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When A Policy Owner Dies

The circumstances surrounding the case weren’t unusual. A single grandparent wanted to purchase coverage on his five year-old grandchild. He loved his son and daughter-in-law, the parents of the proposed insured, but felt they might be tempted to access the cash values during tough times if they were given control of the policy.
 
The agent involved suggested creating a trust for the contract, but the country-time lawyer involved didn’t like living trusts (because, he said, “Nobody ever takes care of them!”) so he drafted a new will for the grandfather with a testamentary trust that could accept the policy on his death and directed that the grandfather be made the policy owner.
 
Two immediate potential problems should have been considered by the trust-resistant attorney:
 
First, if the insured child died first then the proceeds would become part of the grandfather’s estate. Second, if the grandfather died first the policy would be subject to the unnecessary rigors of the probate court before settling into the trust created by the will – perhaps then only to be managed as poorly as all those living trusts the lawyer had experienced.

There’s an old proverb somewhere that says if something can even be worse than anticipated, it probably will.

In this case the policy language had a little surprise for all involved that rendered what would play out even more undesirable and more unmanageable than any imagined!
 
The grandfather did die first. His will was submitted to probate and the agent and the executor took steps to have ownership of the policy transferred to the newly activated testamentary trust under the will.
 
The carrier title department responded [underscoring added]:
 
We understand that [policy owner] may have provided for these policies in his will, however, the ownership of the policies as stated on the application automatically reverts to the individual insured [the still living minor grandchild]. We must adhere to what the contract states and not what was indicated in his will. In the alternative, if they want the ownership to change to the parent [of the insured minor] as indicated in the email below, we would need documentation from the court proving who is the legal guardian of the minor’s property which is different than being the legal guardian. This is something they would have to go to court for and once they obtain the court order, the legal guardian of the property can change the ownership of the policy. Otherwise, we cannot allow any transactions on the policy until the child is at least 15 years old.
 
A response like that will tend to take the ginger out of one’s step! Not only is control of the policy for the next ten years attainable only through a laborious court process, but even then the result would probably be exactly what the grandfather was attempting to avoid – ownership of the policy by the parents of the insured child.
 
Policy provisions that appoint an insured as a default owner are more common than most agents would think. The issue doesn’t arise often because the policy owner is commonly 1) the same as the insured, or 2) a party who cannot die, e.g. a trust, or 3) a person younger than the insured who usually doesn’t die first. But it occurs enough that at least one major carrier has an appointed person who does little more than handle the “Dead Owner” cases.
 
We rightfully agonize much over the choice of contingent beneficiaries. The same attention should be given to the need for and choice of contingent owners when needed. Call with any questions regarding this issue on potential or existing cases.
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Buy A New Policy And Lower Tuition Cost

Nobody gets help with college costs nowadays unless they first fill out a lengthy and bothersome form known as the FAFSA (the acronym stands for Free Application for Federal Student Aid, just in case it ever pops up when you choose the Governmental Financial Assistance category on Double Jeopardy). The information entered therein drives all consideration for aid under all Federal and many State educational programs.

FAFSA has certain eligibility criteria that determine, based on your income and net worth, how much you should be contributing to your child’s higher education. If the amount they determine you can pay is too high it renders you ineligible for assistance.

If you are poor and haven’t paid much of the tax that supports the assistance programs, then you’ll probably get financial support. If you are rich and paid a great deal of the tax to fund the programs, then you probably won’t get any aid – but no big deal because you’ve got enough to pay the piper anyway.
 
The people that get hammered are those in the middle who have paid their fair share of the tax and, in addition, have been responsible enough to save, invest, and accumulate against the day of their anticipated retirement – only to find that the net worth that their sound economic behavior has created disqualifies them for assistance.
 
Here is where you can help your clients, especially those with liquid net worth considerable enough that it proscribes or prohibits assistance:
 
The instructions for completion of the FAFSA form direct that in reporting financial information, “Net worth means current value [of includible assets] minus debt.”
 
For example, a commercial building worth $300,000 with a $100,000 mortgage would add $200,000 to the net worth calculation. But more important – when adding the value of investments the instructions state that, “Investments do not include . . . the value of life insurance . . . [or] annuities . . .”
 
