McNees Insights Newsletter – Estate Planning: November 2016

McNees Wallace & Nurick LLC

IN THIS ISSUE:  IRS Simplifies Rules for Correcting Late Rollovers  /  Controlling From the Grave – Incentive Trusts  /  Life Insurance Due Diligence In Estate Planning

IRS Simplifies Rules for Correcting Late Rollovers

By Andrew S. Rusniak

On August 24, 2016, the Internal Revenue Service (the “IRS”) issued Revenue Procedure 2016-47, which greatly simplifies the procedure for correcting late rollover contributions to IRAs or qualified plans. The guidance is welcome relief to taxpayers who, prior to the new guidance, were faced with the daunting and sometimes costly task of requesting and obtaining a Private Letter Ruling (PLR) from the IRS in order to correct the otherwise taxable mistake. In addition, the guidance provides assurances to IRA custodians and plan administrators faced with the task of determining whether to accept late rollover contributions.

The Internal Revenue Code permits taxpayers who have received a distribution from their retirement account to rollover the withdrawn amount into a new IRA or qualified plan if the entire withdrawn amount is paid over into the new account within 60 days after the day of receipt (this is known as the “60 day rule”). Although direct trustee-to-trustee rollovers are increasingly popular when changing IRA custodians, taxpayers continue to rely on the 60 day rule, whether simply to change custodians or because there is an immediate, short-term need to access amounts held in the plan (a risky proposition that is generally ill-advised). Historically, if the 60 day window closed without the taxpayer having recontributed the entire withdrawn amount, the entire distribution would be taxable, and the taxpayer would lose the benefit of the continued tax-deferred nature of the withdrawn amount. The taxpayer’s reasoning for failing to recontribute the withdrawn amount to a new IRA or qualified plan within the 60 day window was immaterial, and the only way to obtain additional time to redeposit the withdrawn amount and avoid the tax bill was to request a PLR from the IRS, a potentially costly and time-consuming endeavor that generally required the assistance of a professional.

Perhaps due to the substantial number of PLR requests received by the IRS requesting extensions of the 60 day rule, the IRS issued Revenue Procedure 2016-47, which simplifies the process for correcting late rollover contributions. Rather than requesting a PLR, a taxpayer who missed the 60 day window may now self-certify that he or she is eligible for relief under the new guidance and must provide that certification to the IRA custodian or plan administrator accepting the late rollover.

In order to be eligible for relief, the taxpayer’s self-certification must provide (i) that the IRS has not previously denied a 60 day rollover waiver request, and (ii) that the rollover contribution is being made as soon as practicable and within 30 days of the end of the event that otherwise prohibited the taxpayer from satisfying the 60 day rule. In addition, the taxpayer’s self-certification must include a statement that the taxpayer’s failure to initially satisfy the 60 day rule resulted from any of the following specified reasons:

  1. an error was committed by the financial institution receiving the contribution or making the distribution to which the contribution relates;
  2. the distribution, having been made in the form of a check, was misplaced and never cashed;
  3. the distribution was deposited into and remained in an account that the taxpayer mistakenly thought was an eligible retirement plan;
  4. the taxpayer’s principal residence was severely damaged;
  5. a member of the taxpayer’s family died;
  6. the taxpayer or a member of the taxpayer’s family was seriously ill;
  7. the taxpayer was incarcerated;
  8. restrictions were imposed by a foreign country;
  9. a postal error occurred;
  10. the distribution was made on account of a levy under § 6331 and the proceeds of the levy have been returned to the taxpayer; or
  11. the party making the distribution to which the rollover relates delayed providing information that the receiving plan or IRA required to complete the rollover despite the taxpayer’s reasonable efforts to obtain the information.

The IRS conveniently issued a model letter that taxpayers may use for self-certification. The model letter is attached to the Revenue Procedure in its appendix.

The guidance provides that an IRA custodian or plan administrator is entitled to rely on a taxpayer’s self-certification in determining whether the taxpayer has satisfied the conditions for a waiver of the 60 day rule. However, the IRA custodian or plan administrator may not rely on the self-certification if the IRA custodian or plan administrator has actual knowledge that is contrary to the self-certification. Finally, the IRS recommends that taxpayers relying on the self-certification retain a copy of the certification in the taxpayer’s files in the event of an audit.

The new guidance from the IRS should be welcome relief for taxpayers who qualify for self-certification as well as IRA custodians and plan administrators faced with the task of determining whether to accept late rollover contributions.

