Lower your beneficiaries' estate taxes by not owning your life insurance policy
First things first: You don't have to read this article unless your
estate is likely to owe federal estate taxes at your death. Currently, the estate tax affects only people who die leaving a taxable estate of more than two million dollars.
For those estates that do owe taxes, whether or not life insurance proceeds are included in the taxable estate depends on who owns the policy when the insured person dies. If the deceased person owned the policy, the full amount of the proceeds are included in the federal taxable estate; if someone else owned the policy, the proceeds are not included.
It follows that if you want your life insurance proceeds to avoid federal estate tax, you may wish to transfer ownership of your life insurance policy to another person or entity. There are two ways to do it. You can transfer ownership of your policy to any other adult, including the policy beneficiary. Or, you can create an irrevocable life insurance trust, and transfer ownership to it. (But be aware that some group policies, which many people participate in through work, don't allow you to transfer ownership at all.)
All property that you leave to your spouse, including insurance proceeds, is not subject to estate taxes when you die. Your life insurance proceeds would be taxed as part of your estate only if the beneficiaries of the policy are your children, friends, or relatives other than your spouse.
Transferring ownership of your policy to another person involves a trade-off: Once the policy is transferred, you've lost all your power over it, forever. You cannot cancel it or change the beneficiary. Suppose, for example, you transfer ownership of your policy to your spouse, and later get divorced. You cannot cancel the policy or recover it from your ex-spouse. In many situations, however, these gifts work well -- for example, when you transfer policy ownership to an adult child with whom you have a close and loving relationship.
The IRS has rules that determine who owns a life insurance policy when the insured person dies. Gifts of life insurance policies made within three years of death are disallowed for federal estate tax purposes -- and often for state estate tax purposes, too. This means that the full amount of the proceeds are included in your estate, as if you had remained owner of the policy.
The message here is obvious: If you want to give away a life insurance policy to reduce estate taxes, give the policy away as soon as is feasible. (And then don't die for at least three years.)
Another IRS regulation provides that a deceased person who kept any "incidents of ownership" of a transferred life insurance policy is still considered the owner. The term "incidents of ownership" is simply legalese for significant power over the transferred insurance policy. Specifically, the proceeds of the policy will be included in your taxable estate if you have the legal right to do any one of the following:
If you transfer a life insurance policy to a beneficiary, tax authorities regard the transaction as a gift. Under current gift tax rules, if you transfer a policy with a present value of more than $11,000 to another person, gift taxes will be assessed. However, the gift tax won't have to be paid until your death.
And keep in mind that the amount of gift tax will be far less than the amount of estate tax that would be due if your policy remained in your name and in your estate. This is because the policy proceeds (the amount the insurance company pays at death) are always considerably more than the value of the policy while the insured is alive. To find out the present worth of an insurance policy for gift tax purposes, ask your insurance company.
You can give away ownership of your life insurance policy by signing a simple document, called an "assignment" or a "transfer." To do this, notify the insurance company, and use its form. There's normally no charge to make the change. Also, you usually have to change the policy itself to specify that the insured is no longer the owner.
After the policy is transferred, the new owner should make any premium payments due. If you make payments, the IRS might contend that you're keeping an "incident of ownership" (as discussed above) and include the proceeds in your federally taxable estate -- precisely what you're trying to avoid. If the new owner can't make the payments, you can give her money for them.
If you give a paid-for single-premium policy to a new owner, there are no future payments to worry about. Because it's paid for in full once it's purchased, single-premium life can be a particularly convenient type of policy to give away. However, there can be a drawback here, too. If the value of the policy at the time of the gift exceeds the amount that is exempt from gift tax (currently, $11,000), the IRS will assess gift tax on the excess amount. By contrast, if you transfer ownership of a policy that has premiums due each year, and then every year you give the recipient a gift of less than $11,000 to pay for those premiums, no gift tax will be assessed.
The second way to transfer a life insurance policy is to create an irrevocable life insurance trust and then hold the policy in trust. Once you transfer ownership of life insurance to the trust, you're no longer the owner, and the proceeds won't be part of your estate.
Why create a life insurance trust, rather than simply transfer a life insurance policy to someone else? One reason can be that there's no one you want to give your policy to. In other words, you want to get the proceeds out of your taxable estate, but you want to exert legal control over the policy and avoid the risks of having an insurance policy on your life owned by someone else -- perhaps a spouse or child you don't trust to pay policy premiums. For example, the trust could specify that the policy must be kept in effect while you live, eliminating the risk that a new owner of the policy could decide to cash it in.
If you don't want the proceeds from your life insurance policy to be subject to estate taxes, you must comply with the following strict requirements:
Cona Elder Law is a full service law firm based in Melville, LI. Our firm concentrates in the areas of elder law, estate planning, estate administration and litigation, special needs planning and health care facility representation. We are proud to have been recognized for our innovative strategies, creative techniques and unparalleled negotiating skills unendingly driven toward our paramount objective - satisfying the needs of our clients.
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