How many clients do you have with considerable amounts of net worth in low-performing assets like CDs?
 
And now the value of those assets are creating a roadblock to financial aid. One simple solution to recommend is the transfer of funds to an annuity contract or an over-funded life insurance policy (they may not have adequate coverage anyway).
 
The timing of a purchase doesn’t appear to be an issue. In researching this strategy calls to the FAFSA information line drew the response that an annuity or life policy was exempt so long as it was in force at the time of the completion of the FAFSA application. Needless to say, a client should do his or her own spadework in this regard before making a decision. Once the child is graduated or no longer in need of assistance, funds can be transferred back into the investment opportunities of choice.
 
Call us to learn about the best product opportunities available for clients who are prospects for this FAFSA Net Worth Minimization Strategy.
 
Note: The deadline for the 2024-2025 FAFSA is midnight, Central Time, June 30, 2025. The earlier you file, the more grant money you are likely to receive (up to twice as much).
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Avoiding The Gift Tax, But Keeping The Benefits

A song familiar to all tells us that, “Love and marriage go together like a horse and carriage.”   Maybe so.  But when it comes to finances and marriage the use of the two as grist to the mill of so many matrimony jokes does not suggest such an harmonious coupling.  Consider a couple tame examples:

Wife to husband:  “I didn’t report your stolen credit card because the thief is using it more wisely than you did!”

Husband to wife:  “I think I need to buy you a new bank account.  The one you have keeps running out of money!”

Fortunately, fact usually looms larger than the fiction of humor.  We find most high-net-worth married couples in full financial tandem, especially when it allows them to move large amounts of net worth out of their joint taxable estate and still keep access to the benefit of the assets after the transfer.

This is done through a common and time-tested planning device most-often referred to as the Spousal Lifetime Access Trust (SLAT).  

With the help of legal and tax counsel its implementation and function are as follows:
  1. The taxpayer sets up an irrevocable grantor trust with intended heirs (usually the kids) as trust beneficiaries.
  2. In addition, the taxpayer’s spouse is made a lifetime beneficiary of the trust – that is what makes it a SLAT.
  3. The beneficiary spouse can have the right to withdraw all income generated in the trust each year.
  4. The beneficiary spouse can have the right to draw 5% of the trust corpus each year.
  5. The trustee of the SLAT can have the power to make discretionary distributions for the health, education, maintenance, or support (HEMS!) of the beneficiary spouse.  And if your trustee can’t justify a distribution for one of these reasons, someone should be appointed who has a better imagination!
  6. The beneficiary spouse can even be the SLAT trustee who makes the discretionary distributions discussed in #5!

So… a high-net-worth taxpayer can make full use of the current high lifetime exemption of $13,900,000 by transferring that amount to a SLAT for a spouse and still maintain vicarious access through that beneficiary spouse to the benefits of the property gifted.

A SLAT can also serve as the depository for life insurance outside the estate that can assist in payment of any unavoidable death taxes.  In addition, legal counsel can be sought to see if a second trust can be used in a marriage to take similar advantage of the other lifetime exemption available to a married couple.

Call with additional questions or to arrange a conference or Zoom call on any planning topic with you and your clients, or their advisors, at Tom Virkler, 706-614-3796, or tom@cpsadvancedmarkets.com. 

For What It’s Worth:  Considered by many the wealthiest celebrity couple, and thus much in need of estate planning, are actress Salma Hayek and luxury goods CEO Francois-Henri Pinault.  Married since 2009, the two share an estimated net worth of around $7.1 billion.

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Avoiding Transfer Tax Without Transferring Control!

In one household a quiet and uneventful afternoon ended abruptly with this conversation:

Young son: “Hey, Mom. You know that valuable vase that’s been handed down in our family from generation to generation?”
Mother: “Yes, why?”
Son: “Well this generation just dropped it!”

Many high-net-worth clients have enough wealth to make large current gifts without affecting their current lifestyle. They anticipate leaving the full lifetime exemption amount to heirs at their passing but are tempted to make an untaxed $13,900,000 transfer before the exemption is reduced by 50% on January 1. The larger protected gift could easily save their estate more than $3,000,000 in death taxes down the road.

