Life Insurance: Your Blueprint for Wealth Transfer Planning. Producer Guide to Private Split Dollar Arrangements. Your future. Made easier.

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1 Life Isurace: Your Blueprit for Wealth Trasfer Plaig Producer Guide to Private Split Dollar Arragemets These materials are ot iteded to be used to avoid tax pealties ad were prepared to support the promotio or marketig of the matter addressed i this documet. The taxpayer should seek advice from a idepedet tax advisor. Neither ING or its affiliated compaies or represetatives give tax or legal advice. Cliets should always be advised to cosult with their tax ad legal advisors regardig their idividual situatio. LIFE INSURANCE Your future. Made easier.

2 Private Split Dollar Arragemets The New Geeratio of Split Dollar Beefits 2003 marked the begiig of a ew era i split dollar arragemets. After early three years of itesive review, the IRS issued ew split dollar tax rules. The fial regulatios cover ew arragemets created after September 17, 2003 ad older split dollar arragemets that are materially modified after September 17, See Appedix I for more iformatio. Split dollar arragemets are categorized as either employmet-related or family-related. This Guide covers familyrelated split dollar arragemets, ofte called Private Split Dollar (PSD) arragemets. A PSD arragemet is usually betwee two family members or betwee a family member ad a trust created to beefit family members. These types of arragemets ca also be betwee idividuals who have a persoal relatioship but are ot related by blood or marriage where there is a isurable iterest. What Is a Private Split Dollar Arragemet? A private split dollar arragemet is a agreemet betwee two parties to share the costs ad beefits of a life isurace policy. A PSD arragemet does ot ivolve compesatio ad is ot related to employmet. I fact, it is most ofte used i family situatios where oe family member has a eed for life isurace ad aother family member has the moey ad willigess to pay the premiums. Ofte, a paret or gradparet acts as both the premium payor ad the isured while the childre, gradchildre or a ILIT for their beefit are usually the policy ower ad beeficiary. I a PSD arragemet, the ILIT or child purchases the policy, ad the paret or gradparet pays the premiums ad is etitled to recover the greater of the policy s cash value or the total premiums advaced whe the arragemet termiates. Termiatio ca occur at the isured s death or at ay other time specified i the PSD arragemet. If the isured dies while the arragemet is still i place, death beefits are first used to repay the premium payor the greater of cash values or premiums advaced. The remaiig death beefits are paid to the policy beeficiary. Split Dollar Arragemets Two Regimes The split dollar regulatios fialized i 2003 permit participats i a split dollar arragemet to use either the ecoomic beefit regime or the loa regime to determie how they will be icome taxed. Because PSD arragemets are desiged to deliver death beefits, the icome tax cosequeces of the ecoomic beefit regime are ofte more beeficial tha those of the loa regime. Thus, at least iitially, the participats will usually choose the ecoomic beefit regime for PSD arragemets. Here is a explaatio of both regimes: The Ecoomic Beefit Regime The premium payor s gift tax cosequeces are based o the value of the life isurace protectio (kow as the ecoomic beefit ). Some of the more importat factors i determiig the ecoomic beefit are: 1. The curret age of the isured, ad 2. The amout of death beefit that would be paid to the policy beeficiary if the isured died durig the curret tax year. 1

