TOLI Trustees Need To Be Aware Of Life Settlements

It is estimated that every year, seniors in the US surrender or lapse over $112 billion dollars in life insurance death benefits (1). Most of them probably have no idea of their options, but grow tired of the premium payments and walk away without maximizing the value of an asset they may have paid for over a lifetime. For the uninformed consumer, this could be just a lost opportunity, for the Trust Owned Life Insurance (TOLI) trustee, this can be a source of potential liability.

An alternative to a policy lapse or surrender is a life settlement, the sale of a life insurance policy for a lump sum greater than the policy’s cash value and less than the death benefit. The purchaser of the policy will maintain the policy by paying the policy premium until the death of the insured.

The life settlement industry grew out of the “viatical” movement of the of the 1980s when AIDS victims were given the opportunity to sell their life insurance policies to a third party for a lump sum payment to be used to provide medical and other care in the final years, sometimes months, of life. Advances in the treatment of AIDS made these types of policy sales less common, but the idea of life insurance as an asset that can be sold grew into the life settlement, or secondary marketplace, we see today.

Originally the industry was lightly regulated and some who sold their policies were taken advantage of, but today’s life insurance settlement marketplace is heavily controlled. The vast majority of states (42) have strict regulations that provide a framework for the orderly transfer of policies, with required consumer disclosures that protect the policy seller. The improved regulations have dramatically decreased issues in the sales process.

For the TOLI trustee managing life insurance today, life settlements are an option that must be considered. Because of changes in the estate tax, increased policy costs, and the natural evolution of trust goals, there are more “unwanted” policies to deal with than ever. Those of you who have attended our ITM TwentyFirst University sessions in the past know that we have developed many methods for analyzing options to maximize the value of a life insurance policy. We do this because it is our clients’ (TOLI trustees) responsibility to maximize the value for their clients (life insurance trust beneficiaries), and life settlements can be a way to do that.

Typically, life settlements are available to insureds age 65 and older, though health will play an important role in whether an offer is forthcoming. Most policies sold are universal life policies – especially current assumption universal life, though other policies, even term insurance policies that can be converted to a permanent policy, can be sold. The offers depend on the death benefit of the policy, the annual premium needed to carry the policy, the life expectancy of the insured, and the rate of return that the buyer needs to make the purchase a viable investment.

The sale of a policy has potential tax implications to the seller. A life insurance policy held in trust until a death benefit is paid is received income and estate tax free, however if a policy is sold there is a possible tax liability to the trust.

While all the advantages and disadvantages of a policy sale are beyond the scope of this article, we believe that the full discussion of life settlements in the TOLI world is important enough to schedule a webinar session that will provide a TOLI trustee (and all financial professionals) with a thorough understanding of the process. Our next free webinar session, entitled Learning When Why and How to Do a Life Settlement, will be held on March 28th at 2 p.m. Eastern Time, and will provide one hour of continuing education for CFP, CTFA and FIRMA members. You can register here.

  1. LifeHealthPRO, February 25, 2015, Forfeited Life Insurance Benefits Pegged at $112 Billion

2014 – A TOLI Update for Trustees

As we end 2014 I wanted to post some observations from the past year.

2014

The TOLI business is not growing, at least not significantly. We are still feeling the estate tax filing threshold jump to an indexed $5M. As the number of prospects drops, so does the number of new clients. Yes, there are reasons other than estate taxes to hold a policy in a trust, but the estate tax is the main driver. Can the estate tax change to favor the use of insurance trusts again? Perhaps, but probably not in the short term.

Even though we have not seen much growth in TOLI, we have also not seen a wholesale desertion of these trusts. No rush to exit, more of a slow trot for a few, but this is creating service challenges, as well as opportunities, for the trustee.

Service Challenges: Some grantors are concluding that their TOLI policy may no longer be needed, or at least the death benefit does not need to be as high as it is. Now I know there are people who will read this who can convincingly champion the virtues and economic efficiencies of life insurance, but can we all agree that there are few people who truly enjoy paying life insurance premiums? Many of them are your clients, so you will see an increasing level of policy service responsibilities for this group. What does the trustee do when the 85 year old grantor says they no longer want to pay premium? Or a client says he no longer needs $10M of coverage, $5M will do? This is still an asset that the trustee is required to maximize for the advantage of the beneficiary. But how? This type of analysis is in the ITM wheelhouse, but I have seen trustees frozen by these service requests when they lack in-house knowledge or outsourced abilities. And as I mentioned, this type of request will not be going away, it will be increasing.

