By Dr. Shelby Smith
of The Retirement Pros

If you have retirement money in a 401(k) sponsored by your employer, you’re agonizing over giant paper losses over the past year. If you’re retiring soon, these paper losses will become real. You’ve no doubt noticed that all the investment choices in your 401(k) are market related – meaning they all have risk. It doesn’t matter that you may be on the precipice of retirement and can’t afford to lose any of your nest egg to a temperamental market – your choices are still mutual funds and maybe the stock of your employer. Also, the fact that you can move some or all of your money out of your 401(k) into a self-directed IRA hasn’t been brought to your attention, or if it has the stipulated age set by your employer is 59½. At that age, you don’t have time to weather a bad market through recovery – so buckle up for a pared-down retirement.

Of course, moving under your direct control where you have safe-money options also means you could pay lower fees, take advantage of some favorable tax law changes and get a better return. Your “market only” choices and inability to move to safer shores is courtesy of the brokerage firm managing the 401(k) money and also advising your employer. Chances are your employer doesn’t know any more about the 401(k) plan than you – a rather cavalier stance since he or she is the trustee of the Plan and has fiduciary liability. How has this been allowed to happen? What are you not provided the freedom you deserve to protect your retirement money – especially as you near the finish line?

First of all, let me inform you up-front that ERISA and the IRS permit you to move all or some of your 401(k) regardless of age, and without triggering taxes by doing a trustee-to-trustee transfer from the 401(k) to an IRA. However, when ERISA was passed n 1974 the brokerage industry lobbyists were active making sure the employer had the right to prevent you from moving “your money”. You see if the money is moved under your self-direction, the brokerage firm no longer earns fees – no wonder they want to hold you hostage. Thus, they advise your ill-informed employer to set a very high age – like 65 or retirement – as the time when you can move your money under your self-direction. That way, they are able to continue fleecing you for sizeable annual fees to manage your money. The employer is indifferent because no employee has filed a lawsuit over the matter and they’re not paying the high-fees the broker is charging. Unfortunately, most employees think the employer pays the annual fees because they see no line-item on their quarterly 401(k) statement that indicates they are paying. Again, the brokerage firm that manages the money is very clever in keeping the fees off your statement which leaves you in the dark. As long as you’re in the dark, the brokerage firm can continue to fleece you and you won’t even object.

In early 2008 the U.S. Supreme Court unanimously ruled that an employer did have a fiduciary responsibility to employees when it comes to defined contribution retirement plans like 401(k) (see LaRue v. DeWolff, Boberg & Associates, Inc.). This has gotten the attention of large employer because there are now pending numerous class action lawsuits against employer for their complacent attitudes about the 401(k) plans they sponsor. Nonetheless, the small employer has not yet gotten the word because they don’t have dedicated human resources professionals and ERISA attorneys on their staff – they continue to rely on the brokerage firms who have a vested interest in remaining mute. After all it is not their neck on the legal chopping block – they’re not the trustee of the plan or the fiduciary, but only the manager of the money. When the employer is sued they’re defense will be “we were only managing he money”. What a shame.

In the meantime, you’re suffering with unnecessary losses from a titter-totter stock market driven by a recession-bound economy and your employer continue indifferent in their blissful world. Ironically, most small business owners have more than a casual interest in the performance of their 401(k) plan because they, too, are major participants. Too often when someone brings to their attention the ability to self-direct the investments and avoid the pitfall discuss above, they call their brokerage firm and the advice is “leave it like it is”. Far too many employers have not made the conflict of interest connection and continue to blindly follow bad advice. So, if you could move you 401(k) plan, why would you want to?

If you’re under age 55 and not in retirement’s red zone, then you’re not in as much danger as your older associates. You’ve got time for a bad market to recover – and over the “long term” you’ll probably do just fine taking risk in the market. On the other hand, if retirement is right around the corner and you can’t afford the ten-or-longer-year wait for a market meltdown to recover, you have no business exposing your family’s hard-earned nest egg to unsuitable risk. By transferring your money out of the 401(k) and away from the company that now manages it, here are some of the advantages you’d receive:

 

  1. Get rid of unsuitable market risk you’re now taking in mutual funds and employer stock. With the money in self-directed IRAs you can invest in virtually anything except a life insurance policy: stocks, bonds, mutual funds, CDs, annuities, real estate, commodities, privately owned business and more.
  2. If you don’t feel qualified to manage your money, work with a qualified financial planner that can give you personal, and unbiased, attention – something you’re not now getting from your plan’s broker even though you’re paying for it.
  3. Lower your fees from 2% to under 0.5% if you want to stay in mutual funds. The high-fee funds you have selected inside your 401(k) can be traded for low- or no-fee index funds or exchange traded funds. What’s more, index-funds have outperformed the higher-fee managed funds.
  4. Very few money manager match the market performance, let along beat it, over any five-year period. You’ll get better performance by firing your fund manager and going with index funds if you like to stay invested in mutual funds.
  5. If your money stays in your 401(k) plan, you can’t take advantage of new openings in the tax laws. For example, in 2010 the income limit to convert to a Roth IRA is being suspended – this could be a one-year opportunity. You’ll miss the chance to have a lifetime of tax free income if your money remains in the 401(k) plan. By the way, you can pass forward tax-free Roth money to your heirs – and they’ll have a lifetime of tax-free memories.
  6. Even your employer stands to benefit – not just as a plan participant but also as a business – by shucking the some of legal liability of being a trustee and fiduciary of the 401(k) plan. If the currently pending class action lawsuits go against employers, the lawyers are likely to start going after the smaller fish in the pond.

If you’d like the details of how to get all or some of your money out of your 401(k) plan, I invite you to read a report I co-authored with an attorney: “Tapping Into Your 401(k) Money Before Retirement”. Pass the report along to your employer in hopes they wake up and start giving you the freedom you need to protect your retirement money.

Dr. Shelby J. Smith
of TheRetirementPros.com