3 The premium payor (usually the paret or gradparet) receives death beefits equal to the greater of the cash values or premiums paid; all remaiig death beefits are paid to the policy beeficiary (usually the childre, gradchildre or a trust for their beefit). The premiums paid ito the policy are ot a part of the ecoomic beefit calculatio. I the ecoomic beefit regime life isurace policies ca be owed i two ways: Edorsemet Arragemets The premium payor ows the life isurace policy. The death beefit is split to permit the premium payor to recover the greater of the policy cash values or the premiums paid; ay remaiig death beefits are paid to the o-premium payor s beeficiary. Because the death beefits would be fully icluded i the premium payor s taxable estate, this method is seldom used i PSD arragemets. No-Equity Collateral Assigmet Arragemets I this arragemet, the o-premium payor (childre, gradchildre or a trust for their beefit) ows the policy ad assigs back to the premium payor a iterest i the policy equal to the greater of the policy cash values or the total premiums paid. If the isured dies, death beefits are first used to pay the greater of the cash values or premiums paid to the premium payor or his/her estate ad the remaiig death beefits are paid to the policy ower s beeficiary. I PSD arragemets, this owership method is most ofte used. The balace of the discussio i this Guide will assume the No-Equity Collateral Assigmet Arragemet is beig used. The Loa Regime Death beefits that are geerally icome tax free may also be available uder the loa regime. A loa arragemet usually provides icome tax-free death beefits to the borrower (childre, gradchildre or a trust for their beefit) after the loa balace is repaid. However, the borrower s cost for that protectio is usually greater tha uder o-equity collateral assigmet split dollar. That s because the iterest costs of a loa arragemet are geerally higher tha the ecoomic beefit i the ecoomic beefit regime. This ca chage over time as the isured ages. 2

4 How Private Split Dollar Arragemets Work A private split dollar arragemet typically icludes the followig steps: 2. Premium Advace ILIT or Child 4. Premium 3. Gift of Ecoomic Beefit 5. Assigmet Paret or Gradparet 1. Policy 7. Remaiig Proceeds 6. Repaymet Life Isurace Compay 1. ILIT or child purchases a life isurace policy isurig the paret 2. Paret advaces cash to the policy ower to pay the premium 3. Paret is deemed to make a gift of the ecoomic beefit value aually 4. ILIT or child uses paret s cash advace to pay the policy premiums 5. ILIT or child collaterally assigs policy to paret accordig to the terms of the split dollar agreemet 6. At paret s death, paret s estate receives a portio of the policy death proceeds equal to the greater of all premiums advaced or the policy s cash value 7. ILIT or child receives the remaiig policy death beefit proceeds Whe Does a PSD Arragemet Make Sese? PSD arragemets are ormally used i three situatios: First, PSD arragemets ca be used as a way to ehace the trasfer of family wealth while miimizig gift ad estate taxes. I these cases a paret or gradparet establishes a ILIT to beefit childre or gradchildre. The ILIT purchases the policy uder a PSD agreemet with the paret/gradparet. The value of the gift to the ILIT is the ecoomic beefit, ot the amout the paret/gradparet advaces to pay premiums. Note: Ay direct or idirect trasfer or distributio to a gradchild may be subject to geeratio skippig trasfer tax. Secod, PSD arragemets ca be appropriate whe a paret/gradparet wats to icrease the wealth that ca be passed o to youger family members while still retaiig the ability to recover some or all of their moey if their persoal circumstaces, persoal objectives or tax laws chage. A PSD arragemet may be revoked or termiated; if it is, the paret/gradparet may be etitled to recover the greater of the policy's cash values or the premiums paid. Third, PSD arragemets ca be established to temporarily pay life isurace premiums for coverage to beefit a family member. A good example is whe a child gets married or has childre. Let s assume, for example, a daughter marries i her early tweties. The husbad is youg ad ot well established fiacially. The daughter eeds life isurace coverage o the husbad, but they have o moey to pay the premiums. PSD ca solve this problem. Uder a PSD arragemet, a paret ca pay the premiums so the daughter ca have life isurace coverage o her husbad. 3

