsors often turn to their financial advisors to help them handle key responsibilities. Since navigating the legalities and complexities of retirement plans is typically not their core competency, it’s natural for plan sponsors to offload many of the associated tasks required for proper plan administration.

Enter your role as a 3(38) fiduciary.

While you may welcome the business relationship of being assigned as the 3(38) fiduciary, it’s also important to understand the legal implications and risks involved with performing the role.

What’s a 3(38)?

In a retirement plan, 3(38) fiduciaries are given discretion over most decisions regarding investment choices, such as implementing the lineup of suitable and appropriate investment options to be offered in the plan. While plan sponsors are still responsible for overseeing these fiduciaries, they generally transfer much of the risk and responsibility associated with plan monitoring and selection over to a 3(38) fiduciary.

This is unlike the role of a 3(21) fiduciary, also known as a “co-fiduciary,” who has less authority when it comes to plan decisions. While plan sponsors may rely on the advice of a 3(21) fiduciary’s investment analyses and recommendations, it is ultimately the plan sponsor’s role to make major investment plan selections.

Today, the latter relationship is more common, with 82% of retirement plan advisors serving as 3(21) fiduciaries, despite the the number of 3(38) offerings doubling since 2011, likely due to the rise in litigation targeting 401(k) plan sponsors.

With great power, comes great responsibility

While you may charge a premium for performing the 3(38) role, you may not wish to take on the added risk of fulfilling much of the ERISA plan sponsor’s legal requirements. This is especially true for smaller plans where you may not be able to make the business case for the services involved. It’s worth considering the amount of business you’ll be providing in relation to the responsibility that comes with it.

As a 3(38) fiduciary, you are committing to serve as the formal investment manager for an employer’s plan. As such, you will be required to provide regular fiduciary reports to the plan sponsor, and document your rationale for investment and fund change recommendations as well as any time you execute on said recommendations.

Adherence to IPS

With the addition of full investment discretion, you must document that you are adhering to the plan’s Investment Policy Statement (IPS), and that all investment decisions are made in the plan participants’ best interests. You may even be asked to help develop an IPS. Importantly, as a 3(38) fiduciary, your processes and methods must be that much more detailed and circumspect than those of a 3(21) fiduciary.

Expertise Required

Being a 3(38) fiduciary is a specialized role that requires specialized expertise. Advisors who dabble in the 401(k) space and advise only a few plans may not wish to take on the responsibility – and liability – required. Fortunately, that’s where external providers can help with the heavy lifting. Integrated solutions now offer you the option to offload the certain levels of fiduciary liability while still putting the power in the advisor’s hands to personally guide clients with their retirement decisions. We recommend exploring how these options ease the fiduciary liability you carry while giving your sponsors and participants the customized plans and advice they value most from their trusted advisor.

 

Helping Your Clients with Required Minimum Distributions

Required Minimum Distributions

Among the many compliance requirements for a 401(k) plan is the obligation to make required minimum distributions (RMDs) to participants each year. Although the distribution need not be made until April of the year after the participant turns age 70 1/2, advisors should check in with their plan sponsor clients throughout the year to make sure they are their service providers are prepared. Participants and employers face stiff penalties – including plan disqualification – if distributions are missed or aren’t large enough. Advisors can also help sponsors now avoid those penalties by checking for and quickly correcting missed RMDs.

Some background: What is a RMD and how is it calculated?

Participants must start making withdrawals from their tax deferred retirement plans by April of the year after they turn age 70 1/2. Individuals who turned 70 1/2 in 2017 face double pain: the IRS requires them to take a RMD by April 1, 2018 and a second RMD by December 31, 2018. RMDs must then be taken by December 31 each year thereafter. These minimum distribution rules apply to tax-deferred retirement plans, including IRAs, 401(k) plans, 403(b) plans, profit sharing plans, and other defined contribution plans.