They don’t need the money, but still hesitate. So where’s the rub. In fact, there may be two rubs: affection and control. The assets transferred, often a family business, are labors of love which the donors want to continue to protect, at least during their lifetime. To follow the analogy, if the kids are gonna drop the valuable vase, they don’t want to see it happen.

A planning alternative that offers the best of both worlds, freeing assets from taxation while keeping control over them, is the Family Limited Liability Company (FLLC).

Here’s how it works:
  • Asset depository – An FLLC is formed and houses the assets to be transferred. Again, those assets are usually the ownership interests in an ongoing family business.
  • The haves and the have-nots – The FLLC is structured with both voting and non-voting interests. The percentage of the divide is flexible, often as extreme as 1% voting and 99% non-voting.
  • Selective gifts – Transfer of only non-voting interests is made to the heirs. If voting interest is transferred it is not enough to lose control of the FLLC.
  • Loss of income? – The donor gets no equitable return on the transferred interest, but this can be partially offset by receipt of compensation for managing the FLLC.
  • Magnifying the exemption – Because the interest is non-voting, its value can often be discounted for gift purposes, thereby expanding the effectiveness of the exemption amount.
  • Even more control? – If the donor doesn’t want to give direct ownership of the non-voting interest to heirs, the transfer can be made to an irrevocable trust for the benefit of the donees.

If an FLLC is a solution then its creation and implementation take time and an attorney, both of which will be in increasingly short supply as the New Year approaches.

Call with questions concerning your client’s FLLC planning or any taxation, business or estate issues that arise in your casework, to Tom Virkler at 706-614-3796 or tom@cpsadvancedmarkets.com.

For what it’s worth: When Gene Johnson lost her sister in 2010, it was left to Gene to clean out her London home where a vase was displayed on a shelf, a dusty souvenir from a trip to the Far East in the 1930s. Experts determined that the antique, now known as the Chinese Jiqingyouyu Reticulated Vase, was a product of the 18th century Qing Dynasty. Its last sale to a private buyer was two years later for $32,800,000.

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Charity Begins At Home, Not At The Carrier

Director Francis Ford Coppola leaves us with a cold and calculating Michael Corleone looking out the windows of his lake house over the water that would prove to be the River Styx for his brother. What is to be a day of relaxation and fishing for Fredo will end in the fulfillment of Michael’s directive for the execution of a sibling who he deems unfaithful to him and the family.
 
In audience time it is 16 years before we meet the Don again in the opening scene of The Godfather: Part III. In contrast to the sordid power-brokering that goes on in the initial wedding and baptism sequences of the first two films, we find an older, reflective Michael on a path for respectability, legitimacy and eventually some sort of moral absolution.
 
In a grand ceremony at St. Patrick’s Cathedral he is being inducted as a Commander in the Order of St. Sebastian and viewers soon learn that there is probably a connection between that honor and a $100 million gift to the Church from the Vito Corleone Foundation, a charity run by Michael’s daughter.

The film only serves to fuel the suspicion we often have of those who seem too charitably minded; a suspicion that is understandably shared by insurance carriers.

Back in the olden times as states began passing laws giving charities an insurable interest in the lives of donors, it wasn’t much trouble getting a significant amount of charity-owned coverage on the life of a person who intended to donate the premiums each year to the organization.
 
The problem arose when an invigorated life settlement marketplace created an attractive non-correlated asset class and groups of independent investors arranged for charities to buy coverage on donors paying the premiums and anticipating returns for all involved when the policy was sold later on in the secondary market.
 
Once everybody figured out what was going on a couple things occurred…
 
First, applications began containing questions addressing intended use of coverage, particularly regarding possible transfer of interests in the contract after the sale. And, second, the liberality of financial underwriting for charitably-owned coverage was dramatically proscribed.
 
A recent survey we conducted of major carriers revealed that the starting point, and often the finish line, for the amount of death benefit they would entertain was only ten times the annual donation pattern the insured had with the charity; i.e. if Benjamin Bear has been giving $5,000 a year to the Bruin Varsity Club, he is only good for $50,000 coverage to leverage his legacy – hardly a gold mine for some insurance advisor alumni trolling the membership list.
 
One carrier would allow twenty times. Another permitted the projected value of the pattern of giving for 75% of the donor’s life expectancy.
 