Every trustee has “disinterested” grantors, those slow pay or even no pay, unresponsive clients that take up way too much time. Well, guess what? You will have more of them. These often apathetic grantors present a particular challenge. Dealing with them efficiently will become more important as we move forward.

New Opportunities: For those of you who like to look at the bright side of the road this new estate tax reality will give you the opportunity to engage your clients in real discussions about their financial situation.   And depending on your business model, that discussion could open up additional business opportunities in investments and/or insurance and perhaps provide you with an entrée to further discussions with the next generation. After all, isn’t one reason to hold these trusts to bridge the gap to that generation? A frank discussion with both generations on subjects such as long term care, for example, might just create that bridge.

TOLI Trusts on the Move: We have seen a number of TOLI portfolios move in 2014 and we are aware of additional ongoing discussions. And it makes sense. Some trustees simply do not have the requisite skills to manage this asset, or the stomach to handle the liability which can climb into the millions. And many of these trusts are “standalone,” with relationships generating only a TOLI administrative fee, no additional investment management or other charges. For every “seller” there must be a “buyer” and in this case there are still trustees in the marketplace who are actively seeking not only new business, but blocks of existing business. We have assisted in transactions in 2014 and I am sure we will continue to in 2015.

Life Insurance Sales: While the insurance market as a whole plodded along in 2014, either up a bit or down a bit quarter over quarter, Indexed UL (IUL) “experienced the strongest growth” according to the latest report from LIMRA, a life insurance marketing organization. We certainly saw an influx of this product at ITM (see What You (as Trustee) Need to Know About Equity Indexed Universal Life for further information on the pluses and minuses of Indexed UL.) The sales practices of agents selling this product led to Regulatory Scrutiny in 2014 that I outlined in New York State Regulators Eying Indexed Universal Life Sales Practices – What Every Trustee Should Learn From This.  As I mention in that blog, there is a concern by the NY regulators that “some insurance companies may be giving buyers overly optimistic projections of the potential gains in the policies.” These policies are often used as replacements for existing Variable Life policies, touted as a “safer, more conservative” alternative. Often, when we look back in the file we see that the existing Variable policy assumed a rate of return of 10-12% in a separate account portfolio and of course the policy failed to reach expectations. Frequently we are pitched a replacement IUL policy with a rate of return of 7-8% based on an Index, typically the S&P 500. Ironically, some industry observers (and at least one carrier) have said these lofty illustrated IUL expectations will be equally hard to attain.

Policy Replacements: One area of growing concern in 2014 has been the quality of the replacement policy options forwarded to us for review. I am not sure if it is the lackluster sales in the high end market, but we saw more “bad” replacements this year than in any past year. I have always told our clients that when it comes to selection there is no “best” policy. Policy selection is determined by particular facts and circumstances. What has been troubling to see is the seemingly limited ability of agents to act as true advisors. We will receive a “recommendation” based on an “analysis” that consists solely of dumping the cash value of the existing policy into a new policy. Sometimes a simple modification of the existing policy produces far superior results, though no new sale. I will admit I may be overly harsh here as an agent is generally not a fiduciary and simply providing an “appropriate” product is a low bar than can be hurdled easily. But a trustee is a fiduciary and that task requires a bit more responsibility – and work.

Not Your Father’s Life Insurance Company: In 2014, some “stodgy” life insurance carriers were spicing up their investment portfolios to squeeze out a little more return. In a blog published in August of this year (Life Insurers Adapting Investments to the Sustained Low Interest Rate Environment), I noted an article in Reuters published this year that noted that Allianz “invested in such projects as toll roads and stadiums as well as in renewable energy initiatives, such as wind parks and solar farms,” and they plan to “shift 10 percent … of the … firm’s assets into less-traditional investments in the next three to five years.” We have also seen hedge funds and private equity firms, entities rarely seen before, enter the insurance and annuity marketplace, a trend that is sure to persist over the next few years.

