On Jan. 1, 2013, President Obama signed into law the American Taxpayer Relief Act of 2012 (ATRA) which creates "permanency" in the estate planning area for the first time since the passage of the Economic Growth and Tax Relief Act of 2001 (EGTRRA).
ATRA provides a degree of certainty that had been missing, and it may be the impetus needed to motivate clients to update their estate plan in order to protect their family and to minimize taxes.
In the transfer tax area, ATRA permanently establishes the same high exemption amount for gift tax, estate tax and generation-skipping transfer tax purposes. It also indexes this amount for future inflation. ATRA permanently extends portability, one of the key features of the Tax Relief Act of 2010 and sets the highest marginal estate/gift tax rate at 40 percent.
So, under ATRA, each taxpayer has available a unified gift and estate tax exemption of $5.25 million in 2013. This exemption (also referred to as the applicable exclusion amount) is permanent, unified, indexed for inflation, and portable.
These changes should serve as an incentive for seasoned financial planners to readjust their strategy when it comes to providing life insurance solutions to clients. But what will those recommendations be? To answer that question, it's important to examine the impact ATRA may have in two areas: life insurance funding and life insurance ownership in general.
ATRA and life insurance funding
In light of the increased estate tax exemption, life insurance funding will likely change over time. Traditionally, producers have made certain assumptions regarding the client's projected estate settlement costs and then recommended the client purchase the maximum amount of death benefit to meet that projected need.
Often, the goal was to minimize the premiums paid for a set amount of life insurance, given that the policy was often placed in an irrevocable trust, outside the direct reach of the insureds. This emphasis on maximizing death benefit coverage for a given premium favored purchasing guaranteed products.
There are several shortcomings with this traditional approach. First, it will continue to be extremely difficult to accurately predict the amount of estate settlement costs. Given the uncertainty regarding future estate tax laws, the future growth in the estate, the year of death, and how effective estate tax planning techniques will be in reducing these projected costs, the initial amount of life insurance purchased will often be far more or far less than the client's actual need. This uncertainty is even greater with younger clients.
A second disadvantage is that in funding for the maximum death benefit, the client is sacrificing cash value buildup and may be jeopardizing the underlying viability of the policy. This emphasis on death benefit will often result in underfunding of the policy and the policy's early termination.
These policy lapses have led some prospective clients and their advisors to perceive life insurance as a poor investment. For instance, some attorneys are reluctant to allocate the client's generation-skipping transfer tax (GST) exemption to contributions to a life insurance trust for fear that this GST amount will be wasted if the policy lapses.
The key to planning with life insurance will be flexibility. Even with so-called permanency, one cannot truly know what the estate tax exemption amount will be when he or she dies. While many of the same needs and objectives for clients will still apply regardless of the level of the exemption amount, some needs are clearly the result of the estate tax. Many clients may be reluctant to commit to funding for an uncertain estate tax need. However, a properly designed irrevocable life insurance trust can still serve as the cornerstone of an effective estate plan.
Clients should consider using single life products inside these trusts because the death benefit can help meet a myriad of needs, such as support for the surviving spouse, family protection, education funding, business continuity and estate equalization.
New law, new approach
Rather than minimally funding the policy, an alternative approach is to heavily fund the policy and enable the cash values to grow more quickly in the early years and permit the death benefit to grow in later years when compared to a guaranteed product. Even though it may counter traditional thinking, a life insurance policy with a lower face amount and higher living values may prove more attractive over the policy term.
The most efficient cash value policy, if there is a significant chance the insured will live beyond life expectancy, is generally one that provides the minimum initial death benefit but the maximum cash value. While this policy will provide a lower death benefit initially, it will ultimately provide a greater death benefit at older ages and a better return on investment. If the insured lives to his/her normal life expectancy, the policy's death benefit will often return the premiums with an attractive, compounded tax-free return. This is especially true when compared to guaranteed products.
The higher cash value policy will also provide more flexibility to alter the amount of coverage, to make changes in the event the policy is no longer performing or to re-allocate resources if the insured's needs change. This increased flexibility, of course, will need to be weighed against a lower death benefit in the event the insured should die prematurely.
