[Federal Register: June 30, 2003 (Volume 68, Number 125)]
[Proposed Rules]
[Page 38645-38651]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30jn03-27]
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FEDERAL DEPOSIT INSURANCE CORPORATION
12 CFR Part 330
RIN 3064-AC54
Deposit Insurance Regulations; Living Trust Accounts
AGENCY: Federal Deposit Insurance Corporation (FDIC).
ACTION: Notice of proposed rulemaking.
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SUMMARY: The FDIC is publishing for notice and comment alternative
proposed rules to amend its deposit insurance regulations. The purpose
of the rulemaking is to clarify and simplify the regulations on the
insurance coverage of living trust accounts.
DATES: Written comments must be received by the FDIC not later than
August 29, 2003.
ADDRESSES: All comments should be addressed to Robert E. Feldman,
Executive Secretary, Attention: Comments/Legal ESS, Federal Deposit
Insurance Corporation, 550 17th Street, NW., Washington, DC 20429.
Comments may be hand-delivered to the guard station located at the rear
of the 550 17th Street Building (located on F Street) on business days
between 7 a.m. and 5 p.m. (fax number: (202) 898-3838; or send by email
to comments@FDIC.gov). Comments may be inspected and photocopied in the
FDIC Public Information Center, Room 100, 801 17th Street, NW.,
Washington, DC 20429, between 9 a.m. and 4:30 p.m. on business days,
and the FDIC may post the comments on its Internet site at
http://www.fdic.gov/regulations/laws/federal/propose.html
.
FOR FURTHER INFORMATION CONTACT: Joseph A. DiNuzzo, Counsel, Legal
Division (202) 898-7349; Martin W. Becker, Senior Receivership
Management Specialist, Division of Resolutions and Receiverships (202)
898-6644; or Kathleen G. Nagle, Supervisory Consumer Affairs
Specialist, Division of Supervision and Consumer Protection (202) 898-
6541, Federal Deposit Insurance Corporation, Washington, DC 20429.
SUPPLEMENTARY INFORMATION:
I. Background
One of the FDIC's paramount goals in the area of deposit insurance
is to ensure that depositors and insured depository institution
employees understand the FDIC's deposit insurance rules. To that end,
in July 1998, after an extensive review of the existing rules for
deposit insurance coverage, the FDIC simplified its entire deposit
insurance regulations. Also, in April 1999, the FDIC amended the rules
for the insurance coverage of joint accounts and payable-on-death
accounts to make them more easily understood.
Despite the FDIC's efforts to simplify and clarify the deposit
insurance regulations, there is still significant public and industry
confusion about the insurance coverage of living trust accounts. At
recent depository institution failures there has been a
disproportionately high percentage of uninsured living trust deposits,
when compared to the percentage of uninsured deposits in other
categories of coverage. The FDIC receives numerous calls daily from
bankers, members of the public and industry representatives indicating
their misunderstanding of the coverage for living trust accounts. As
discussed below, the confusion among bankers and the public about the
insurance coverage of living trust accounts is understandable.
A living trust is a formal revocable trust created by an owner
(also known as a grantor) and over which the owner retains control
during his or her lifetime. Upon the owner's death, the trust generally
becomes irrevocable. A living trust is an increasingly popular probate
instrument designed to achieve specific estate and tax planning goals.
A living trust account is subject to the FDIC's insurance rules on
revocable trust accounts. Section 330.10 of the FDIC's regulations (12
CFR 330.10) provides that revocable trust accounts are insured up to
$100,000 per ``qualifying'' beneficiary designated by the owner of the
account. If there are multiple owners of a living trust account,
coverage is available separately for each owner. Qualifying
beneficiaries are defined as the owner's spouse, children,
grandchildren, parents and siblings (12 CFR 330.10(a)).
The most common type of revocable trust account is the ``payable-
on-death'' (``POD'') account, sometimes referred to as a Totten Trust
account, comprised simply of a signature card on which the owner
designates the beneficiaries to whom the funds in the account will pass
upon the owner's death. The per-beneficiary coverage available on
revocable trust accounts is separate from the insurance coverage
afforded to any single-ownership accounts held by the owner or
beneficiary at the same insured institution. That means, for example,
if an individual has at the same insured bank or thrift a single-
ownership account with a balance of $100,000 and a POD account (naming
at least one qualifying beneficiary) with a balance of $100,000, both
accounts would be insured separately for a combined amount of $200,000.
If the POD account names more than one qualifying beneficiary, then
that account would be separately insured for up to $100,000 per
qualifying beneficiary (12 CFR 330.10(a)).
Separate, per-beneficiary insurance coverage is available for
revocable trust accounts only if the account satisfies certain
requirements. First, the title of the account must include a term such
as ``in trust for'' or ``payable-on-death to'' (or corresponding
acronym). Second, each beneficiary must be either the owner's spouse,
child, grandchild, parent or sibling. Third, the beneficiaries must be
specifically named
[[Page 38646]]
in the deposit account records of the depository institution. And
fourth, the account must evidence an intent that the funds shall belong
unconditionally to the designated beneficiaries upon the owner's death
(12 CFR 330.10(a) and (b)).