 Advisors should help plan sponsor clients throughout the year

The IRS assesses large penalties for missed RMDs. While the major crunch time for making RMDs has now passed, don’t let your client forget to check for any missed distributions. Ask the recordkeeper to confirm that all appropriate participants were identified and review the plan language to double check. If a RMD is missed, but detected and corrected quickly, you can save the plan and participants a big headache. Advisors should also understand the demographics of their plan sponsor client’s tax-deferred retirement plans and caution them to pay special attention to aging participants who turned or are nearing age 70 1/2. Advisors can also help sponsors locate missing participants, which the IRS also requires in order to maintain tax qualified status.

Opportunities for advisors to ease the pain and help with planning

The RMD is included in taxable income. Therefore, the RMD can push a participant into a higher tax bracket and become subject to additional state and local taxes as well as a 50% excise tax for missed or inadequate RMDs.

Ensuring clients plan early for RMDs is key. For example, advisors can help clients avoid having both RMDs taxed as income for the same year by encouraging them to make the first withdrawal in the year the participant turns 70½. Advisors should also help clients evaluate whether they missed taking a RMD or received a RMD that wasn’t large enough. The participant may be taxed an additional 50% penalty on a missed or insufficient RMD. If there was a reasonable error, the advisor can help the client request a tax waiver by filing Form 5329 and preparing a good faith explanation.

Advisors can also help reduce a client’s tax burden by making a “qualified charitable contribution” that will count towards the RMD and can be excluded from taxable income.  Advisors should also help participants review their benefit plan document, since that might allow them to wait until the year they actually retire to take the first RMD. Individuals who own more than 5% of the business sponsoring the plan must take the distribution, regardless of whether or not they are actually retired.

For individuals with multiple tax-deferred accounts or inherited tax-deferred accounts, the advisor may be able to help a participant select which accounts to take the withdrawal. For example, investors who make IRA and 401(k) contributions with after-tax money do not receive any tax deductions on their contributions. Therefore, it can be less expensive for them to make RMDs from those after-tax accounts.

Advisors should also help clients who contributed only on a pre-tax basis to carefully examine their retirement plans. For individuals with multiple IRAs, RMDs may be aggregated. In other words, the IRA owner calculates the RMD separately for each IRA account, but may take a distribution from only one of them to satisfy the total RMD requirements for all of them. A client with a 401(k) (or other defined contribution plan) and a traditional IRA cannot aggregate and must take a separate RMD from each plan. Advisors can also assist clients with reinvesting their distributions and estate planning strategies by advising how to pass their distributions onto their heirs.

Education is key…for everyone

Be it plan sponsors, their participants, or your private wealth clients, it’s helpful to know your demographic and who might be affected by RMDs. But most importantly, it’s important to continue to educate yourself, and your clients, to ensure everyone is prepared for what’s in store.

Your Clients’ Plan Audit Qs, Answered

 

Plan Audit

If your plan sponsors aren’t already, they should be preparing their year-end report. The penalties for failing to conduct an audit can be substantial. Issues can surface during the audit that may be easier and less expensive to correct now versus down the road.

For plans with 100 or more eligible participants at the start of the plan year, the annual report must include an audit report issued by an independent qualified public account stating whether the plan’s financial statements conform with generally accepted accounting principles. An audit should comfort participants, knowing their plan’s operating processes are in good order.

We’ve put together some common questions and answers to help your plan sponsor understand the audit rules – and so you can ensure your clients are taking them seriously.

IS THE PLAN EXEMPT FROM THE AUDIT REQUIREMENTS?  

Governmental plans, church plans, and certain 403(b) plans that qualify under safe harbor are exempt from the audit requirements.

HOW DOES A PLAN SPONSOR FIND AN AUDITOR?

ERISA requires that the auditor be independent. and Sponsors should utilize a firm that is separate from the employer’s accounting firm and does not do any other business with the company or any of its directors or owners.

HOW IS THE NUMBER OF ELIGIBLE PARTICIPANTS CALCULATED?

The eligibility rules can be complicated.  In general, plans with 80 to 120 participants at the beginning of the current plan year may choose to complete the current annual report using the same “large plan” or “small plan” category used for the previous year. If the Plan previously filed as a “small plan” last year, it may wish to again for the following plan year.

WHAT DOCUMENTS DO PLAN SPONSORS NEED TO PROVIDE?

