"Switching" Irrevocable Life Insurance Trusts
Irrevocable lifetime insurance policy trusts (“ILITs”) are frequently applied to retain insurance plan proceeds exterior the estates of the grantor-insured, the grantor’ wife or husband, and the grantor’ descendants (if a era-skipping trust is utilized). As the name indicates, an ILIT is irrevocable and its terms can not be altered soon after it is established. The irrevocability of an ILIT can produce issues for grantors and their lawyers alike. For example, often the ILIT is not a technology-skipping believe in and the grantor now needs to leverage his / her GST exemption with the plan or procedures owned by the rely on. Or probably the grantor no extended dreams to supply for one or a lot more of the beneficiaries of the ILIT, or desires to improve the dispositive terms of the rely on. So what can the grantor of an ILIT do if he / she is no for a longer period delighted with the conditions of an ILIT?
The grantor can always prevent building gifts to the ILIT, enable the current policy lapse, and start in excess of with a new ILIT and a new plan. But, retaining the present policy may well be preferable for wellness or financial motives. The ILIT can provide the coverage back to the grantor-insured, who then assigns it to a new ILIT, but that will start off the working of a new 3-calendar year rule (less than IRC Part 2035 (a)). Eventually, if the ILIT permits, the policy can be dispersed to one particular or additional of the beneficiaries. Nevertheless, devoid of a rely on, the policy beneficiaries will not be shielded from collectors, ex-spouses, or estate taxes.
Transfer-for-Worth Rule .
IRC Portion 101 (a) (1) normally excludes everyday living coverage proceeds from gross money. IRC Section 101 (a) (2) boundaries the exclusion to the consideration compensated by the purchaser for the policy (furthermore consequent premiums) in which there has been a transfer for precious thought. But, there are several exceptions to this limitation, like a transfer to the insured.
Rev. Rul. 2007-13 .
Rev. Rul. 2007-13 deemed two predicaments. In the initial, a new grantor have confidence in bought a everyday living insurance coverage coverage on the grantor’ daily life from an aged grantor have faith in. Citing Rev. Rul. 85-13, which supplies that transactions amongst a grantor and his / her grantor trust are disregarded for cash flow tax functions, the IRS rule that the transfer concerning the two grantor trusts was not a transfer for useful consideration under IRC Portion 101 (a) ( 2) simply because the overall transaction is disregarded. In other words, there was no transfer of the insurance policy policy in the which means of IRC Part 101 (a) (2). As these kinds of, the dying proceeds remain revenue tax totally free.
In the 2nd condition, a new grantor trust ordered a policy from an aged non-grantor rely on. The IRS dominated that there was a transfer for useful consideration less than those people specifics, but the transfer was exempt for the reason that the transfer to the new ILIT is handled as a transfer to the grantor, who is the insured. As a result, as in the first scenario, the coverage proceeds keep on being revenue tax free of charge. But, compared with the to start with condition, the outdated ILIT will have reportable cash flow on the sale if there was any achieve in the plan at the time of sale.
Safety measures .
Appropriately, primarily based on Rev. Rul. 2007-13, it is doable for the grantor of an present ILIT to create a new ILIT (with the desired beneficies and provisions), and then reward or personal loan the new ILIT sufficient cash to buy the policy from the old ILIT. But, in advance of accomplishing so, there are a quantity of problems to be resolved, like the following:
1. The aged ILIT will have to permit the trustee to provide the plan, and the sale proceeds nonetheless continue to be in the outdated ILIT to be administrated.
2. If the aged ILIT is a non-grantor believe in, any obtain in the coverage marketed will be topic to cash flow taxes.
3. The grantor has to expend monies (no matter whether by gift and / or mortgage) to fund the new ILIT, and has to offer with the attendant gift and GST tax repercussions if items are utilized.
4. The trustee have to act independently of the grantor. Way too a lot involvement in the transaction by the grantor could final result in the trustees’ liabilities of possession above the coverage remaining impaired to the grantor, probably resulting in the insurance policy proceeds being taxable in the grantor’ estate below IRC Part 2042.
5. To keep away from the a few-yr rule, the plan need to be bought for complete and ample thought. Frequently, the benefit of a plan is its interpolated terminal reserve price, plus the unearned top quality. Treas. Reg. Sec. 25.2512-6 (a), Instance 4. But, it could not be safe to overlook the better rate the coverage might garner in the existence settlement market place.
6. The trustee of the previous ILIT ought to consider his / her fiduciary responsibilities to the beneficiaries of the old ILIT, notably if the plan is not sold for its highest price tag and / or the sale final results in some benefiarios being remaining out of the new ILIT . In any event, prior to applying the Rev. Rul. 2007-13 system, the grantor should really notify the trustee of the outdated ILIT that the grantor intends to make no more items to the old ILIT. Therey, the trustee of the outdated ILIT could be justified in selling the coverage to steer clear of the policy lapsing.
7. Care should be taken to insure that the new ILIT is a grantor have confidence in for cash flow tax needs, but not included in the grantor’ estate for estate tax uses. For the ILIT to be considered “wholly owned by the grantor” for revenue tax functions, intentional violations of the grantor belief principles of IRC Sections 671-678 need to arise.
8. The use of Crummey powers in a grantor rely on raises the issue of regardless of whether the beneficaries develop into co-entrepreneurs of the ILIT when they enable their withdrawal powers to lapse. IRC Part 678 (a). If so, the new ILIT will not be considered to be “wholly owned” by the grantor for profits tax uses and the exception to the transfer-for-price rule will be place in jeopardy. In PLRs 200729005 through 200729016, the IRS rule that a grantor rely on is wholly owned by the grantor, despite the existence of the withdrawal powers held by the Crummey beneficiaries. But, because PLRs can not be relied on as preceded, it might be a good idea to not use Crummey powers in the new ILIT.
9. Consideration really should be offered to getting the beneficies waive any statements they may have from the grantor and the trustee ensuing from the sale of the plan. But, disinherited beneficiaries may perhaps have little explanation to cooperate.
10. To prevent a phase-transaction argument from the IRS, some time should elapse amongst funding the new ILIT and getting the coverage from the previous ILIT. Otherwise, the IRS might argue that the transaction is essentially an oblique reward of the policy to the new ILIT, triggering a new 3-calendar year rule beneath IRC Section 2035 (a).
Remaining unanswered by Rev. Rul. 2007-13 are the tax consequences when a joint ILIT is either the vendor and / or purchaser of a survivorship policy. In that circumstance, there are two grantors (husband and wife) and, therefore, the joint belief is not wholly owned by a solitary grantor. But, Rev. Rul. 2007-13 does provide guidance and authority for “switching” ILITs that are wholly-owned by a one grantor. Having said that, a variety of tax and non-tax challenges have to be carefully examined prior to utilizing this method. Grantors and trustees need to carry on with warning, and ought to consider with their advisers all of the possible risks and liabilities in this spot.
THIS Write-up May perhaps NOT BE Utilised FOR PENALTY Defense