5 PSD Advatages Private split dollar arragemets have several attractive advatages: 1. Gift Tax Leverage Life isurace policies have the potetial to provide wealth trasfer leverage because the death beefits usually exceed the premiums paid. I PSD arragemets the leverage ca be magified because the gift that creates the death beefit is measured by the ecoomic beefit value, ot the premiums actually paid. Ecoomic beefit values may be less tha the policy premium for may years. 2. Premium Payor Retais Some Cotrol PSD arragemets are usually drafted so that they ca be termiated prior to the death of the isured. The ability to termiate the agreemet gives the premium payor the potetial to recover policy cash values if persoal circumstaces or objectives chage. 3. A Paret/Gradparet Ca Act Aloe The PSD strategy does ot require the participatio of a spouse or ay other perso. Oe paret/gradparet ca establish the ILIT, pay the premiums ad be the isured. Several other estate plaig strategies (e.g., the Flexible ILIT ad the Stadby Trust) require two people to participate. I a PSD arragemet, oe idividual ca set up ad fud the arragemet. PSD Disadvatages Some of the disadvatages of PSD arragemets are: 1. Complexity PSD arragemets are complicated ad ca be difficult for people who are ot familiar with life isurace ad wealth trasfer plaig to uderstad. 2. Expesive to Implemet PSD arragemets ca be expesive to establish ad implemet. Legal fees will be required to draft three documets: the irrevocable life isurace trust (ILIT) that will ow the policy, the private split dollar agreemet itself, ad the collateral assigmet that secures the premium payor s right to be repaid. 3. Estate Taxatio For estate tax purposes, the paret/gradparet s recovery of the greater of policy cash values or premiums paid at death is part of their taxable estate. 4. Aual Admiistratio Required The ecoomic beefit (which is the measure of the aual gift to the childre/gradchildre) icreases each year. There eeds to be a method i place to calculate ad report this ecoomic beefit; if there are other gifts, it may be ecessary to coordiate them with the PSD gift so the paret/gradparet does t exceed available giftig limits. 5. Ecoomic Beefit Value Grows Aually The ecoomic beefit values icrease each year as the isured ages. It cotiues to grow ad must be cosidered aually for tax purposes regardless of whether ew premiums are paid ito the policy durig that year. If the isured cotiues to live, at some poit i time the ecoomic beefit value will exceed the policy s aual premium. Thus, there may be a eed for a exit strategy from the PSD arragemet if ecoomic beefit value gets too high. 4

6 Types of Life Isurace Policies That Are Appropriate for Private Split Dollar Arragemets PSD arragemets are primarily desiged to provide death beefits. If cash value accumulatio is importat, a differet strategy may be more appropriate. Life isurace policies that have low premiums relative to the death beefits delivered or which may iclude secodary death beefit guaratees from the isurer are ofte used. Survivorship policies that isure the lives of two people ad pay death beefits at the secod death are ofte used i PSD arragemets. These policies should be cosidered whe it makes sese to receive the death beefit at the death of the secod isured to die. There are two reasos why survivorship policies are ofte more attractive: 1. Premiums are geerally lower tha a sigle life policy payig the same amout of death beefit. 2. The ecoomic beefit value is geerally lower i a survivorship life isurace policy while both isureds are alive. I survivorship policies the ecoomic beefit value is based o the likelihood of both isureds dyig i the same year. Rates for Determiig Ecoomic Beefit Value IRS Notice ad the fial split dollar regulatios permit the participats i a split dollar pla to use the rates i IRS Table 2001 to calculate ecoomic beefit values. The participats i post-september 17, 2003 split dollar arragemets may also potetially use the issuig isurace compay's rates if certai coditios are satisfied. Several ING member life isurace compaies offer oe year term life isurace products which could potetially qualify to be used to calculate ecoomic beefit values.* See Appedix I for more iformatio about whe a isurace compay's rates may potetially be used as a alterative to the Table 2001 rates. See Appedix II for iformatio o the rates of oe year term isurace policies offered by several ING member compaies. The ING Life Compaies that have issued these products caot say with certaity whether they qualify to be used as alteratives to the Table 2001 rates i calculatig ecoomic beefit values for split dollar arragemets. * ING Oe-Year Term, policy form # /09, ad ING Survivorship Oe-Year Term, policy form # /09, may vary by state ad may ot be available i all states, are issued by Security Life of Dever Isurace Compay. ING Oe-Year Term NY, policy form # /09, ad ING Survivorship Oe-Year Term NY, policy form # /09, are issued by ReliaStar Life Isurace Compay of New York. Withi the state of New York, oly ReliaStar Life Isurace Compay of New York is admitted ad its products issued. Both compaies are members of the ING family of compaies. Documetig a PSD Arragemet Every PSD trasactio should be i writig. The required documets iclude: 1. The PSD agreemet itself (this documet sets forth the rights ad duties of both the premium payor ad the policy ower). 2. Because the life isurace policy will serve as security for repaymet of the premium payor s advaces, a collateral assigmet from the policy ower to the premium payor should be filed with the isurer. This collateral assigmet eeds to be carefully drafted. I most PSD situatios, the premium payor may also be a isured ad does ot wat the etire policy death beefit to be taxed i his or her estate at death. To limit estate tax exposure to the greater of cash values or premiums paid, the premium payor should ot have a icidet of owership i the policy as described i IRC Sectio Stadard collateral assigmets may cotai laguage that costitutes a icidet of owership i the policy; it may also give the premium payor the right to take over owership of the policy. This could be a expesive mistake. The collateral assigmet should be limited; it should exclude rights that could be a icidet of owership. The premium payor should cosult with his or her legal cousel for advice. 5

