How About Just Doing the Right Thing?

During an ITM TwentyFirst University webinar on trustee liability, I described a replacement case that came into our remediation department. A grantor with a whole life contract in his trust had decided to stop gifting. His agent advised him to complete a 1035 exchange of the cash value from the existing policy into a new current assumption policy. The exchange, with no other premium, would carry the new policy out past life expectancy on a non-guaranteed basis but not to policy maturity. The death benefit in the trust would be lowered, but the grantor was comfortable with this, as the focus was on limiting the costs associated with the trust. Our remediation team notified the trustee that the death benefit in the existing policy could be guaranteed to maturity by requesting a reduced paid-up policy with the existing carrier, which would contractually guarantee the existing policy’s death benefit with no additional premium. The death benefit would be lowered but would still provide $900,000 more in death benefit than the new non-guaranteed policy was proposing.

I was reminded of the case while reading an article in the Wall Street Journal explaining that the Fifth Circuit Court had “struck down” the Labor Department’s fiduciary rule, stating that the department “overreached” by requiring those who handle retirement accounts to act in the “clients’ best interest” and asserting that the “rule is unreasonable” (1). I understand the industry fight against this law. They are afraid that it will mire them in lawsuits and make the sale of some products much harder in the retirement plan community. The law as it stands only affects retirement accounts, but states are pushing to have “best interests” laws apply to non-qualified annuities and even life insurance (2), which would certainly increase the number of lawsuits.

What ever happened to just doing the right thing? In the case above, had the trustee allowed the replacement, the agent would have made approximately $20 thousand, depending on his brokerage arrangement, but the grantor’s beneficiaries would have lost almost a million dollars. Believe me, many trustees without specialized skills are allowing these cases to slip through.

At ITM TwentyFirst, we service trustees bound by fiduciary duty, and our new affiliated company, Life Insurance Trust Company, is bound by that same duty to maximize the benefit in the trust for the beneficiaries, but that duty does not extend to most of those selling life insurance products. This has created a conflict in the marketplace that trust owned life insurance (TOLI) trustees must recognize. Tomorrow, Tuesday, March 20, at 2PM, we are sponsoring a free webinar providing CE for CFP and CTFA designates that addresses the prudent purchase of life insurance. Click here to register, and if you cannot attend, stop back by our website for a replay at a later date.


1.) Fiduciary Rule Dealt Blow by Circuit Court Ruling, Lisa Beilfus, Wall Street Journal, March 15, 2018
2.) N.Y. Urges Life Insurance Fiduciary Standard in NAIC Rule, John Hilton,, January 25, 2018



NCOIL Tables Model Legislation Efforts to Deal with Cost of Insurance Increases in Life Insurance

NCOIL, the National Council of Insurance Legislators, met in Atlanta last weekend to discuss, among other things, “legislative solutions to unjustified premium increases (1).”

NCOIL is an organization made up of state legislators interested in insurance and financial matters, many of whom serve on related committees in their home states. The goal of the organization is to inform state legislators by creating a venue for interaction and education across state lines. The organization meets three times a year in open sessions that allow the legislators to hear from consumers, industry executives, and regulators.

The organization develops model laws that can be adopted on a state-by-state basis, and part of its published goal is to “preserve the state jurisdiction over insurance” and “speak out on Congressional initiatives that attempt to encroach upon state primacy in overseeing insurance.” The organization provides a needed open setting for the interaction of ideas designed to “improve the quality of insurance regulation (2).”

In its November 2017 meeting, Assemblymember Pamela Hunter of New York, brought up Insurance Regulation 210, a New York regulation we wrote about back in September of 2017. The regulation requires carriers raising expenses or cost of insurance in life and annuity policies to notify the New York State Department of Financial Services at least 120 days prior to “an adverse change in non-guaranteed elements” and to notify consumers within 60 days (3).   The leadership of NCOIL decided to continue the conversation Hunter started at their spring meeting, and on March 3rd, the Life Insurance & Financial Planning Committee of NCOIL met.

Winter storm Riley kept Ms. Hunter from attending the session, which was chaired by Representative Deborah Ferguson, who serves on the House Insurance and Commerce Committee in her home state of Arkansas.

The session opened with a statement by Darwin Bayston of The Life Settlement Association who pointed out there are 142 million life insurance policies in force with $12.3 trillion of death benefit, and stated that the current cost of insurance increases are harming many consumers. Darwin focused on the older population of insureds who had paid premiums for many years only to find that cost increases now made their policies unaffordable.

In my testimony I went over two of the many cases that we have reviewed for trustees at ITM TwentyFirst, where well over $400 million of trust owned life insurance (TOLI) death benefit administered on our Managed Service platform has been affected by the cost increases. I highlighted the problem of trustees, who have a fiduciary responsibility to maximize the asset in the trust, being forced to make decisions that deliver much less benefit to the trust than was expected. I also reviewed the many comments I had received from the public, including advisors who expressed dismay that their clients were subject to cost increases of 150 to 200 percent and consumers who cancelled policies because of COI increases and felt they had been “scammed” – their words, not mine.