The fields are hardly white for harvest if an insurance advisor intends to get rich selling charitable-owned coverage. Nonetheless, there are circumstances where carriers may look beyond the donation-multiple standard.
 
By the way, both The Godfather and The Godfather: Part II won the Academy Award for Best Picture. The Godfather: Part III was nominated, but denied, the award going instead to the Kevin Cosner film Dances with Wolves. The American Film Institute ranks The Godfather #2 among the best motion pictures in American cinema, second only to Citizen Kane. Also, UCLA has won more NCAA championships than any other school. You can look it up!
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Get Outta Town By Sundown… Or Sunset?

A recent poll of over 3,000 undergraduate college students conducted by the American Council of Trustees and Alumni found most woefully ignorant of the basic elements of the U.S. Constitution. For example, only 28 % knew that the 13th Amendment ended slavery in the country. Worse, a recent nominee for the U.S. District Court was asked in the Senate hearing the purpose of Article II of the Constitution. The candidate was unable to answer correctly but, nonetheless, now sits on the bench.

Oh well. All that concerns us today concerning our founding document is Article I, Section 7, which begins, “All Bills for raising Revenue shall originate in the House of Representatives…”

So here is where the bear sits regarding the most important current estate planning issue for your high-net-worth clients:
  • The Tax Cuts and Jobs Act (“TCJA”) currently allows every taxpayer a lifetime exemption that could protect $13,900,000 of his or her assets from estate and gift taxation. So, with proper planning a married couple can protect almost $28,000,000.
  • Under TCJA, that opportunity is scheduled to drop by 50% on January 1, 2026.
  • Speculation has swirled before, during, and after the 2024 election whether the “exemption sunset” would be eliminated allowing the high protection limits to continue.
  • Most felt that a government controlled by the Republican party would be more sympathetic to extend the high exemptions along with other provisions due for a sunset under TCJA.
  • The Republicans now hold (depending on 2 special elections) a 1-3 vote majority in the 435-seat House of Representatives (where a revenue bill must originate).

Given all the inclusions and issues involved in a tax bill, and all the bargaining and trade-offs they create, the fate of high-exemption planning may be as uncertain as before.

But consider this strategy:
  • Creation of a common irrevocable grantor trust to which a loan of assets worth up to the amount of the current exemption can be made. A suitable trust may already exist and, if not, most high-net-worth clients ought to have one on general principle.
  • This allows the taxpayer to adopt a wait-and-see approach regarding what Congress may or may not do.
  • If by, say, late December, the exemptions are unlikely to be extended the taxpayer can forgive the loan and the assets remain in the trust as a lifetime gift protected by the high exemption before it drops on New Year’s Day.
  • If the high exemptions are allowed to remain your client can delay decisions to a later time keeping control over the assets under the loan arrangement.

Call to arrange a more full discussion of the additional advantages of this simple and straight-forward solution that addresses the uncertainty of the times. You may include your clients and their advisors, if needed.

Tom Virkler, JD
Director, CPS Advanced Markets
706.614.3796
tom@cpsadvancedmarkets.com

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Avoiding Collateral Damage

The term collateral damage was originally used during warfare when a military target was struck. Even when the attack was successful it often left behind peripheral harmful results – usually affecting nearby innocent civilians. The phrase is now more broadly used to describe negative unintended consequences of an attempt to do something beneficial.

Life insurance is often used as security on a loan, usually in a business situation.

Urgency of the circumstances (or poor advice) usually results in a creditor simply being added as beneficiary on the policy for the amount of the loan. The result is a prime opportunity for collateral damage. Parties to the loan or the policy seldom think to adjust the creditor’s beneficial interest as the loan is paid down or even paid off. So if death occurs the creditor is unjustly enriched and the remaining beneficiaries are short-changed. Or a creditor’s beneficial interest can be too easily changed or eliminated without his or her knowledge.
 
Here are the rules:
 
Rule #1 – Never secure a loan with a beneficiary designation. Always use a collateral assignment!
 
A collateral assignment (C/A) is a formally documented lien on the policy in favor of the creditor who stands first in line for the share of the death benefit described by the terms of the C/A. But there can be collateral damage from a collateral agreement if things are not done properly.
 
Rule #2 – Use the carrier’s C/A form.
 