7 How Ca a PSD Arragemet Be Termiated? Plaig should always cosider the possibility that a PSD arragemet may eed to ed before the death of the isured. For this reaso, it is ofte wise to create a exit strategy whe the arragemet is origially created. A PSD arragemet may eed to ed early for these reasos: 1. The premium payor has a fiacial crisis ad eeds fuds fast. 2. Tax laws have chaged makig the PSD arragemet uecessary or obsolete. 3. The premium payor s objectives have chaged. 4. The ecoomic beefit value has become too high. 5. Oe of the isureds i a survivorship policy has died ad the ew ecoomic beefit value (based o the survivig isured s age) has become too high. There are several ways to termiate a PSD arragemet. The first step is to review the agreemet. It may iclude specific provisios for edig the arragemet. PSD agreemets ofte give the premium payor the right to termiate the agreemet at ay time. Eve if the agreemet does ot specifically address termiatio, the premium payor may release his/her rights uder the agreemet. I this case, the collateral assigmet should also be released. Whe this happes, the release is usually cosidered a taxable gift from the premium payor to the policy ower. If the PSD agreemet was origially desiged so that the premium payor ever had a icidet of owership i the policy as defied by IRC Sectio 2042, the this release of rights should ot trigger estate iclusio uder the three-year rule of IRC Sectio However, if the premium payor did have a icidet of owership i the policy, the he/she would usually have to survive for at least three years followig the date of the release i order for the policy death beefits to be estate tax free. If the policy is a survivorship policy, estate tax iclusio may be avoided as log as oe of the isureds survives for at least three years after the date of the release. If a termiatio is beig cosidered because the ecoomic beefit value is gettig too high, it may be worthwhile to cosider covertig the arragemet from a PSD arragemet to a private loa. This may make sese whe the ecoomic beefit value gets too high or i a survivorship policy whe oe of the isureds dies. The optio to covert to a loa arragemet may be specifically provided i the agreemet. If it is ot, the the parties may be able to covert by mutual agreemet. That is, the PSD agreemet could be termiated ad the premium payor could receive a promissory ote for his/her iterest from the policy ower. The ote should have a pricipal amout equal to what the premium payor would have received if the isured had died o the date of the termiatio. The ote should bear a fair market iterest rate ad ca be structured as either a demad loa or a term loa. The mai advatage to edig the PSD arragemet ad switchig to a private loa is that the ecoomic beefit is o loger the measure of the gift tax cosequeces. While the PSD arragemet was i place, the premium payor made a aual taxable gift to the policy ower equal to the ecoomic beefit, regardless of whether ay premiums were paid. The decisio whether to switch to a loa arragemet will iclude the fact that uder the PSD arragemet, the policy ower is usually ot required to make ay paymets to the premium payor. I a private loa arragemet, however, iterest o the ote must be paid aually (uless the loa is structured as a iterest-free loa). 6