Steven Sklaver, an attorney at Susman Godfrey LLP spoke next. Sklaver currently has multiple cases filed against carriers who have raised COI on policies and was “handcuffed” in his presentation as a result. However, he did contrast what is occurring in New York state versus the rest of the country, because of the New York regulation, by calling attention to a situation where a carrier who raised rates elsewhere decided not to raise rates in New York. In his testimony, he questioned whether the carriers could be raising rates across an entire class, as required, if NY state insureds were left out. He also pointed out an issue we have seen at ITM TwentyFirst – carriers not providing in force illustrations on policies in the grace period, a major burden for those of us attempting to help policyholders manage a distressed policy.

Kate Kiernan, Vice President, Chief Counsel and Deputy at the American Council of Life Insurers, spoke for the council, expressing their belief that there was no need for any new regulations concerning cost of insurance increases, either in New York or any other states.

Members of the committee had several inquiries. Representative George Keiser from North Dakota asked Mr. Sklaver several pointed questions, and disputed Steven’s assertion that the carriers were not raising rates across an entire class as required, if New York were left out of the increases.

The chairwoman, Representative Deborah Ferguson, asked me if there was anything in a sales illustration that might alert a consumer to a cost of insurance increase in the future. I informed her that the illustration is not the contract, and in fact, a poor tool to explain the policy. Though the illustration has language that indicates all assumptions could change, there is nothing in the illustration that can predict future changes in the policy.

Senator Bob Hackett from Ohio, a veteran of the financial services industry, opined that cost of insurance increases center more around tracking the policy with in force ledgers than the sales illustration, noting that he reviews the in force ledgers with his clients.  I agreed, but explained that though the cost of insurance in a policy will increase as we age, the cost of insurance increases that were the topic of discussion were beyond the natural rise, and resulted in carrying costs on policies to double or even triple overnight.

Our session, the first of the day, was brought to a halt by the vice chairman, Representative Joe Hoppe of Minnesota, who stated that he thought they should wait to see how it would “play out” in the court system before making the decision to move ahead. With a tap of the gavel, Ms. Ferguson brought the meeting to an end with the committee agreeing to not move forward to develop a model act – at least not now.

We have written often in the past about the cost of insurance increases we have seen in life insurance, including at least one article outlining some possible causes. Over the next year or so as the courts work through the various cases brought against the carriers and market interest rates adjust from the abnormally low rates of the last decade, the story will evolve. We will continue to follow up.


  1. NCOIL to Discuss Problems Facing Life Insurance Premium Increases, NCOIL News Release, January 23, 2018
  2. NCOIL website,
  3. NY State Department of Financial Services, 11 NYCRR 48, (Insurance Regulation 210)

The ITM TwentyFirst Solution for Lost Insurance and Pension Benefits

60 Minutes, the CBS news magazine, looked at the problem of unclaimed life insurance benefits in 2016. Lesley Stahl interviewed Jeff Atwater, Chief Financial Officer of Florida who had worked with many of the top companies to get benefits paid to policyholders that had died as far back as the 1960s. Who were the carriers? According to Mr. Atwater, “all the large brand names that you are familiar with.” The carriers, to their credit, “sat down with us and made right,” according to Mr. Atwater. But, 60 Minutes pointed out instances where it was clear the carriers were at fault. After all, this is 60 Minutes. It has been said that if you are a company or an industry, you do not want to be mentioned on 60 Minutes, and this mention gave the industry a black eye. After the show aired, states began to ramp up regulatory activity.

This is not a new issue. Carriers lose touch with their policyholders. In 2000, John Hancock demutualized, sending information packages to millions of policyholders. Four hundred thousand were sent back undeliverable. It has been reported that Prudential lost contact with 2.7 million policyholders at one point (1).

Currently, the problem is also creating negative financial consequences for institutions who deal with pension benefits. In December, the Wall Street Journal reported one company had “failed to pay monthly pension benefits to possibly tens of thousands of workers in accounts that it has on its books,” requiring them to strengthen reserves, which may negatively affect their “results of operations.” A company executive said that the people owed the money were beneficiaries that the company “sought to locate over time unsuccessfully” (2). The company, MetLife, Inc. saw its stock drop nearly 9% and has lost approximately $8.5 billion in market cap (3).

The good news is there is an economical answer for companies like MetLife. In July of 2017, ITM TwentyFirst merged with Pension Benefit Information (PBI), bringing the pre-eminent location and death audit firm in the country under the ITM TwentyFirst umbrella and widening the increasing services we offer to clients and prospects alike. PBI provides proactive solutions for those financial institutions struggling with these issues.

