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The Role of Life Insurance in Business Succession Planning Julius H. Giarmarco, Esq.

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Presentation on theme: "The Role of Life Insurance in Business Succession Planning Julius H. Giarmarco, Esq."— Presentation transcript:

1 The Role of Life Insurance in Business Succession Planning Julius H. Giarmarco, Esq.

2 Family Facts Father:John (age 65) Mother:Mary (age 65) Son:Lawrence (age 35) Daughter:Jennifer (age 30) Ø Lawrence is only child active in the family business Ø Lawrence has 3 children and Jennifer has 2 children.

3 John & Marys Balance Sheet Value Residence (Joint)$1,000,000 Vacation Home (Joint)$750,000 Business (S corp) (John)$5,000,000 Building (LLC) (John)$2,000,000 Non-Qualified Investments (Joint)$500,000 IRAs (John)$750,000 Life Insurance (John)- 0 - Gross Estate$10,000,000 1 1. Cost basis of $500,000; Assume 10% dividend and 4% principal appreciation.

4 John & Marys Objectives 1. Retain control of the S corporation until retirement. 2. Pass the entire business to Lawrence at Johns death. 3. Retain one or two key-employees to assist in the transition period 4. Treat children fairly. 5. Guarantee retirement income. 6. Reduce or eliminate estate taxes.

5 Projected Estate Tax Liability in 2028 Current Net Estate$20,736,000 Existing Life Insurance- 0 - Total Estate$20,736,000 By-Pass Trust and Other Transfers $3,500,000 After Tax Estate $11,054,800 Estate of Surviving Spouse $17,236,000 Federal Taxes $6,181,200 29.8% Distribution to Heirs After Tax Estate$11,054,800 By-Pass Trust and Other Transfers3,500,000 Total$14,554,800 Distribution to Family: 70.2% Assumes 4% growth through 2028. Assumes the estate tax exemption is $3.5M and the estate tax rate is 45%. No federal estate taxes and expenses at first death

6 Options to Pay the Estate Tax if John & Mary Do Nothing 1.Good -IRC Section 6166 (5 year deferral; 10 year installment payment of estate tax) 2.Better -IRC Section 303 (redemption of stock to pay death taxes) 3.Best - Irrevocable Life Insurance Trust Discounted dollars Discounted dollars Can purchase assets from estate Can purchase assets from estate Can loan monies to estate Can loan monies to estate

7 Section 303 Redemption During Johns Lifetime S Corp John Insurance Company If stock interest is more than 35% of adjusted gross estate, the estate will qualify for a partial redemption. Obtains Life Insurance Insured Pays Premiums

8 Section 303 Redemption Upon Johns Death S Corp John Insurance Company Partial redemption is not treated as a dividend. Family continues to retain an ownership interest. Stock Passes Pays Death Benefits Johns Living Trust Some Stock Cash

9 Advanced Techniques to Transfer Business to Lawrence During Johns Lifetime 1. Private Annuity Sale 2. Self Canceling Installment Note (SCIN) 3. Grantor Retained Annuity Trust 4. Installment Sale to Grantor Trust 5. Charitable Stock Bail Out

10 Private Annuity Sale §7520 Rate5% FMV of S Corporation$5,000,000 Johns Basis$500,000 Payment PeriodAnnual Initial Annual Payout$473,979 Single Life Expectancy (Age 65)20 Years Capital Gain Realized at Time of Sale$4,500,000 Initial Annuity Payment Breakdown Tax-Free Portion$256,410 Ordinary Income Portion$217,568

11 Bullet Proofing the Private Annuity Sale Ø John should consider funding an ILIT (for the benefit of Mary) to replace the annuity payments in the event of his premature death. Ø Lawrence should consider purchasing life insurance to provide the funds necessary to continue the annuity payments should be predecease his father.

12 Self Canceling Installment Note §7520 Rate 5% FMV of S Corporation$5,000,000 Cost Basis$500,000 Initial Down Payment$0 Term of Note19 Years Type of NoteInterest Only No-Risk-Premium Market Interest Rate5% Payment PeriodAnnual

13 Self Canceling Installment Note PrincipalInterest Mortality Risk Premium (Principal)$2,619,628N/A Total Sale Price$7,619,628$5,000,000 Principal Amount of Note$7,619,628$5,000,000 Mortality Risk Premium (Interest)N/A3.5620% Annual Principal Payments$0$0 Annual Interest Payments$380,981$428,083 Balloon Payment at the End of Note$7,619,628$5,000,000 Total Interest to be Paid$7,238,646$8,133,577 Total Capital Gain$7,119,628$4,500,000 Risk Premium

14 Bullet Proofing a SCIN John should consider funding an ILIT (for the benefit of Mary) to replace the note payments in the event of his premature death.

15 GRAT Trust Established JohnGRAT Transfers S Stock IRS Pays Gift Tax (can be arranged with no gift tax)

16 GRAT During GRAT Term John (pays taxes on trust income) GRAT Pays Annuity Johns Estate GRAT (portion of property subject to estate taxes) IF JOHN DIES BEFORE END OF TRUST TERM

17 GRAT At End of GRAT Term GRAT Remainder Paid to Lawrence If John lives to end of trust term, property in GRAT is not subject to estate taxes.

18 Grantor Retained Annuity Trust §7520 Rate 4.40% Johns Age65 Income Earned by Trust10.00% Annual Growth of Principal5.00% Term/Number of Payments10 Pre-discounted FMV$5,000,000 Discounted FMV$3,000,000 Annual Percentage Payout16.66000% Beginning5.00%10.00%Annual YearPrincipalGrowthAnnual IncomePaymentRemainder 1$5,000,000$250,000$512,500$499,800$5,262,700 5$6,316,539$315,826$647,445$499,800$6,780,012 10$9,456,952$472,847$969.337$499,800$10,399,337 Summary$5,000,000$3,408,963$6,988,374$4,998,000$10,399,337

19 Bullet Proofing a GRAT John should consider funding an ILIT (for the benefit of Lawrence) to provide the funds needed to pay estate taxes should John die before the end of the GRAT term.