Rule #3 – Get the carrier’s permission before making any modifications on the C/A form
 
Rule #4 – To avoid the appearance of practicing law, only modify the C/A at the specific direction of the client or the client’s attorney.
 
Rule #5 – Make sure the C/A is dated after a time the policy is in force.
 
Rule #6 – Make sure the completed C/A is filled with the carrier, or the carrier won’t know to protect the rights of the creditor if benefits are paid.
 
Rule #7 – MEC Alert! Make sure the client understands that if a C/A is filed on a modified endowment contract the amount secured by the C/A is reportable taxable income to the extent of gain in the contract (like a LIFO distribution).
 
For all its conceptual simplicity, the execution of a collateral assignment usually has many problems as different circumstances pop up with each case. Call with any questions or for assistance with the drafting, approval and implementation of a collateral assignment at 706-614-3796 or tom@cpsadvancedmarkets.com.
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Show Me The Money!

There’s the old story about the hungry chicken and the hungry pig who agreed to both contribute to a mutual breakfast. The chicken suggested they have ham and eggs, to which the pig replied, “That’s a contribution for you, but it’s total commitment for me!”

When proposing life insurance we would manage client expectations better if we took time to explain the disproportionate obligations that exist once coverage is put in force.

It would also help them understand the purpose behind those often annoying requests and requirements made by the carrier – particularly in the area of financial underwriting.
 
Consider This:
 
Clients often think that a carrier ought to be inclined to sell them as much life insurance as they want. They assume that because the local grocer would sell them his whole stock of fresh radishes, an insurance company ought to respond in the same manner and get frustrated when it does not. The difference, again, is the disproportionate obligations and the economic exposure that remain after the transaction. Except for a change in the type of asset you and your grocer are in the same position before and after the sale.
 
When a life contract goes into force the buyer is only under a non-binding obligation for periodic premium to keep the coverage going. If paid the carrier is on the hook for a death benefit exponentially greater than the premium if the insured dies. And that exponent is even more extreme when the client takes advantage of low term rates. To use an example from experience with my own offspring: a healthy 21-year-old female can purchase $350,000 for $185 a year. The carrier is at risk for a payment that constitutes just 1/20 of 1% of their exposure.
 
We can argue that the disproportion is mitigated or eliminated when we look at the big picture. If the carrier has underwritten correctly over a large pool of policyholders it all shakes out in the wash over time; does it not?
 
The key here is “if the carrier has underwritten correctly”.
 
And part of correct underwriting is not issuing an amount of coverage that makes an insured worth more dead than he or she is when alive (or as we say in the trade, not increasing the likelihood that insureds will fall down a flight of stairs before their time). The carrier wants to know why you need the coverage and the financial circumstances that justify both the need and the amount, usually in the form of a simple, easy-to-complete financial supplement that must be signed by a qualified third-party advisor for larger cases. Resistance on this will only delay the case and maybe raise the suspicions of the underwriter. Alert your client in advance and respond quickly to request that are made.
 
We turn over financial information for everything nowadays: loan applications, refinancing a mortgage, getting a new credit, or opening a PayPal account. Don’t let your clients develop a mindset that applying for life insurance is any different.
 
We specialize in alerting you up front regarding potential underwriting requirements on your case, estimating how much coverage a carrier will allow given your client’s financial circumstances, and helping with bumps in the road if financial justification issues occur. Give Tom Virkler, JD, Director of CPS Advanced Markets a call at 706-614-3796 or email him at tom@cpsadvancedmarkets.com.
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162 Executive Bonus – The Biggest Drawback Solved? Copy

What’s the best way to attract and retain key people in the face of a government that does, and continues to do, all it can to proscribe or eliminate the advantages of selective benefits? The non-discrimination and other limitations on qualified plans often make them ineffective for the purpose.

Deferred compensation (or SERPs) and split dollar plans have become too regulation-laden and require too much administration, record-keeping and reporting to jingle any bells amongst most prospects.

What to do?
 
Among other things, because of its simplicity and its potential flexibility throughout the life of the benefit plan, the section 162 executive bonus arrangement is deservedly getting new levels of attention. It’s design might be an almost a one-size-fits-all answer to executive benefit needs, but for one concern: How do the employers truly “handcuff” an executive if they can’t maintain control over and retrieve employer funds paid into the plan?
 