It does not look like this problem will disappear. According to an article published just this week, MetLife’s CEO, when discussing the missing pensioner issue, said, “It’s hard for me to know, really, what happens in the other companies in our industry, but I can’t believe we’re the only one.” He went on to say, “It is an area where I think the entire industry has to find ways to do a better job and find these people and pay benefits to these people that they are owed” (5).

For those companies looking for a solution to this problem, PBI is there to help. For more information on Pension Benefit Information (PBI) you can visit their website at


1. The Insurance Forum, Joseph Belth, November 2010
2. MetLife Discloses Failure to Pay Thousands of Workers’ Pensions, Leslie Scism, The Wall Street Journal, 12/15/2017
3. MetLife Shares Tumble on Pension Shortfall News, Joann S. Lubin and Leslie Scism, The Wall Street Journal, 1/30/2018
4. MetLife Hires Investigators in Search for Missing Pensioners, Alistair Gray, Financial Times, 2/13/2018
5. MetLife CEO on Missing Annuitants: “I Can’t Believe We’re the Only One”, Marie Suszynski, AM Best, 2/16/2018

The Life Insurance Dividend Season (Continued)

In an earlier entry, we reported on the dividend declarations from two of the gold standard mutual insurance companies – Northwestern Mutual and Massachusetts Mutual. Both are very highly rated carriers, and have paid dividends each year for well over 100 years. However, like most insurance companies these days, both are feeling the effects of the historic low interest rate environment, and as a result, have reported lower dividend interest rates (DIR).

MassMutual’s reported DIR for 2018 is 6.40% – a drop from the 2017 rate of 6.70% (which was down from the 2016 DIR rate of 7.10%). Northwestern Mutual declared a 2018 dividend interest rate that dropped to 4.9% from the 2017 DIR rate of 5% (which was down from the 2016 DIR rate of 5.45%).

Since our last post, both New York Life and Guardian Life have reported their dividend interest rates.

New York Life reported a 2018 dividend payout of $1.78 billion, the largest in the history of the company and the 164th consecutive year of dividend payouts. The DIR rate for NY Life was 6.1% (which was down from their 2017 rate of 6.2%). In announcing the DIR drop, their first since 2012, New York Life referenced, “the continued historic low level of interest rates, which constrain our investment returns.”

Guardian Life, who has paid dividends each year since 1868, reported a $911 million dividend payout. The DIR for Guardian remained the same as it was in 2017- 5.85% (which was down from their 2016 rate of 6.05%).

So, for 2018, 3 of the 4 carriers mentioned lowered their DIR. It will take a while for portfolio returns to turn around for insurance carriers. Almost exactly 3 years ago we reported on the dividends for these same four carriers. In that entry, our visual was a battleship and the title referenced the fact that raising dividends is much like turning a battleship around. We featured a quote from the chairman of New York Life at the time, who noted, “The downward pressure on interest rates continues to be challenging for life insurers.”  In announcing the 2018 dividend, Roger Crandall, MassMutual Chairman, President and CEO, referenced the “backdrop of a prolonged low interest rate environment.” Not much has changed.

However, this week the Fed raised rates by a quarter of a percentage point to a range of 1.25 to 1.50 percent, its third rate hike this year, with its forecast of three additional rate increases in 2018 and 2019 unchanged.

Maybe by next year the battleship will really begin to turn around.

Trustee Alert: New Tax Law Changes (Simplifies) Tax Reporting On Life Settlement Sales

Back in May we wrote about the need for trustees to be aware of life settlements. A life settlement can provide a TOLI trust with more value than a policy surrender. The role of a TOLI trustee dictates that all assets are maximized – including “unwanted” life insurance policies.

In the past, tax reporting around a life settlement was onerous, primarily because of an IRS ruling enacted in 2009. IRS Ruling 2009-13 dictated that policy sellers reduce the cost basis in the policy sold by the cumulative cost of insurance charges incurred. The requirement was, at best, burdensome. Often it was impossible to comply with. Most carriers had difficulty providing the information, for some policies it was virtually impossible to compute the amount. The reduction in cost basis also increases the tax burden to the seller, reducing the net amount available to the trust and the beneficiaries.

The new tax bill, The Tax Cut and Jobs Act, in Section 13521, Clarification of Tax Basis of Life Insurance Contracts, reverses the IRS ruling, allowing for “proper adjustment” … for… “mortality, expense or other reasonable charges incurred under an annuity or life insurance contract”.

The taxation of a life settlement is now similar to the taxation of a policy surrender – with a twist since in a sale the policyholder is receiving an amount greater than just the cash surrender value. In a policy surrender, ordinary income tax rates apply to the amount received (cash surrender value) above cost basis. With a life settlement, the policyholder receives more than the cash surrender value and that amount is considered an “investment” taxed at capital gains rates.

