The circumstances surrounding the case weren’t unusual. A single grandparent wanted to purchase coverage on his five year-old grandchild. He loved his son and daughter-in-law, the parents of the proposed insured, but felt they might be tempted to access the cash values during tough times if they were given control of the policy.
The agent involved suggested creating a trust for the contract, but the country-time lawyer involved didn’t like living trusts (because, he said, “Nobody ever takes care of them!”) so he drafted a new will for the grandfather with a testamentary trust that could accept the policy on his death and directed that the grandfather be made the policy owner.
Two immediate potential problems should have been considered by the trust-resistant attorney:
First, if the insured child died first then the proceeds would become part of the grandfather’s estate. Second, if the grandfather died first the policy would be subject to the unnecessary rigors of the probate court before settling into the trust created by the will – perhaps then only to be managed as poorly as all those living trusts the lawyer had experienced.
There’s an old proverb somewhere that says if something can even be worse than anticipated, it probably will.
In this case the policy language had a little surprise for all involved that rendered what would play out even more undesirable and more unmanageable than any imagined!
The grandfather did die first. His will was submitted to probate and the agent and the executor took steps to have ownership of the policy transferred to the newly activated testamentary trust under the will.
The carrier title department responded [underscoring added]:
We understand that [policy owner] may have provided for these policies in his will, however, the ownership of the policies as stated on the application automatically reverts to the individual insured [the still living minor grandchild]. We must adhere to what the contract states and not what was indicated in his will. In the alternative, if they want the ownership to change to the parent [of the insured minor] as indicated in the email below, we would need documentation from the court proving who is the legal guardian of the minor’s property which is different than being the legal guardian. This is something they would have to go to court for and once they obtain the court order, the legal guardian of the property can change the ownership of the policy. Otherwise, we cannot allow any transactions on the policy until the child is at least 15 years old.
A response like that will tend to take the ginger out of one’s step! Not only is control of the policy for the next ten years attainable only through a laborious court process, but even then the result would probably be exactly what the grandfather was attempting to avoid – ownership of the policy by the parents of the insured child.
Policy provisions that appoint an insured as a default owner are more common than most agents would think. The issue doesn’t arise often because the policy owner is commonly 1) the same as the insured, or 2) a party who cannot die, e.g. a trust, or 3) a person younger than the insured who usually doesn’t die first. But it occurs enough that at least one major carrier has an appointed person who does little more than handle the “Dead Owner” cases.
We rightfully agonize much over the choice of contingent beneficiaries. The same attention should be given to the need for and choice of contingent owners when needed. Call with any questions regarding this issue on potential or existing cases.