Every audit is different, but the auditor will likely need to review records relating to participant enrollment, plan contributions and distributions, auto-enrollment, and payroll files. Sponsors may need to provide records relating to tax compliance, related party transactions, and the Plan’s benefits committee (if it has one).

HOW LONG WILL THE AUDIT TAKE?

Sponsors should begin the audit process at least 90 days before the Form 5500 deadline to allow enough time to gather documents, follow up on open items, prepare financial statements, and wrap up.

HOW MUCH WILL THE AUDIT COST?

An auditor may charge $2,500 – $10,000, or more, depending on the size and complexity of the plan.

Yes, Plan Sponsors are Still Fiduciaries

 

fiduciary

You may be confused by the recent news about the DOL Fiduciary Rule: Was the rule declared invalid? Will the SEC move ahead with its own Fiduciary Rule?  Will the Supreme Court issue a decision? Your confusion is appropriate as the status and future of the DOL Fiduciary Rule is still in flight. However, one constant remains and that is the Plan Sponsor’s fiduciary duty to the Plan and its participants.

ERISA and the DOL

The DOL’s Fiduciary Rule was finalized in 2016 and was supposed to go into effect at the start of 2018.

This rule was designed to eliminate financial advisor conflicts of interest when dealing with client retirement accounts. While it had provisions relating to 401(k) plans, it’s important to remember that any delay or even the possible nullification of the rule does not impact the fiduciary duties of a 401(k) plan sponsor.

Any financial advisor who works with plan sponsors can help ensure that their clients are aware of this.

A sponsor’s fiduciary role

 ERISA cites five standards of fiduciary care on sponsors of retirement plans. These boil down to the fact that a plan sponsor must make all decisions with the best interests of the plan participants in mind.

One key standard that has received attention in recent years is the responsibility to keep expenses low for plan participants.

While there is no firm standard for this, this issue has been the basis of a number of lawsuits against plan sponsors. Most of these suits have been brought against large employers, however, in recent years, even smaller plans have not been immune.

Reach out to clients now

 Periods of market volatility signal good opportunities to reach out to your current and prospective clients.

Start by confirming that their current plans are low cost and perform relative to their asset class peers. Find out:

  • Are all fees and expenses transparent, both those that are paid from the participant’s accounts and those paid by the sponsor?
  • Is there a process in place to select, monitor, and (when needed) replace investment choices?

Ideally, your client has an Investment Policy Statement in place for the plan. A solid, consistent, and documented investment process is a great way to demonstrate that the sponsor is acting in a responsible fiduciary capacity.

Beyond just meeting their fiduciary obligations, savvy plan sponsors want to provide the best possible retirement vehicle for their employees (and themselves) to ensure that employees can retire on time.

Advisors are also fiduciaries

 As an advisor you have two options as a fiduciary.

A 3(21) fiduciary serves as a co-fiduciary with the plan sponsor making all final decisions as to the plan’s investments and other decisions including the selection of service providers.

A 3(38) fiduciary has the discretion to make all investment and provider decisions; this is delegated to the advisor by the sponsor.

Vestwell Announces New Joint Offering with Riskalyze

The partnership will bring two of the financial advice industry’s leading financial technology platforms together for an optimal retirement planning and risk assessment experience

joint offering

NEW YORK, NY, October 5, 2017 — Vestwell and Riskalyze today announced a new joint offering called Riskalyze Retirement Solutions, allowing advisors to access a new version of Vestwell’s retirement planning portal on the Riskalyze platform. The deep partnership will put Vestwell, the industry’s first fiduciary-backed retirement platform for the financial advisor community, and Riskalyze, the industry’s leading risk alignment platform, in the hands of financial advisors to better service employers and investors everywhere.

Aaron Schumm, CEO at Vestwell, was featured today during the main keynote address at the Fearless Investing Summit, where both companies discussed how the partnership will help advisors scale their practice, while enhancing the client experience, with compliance and a fiduciary mindset at the core.

Advisors will be able to simply log into the Riskalyze platform to generate 401(k) proposals and onboard clients electronically. In addition, plan participants will have access to pinpoint their own Risk Number® to help them get matched with the right asset allocation.