8 It ca also make sese to covert to a private loa arragemet if the policy cash values begi to exceed the premiums advaced uder the PSD agreemet. This is the poit i time whe the policy is developig equity. If the PSD arragemet remais i place, this equity will belog to the premium payor (who is etitled to recover the greater of cash values or premiums paid). This results i a larger taxable estate for the premium payor ad a reductio i the death beefits that will ultimately be delivered to the policy beeficiary. Covertig to a private loa prior to the build up of equity meas that the equity will belog to the policy ower ad be paid out as geerally icome tax-free death beefits at the secod survivig isured s death. Who Should Cosider a PSD Arragemet? Private split dollar ca be useful to idividuals who have several differet kids of objectives: Parets/gradparets who wat to trasfer moey to their childre/gradchildre at death by leveragig their gift tax exemptios. Parets/gradparets who wat to trasfer moey to their childre /gradchildre at death but who wat the ability to recover some or all of their moey if their persoal fiacial circumstaces, objectives or the tax laws chage. Umarried domestic parters i committed relatioships who wat to create death beefits for their parter outside their probate estate or taxable estate but who wat the ability to recover their moey if the parter dies first or if the relatioship eds. Coclusio Private split dollar ca be a useful wealth trasfer tool. It ca help a variety of cliets use fuds ot eeded for retiremet icome to icrease the fiacial legacy they pass o to their family ad others they care about. It ca also help them retai the ability to recover fuds they commit to the PSD arragemet if circumstaces chage. If you have questios about illustratig a private split dollar arragemet or just wat more iformatio about how they work, please call ING Life Sales Support at 866-ING-SELL ( ). 7

9 Appedix I Q&A: Use of ING Life Compaies Oe-Year Term Product Rates i Split Dollar Arragemets Questio: May the rates of the ew Oe-Year Term (OYT) products issued by certai ING Life Compaies* be used to calculate the value of the life isurace protectio a taxpayer receives whe participatig i a split dollar arragemet taxed uder the ecoomic beefit regime? Aswer: I 2001, the IRS withdrew the PS 58 rates ad replaced them with the IRS Table 2001 rates as oe stadard for measurig the value of life isurace protectio uder a split dollar life isurace arragemet. I 2002, the IRS issued Notice to provide guidace for split dollar arragemets etered ito after Jauary 28, 2002 ad pedig publicatio of further guidace. Notice allowed taxpayers to use a isurace compay s published oe-year term isurace rates available to all stadard risks to value the life isurace protectio as a alterative to the Table 2001 rates. Those rates must also satisfy two coditios. First, the isurer must make the availability of these oe year term rates kow to persos who apply for term isurace coverage (the availability requiremet). Secod, it must regularly sell term isurace at those rates to people who apply for life isurace coverage through its ormal distributio chaels (the sales requiremet). Whe the fial split dollar regulatios were published to gover arragemets etered ito after September 17, 2003, they referred to a life isurace premium rate factor for valuig the life isurace protectio that was to be desigated or permitted i guidace published i the Iteral Reveue Bulleti. However, o such guidace has yet bee published. Thus, it ca be argued that the IRS has ot provided fial guidace for determiig the value of life isurace protectio provided uder split dollar arragemets taxed uder the ecoomic beefit regime. As a result, util further ad/or fial guidace is issued, taxpayers may be able to use a isurace compay s published oe-year term rates from term isurace products that satisfy the availability ad sales requiremets of Notice Taxpayers who decide to use a isurace compay s published oe-year term rates have o assurace that the values produced from the use of those rates will be accepted or gradfathered i future/fial guidace. Regardig the availability requiremet, the OYT products refereced i this bulleti are products that are offered o a male/female/uisex uderwritig basis. They are short term products desiged for short term isurace eeds. The availability of these products has bee actively aouced through commuicatios with licesed producers ad pertiet product iformatio has bee added to the store of product iformatio that is readily available to the geeral public through the compaies represetatives ad iteret websites. Forms for applyig for ad admiisterig these products are also geerally available. Regardig the sales requiremet, the OYT products described i this bulleti ca oly be sold by agets licesed with the issuig ING member compay. These products were first offered for sale i February, 2009 ad sales results sice the policies were first itroduced are lower tha the sales of other ING Life Compay term life isurace products. The ING Life Compaies offerig these products will cotiue to publish iformatio about them ad promote their use. The ING Life Compaies that have issued these products should be able to show a track record of sales of these policies over time but caot with certaity say how the IRS will iterpret the sales coditio or that it will coclude that the umber of policies sold is sufficiet to meet this requiremet. Therefore, it is uclear whether a isurer s published oe year term product rates should be used to value the life isurace protectio i split dollar arragemets etered ito after September 17, 2003, or if the OYT products referred to i this bulleti would be cosidered sufficiet by the IRS. The ING Life Compaies caot guaratee that these products satisfy the coditios of Notice , the fial regulatios or ay future guidace offered by the IRS as a substitute for the IRS Table 2001 rates. Taxpayers wishig to use the OYT product rates to determie the ecoomic beefit value of the life isurace protectio i split dollar arragemets established after Jauary 28, 2002 should do so oly after cosultatio with their tax advisor ad they must be aware that that these rates may be foud iapplicable at ay time by the IRS. *ING Oe-Year Term, policy form # /09, ad ING Survivorship Oe-Year Term, policy form # /09, may vary by state ad may ot be available i all states, are issued by Security Life of Dever Isurace Compay. ING Oe-Year Term NY, policy form # /09, ad ING Survivorship Oe-Year Term NY, policy form # /09, are issued by ReliaStar Life Isurace Compay of New York. Withi the state of New York, oly ReliaStar Life Isurace Compay of New York is admitted ad its products issued. Both compaies are members of the ING family of compaies. 8

