Irrevocable Life Insurance Trust (ILIT)
Drafts a comprehensive ILIT that removes life insurance proceeds from the grantor's taxable estate under IRC § 2042 while preserving annual gift tax exclusions via Crummey powers.
Prerequisites
Collect before drafting:
- Grantor — full legal name, SSN/TIN, domicile state
- Policy info — carrier, policy number(s), face amount(s), insured, current ownership, term vs. permanent
- Trustee — initial trustee (NOT grantor), successor(s), corporate trustee if any
- Beneficiaries — primary and contingent with DOBs, relationships; minor sub-trust termination ages
- Funding plan — existing policy transfer vs. trust-applied new policy; annual premium amount
- Jurisdiction — state of trust situs; execution formalities (witnesses, notarization)
- Existing estate plan — coordination with will, revocable trust, other ILITs
Drafting Workflow
Article I — Declaration of Trust
- State irrevocability explicitly — no amendment, modification, or revocation by grantor
- Purpose: hold life insurance outside grantor's taxable estate
- Grantor surrenders ALL incidents of ownership per IRC § 2042
- No retained powers under IRC §§ 2036, 2038, or 2042
Article II — Parties
- Grantor and trustee: full legal names, addresses, fiduciary acceptance
- Succession: resignation procedure, removal for cause, appointment mechanism
- Grantor must NOT serve as trustee or retain trustee-removal-and-replacement power — constitutes an incident of ownership
Article III — Trust Property & Policy Transfer
- Schedule A: each policy with carrier, number, face amount, insured
- Assignment language transferring all ownership rights to trustee
- Procedure for future policy additions
- § 2035 three-year rule: existing policy transfers trigger lookback — if grantor dies within 3 years, proceeds included in estate. Document transfer date prominently.
- New policies: trust applies and owns ab initio (no § 2035 issue)
Article IV — Crummey Withdrawal Rights
Crummey notice template:
To: [Beneficiary Name]
Date: [Date of Contribution]
Amount: $[Amount] contributed to [Trust Name]
You have the right to withdraw $[pro-rata share].
This right expires [30/45] days from this notice date.
If not exercised, the right lapses automatically.
— [Trustee]
| Parameter |
Standard |
| Annual exclusion |
IRC § 2503(b) per beneficiary [VERIFY current year amount] |
| Notice period |
30 days minimum; 45 days recommended |
| Notice method |
Written, delivered personally or by mail |
| Lapse limitation |
"5 and 5" safe harbor — lapse limited to greater of $5,000 or 5% of trust corpus |
| Minors |
Guardian or legal representative receives notice |
Article V — Trustee Powers & Duties
Grant powers to:
- Pay premiums when due
- Exercise policy rights (loans, conversions, surrenders, beneficiary changes per trust terms)
- Invest non-insurance assets under prudent investor standard
- Hire professionals; pay from trust
- Borrow against cash value; convert term to permanent
- Settle claims with carriers
Fiduciary standards: loyalty, impartiality, preservation, accounting. Specify compensation, indemnification for good faith, annual accounting to beneficiaries.
Article VI — Distributions
Upon death of insured:
- Outright distribution vs. continuing sub-trusts per beneficiary class
- Per stirpes for predeceased beneficiaries
- Survivorship requirement: 30–60 days
- Simultaneous death provision (USDA/RUDA or state equivalent)
Minors/incapacitated:
- Sub-trust until specified age (e.g., staged: 1/3 at 25, 1/2 remainder at 30, balance at 35)
- HEMS discretionary distributions (health, education, maintenance, support)
Proceeds are income-tax-free under IRC § 101(a); confirm structure prevents estate inclusion under § 2042.
Article VII — Spendthrift & Creditor Protection
- No assignment, pledge, or encumbrance of interests before distribution
- Assets not subject to beneficiary creditors, divorce, or bankruptcy
- Include state-specific mandatory spendthrift language
Article VIII — General Provisions
- Governing law, severability, merger/integration
- Notice provisions, trust situs with ability to change
- Rule against perpetuities savings clause (or note if jurisdiction abolished RAP)
Article IX — Execution
- Grantor signature (as "Settlor" or "Grantor")
- Trustee signature (acceptance of appointment)
- Witnesses — number varies by state (typically 2 disinterested)
- Notarization — mandatory in most states; include acknowledgment certificate
Critical Checks
- Never name grantor as trustee — any incident of ownership causes estate inclusion under § 2042
- Never give grantor power to change beneficiaries, borrow against policies, or surrender — these are incidents of ownership
- Document Crummey notices meticulously — IRS scrutinizes; keep copies with trust records
- Flag § 2035 risk prominently for existing policy transfers
- Verify state requirements — formation formalities, spendthrift enforceability, witness/notary rules, RAP status
- Coordinate with existing estate plan — ILIT beneficiary designations must not conflict with will or revocable trust
- GST tax — if beneficiaries include skip persons, address allocation under IRC § 2642
- Community property states — both spouses may need to consent to policy transfer
- Annual review — recommend periodic review of policy performance, beneficiary designations, and Crummey compliance
- All statutory citations are to the IRC; verify current thresholds at time of drafting
1---2name: ilit3description: Drafts an Irrevocable Life Insurance Trust (ILIT) compliant with IRC § 2042 and state trust laws to exclude life insurance from the grantor's taxable estate. Covers Crummey withdrawal rights, trustee powers, distributions, and execution formalities. Use when drafting ILITs, life insurance trusts, estate tax exclusion trusts, or Crummey trusts.4---5
6# Irrevocable Life Insurance Trust (ILIT)
7
8Drafts a comprehensive ILIT that removes life insurance proceeds from the grantor's taxable estate under IRC § 2042 while preserving annual gift tax exclusions via Crummey powers.
