ILITS: Keeping “Crummey” Trusts from turning “Crummy.”

Financial advisors get to “sell the sizzle” of Irrevocable Life Insurance Trusts (ILIT) and their powerful estate tax avoiding leverage.  These trusts are a powerful tool which can provide your clients with near-unlimited estate tax savings, compounding their already impressive income tax free nature.

As simple as this technique is to illustrate, however, it is fraught with “devil in the details” issues.  First, a client must understand that, in order for transfers to the ILIT to be a completed gift (which is essential to the success of the technique), they must issue a so-called Crummey Notice (after the Crummey vs. Commissioner case) to each trust beneficiary each time they transfer funds to the trust.  This is an IRS - imposed rule, but clearly not one to be taken lightly, as the IRS has made clear in its acquiescence, that they will be asking for proof in the nature of copies of these notices, and proof they were sent.  This is an annual -- or more often-- hassle, which clients do not always understand when the technique is initially proposed.  The notice is just that--a notice.  The beneficiary must not sign anything that amounts to a “waiver” of their withdrawal rights.  Second, the client needs to clearly understand that the nature of the crummey notice is that they have the legal right to withdraw a portion of the monies transferred to the trust.  The client needs to know there is a very real risk that the beneficiary might exercise this right!

Third, the premiums on the insurance policy must be paid by the Trustee -- not by the grantor.  This has been the subject of litigation and it is not clear that the IRS has won on this issue.  But it is clear that they believe it to be an issue.  Best not to tempt fate.  

Fourth, because this is an irrevocable trust, it may have to report to the IRS on Form 1041 Income Tax Return..  As a general rule, life insurance (the main asset within the trust) does not earn “income” and this asset will not make reporting necessary.  However, in order for the Trustee to pay the premiums, the Trust will need a bank account.  Unless this is a non-interest bearing account (which we often recommend, in spite of the forbearance of interest), there may be taxable income, which triggers the reporting requirement.

These are all details which may “break” the trust if not properly attended to.  It is important, when advising clients, that they be made aware of the importance of these details, and the need to maintain vigilant observance during the life of the trust.

This Newsletter is intended to be informational, only and does not constitute legal advice.  If you have questions, concerns or comments, please contact me at: arichards@smithbovill.com, or by Telephone at 989-652-9923.

Andy Richards

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Should Your Clients Review Their Powers Of Attorney?

Your clients already have their Durable Powers of Attorney and their Healthcare Designations of Patient Advocate done. Is there any reason they need to be reviewed or updated?

If a Power of Attorney is dated before 2004, it is likely out of date--particularly a Health Care Power. What do I mean by out of date? In April, 2004, the Health Care Portability and Accountability Act (HIPAA) became effective. One of its provisions deals with the privacy of clients' health care information. The Act creates some new terms of art.

These terms are broadly defined and their scope may reach unintended, or at least unsuspected "targets." Protected Health Information is a term for information about the client. It includes such things as billing and insurance information, as well as medical information. A Health Care Provider is any person or entity which has any Protected Health Information and transmits it in any manner electronically. This is a very broad definition. It means that, in addition to hospitals, doctors, dentists, clinics, etc., insurance companies, agents, CPA's, attorneys and many others may be treated as Health Care Providers.

If a Health Care Provider releases Protected Health Information without a specific, written authorization, they may face substantial penalties. An Agent acting under a Power of Attorney often needs just this information in order to make appropriate decisions.

HIPAA provides for the written designation of a "Personal Representative," who may authorize the release of Protected Health Information. This is a term of art which most Michigan Powers of Attorney which were executed prior to HIPAA do not address. These Powers of Attorney need to be updated to comply with the provisions of HIPAA.

Michigan Law also regards a Durable Power of Attorney with suspicion. The Common Law provided that a Power of Attorney was no longer effective when the Agent learned of his Principal's incapacity--exactly the time when an estate planning Power of Attorney is most needed. The Michigan Legislature created the Durable Power of Attorney, which is designed to remain effective. But our courts have said that, because this legislation differs from the Common Law view, these documents must be strictly interpreted. The practical significance of this is that if a power to do some act is not specifically recited in the document, it is likely that it will not be given effect. Over the past several years, we have found--more and more often--that a well-meaning third party will balk at the power. This is another important reason to review---and update your clients Powers of Attorney.

This Newsletter is intended to be informational only and does not constitute legal advice.  If you have questions, concerns or comments, please contact me at: arichards@smithbovill.com, or by Telephone at 989-652-9923.

Andy Richards

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