Why would I want my irrevocable trust to own my life insurance?

If you own life insurance, it is included in your taxable estate and the proceeds will be taxable for federal estate tax purposes. So, in 2009, an individual is allowed a federal estate tax exemption on their first $3.5 million of assets, including all life insurance policies in their name. (This fact comes as a surprise to many people but this treatment of insurance proceeds dates back almost to the inception of the federal estate tax.) If life insurance policies are owned by a properly structured ILIT, the proceeds will be free of the estate tax.

What if I don't own my insurance but control it through some one else?

Even if you do not own your life insurance in your name, the IRS may determine you to be the owner and therefore liable for federal estate taxes on the policy proceeds. Your life insurance will be included in your taxable estate as long as you possess any incidents of ownership for federal estate tax purposes. Incidents of ownership include your rights to borrow on a policy or pledge as collateral, name or change the beneficiary, and assign the policy to someone else.

If you maintain any right to a life insurance policy, the IRS will take the position that you retained incidents of ownership and will include the proceeds in your taxable estate. With a properly structured ILIT, you no longer retain any incidents of ownership under the IRS definitions and will not be liable for federal estate taxes.

What is the theory behind an ILIT?

Because the trust is irrevocable, you do not have incidents of ownership in it or in the life insurance policies owned by it. An irrovocable trust is a trust that can't be modified or terminated without the permission of the beneficiary. The grantor, having transferred assets into the trust, effectively removes all of his or her rights of ownership to the assets and the trust.

This is the opposite of a "revocable trust", which allows the grantor to modify the trust. While the tax rules will vary between jurisdictions, in most cases, the grantor can't receive these benefits if he or she is the trustee of the trust. This fact often leads to the consideration of employing a corporate trustee to serve as the fiduciary administrator over the trust assets.

Thus the proceeds of those policies will not be taxed upon your death nor will they be taxed upon the death of your spouse if he or she survives you. They completely avoid the federal estate tax.

You are able to control the disposition of the policy proceeds through your trust instructions as to:

1. Who the trustees will be while you are alive, upon your disability, and upon your death.
2. How the proceeds will be distributed to your beneficiaries or left in trust