20 John Paying IDITs income taxes is equivalent of tax-free gift John retains control as 10% voting shareholder John receives $170,000 annually (from interest payment and $50,000 of dividends on the 10% voting shares) John pays income taxes of $210,000 ($500,000 x 42%) - for annual short fall of $40,000 ($210,000 – $170,000) Grantor / Dynasty Trust $500,000 FMV $4,000,000 FMV Trust earns 10% on $4,500,000 = $450,000/ year Trust pays interest only for 20 years of $120,000 annually ($2,400,000 x 5%) John gifts 10% of S Corp stock (10% x $5,000,000 = $500,000 less 40% discount = $300,000) John sells 80% of S Corp stock (80% x $5,000,000 = $4,000,000 less 40% discount = $2,400,000) Trusts Cash Flow $450,000 ($120,000) $330,000 Installment Sale to a Grantor Trust Trust can use the excess cash flow of $320,000/year to purchase life insurance on Johns life or John and Marys joint life.

21 Charitable Stock Bail Out John Charitable Remainder Unitrust S Corp 1.John transfers his voting shares to Lawrence and his non-voting shares to the CRT, leaving Lawrence the sole shareholder. This terminates Subchapter S election. 2.John receives a charitable income tax deduction and income for the rest of his and Marys lives. 3.Stock is transferred from the trust to the S corp in exchange for cash. 4.Life insurance can be purchased to replace the wealth passing to the CRT.

22 Wait and See Buy-Sell Agreement During Lifetime Business John Insurance Company Lawrence Agreement Pays Premiums Each Shareholder Obtains Life Insurance On The Other

23 Wait and See Buy-Sell Agreement Upon Johns Death S Corp John Insurance Company Stock Passes Pays Death Benefits Johns Living Trust Must Purchase Lawrence Option to Purchase 1st Option to Purchase 2nd 3rd

24 Why Use Life Insurance to Fund Buy-Sell Agreement? Ø Creates a lump sum of cash when needed. Ø Results in a quick settlement of the buy- sell transaction. Ø Generally, an income tax free death benefit. Ø Income tax free access to cash values for a lifetime buy-out.

25 Key Employees Ø Company can purchase life insurance on the lives of its key employees to guard against financial loss. Ø Company can provide key employees with an executive bonus. Ø Company can implement a non-qualified deferred compensation plan to attract and retain key employees. Ø Company can assist key employees in purchasing life insurance through a split-dollar plan.

26 Executive Bonus Company Insurance Company Key Employee 1 2 3 1 Tax-deductible bonus from employer to key employee. 2 Bonus dollars fund a life insurance policy owned by the key employee. Key employee is taxed on the bonus as ordinary income. 3 Key employee uses the financial asset values to supplement retirement income or provide survivor benefits.

27 Non-Qualified Deferred Compensation Plan Company Insurance Company Key Employee 1 2 3 1 Employer promises to provide future retirement benefit. 2 Employer may purchase life insurance to informally fund benefits. 3 Asset values help pay benefits and/or recover costs. 4 4 Benefits are paid based on contractual specifications.

28 Split Dollar Plan Company Key Employee Insurance Company 1 3 1 A face amount and premium for a life insurance policy is determined and the employer lends this premium to the employee. 2 The loaned premium is used to pay for the life insurance policy. The employee owns the policy. 3 The employee executes a collateral assignment on the policy to secure the employers loan. Annual interest on the loan is assessed at an appropriate interest rate, often the Blended Annual Rate or Long-Term Applicable Federal Rate, as published by the Internal Revenue Service. The interest is usually treated as bonused income to the employee. 2

29 Split Dollar Plan Company Key Employee Insurance Company 1 3 4 4 The portion of the cash value or death benefit assigned to the employer to repay the loan is paid off at retirement or death, from the cash values, if available. Death benefit may be forgiven by the employer. 2 5 5 After paying off the loan to the employer and terminating the assignment, the employee may access policy values to supplement his/her retirement income or pass tax free death benefits to his/her descendants.

30 Estate Equalization John and Mary can leave Jennifer their non- business assets. John and Mary can make up the difference by funding a survivorship ILIT for the benefit of Jennifer.

31 Estate Equalization John & Mary Insurance Company John & Marys Estate IRS ILIT fbo Jennifer 1.John & Mary create an irrevocable trust, and make gifts of life insurance premiums to the trust. 2.Pays Insurance Premium. 3.Pays death benefit upon death of John & Mary – income and estate tax free! 4.Transfers Cash. 5.Transfers Assets. 6.Pays Debts and Taxes.

32 Family Bank Structure: A family LLC or family limited partnership. Members/Partners: Lawrence and Jennifer. Capital Contributions: Either gifts from John and Mary and/or contributions directly from Lawrence and Jennifer. FLLCs/FLPs Investments: A survivorship policy on John and Marys lives.

33 Family Bank Indicated Use: When shares in the Company are transferred (either during Johns lifetime or death) to both children. Purpose: To provide funds for Lawrence to call Jennifers shares, or for Jennifer to put her shares to Lawrence.

34 When I go, I plan on taking at least two of my estate-tax lawyers with me.

35 The End. Thank You!

36 The Role of Life Insurance in Business Succession Planning Julius H. Giarmarco, Esq.

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