10 Appedix II ING Oe-Year Term Rates vs. Table 2001 Rates ING Oe-Year Sigle Life Term Rates Aual Rates per $1,000 at Specified Ages Isured s Age Table 2001 Oe-Year Term Rate We caot guaratee that our Oe-Year Term product rates will satisfy ay applicable IRS requiremets as a substitute for the IRS Table 2001 rates. Each cliet should rely o their tax advisor to determie which rate to use i calculatig the ecoomic beefit. *ING Oe-Year Term, policy form # /09, ad ING Survivorship Oe-Year Term, policy form # /09, may vary by state ad may ot be available i all states, are issued by Security Life of Dever Isurace Compay. ING Oe-Year Term NY, policy form # /09, ad ING Survivorship Oe-Year Term NY, policy form # /09, are issued by ReliaStar Life Isurace Compay of New York. Withi the state of New York, oly ReliaStar Life Isurace Compay of New York is admitted ad its products issued. Both compaies are members of the ING family of compaies. 9

11 ReliaStar Life Isurace Compay 20 Washigto Aveue South Mieapolis, MN ReliaStar Life Isurace Compay of New York 1000 Woodbury Road, Suite 208 Woodbury, NY Security Life of Dever Isurace Compay 1290 Broadway Dever, CO Log i to ING for Professioals at Neither ING or its affiliated compaies or its represetatives give tax or legal advice. The strategies suggested may ot be suitable for everyoe, ad each idividual should cosult with his or her ow tax advisor ad legal cousel before implemetig ay of the strategies discussed here. Life Isurace products are issued by ReliaStar Life Isurace Compay, ReliaStar Life Isurace Compay of New York, ad Security Life of Dever Isurace Compay. All are members of the ING family of compaies. Withi the state of New York, oly ReliaStar Life Isurace Compay of New York is admitted ad its products issued. All are members of the ING family of compaies. These materials are ot iteded to be used to avoid tax pealties, ad were prepared to support the promotio or marketig of the matter addressed i this documet. The taxpayer should seek advice from a idepedet tax advisor. For aget use oly. Not for public distributio ING North America Isurace Corporatio c /10/2009

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