When a sure thing goes bust: stranger-owned life insurance comes home to roost.
A few years ago, there was an explosion in the life settlement market. The primary buyers of after-market life insurance policies were hedge funds looking for the truly noncorrelated investment. Not just any life insurance policy would do; investors were interested in the elderly insured whose health had declined since the policy's issue. The profits were so attractive that there was more demand than supply. Seeing an opportunity, middlemen undertook to create a supply to fill the void. What emerged was Investor Owned Life Insurance, otherwise called Stranger Owned Life Insurance (STOLI).
The first time I heard about STOLI, it had been proposed as a fund-raiser by a client's alma mater. The college's elderly supporters were solicited to apply for insurance policies on their lives, hold them for two years, sell them in the life settlement market, and make a sizable tax-deductible charitable donation to the college. To sweeten the deal, a third party loaned would-be donors the seed money to buy the policy. The terms were ridiculously favorable to the lender, but the client was assured that she could walk away from the nonrecourse loan, a loan in which only the life insurance policy is at risk.
The two-year delay was significant and set off alarms for me. The time period just happens to coincide with a life insurance policy's contestable period, during which the insurance company can contest and rescind the policy.
The probable justification for contesting the policy is the investors' lack of insurable interest in the life of the insured; insurable interest in the continued life of the insured is required at the time of the policy's issue by almost every state. Otherwise, the purchase of life insurance by an investor is no more than a gamble. And a prearranged sale to investors flies in the face of public policy. But no amount of reasoning could dissuade the donor. The college's young president had wholeheartedly endorsed the fund-raiser, excited by the prospect of donations equal to 2% to 5% of death benefits.
It wasn't long before promoters of STOLI realized that greed is a much stronger impulse than philanthropic intent. High-net-worth seniors were induced to contribute with offers of up-front bonuses, cruises, luxury cars, or a cut of the action. In the meantime, the insured got the benefit of "free" insurance during the waiting period. Lest you mistake these seniors for victims, consider that they were wealthy enough to get the best independent advice, and often did, and sophisticated enough to know better. In fact, some seniors bought into the argument that it was the insurance company's faulty underwriting standards that created the arbitrage in the marketplace.
Three years later the downsides of STOLI have begun to come to light. You may get a call from a client who entered into a STOLI arrangement and just received a call from the agent saying that the market is soft for life settlements--the client's cut will not only be smaller than anticipated, but the policy's sale price might not even cover the loan. Can you, her financial advisor, shop for a better deal, she asks? Another client may bring in a 1099 for a taxable amount that is larger than the money he received for his participation. A third client comes to you worried about who owns his policy now that the hedge fund investor has gone bankrupt.
A SOFT MARKET
The biggest impact on the settlement market is the new life expectancy tables issued in the last year by several settlement underwriters. Life expectancies have been lengthened an average of 20% for men, depending on age and health, and 15% for women. Longer life expectancies have also narrowed the insured profile to ages 70 or older for men and 75 for women, preferably with impaired health since the policy's issue. This has also translated into lower returns for investors and thus lower purchase offers for policyowners.
The market has also been affected by the withdrawal of several large players. With investment capital drying up, life settlement companies have been quick to take offers off the table, forcing sellers to make decisions before thoroughly shopping the market. Moreover, the recent economic slowdown has caused many retirees to search for alternative sources of liquidity, further flooding the life settlement market.
All of these changes have depressed resale prices for life insurance policies. Bloomberg reported on March 26 that whereas last year retirees could expect to sell a $5 million life insurance policy for $1 million, the same policy would only bring in $600,000 today.
The credit crunch has also had its impact on the life settlement market. Without premium financing, very few seniors would be willing to enter into a STOLI scheme, but the choices for leveraged policyowners are limited. The after-tax value of a life settlement may not cover the loan repayment, and the interest rates are generally too high to refinance while waiting for the settlement prices to recover.
LEGAL AND TAX ISSUES
As happens in any other scheme, promoters assure their prospects that their version of STOLI is legitimate and that the insurance company is aware of the arrangement--and even if it isn't, taking advantage of insurance mispricing is not a crime. State legislatures have been slow to react to the insurable interest question, but as of April 2009, seventeen states had enacted laws to curtail STOLI. Twenty others have legislation pending. Further, the Senate Special Committee on Aging is hearing testimony about STOLI from state regulators and representatives of the life settlement and insurance industries.
Even insurance companies, aware how some producer groups are generating sales, have reconsidered their position on STOLI and have not only issued official policy, but have begun to flag applications that appear to involve STOLI transactions. Some are actively seeking to rescind policies in which insurable interest was nonexistent at issue or in which they have found misrepresentation. If fraud can be proven, can it be long before the insurance companies or the investors seek to recoup their underwriting costs from both STOLI middlemen and their unwitting but high-net-worth client?
If policyowners elect to turn over the life insurance policy to the lender at the end of the term, they may have a surprise in store. If the loan is greater than the settlement price, the excess is taxable income to the policyowner. If the policyowner is a nongrantor trust, one could argue that the tax liability is isolated from the insured, but the IRS could counterclaim that creating the trust was a tax-avoidance scheme.
YOUR ROLE IN FACILITATING AN EXIT
Exiting a STOLI transaction will prove to be tricky. Before the term is up, the senior embroiled in a STOLI transaction should get an independent legal and tax review. This is not a time to dabble in your first life settlement contract, even if your errors and omissions contract covers it.
First, determine what options are available. Is the policyowner locked into transferring the policy to the financing company or can he or she get competitive life settlement bids? What exit fees are built into the arrangement to discourage shopping for the best offer? Review the premium financing documents to determine the timing and process of the repayment terms. There is usually a window during which the policyowner can elect to pay back the loan with other resources, or refinance with the current lender.
When exploring the open market, understand that life settlements take three to six months to close. The sooner the process begins, the better. Not all life settlement companies buy financed policies due to insurable interest and fraud problems with the original application.
If an offer equal to the loan can't be found, approach the lender about refinancing. All things being equal, the market value of a life insurance policy should increase every year it is in force. And life settlement companies are predicting that new sources of capital will flow back into the market. Nonetheless, your clients may need to adjust their price expectations, just as many homeowners have had to do in a buyer's real estate market.
Consider that investors are more interested in a policyholder's death than his or her continued good health. Carefully review the life settlement closing documents and be sure that you fully understand the lender's or investor's right to resell with or without the policyholder's approval. Keeping the life insurance policy is always a good option.
RELATED ARTICLE: The IRS Weighs In
IF PAST PARTICIPANTS of stranger-owned life insurance were promised easy money at no cost, the rules of the game have changed. In May 2009, the IRS issued Revenue Ruling 2009-13, clarifying the taxation of life settlements. If the policyowner sells the policy to an unrelated third party, the policyowner's basis is reduced by the value of the insurance protection. The difference between basis and the cash surrender value is taxed as ordinary income. The excess over the cash surrender value is a capital gain. This means that a policyowner has no basis in a term policy and thus the entire settlement price can be taxed as a capital gain.
Tere D'Amato is the vice president of advanced planning at Commonwealth Financial Network, in Waltham, Massachusetts. She can be reached at firstname.lastname@example.org.
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|Title Annotation:||EXPERT'S CORNER|
|Date:||Jul 1, 2009|
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