Determining the taxation of a life settlement is now an easier three-step process. Let’s look at an example:LSTax.jpg

Assume a policy holder sold a policy and received $375,000. Further assume total premium paid (we will assume this is the cost basis for simplicity, as it usually is) was $100,000 and the policy had cash value of $125,000.

In the first step, you simply subtract the cost basis from the amount received to arrive at the total gain in the sale.

In Step #2, you determine the amount that is attributable to ordinary income tax rates by subtracting the cash value from the cost basis to arrive at the ordinary income received. In Step #3, to compute the capital gains amount you simply subtract the ordinary income amount in the second step from the total gain found in the first step. Note that if there is no cash value (a term policy, for example) the entire amount received would be taxable at capital gains rates.

The change in the tax code will simplify the tax computation of a policy sale and perhaps prompt more policyholders to investigate a life settlement. It will certainly make the transaction more profitable for those that do. In our example above, the policyholder received $375,000, with taxes due on $275,000 ($25,000 at ordinary rates, $250,00 at capital gains rates). If the policy in question had $50,000 in cost of insurance taken out, taxes would be due on $325,000 ($25,000 at ordinary rates, $300,000 at capital gains rates).

One final note…the effective date of the amendment was listed in the new bill for “transactions entered into after August 25, 2009,” which corresponds to the date of IRS Ruling 2009-13. Does this mean that those who may have paid higher taxes in the last eight years are in for a tax rebate? That part is not clear.

John Hancock To Raise Cost Of Insurance (COI) On Performance Universal Life Policies

In February of last year, we reported on limitations placed on inforce illustrations for John Hancock Performance universal life policies. At that time, the carrier announced a “temporary” situation, saying they were unable to provide current inforce illustrations because “regulatory standards that govern illustration practices . . . prevent us from illustrating currently payable amounts based on our current non-guaranteed elements.”

In that report, we mentioned that in the past, the inability to provide inforce ledgers was often a precursor to a cost of insurance (COI) increase. It appears as if it was for John Hancock.

On January 18th, The Life Settlements Report, a trade publication, reported that John Hancock will be raising the cost of insurance (COI) on 1,700 Performance policies. The publication cited a representative of the New York Department of Financial Services, who confirmed that the carrier had provided “voluntary” notice to the regulatory body.

In September of 2017, we reported on a regulation approved in New York state that required carriers to notify the department “at least 120 days prior to an adverse change in non-guaranteed elements of an in-force life insurance policy.” Though the regulation has not gone into effect, the agency spokesman did confirm that the carrier provided notice, according to the earlier report.

Our New York City office was told that John Hancock is “expecting to have illustration availability in early 2018.” We manage approximately 200 of the 1,700 policies affected and as soon as we receive the information and analyze it, we will report on the size of the cost increase.

New York State Issues New Regulations Regarding Cost of Insurance (COI) Increases

In November of last year we reported on a regulation floated by the New York State Department of Financial Services to “govern life insurance company practices related to increases in the premiums” of life insurance and annuity policies. The goal was to “protect New Yorkers from unjustified life insurance premium increases.”

This week, the department issued their final regulation. According to a press release announcing the new regulation, the department will be able to review cost of insurance, premium or expense increases in life insurance and annuity policies by requiring carriers to notify the department “at least 120 days prior to an adverse change in non-guaranteed elements of an in-force life insurance policy.” In addition, carriers will be required to notify consumers “at least 60 days prior to an adverse change in non-guaranteed elements of an in-force life insurance or annuity policy.”

We have previously reported on life insurance policy COI increases and their effect on policy carrying costs. According to New York Financial Services Superintendent Maria T. Vullo, the new regulation “is designed to protect New Yorkers from unfair and inequitable cost increases in in-force policies.” According to the department, New York law, “prohibits life insurers from changing non-guaranteed elements in a discriminatory way for members of the same class of policyholders . . . only certain enumerated factors, which do not include profit, can be considered when seeking to change non-guaranteed elements.”

There are several COI increase lawsuits working their way through the courts that are focused on the legalities regarding how carriers can increase the cost of insurance on a policy, and whether the increases represent a breach in the insurance contact. One case, settled last week, favored the plaintiffs, and one consolidated case was granted permission to move forward earlier this month. The carriers maintain they have the right to raise COI costs in their policies. A Wall Street Journal article on this subject stated, “insurers maintain they are acting in accordance with policy provisions allowing higher charges up to a maximum amount, based on expectations of future policy performance.”

These final regulations were published after the department reviewed comments submitted when the original proposal was announced. It is not known whether other states will follow suit, but that same Wall Street Journal article noted the regulation “could be widely copied by other insurance departments.”

We will report on any updates as they become available. For a copy of the press release and new regulation, email