Life Settlements: After a number of years of decline, the life settlement market has shown some signs of revival in 2014. An aging population is providing the inventory for life settlement sales, and the prolonged low interest rate environment is bringing investors in looking for a higher return on what is perceived as a non-correlated asset. According to a study by Conning & Co., reported in insurancenewnet.com this year, investors are seeking “alternative assets to generate comparatively higher investment returns.” Earlier this year on this blog I penned A Short Primer on Life Settlements for TOLI Trustees, which can provide you with some background on the subject. And it may be time to brush up on this strategy, as life settlements will become more important as you will be required to maximize value for the beneficiary on a policy the grantor may no longer want.

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At ITM: 2014 has been a year of tremendous growth as our business model has benefited from the changes in the TOLI market. Our clients range from trustees wishing to aggressively build a TOLI business to those looking to offload their TOLI trust assets, as well as those who see TOLI as a component of a larger business model, but one that needs to be run efficiently, with liability mitigated. We continued our ITM Education Series in 2014, expanding subject matter to support our commitment to educating the trustee marketplace, not only in TOLI matters, but in other pertinent subjects, while providing free CE credits for both CFP and CTFA designations. New sessions for 2015 will be announced on our website soon. In closing, let me thank all of our clients for a wonderful year and wish everyone a warm holiday season. As we have in the past, we will be spending a week in Orlando in January at the Heckerling Institute on Estate Planning. Please do stop by our booth if you are attending.   Here is to a healthy and prosperous 2015.

An Ongoing Case in California You Should Be Aware Of If You Are a TOLI Trustee

An interesting class action lawsuit filed in January of this year is unfolding in California. The case, Larry Grill et al v. Lincoln National Life Insurance Company, was brought against the insurance carrier for “concealing from its insureds the option of a life settlement in connection with their life insurance policies.”

In an all too common scenario (which I am sure you have seen), the grantors of a trust, currently in their mid to late 70s, decided they would no longer gift an amount to their trust sufficient to carry the life insurance policy in the trust. The $7.2 million policy was reduced to $5.4 million in 2008 and then down to $2 million at the end of 2009. In both instances the agent on the policy provided the “Plaintiffs with detailed illustrations prepared by Defendant.” However, according to the complaint, the agent presented only “two options—paying new premiums into the Policy or surrendering all or part of the Policy—and failed to advise them of the third option of a life settlement.” Because of the concealment of the settlement option, the “Plaintiffs surrendered over $5 million . . . for no consideration.”

This case has generated a lot of discussion, especially in the life-settlement industry. Clearly, the more often life-settlement options are discussed the better for an industry that seems to be recovering but is still just a fraction of what it once was. So this case, especially if the plaintiffs prevail, will be a bell ringer for them.

But the main discussion is about whether or not Lincoln National and the agent have the responsibility to inform the client of the life settlement option. A LifehealthPro article notes that Lincoln “argues that insurers are not fiduciaries under California law.” That same article also mentions that “Maher Asatryan, a Los Angeles-based attorney, points out that the California Supreme Court concurs with Lincoln’s position.” Nevertheless, the case is moving forward, and the plaintiffs will try to prove otherwise.

I do not purport to be a legal scholar, and I am not saying I understand all of the nuances of this case. But here are a couple of things that I do know:

  • If you are a corporate trust-owned-life insurance (TOLI) trustee, you are a fiduciary.
  • While the plaintiffs say they “surrendered” over $5 million dollars, we know they did not. In order to keep the policy in force at the $7.2 million death benefit, they would have had to pay substantial premiums, probably for many years; so the amount that they “surrendered” would be much smaller.
  • If they were given the option to sell the policy, they would have surrendered a significant amount anyway. Yes, a settlement company would have given them an amount greater than the cash value of the policy, but it probably would not have given them anything approaching the death benefit of the policy.
  • Regardless of the “numbers” in this possible transaction, the fact is that the plaintiffs (or others like them) may not have even been eligible for a life settlement. In an earlier blogpost titled ”A Short Primer on Life Settlements for TOLI Trustees,” I explained it this way: “In order to qualify for a life settlement, it is typical that the insured would have suffered a health impairment since the purchase of the policy that shortened his or her life span. That impairment creates the arbitrage between the actual life expectancy of the insured and the underwriting classification of the policy. For this reason a life settlement will work for the buyer, and it may perhaps be a reason for you, as trustee, to keep the policy.”