9
10## Prerequisites
11
12Collect before drafting:
13
141. **Grantor** — full legal name, SSN/TIN, domicile state
152. **Policy info** — carrier, policy number(s), face amount(s), insured, current ownership, term vs. permanent
163. **Trustee** — initial trustee (NOT grantor), successor(s), corporate trustee if any
174. **Beneficiaries** — primary and contingent with DOBs, relationships; minor sub-trust termination ages
185. **Funding plan** — existing policy transfer vs. trust-applied new policy; annual premium amount
196. **Jurisdiction** — state of trust situs; execution formalities (witnesses, notarization)
207. **Existing estate plan** — coordination with will, revocable trust, other ILITs
21
22## Drafting Workflow
23
24### Article I — Declaration of Trust
25
26- State irrevocability explicitly — no amendment, modification, or revocation by grantor
27- Purpose: hold life insurance outside grantor's taxable estate
28- Grantor surrenders ALL incidents of ownership per IRC § 2042
29- No retained powers under IRC §§ 2036, 2038, or 2042
30
31### Article II — Parties
32
33- Grantor and trustee: full legal names, addresses, fiduciary acceptance
34- Succession: resignation procedure, removal for cause, appointment mechanism
35- **Grantor must NOT serve as trustee or retain trustee-removal-and-replacement power** — constitutes an incident of ownership
36
37### Article III — Trust Property & Policy Transfer
38
39- Schedule A: each policy with carrier, number, face amount, insured
40- Assignment language transferring all ownership rights to trustee
41- Procedure for future policy additions
42- **§ 2035 three-year rule**: existing policy transfers trigger lookback — if grantor dies within 3 years, proceeds included in estate. Document transfer date prominently.
43- New policies: trust applies and owns ab initio (no § 2035 issue)
44
45### Article IV — Crummey Withdrawal Rights
46
47Crummey notice template:
48
49```
50To: [Beneficiary Name]
51Date: [Date of Contribution]
52Amount: $[Amount] contributed to [Trust Name]
53You have the right to withdraw $[pro-rata share].
54This right expires [30/45] days from this notice date.
55If not exercised, the right lapses automatically.
56— [Trustee]
57```
58
59| Parameter | Standard |
60|---|---|
61| Annual exclusion | IRC § 2503(b) per beneficiary [VERIFY current year amount] |
62| Notice period | 30 days minimum; 45 days recommended |
63| Notice method | Written, delivered personally or by mail |
64| Lapse limitation | "5 and 5" safe harbor — lapse limited to greater of $5,000 or 5% of trust corpus |
65| Minors | Guardian or legal representative receives notice |
66
67### Article V — Trustee Powers & Duties
68
69Grant powers to:
70- Pay premiums when due
71- Exercise policy rights (loans, conversions, surrenders, beneficiary changes per trust terms)
72- Invest non-insurance assets under prudent investor standard
73- Hire professionals; pay from trust
74- Borrow against cash value; convert term to permanent
75- Settle claims with carriers
76
77Fiduciary standards: loyalty, impartiality, preservation, accounting. Specify compensation, indemnification for good faith, annual accounting to beneficiaries.
78
79### Article VI — Distributions
80
81**Upon death of insured:**
82- Outright distribution vs. continuing sub-trusts per beneficiary class
83- Per stirpes for predeceased beneficiaries
84- Survivorship requirement: 30–60 days
85- Simultaneous death provision (USDA/RUDA or state equivalent)
86
87**Minors/incapacitated:**
88- Sub-trust until specified age (e.g., staged: 1/3 at 25, 1/2 remainder at 30, balance at 35)
89- HEMS discretionary distributions (health, education, maintenance, support)
90
91Proceeds are income-tax-free under IRC § 101(a); confirm structure prevents estate inclusion under § 2042.
92
93### Article VII — Spendthrift & Creditor Protection
94
95- No assignment, pledge, or encumbrance of interests before distribution
96- Assets not subject to beneficiary creditors, divorce, or bankruptcy
97- Include state-specific mandatory spendthrift language
98
99### Article VIII — General Provisions
100
101- Governing law, severability, merger/integration
102- Notice provisions, trust situs with ability to change
103- Rule against perpetuities savings clause (or note if jurisdiction abolished RAP)
104
105### Article IX — Execution
106
107- Grantor signature (as "Settlor" or "Grantor")
108- Trustee signature (acceptance of appointment)
109- Witnesses — number varies by state (typically 2 disinterested)
110- Notarization — mandatory in most states; include acknowledgment certificate
111
112## Critical Checks
113
114- **Never name grantor as trustee** — any incident of ownership causes estate inclusion under § 2042
115- **Never give grantor power** to change beneficiaries, borrow against policies, or surrender — these are incidents of ownership
116- **Document Crummey notices meticulously** — IRS scrutinizes; keep copies with trust records
117- **Flag § 2035 risk** prominently for existing policy transfers
118- **Verify state requirements** — formation formalities, spendthrift enforceability, witness/notary rules, RAP status
119- **Coordinate with existing estate plan** — ILIT beneficiary designations must not conflict with will or revocable trust
120- **GST tax** — if beneficiaries include skip persons, address allocation under IRC § 2642
121- **Community property states** — both spouses may need to consent to policy transfer
122- **Annual review** — recommend periodic review of policy performance, beneficiary designations, and Crummey compliance
123- All statutory citations are to the IRC; verify current thresholds at time of drafting