In addition to Vestwell’s 3(38) investment management services, the new joint offering will include access to several of the asset managers in Riskalyze’s Autopilot Partner Store. This will give advisors, plan sponsors and plan participants access to additional investment strategies, while still allowing Vestwell to assume ERISA 3(16) fiduciary responsibility on behalf of advisors and plan sponsors.

Overall, the new joint offering will allow advisors to clearly document their alignment and compliance with the pending DOL Fiduciary Rule, and demonstrate that they are acting in the best interests of plan participants. Users of the joint offering can look forward to the following features:

  • Operational Efficiency: The integration will remove an advisor’s administrative burden to sell, implement, and service retirement plans while handling both the HR participant notification process and the 5500 tax filing on the advisor’s behalf.
  • Holistic Planning: Riskalyze’s risk alignment platform will now enable advisors to offer an end-to-end digital 401(k) experience built around the Risk Number, by integrating risk assessment, goal analysis and asset allocation into Vestwell’s innovative experiences for advisors, plan sponsors and plan participants.
  • Scalability: By offering flexible, bundled or unbundled investment and fiduciary services, the digital platform will enable advisors to scale their business without heavy operational cost or burden. The platform does this by leveraging administrative services and fiduciary services as needed.
  • Enhanced Client Experience: With a streamlined and simple digital portal, advisors will be able to control the delivery of their client experience. By allowing advisors to deliver a consistent experience through an open-architecture, multi-custodian, multi-record-keeper platform, the platform will equip advisors to seamlessly guide clients in choosing investing strategies based on their individual needs while automatically rebalancing portfolios.

“At Vestwell, our number one priority is providing financial advisors with retirement technology that removes the administrative burden of implementing and servicing retirement plans,” said Vestwell CEO Aaron Schumm. “We’re thrilled to reach more advisors through our partnership with Riskalyze, an industry leader whose mission of equipping advisors with outstanding risk assessment technologies mirrors our own core values.”

The offering will be available to Riskalyze users including Registered Independent Advisors, Independent Broker-Dealers, investment managers, plan sponsors, and employees.

“Vestwell’s mission to make retirement plans affordable and accessible for all investors is reflective of our own hope: to empower fearless investing by providing investors with their true risk tolerance, and helping advisors align portfolios in the best interests of their clients,” said Aaron Klein, CEO of Riskalyze. “These shared values are what prompted us to choose Vestwell as our partner in delivering an end-to-end digital 401(k) experience built around the Risk Number.”

The integration will be available later this year. To introduce the offering to the advisor community, Riskalyze and Vestwell will be hosting joint webinars to help educate and train advisors using the platform. To learn more about Vestwell’s retirement planning platform, visit www.vestwell.com. For more information about Riskalyze, visit www.riskalyze.com.

 

About Vestwell Holdings, Inc.

Vestwell Advisors, LLC is a SEC registered investment advisor, a wholly owned subsidiary of Vestwell Holdings, Inc., specializing in 401(k), 403(b) and other defined contribution and benefit retirement investment management services. Built by an experienced team led by CEO Aaron Schumm, Vestwell can assume 3(38) or 3(21) investment management and ERISA3(16) fiduciary responsibility on the behalf of advisors and their plan sponsor clients. Learn more at Vestwell.com and on Twitter @Vestwell.

This is not an offer, solicitation, or advice to buy or sell securities in jurisdictions where Vestwell Advisors is not registered. An investor should consider investment objectives, risks and expenses before investing. More information is available within Vestwell Advisors’ ADV.  There are risks involved with investing. Investors should consider all of their assets, income and investments. Portfolios are subject to change. All opinions and results included in this publication constitute Vestwell Advisors’ judgment as of the date of this publication and are subject to change without notice.

 

About Riskalyze

Riskalyze is the company that invented the Risk Number®, which powers the world’s first Risk Alignment Platform, empowers advisors to automate client accounts with Autopilot, and enables compliance teams to spot issues, develop real-time visibility and navigate changing fiduciary rules with Compliance Cloud. Advisors, broker-dealers, RIAs, asset managers, custodians and clearing firms use Riskalyze to empower the world to invest fearlessly. To learn more, visit www.riskalyze.com.