Controlling from the Grave – Incentive Trusts

By J. Corey Reeder

One of the most important reasons, if not “the” most important reason, for drafting an estate plan is to control the distribution of assets at death. This type of control can be exercised in its simplest form, whereby a client simply leaves his or her assets to beneficiaries outright and free of trust with no strings, conditions or additional requirements attached. Alternatively, it can be extremely complicated, including implementing trust provisions with multiple and/or complex conditions or requirements that must be met in order for the beneficiary to receive assets.

The purpose of this article is to briefly discuss what are known as “Incentive Trusts,” which attach fixed conditions to the distribution of assets to a beneficiary and allow the settlor (i.e., the creator of the trust) to reward a beneficiary for desired behavior while, at the same time, limiting distribution for undesirable behavior or immoral activity. The types of conditions that are contained within an Incentive Trust go well beyond more traditional trust conditions, such as reaching a certain age before assets are distributed, and as such, require careful planning and drafting. Below are some examples of the types of conditions that a settlor may impose in an Incentive Trust.

Educational conditions could include a requirement of (i) graduation from college, professional or graduate school within a certain time frame, (ii) achievement of a certain GPA, or (iii) graduation from a specific institution.

Financial conditions may include the achievement of a certain income level or a particular retirement savings threshold before distribution would be made.

Social conditions often reward a beneficiary for engaging in certain social or charitable work. Such conditions could also tie distributions to charitable giving by the beneficiary.

Lifestyle conditions can include a requirement that distributions will be limited or withheld entirely if the beneficiary has drug, alcohol, tobacco, gambling or legal issues.

Family considerations are often a component of Incentive Trusts and may tie distributions to certain marriage requirements (whether in the form of age, spousal religion or ethnicity, length of marriage or a prohibition against divorce or co-habitation) or a requirement that the beneficiary have children.

Professional conditions often include tying distributions to a beneficiary becoming involved, or continuing to be involved, in the family business, starting his/her own business or entering a certain profession.

The above are just a few examples of the multitude of conditions that a settlor may consider including in an Incentive Trust. While it may seem, at first blush, that these types of conditions are simple, straightforward and easy to manage, as is typically the case, the devil is in the details. Specifically, anyone interested in forming an Incentive Trust should consider not only how these conditions are going to be defined within the trust document, but also how they are going to be implemented, monitored and/or enforced, and whether or not the conditions can be met and drafted in such a way so as not to leave the trust provisions open to interpretation or conflict.

Using the above-identified examples of Incentive Trust conditions, the following represent just a few of the myriad of issues or further considerations that a client should take into account in considering whether and how to utilize such conditions.

Educational conditions may need to address situations involving a beneficiary with a learning disability or whether a beneficiary is better suited to attend an institution more compatible with his or her own personality, interests and/or skills.

Financial conditions may need to be tailored to address situations where (i) a beneficiary is unable to achieve a particular income level for reasons beyond said beneficiary’s control (e.g., a debilitating accident, illness, etc.), (ii) a beneficiary wants to pursue a social service occupation that is lower paying, but has non-financial benefits, (iii) a beneficiary has lost his/her job for some unforeseen reason and thus, cannot meet the financial condition or (iv) the beneficiary chooses to be a stay-at-home parent.

Lifestyle conditions may seem straightforward at first glance, but considerations may need to be addressed related to whether the particular lifestyle trait at issue (i.e., drugs, alcohol, tobacco, etc.) is not a choice, but rather, an addiction. Other considerations with these types of conditions are what standard should be used to determine when a lifestyle choice rises to a level that would limit or prohibit distribution and/or how ongoing compliance with such conditions will be monitored.

Family conditions also raise a host of issues that should be given great thought prior to inclusion in a trust, including, but not limited to, (i) whether or not the condition would be void against public policy (i.e., requiring marriage to a person of the opposite sex, the same race, etc.), (ii) whether the condition would cause unhappiness to the beneficiary, (iii) whether the beneficiary or his/her spouse may have a medical or other condition which would prevent the couple from having children, or (iv) whether adopted children would fulfill the condition.

Professional conditions also raise a number of considerations and may need to be drafted to address (i) the particular proficiencies, aptitude and/or skills of a beneficiary, (ii) how fulfillment of the condition(s) may affect the performance of the family business, (iii) whether a stay-at-home beneficiary fulfills the condition and thus, qualifies for a distribution, (iv) the professional happiness of a beneficiary, or (v) the impact if it is determined that it is in the best interests of the family business to be sold.

While certainly not an exhaustive list, the above examples of incentive conditions and the potential issues raised by such conditions clearly demonstrate that careful planning and precise drafting is necessary for any client interested in creating an Incentive Trust.

