NEWSLETTERS
Partnerships- Another Option for Ownership of Your Life Insurance Policy
Life Insurance Owned By Your Partnership Or ILIT-Which Is Best?
Life Insurance can be owned by a partnership instead of an ILIT and achieve many of the same and better benefits. However, an ILIT gives better protection of the policy from a partner’s creditors and better estate tax avoidance. And, the insured control over the policy owned by an ILIT can sometimes be achieved through use of a trust protector named in the ILIT. Nevertheless, there are benefits to using a partnership to own the policy. See below discussion.
In order to secure a source of liquidity to help pay estate taxes and other obligations, taxpayers often establish an Irrevocable Life Insurance Trust (“ILIT”) to purchase and own a life insurance policy on the taxpayer’s life. Upon the taxpayer’s death, policy death benefits are paid to the ILIT with which the ILIT may either purchase assets from, or make loans to, the insured’s estate.
The life insurance death benefit proceeds can remain out of the insured’s estate only by eliminating any “incidents of ownership” over the policy. Accordingly, the insured typically will not be named as trustee, leaving him without control over the policy, or access to the cash value. Further, the ILIT must be made irrevocable so that the insured is not deemed to retain control over, and therefore incidents of ownership in, the policy.
This, of course, limits the taxpayer’s flexibility in that, once established, the taxpayer may not revoke or amend the ILIT without resorting to either a formal court order, trust decanting or other sophisticated technique such as naming a trust protector in the ILIT document from the start. In the past. While the ILIT is a popular way to own a life insurance for all of the reasons cited above, another option is to have the life insurance owned by a family partnership.
Many planners see the Family Partnership, or Family Limited Liability Company (“FLLC”), as a more flexible alternative to the Irrevocable Life Insurance Trust. Among other benefits, the FLLC offers these advantages over the ILIT:
- The terms of the partnership may be amended upon the agreement of the partners.
- Where the insured is the voting member, he has management control over partnership assets, including the policy on his life, for
- partnership purposes.
- Where policy proceeds are paid solely to the partnership, the insured should not have the entire policy proceeds included in his estate.
- The insured’s gross estate will be increased by the life insurance proceeds only to the extent that they are attributable to, and increase proportionately, the value of his partnership interest.
The typical structure of the FLLC looks like this: The FLLC is a partnership like entity. The owners are the parents (often as 2% general partners, or voting members) and children (often as 98% non-voting partners). Children usually receive their capital contribution to the partnership via lifetime exemption and/or annual exclusion gifts from their parents. The objective is to shift as much asset and “leveraged” financial growth to the non-voting partners and away from the 40% federal estate tax bracket of the voting partners without the voting partners giving up management control of the capital assets contributed. The usual assets that may be transferred to a FLLC are: rental real estate, shares of an LLC, and the stock of a closely held “C” Corporation. “S” Corporation shares and Professional Corporation shares are not permitted.
Thus, additional advantages of an FLLC over an ILIT include:
- Unlike an ILIT, the FLP may be amended upon the agreement of the partners.
- If the insured is the general partner, he/she has management control over the partnership assets, including the life insurance policy on his/her life(s), for partnership purposes.
- If the death benefit proceeds are payable solely to the partnership, the insured should only have a proportional amount of the policy proceeds included in his/her estate equal to his/her ownership interest in the partnership.
- The partnership provides a flexible alternative to an ILIT for purposes of minimizing inclusion of a policy in the insured’s estate.
Disadvantages of an FLLC over an ILIT include:
The insured’s gross estate will be increased by the proportion of the life insurance proceeds attributable to his partnership interest.
While most tax advisors would agree the FLLC can be used to transfer assets to family members at a discount, care must be taken to obtain a discount. Warning: the IRS has differing theories they could use to attack FLLC discounts.
Both the FLLC and ILIT are excellent estate planning concepts to transfer estates with the smallest possible shrinkage. The ILIT may not be altered, amended or changed. The FLLC is amendable by the partners. Using the ILIT requires an insured estate owner to relinquish virtually all control over the policies and trust assets. Using the FLLC, the voting member insureds have management control over all partnership assets, including life insurance policies. The value at which partnership assets, including insurance death proceeds, are included in their gross estate depends upon his/her partnership ownership interest. They can possess a small percentage (1%-2%) and still serve as the managing voting partners. Thus, the insured voting partners retain some measure of control without causing inclusion of the entire death proceeds in the taxable estate.
The ILIT may be created to hold only life insurance policies, with premiums gifted to the trust by the grantor and spouse. The ILIT may also manage assets that have been transferred to the trust. Gifts or capital contributions to the FLLC by the parents, are used to pay premiums. If contributions are made as capital contributions, then the parents share of the FLLC may increase. Special allocation provisions may be used to shift proceeds to the other LLC members as a way to avoid having proceeds become reallocated to the parent’s estate. The FLLC must manage assets and have a business purposes to qualify as a legitimate partnership and may own insurance as one of those assets.
About the Author
D. Steven Yahnian has been a member of the California Bar and a practicing Attorney since 1980. He has also been a California CPA since 1984. Mr. Yahnian also holds the CFP® designation.
Mr. Yahnian practices in the following areas of law through YAHNIAN LAW CORPORATION:
- Estate Planning & Administration
- Asset Protection Planning
- Tax Planning, Tax Debt Resolution and Tax Litigation
- Business & Corporate Law and Planning
- Real Property Law & Planning
As a CPA/CFP, Mr. Yahnian also has a separate accounting and tax return preparation practice called DSA ACCOUNTING.
Mr. Yahnian is a California State Bar Certified Specialist in the following
• Taxation Law and
• Estate Planning, Trust & Probate Law.
Mr. Yahnian received a B.S. degree in Accounting from USC, a J.D. from Loyola University of Los Angeles School of Law and an LL.M. in Taxation from New York University Law School. He also has a Certificate in Taxation from UCLA (with distinction). Mr. Yahnian also has an MS in Taxation* from UCLA (with Distinction).
*Equivalent
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