 

Media Contacts:
Jessica Torchia
917-636-4804
Jessica.Torchia@ficommpartners.com

Vestwell Raises $8 Million in Series A

As Vestwell’s Digital Retirement Platform Experiences Rapid Growth, Funding will be used for Market Expansion and Further Development of the Platform’s Technology


f-prime

NEW YORK, Oct. 2, 2017 /PRNewswire/ —  Vestwell, the industry’s first and only fiduciary-backed retirement platform for the financial advisor community, today announced $8 million in Series A Funding led by F-Prime Capital Partners, the venture capital group associated with the parent company of Fidelity Investments, with participation from Primary Venture Partners, FinTech Collective, and Commerce Ventures. Launched in late 2016, Vestwell received $4.5 million in its initial Series Seed of financing in September 2016.

Vestwell has grown rapidly this year with an exceptional market reception. As advisors look to better engage with their clients, while scaling their practice, Vestwell’s platform can be leveraged to facilitate every aspect of the advisor, company and employee’s needs. The unbundled, turnkey 401(k) and 403(b) platform becomes an extension of the financial services firm, helping to reshape how plan sponsors and employees are serviced. The multi-recordkeeper, multi-custodial technology can also incorporate 3(21), 3(38) and 3(16) investment and administrative services.

So far this year, the company has signed over 50 registered investment advisor (RIAs) firms, as well as independent broker-dealers, asset managers, and bank/trust custodians, with plans to onboard several thousand advisors this year.  The funding will be used to grow the team while further enhancing the technology.

In conjunction with this funding news, Vestwell also announces Ben Malka as a member to the Board of Directors. Malka is a partner at F-Prime Capital and also serves as co-chairman of the Financial Services Venture Capital Association.

“We’re excited to increase our reach in the financial advice industry and continue to develop better technology for our clients,” said Aaron Schumm, Founder and CEO of Vestwell. “Vestwell was founded to provide advisors and plan sponsors with an affordable, compliant, and easy-to-use retirement planning solution to help close the retirement savings gap in America, and F-Prime has supported that mission since our inception. This announcement, combined with the outstanding leadership that Ben brings to the Board of Directors, is instrumental to Vestwell’s success.”

“Vestwell’s white-labeled platform provides financial advisors with the ease of compliance and automation while maintaining the human interaction that makes their businesses succeed,” said Malka. “By giving advisors and plan sponsors access to low-cost plan options, Vestwell is providing employees across the country with the tools and plans that can help them to retire happily.”

Vestwell is the industry’s first and only fiduciary-backed retirement platform for the financial advisor community. For more information about Vestwell or to inquire about how financial advisors can leverage the platform, please visit: http://www.vestwell.com/.

About Vestwell Holdings, Inc.

Vestwell Advisors, LLC is a SEC registered investment advisor, a wholly owned subsidiary of Vestwell Holdings, Inc., specializing in 401(k), 403(b) and other defined contribution and benefit retirement investment management services. Built by an experienced team led by CEO Aaron Schumm, Vestwell assumes 3(38) investment management and ERISA3(16) fiduciary responsibility on the behalf of advisors and their plan sponsor clients. Learn more at Vestwell.com and on Twitter @Vestwell.

This is not an offer, solicitation, or advice to buy or sell securities in jurisdictions where Vestwell Advisors is not registered. An investor should consider investment objectives, risks and expenses before investing. More information is available within Vestwell Advisors’ ADV.  There are risks involved with investing. Investors should consider all of their assets, income and investments. Portfolios are subject to change. All opinions and results included in this publication constitute Vestwell Advisors’ judgment as of the date of this publication and are subject to change without notice.

Source: Vestwell Holdings, Inc.

Related Links

http://www.vestwell.com

Vestwell Named Winner of XY Planning Network’s 2nd Annual Advisor FinTech Competition

The FinTech competition was held at the #XYPN17 Conference in Dallas, TX on Aug. 28-31

winner

September 20, 2017 (BOZEMAN, MT) – XY Planning Network is proud to announce the winner of its second annual Advisor FinTech Competition. Vestwell (vestwell.com), the digital employer retirement plan platform for advisors, took home first place against six other finalists during a live presentation at the #XYPN17 Conference which brought together 500 attendees and 116 exhibitors in Dallas, TX.