In that earlier post I outlined my feelings about life settlements. I believe that unless a policy is to be surrendered or will lapse, a life settlement is rarely the best option. I cited a study that bears this out (though many in the life settlement industry will dispute it). But in that blog I also said this: “There is no doubt that there are times when a life settlement makes sense. . . . In fact, not exploring a life settlement option in those situations may be possible grounds for litigation. And there are a multitude of different options in the marketplace today, including ones that offer interim policy funding so that at least a partial death benefit can be paid in the future. The entire settlement marketplace should be explored.”

If you are a corporate TOLI trustee in a situation where a life settlement can possibly be perceived as an option, you need to make sure your files contain either the reasoning behind not pursuing a life settlement or the outcome of pursuing that option. As I have mentioned, often a life settlement is not a viable option. But how do you prove that—especially many years down the road when a beneficiary brings it up? I often ask agents or advisors for information about options and am told that the particular option makes no sense at all, so why would I need to see it? My answer is always the same: “We may both know it makes no sense, but I may have to prove that in the future, and I may not be able to go back and gather the information to do that twenty years from now. I have to make sure the trust file contains information on every option available, including a life settlement.

If you are a corporate TOLI trustee, make sure your files contain everything you need to show that your decisions are prudent concerning life settlements and that you have considered all options. Unlike Lincoln National or an agent, you cannot dispute the fact that you are a fiduciary.

A Short Primer on Life Settlements for TOLI Trustees

Back when I was still in the life insurance brokerage world I got my first introduction to life settlements.  I will never forget the first words uttered by the salesman who was presenting that day…”Think of me as a used car salesman, but instead of selling cars I am selling used life insurance policies”.

I may not be the best marketer around, but I am savvy enough to understand that was probably not the best introduction he could have given.  According to Gallup polls I have seen, used car sales run neck and neck with being a member of Congress as the lowest rated professions when it comes to honesty and ethical standards.  But maybe his analogy made sense, because back then the bourgeoning life settlement industry was rife with fraud. Luckily for those who have to deal in this marketplace now, that has all changed.  In 2014, the life settlement industry is one of the most regulated markets around.

The life settlement industry in the United States had its roots in the viatical marketplace of the 1980s that grew out of the AIDS epidemic.  A viatical settlement allows a person with an extremely short life span (less than two years) to sell their life insurance policy to a third party.

In a life settlement transaction, the insured is not terminally ill, but is usually at least age 65 with a shortened lifespan.  As with a viatical settlement, the policy is sold to a “third person” for an amount greater than the current cash value.  The new owner maintains the policy until the death of the insured and collects a profit based on the purchase cost of the policy, including all transaction fees, and the life expectancy of the insured.  All other things equal, the shorter the life expectancy, the higher the buyer’s profit.  Life expectancy companies have sprung up that provide Life Expectancy (LE) Reports based on a review of the health records of the insured.

The life settlement business mushroomed from 2000 to 2008 as money flowed into the industry from a number of sources including hedge funds looking for “uncorrelated assets”.  Brand names like Goldman Sachs and Credit Suisse dipped their toes into the business.  Stranger Owned Life Insurance (STOLI), where older aged individuals were solicited to purchase life insurance utilizing non-recourse loans, flourished.  The pitch was that after purchasing the “free” life insurance, the insured could participate in the profits from the sale of the life insurance policy in two years, after the contestability period as over.  As with many life insurance schemes, the STOLI concept ended with a thud, with many disgruntled clients and the Attorneys called in to clean up the mess.

The “manufactured” STOLI business did as much to create the boom and bust nature of the industry as anything.  But other problems arose that hurt the business, including life expectancy projections that turned out to be incorrect, constant industry battles with insurance carriers and the real killer, the financial upheaval and credit crunch of 2008.  That dried up a lot of the funding that had been pouring in and what funding that was available for “alternative investments” went to more secure assets.