In its most basic form, an executive bonus plan involves the employee buying and owning a policy on his or her life. The employer pays the premium, takes a deduction, and reports it to the executive as income, but if the employee walks the policy then the employer investment goes out the door as well.
 
The “loss of control” problem can be mitigated, if not eliminated, by appending two simple features to the plan:
 
First, the agreement can include a repayment obligation on the part of the key person under terms spelled out. The obligation is often phased out over time, giving the arrangement a vesting-like feel to the deal. This is similar to the conditions often applied to moving expenses paid on behalf of a re-located executive. Because the employer doesn’t have an interest in the policy, the plan does not unintentionally wander into split dollar territory. Furthermore, because there is no delayed income being paid, the deferred compensation regulations do not apply.
 
Second, a simple restriction on policy owner’s rights to policy access can be filed with the carrier. For the agreed upon period of time, the key person cannot alter, change or benefit from the policy without the permission of the employer – except for the designated beneficiary. Again, without giving the employer an ownership interest in the policy, it locks down the policy and allows an employer time to exercise the legally enforceable right to recover premiums, if needed.
 
If this method satisfies a business prospect’s concern for the security of an investment that’s desired under a benefit plan, then an executive bonus arrangement could be the easy answer to attract and keep select employees.
 
We provide sales and advisor support, documentation, product design, and we can answer your questions related to the presentation and implementation of executive bonus plans. Give me a call at 706-614-3796 or email me at tom@cpsadvancedmarkets.com to discuss the full width and breadth of the often overlooked advantages of this concept. I’ll even send you a free Overlooked Advantages Summary!
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Is Your Buy-Sell Jury-Rigged & Jerry-Built?

Back in the days before the development of things like the NiMH or lithium-ion battery, stand-up comedian Don Adams (who later became Maxwell, the original Get Smart secret agent) used to joke that electric cars were unpopular because of the high cost of the extension cord.
 
Many insurance advisors face a similar hurdle when advising clients to properly set up a buy-sell arrangement using term insurance to fund the plan.

The cost of getting with the attorney to draft and implement a written agreement, to say nothing of the time and effort required, is discouragingly disproportionate to the amount of premiums for the coverage.

Consequently, just to get things done the policies are often jointly-owned as a “no-fuss” method of assuring that proceeds will get to the surviving owners to buy out a deceased owner’s estate, without a formal agreement.
 
It works like this:
 
Joint owners and beneficiaries (some states add “with right of survivorship”) share equally in the possession of the policy and the right to proceeds, so long as they survive the insured. If not, only the survivors share equally. So if equal business owners A, B, and C agree to fund a buy-sell then, e.g., A and B jointly own the policy on C. When C dies A and B have funds to buy C’s business interest. But more important, C’s joint interest in the policies on A and B ends. A and B are now the sole owner and beneficiary of the policy on each other for use at the second death.
 
Something is said to be “jury-rigged” when it is simply constructed with the materials at hand. That same thing is “jerry-built” when it is done in a shoddy or inferior fashion. Buy-sell plans built solely on joint policy ownership are both. The only thing assured is that the money gets to the prospective buyers. After that it’s all up for grabs.
 
Consider:
  • The surviving owners are under no legal obligation to buy, leaving the estate of the deceased (probably the surviving spouse) in a lurch.
  • The deceased’s estate is under no obligation to sell, leaving the deceased’s heirs as a new owner in the business.
  • There is no fixed price for the business for estate or for income tax purposes should the IRS get involved.
  • Re-arrangement of interests in the remaining policies could constitute a transfer-for-value.
Of course the worst that could happen is for someone to die with no coverage in force. So if clients are resolute in their refusal to take proper steps to implement a written plan, the advisor should at least get coverage issued with the most advisable ownership arrangement. But in addition the file should contain a cover-your-backside letter from the advisor to the clients spelling out the need to discuss the possible problems with their tax and legal advisor.
 
Call for help in drafting the letter and, just maybe, we might even talk the clients into going to their attorney and doing it right. Try 706-614-3796 or tom@cpsadvancedmarkets.com.
 
Join, jury, jerry – there are a lot of J’s flying around this article. And it just so happens that James and John are the first and second most common male names in the United States. And sure enough there have been six presidents named James and five named John.

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