The competition, which solicited a record-breaking 24 submissions, was hosted by advisor technology guru Bill Winterberg of FPPad, and overseen by an elite panel of judges including XYPN Co-founder Michael Kitces, and representatives from the FinTech competition sponsors Betterment for Advisors and Quovo.

“It was our explicit goal with the XYPN FinTech competition to provide these new startups a way to showcase their technology to our young, tech-savvy advisors, who need the help of technology to service Gen X and Gen Y clients efficiently,” said Kitces. “When you look at the scale and quality of submissions we received this year, it’s evidence that the advisory industry really is attracting a tremendous new wave of startups looking specifically to serve the growing needs of financial advisors.”

“The judges were extremely impressed with Vestwell’s platform, and the way that they have weaved together the complex and disparate elements of the employer retirement plan industry into a single technology platform that makes it easy for advisors to help their small business clients with qualified plans,” continued Kitces.

Launched in September 2016, Vestwell’s retirement technology combines the best parts of automated investing with a human touch, removing the friction points of confusion, cost and compliance overhead that come with traditional retirement plans. The white-gloved retirement platform includes modern dashboards and rich visuals demonstrating planning objectives at the participant level, and a low-cost, compliant solution to scale the advisor’s business.

“It was incredible to witness the energy and passion of the hundreds of advisors who attended #XYPN17,” said Vestwell CEO, Aaron Schumm. “A large part of Vestwell’s early success can be attributed to the many advisors who have been early adopters of our technology. These advisors, along with everyone involved with XYPN, have a shared vision to create an accessible, fiduciary future for financial services – we’re honored and excited to be a part of it.”

As the winner, Vestwell will be featured on Bill Winterberg’s FPPad.com and Michael Kitces’s Nerd’s Eye View blog. The company will also have a segment on the popular #XYPNRadio podcast, and appear on XYPlanningNetwork.com.

CSLA Technology won Honorable Mention for its Student Loan Repayment Tracker which reduces the complexity of the college decision process. The other finalists included DataPoints, Loanbuddy, RobustWealth, ROL Advisor, and Tolerisk.

The 2018 conference, renamed #XYPNLIVE, will again include a FinTech competition, and will be held in St. Louis, MO on September 23-26, 2018. To register, visit info.xyplanningnetwork.com/xypn-live.

For media inquiries, contact xypn@ficommpartners.com.

About XY Planning Network

The XY Planning Network, with nearly 500 advisors, is the leading turnkey financial planning platform for fee-only financial advisors who want to serve their Gen X and Gen Y peers, providing comprehensive financial planning services for a monthly subscription fee and without product sales or asset minimums. The Network offers a virtual community for new and established financial advisors who want to serve a younger clientele, and provides its members compliance support services, marketing support, business tools and templates, and a wide range of technology solutions. http://www.xyplanningnetwork.com/

About Vestwell Holdings, Inc.

Vestwell Advisors, LLC is a SEC registered investment advisor, a wholly owned subsidiary of Vestwell Holdings, Inc., specializing in 401(k), 403(b) and other defined contribution and benefit retirement investment management services. Built by an experienced team with an average of 18 years of financial technology experience and led by CEO Aaron Schumm, Vestwell assumes 3(38) investment management and ERISA3(16) fiduciary responsibility on the behalf of advisors and their plan sponsor clients. Learn more at Vestwell.com  and on Twitter @Vestwell.

This is not an offer, solicitation, or advice to buy or sell securities in jurisdictions where Vestwell Advisors is not registered. An investor should consider investment objectives, risks and expenses before investing. More information is available within Vestwell Advisors’ ADV.  There are risks involved with investing. Investors should consider all of their assets, income and investments. Portfolios are subject to change. All opinions and results included in this publication constitute Vestwell Advisors’ judgment as of the date of this publication and are subject to change without notice.

Source: XY Planning Network