In conclusion, if a client is considering an Incentive Trust as part of his or her estate plan, one of the first things the client should do is ask themselves what conditions the client would like if he or she was in the beneficiaries’ shoes? Often those individuals who feel compelled to dictate control from the grave are the same ones who, if put in the same position, would resist or object to being controlled in such a way and having their life path possibly altered by a choice to receive assets from a trust. Therefore, asking this question as a threshold matter frequently provides the basis for a more thoughtful conversation and allows the client to enter into the arrangement with a fuller understanding of the potential impacts that such conditions may have, both now and after death.

Life Insurance Due Diligence in Estate Planning

By Vance E. Antonacci

For many clients, life insurance plays an important role in their estate plan. Life insurance can provide for the replacement of lost income if there is a premature death, provide liquidity to pay Pennsylvania inheritance tax and federal estate tax, and fund buy-sell obligations for business owners.

Clients should periodically review their life insurance to make sure the right type of policies are in place and that there is adequate coverage. The type of policy needed (term, whole life, universal life) will depend on the purpose of the life insurance. The amount of coverage needed will be a function of the income to be replaced, the liquidity needed for taxes, or the amount of the buy-sell obligation.

Types of Life Insurance Policies
An understanding of the types of life insurance policies is important to understand life insurance due diligence. Generally speaking, there are three types of life insurance policies – term, whole life, and universal life.

A term life insurance policy offers a death benefit but does not have any cash value. Term life insurance is the least expensive type of coverage and the most common. Normally, the premium for coverage does not increase during the level term period of the policy (normally 10-30 years).

Whole life insurance is a type of permanent life insurance coverage. The premium for coverage is the same each year and as long as the premium is paid the policy will remain in force. A whole life policy will build cash value, although at the outset of a policy the cash value builds slowly due to charges against the premiums. Whole life policies can provide a guaranteed minimum return and often provide for the payment of dividends from the life insurance company. Whole life policies normally are the most expensive type of policy offered by a life insurance company since the death benefit is guaranteed provided premiums are paid.

Universal life insurance is another type of permanent life insurance. The cash value of the policy grows more slowly than with whole life, and the amount of premiums paid by the insured can vary year to year. Universal life insurance policies often provide a guaranty period during which the policy will not lapse provided a minimum amount of premium is paid each year and on time. Variations of universal life include variable universal life (the premiums are invested in mutual funds) and indexed universal life (the earnings of the policy are pegged to one or more stock indices and provide the earnings cannot exceed a cap, such as 12%, but also cannot go below a floor, such as 0% growth).

Expenses of Life Insurance
All life insurance policies have expenses. The two primary expenses are the “cost of insurance” or “mortality” charge and the administrative expenses. The cost of insurance expense is based on the life expectancy of the insured (that is, the cost is a function of the likelihood the insured will die based on the insured’s age and health). The administrative charges consist of the commission paid to the life insurance agent and operational expenses of the life insurance company. Several life insurance companies have recently issued cost of insurance notices to their policy holders as a result of the low interest rate environment for investments. An increase in the cost of insurance will negatively impact the policy’s cash value.

The Importance of Life Insurance Due Diligence
Given the importance of life insurance in estate planning, it is important to periodically review your life insurance policies to make sure you have the right type of policy, the proper amount of coverage, and that the policy (if whole life or universal life) is not in jeopardy of lapsing. Some considerations and options include:

  • Do you have enough coverage? We generally recommend enough life insurance coverage to pay off any secured debts (for example, your home mortgage) and to replace 5-7 years of income.
  • Conversely, do you have too much coverage? If so, you can reduce the face value of the policy to reduce your premium costs.
  • Should you exchange your current policy for a new policy? The exchange of an older policy with cash value often can result in a newer policy with a larger death benefit, better premium structure, or more advantageous policy features and options.
  • Do you have coverage for enough time? If you have a term life insurance policy, you may need to convert the policy to a permanent type of product assuming there is a conversion feature.
  • Does your whole life policy or universal life policy have sufficient cash value to prevent a policy lapse? For example, the failure to pay premiums or other borrowings against cash value may have reduced the cash value.
  • Should you sell your policy as part of a “viatical settlement”? There are investors who will purchase the right to receive the insured’s benefit in exchange for an upfront payment to the policy owner. This arrangement may make sense for an insured who has a policy in risk of lapsing or who does not want to continue to make premium payments to keep the policy in force.

The owner of a whole life or universal life policy should periodically request an “in-force illustration.” These illustrations provide important information to the policy owner, such as the current cash value and the likelihood of how long the policy will last using the actual policy performance and the current cost of insurance and administrative charges.

Life insurance is an important part of any estate plan. Its uses and purposes will vary based on a client’s situation, but each client should carefully consider what type of insurance to purchase and should periodically evaluate the need and purpose of the insurance.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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