An August 2013 report by Harvard Business School Professor Lauren Cohen pegged the annual volume of new business in life settlement sales in 2002 at $2 billion, jumping to $11.77 billion in annual volume in 2008, before plunging to $1.25 billion in annual volume in 2011.  Business in 2012 rose slightly to $1.26 billion.  The U.S. General Accountability Office 2010 survey of life insurance settlement providers reported a 40-50% decrease in settlements from 2008 to 2009.

The value of all policies in force (life insurance policies owned by third parties that have not yet paid out) stands at approximately $35 billion today, according to Mr. Cohen.  But Conning, an insurance research firm, projects that that amount will drop to $10 billion within the next 8 years.  The industry itself is more optimistic citing growth potential in small face policies ($500,000 and down) as one possible growth area.

One thing that seems to be true is that the remaining players in the industry appear to be the best of breed and with the layers of regulations that have been forced on the industry it is a far cry for the early “Wild West” days.  It is a secure place to transact business.

So, when should you as a Trustee consider a Life Settlement as a policy option?  The simple fact is that a life settlement offer is usually not the best economic option for a policy. For one thing you are taking an asset that is income and estate tax (assuming held in an ILIT) free and converting it into a taxable asset. Life insurance sales proceeds are possibly taxable to the seller and the life insurance death benefit is partially taxable to the buyer. In addition, you are adding into the financial equation transaction fees and commissions that add to the costs.

In order to qualify for a life settlement it is typical that the insured would have suffered a health impairment since the purchase of the policy that shortened his or her life span. That impairment creates the arbitrage between the actual life expectancy of the insured and the underwriting classification of the policy. It is for this reason a life settlement will work for the buyer, and perhaps a reason for you, as Trustee, to keep the policy.

A 2005 Deloite study reviewed the “values” of a life insurance policy, including the Life Settlements Value and the Cash Surrender Value. In addition, they “quantified the value of a third option: retaining the policy until death”. They referred to the third option as “the Intrinsic Economic Value”. Their study “focused on comparing the Intrinsic Economic Value with the Life Settlements Value”. In the conclusion of their study they stated: “The policyholder with impaired health could maximize her estate value if other assets are liquidated and the life insurance policy is maintained until death. The potential yield of a life insurance contract when the policyholder’s health has deteriorated is so great that other creative options to preserve the contract should be explored before making any decision to sell a contract.  The Beneficiary, who has a vested benefit in maintaining the life insurance contract, can help preserve a high-yielding, tax-free asset by securing funds to satisfy the liquidity needs of the policyholder or by assuming the premium payments on the life insurance policy. The return on the Beneficiary’s investments to preserve the life insurance contract is likely to exceed any other investment option.”

I could not state this any better. There is no doubt that there are times when a life settlement makes sense.  No life insurance policy should be surrendered for a cash value payout that is less than can be netted from a life settlement, and if a policy is going to be allowed to lapse for no value, a settlement is the prudent step.  In fact, not exploring a life settlement option in those situations may be possible grounds for litigation.  And there are a multitude of different options in the marketplace today, including ones that offer interim policy funding so that at least a partial death benefit can be paid in the future. The entire settlement marketplace should be explored.

However, it should be pointed out that a life settlement is rarely the best use of the asset you are entrusted with and if a life settlement is done, the trust file should clearly document the exploration of every other conceivable option. The same beneficiaries that might welcome a $500,000 (possibly taxable) settlement offer may be meeting you in court next year if the insured dies soon after the sale and a $2,000,000 non-taxable benefit could have been paid.

One last note. Explore every option with the carrier for the policy, especially if the insured is in poor health. Earlier this year we were exploring a life settlement option for an insured in very poor health. No ongoing monies were available to the trust and the policy was in lapse mode.  While the policy contract did not include an accelerated death benefit option, after extensive conversations with the carrier we found that the benefit was actually available because of state requirements enacted after the policy was issued. The bottom line, as always…you as Trustee are an advocate for the Beneficiary and must make sure you provide maximum benefit to the trust on behalf of your client, the Beneficiary.