As noted, the most common form of revocable trust account is the
POD account, consisting simply of a signature card. With POD accounts,
the fourth requirement for per-beneficiary coverage does not present a
problem because the signature card normally will not include any
conditions upon the interests of the designated beneficiaries. In other
words, the signature card provides that the funds shall belong to the
beneficiaries upon the owner's death. In contrast, many living trust
agreements provide, in effect, that the funds might belong to the
beneficiaries depending on various conditions.
The FDIC refers to such conditions as ``defeating contingencies''
if they create the possibility that the beneficiaries may never receive
the funds following the owner's death. In the presence of a defeating
contingency, the revocable trust account is not entitled to separate
insurance coverage. Rather, the funds are aggregated with the funds in
any single-ownership accounts held by the owner at the same insured
depository institution and insured to a combined limit of $100,000 (12
CFR 330.10(c) and (f)).
Living trust accounts started to emerge in the late 1980s and early
1990s. At that time, the FDIC responded to a significant number of
questions about the insurance coverage of such accounts, often times
reviewing the actual trust agreements to determine whether the
requirements for per-beneficiary insurance were satisfied. In the
FDIC's review of numerous such trusts, it determined that many of the
trusts included conditions that needed to be satisfied before the named
beneficiaries would become the owners of the trust assets. For example,
some trusts required that the trust assets first be used to satisfy
legacies in the grantor's will; the remaining assets, if any, would
then be distributed to the trust beneficiaries. Other trusts provided
that, in order to receive any benefit under the trust, the beneficiary
must graduate from college. Because of the prevalence of defeating
contingencies among living trust agreements and the increasing number
of requests to render opinions on the insurance coverage of specific
living trust accounts, in 1994 the FDIC issued ``Guidelines for
Insurance Coverage of Revocable Trust Accounts (Including `Living
Trust' Accounts)'' (FDIC Advisory Opinion 94-32, May 18, 1994). The
Guidelines, which were revised in April 1999 to reflect changes to the
regulations (adding parents and siblings as qualifying beneficiaries),
provide a general explanation of the insurance coverage for revocable
trust accounts and a detailed explanation of how those rules apply to
living trust accounts. The subject of defeating contingencies is
explained at length in the Guidelines. The Guidelines are available at
the FDIC's Web site, www.FDIC.gov, and are available upon request from
the FDIC.
As part of its overall simplification of the deposit insurance
regulations, in 1998 the FDIC revised Sec. 330.10 to include a
provision explaining the insurance coverage rules for living trust
accounts (12 CFR 330.10(f)). That provision includes a definition of
defeating contingencies.
Despite the FDIC's issuance of guidelines on the insurance coverage
of living trust accounts and its inclusion of a special provision in
the insurance regulations explaining the coverage of these accounts,
there still is significant public and industry confusion about the
insurance of living trusts accounts.
Time has shown that the basic rules on the coverage of POD accounts
are not adaptable to living trust accounts. The POD rules were written
to apply to signature-card accounts, not lengthy, detailed trust
documents. Because living trust accounts and PODs are subject to the
same insurance rules and analysis, depositors often mistakenly believe
that living trust accounts are automatically insured up to $100,000 per
qualifying beneficiary without regard to any terms in the trust that
might prevent the beneficiary from ever receiving the funds. Our
experience indicates that in a significant number of cases that is not
so. Because of the existence of defeating contingencies in the trust
agreement, a living trust account often fails to satisfy the
requirements for per-beneficiary coverage. Thus, the funds in the
account are treated as the owner's single-ownership funds and, after
being added to any other single-ownership funds the owner has at the
same institution, insured to a limit of $100,000. The funds in a non-
qualifying living trust account with more than one owner are deemed the
single-ownership funds of each owner, with the corresponding
attribution of the funds to each owner's single-ownership accounts.
The FDIC believes the rules governing the insurance of living trust
accounts are too complex and confusing. Under the current rules, the
amount of insurance coverage for a living trust account can only be
determined after the trust document has been reviewed to determine
whether there are any defeating contingencies. Consequently, in
response to questions about coverage of living trust accounts, the FDIC
can only advise depositors and bankers that they should assume that
such accounts will be insured for no more than $100,000 per grantor.
Otherwise, the FDIC suggests that the owners of living trust accounts
seek advice from the attorney who prepared the trust document.
Depositors who contact the FDIC about their living trust insurance
coverage are often troubled to learn that they cannot definitively
determine the amount of their coverage without a legal analysis of
their trust document. Also, when a depository institution fails the
FDIC must review each living trust to determine whether the
beneficiaries' interests are subject to defeating contingencies. This
often is a time-consuming process, sometimes resulting in a significant
delay in making deposit insurance payments to living trust account
owners.
II. Alternative Proposed Rules
To address this situation, the FDIC is proposing to simplify the
insurance coverage rules for living trust accounts. The FDIC has
identified what it believes to be two viable alternatives to address
the confusion surrounding the insurance coverage of living trust
accounts.
Proposed Rule--Alternative One
The first alternative for simplifying and clarifying the insurance
rules for living trust accounts would be to provide coverage up to
$100,000 per qualifying beneficiary named in the living trust
irrespective of defeating contingencies (``Alternative One''). As
explained above, currently both POD and living trust accounts are
insured as revocable trust accounts and thus are subject to the same
rules. Alternative One would retain this parallel treatment of POD
accounts and living trust accounts by continuing to provide per-
qualifying-beneficiary coverage, but no longer requiring that a
beneficiary's interest in a living trust be free from defeating
contingencies.
Any conditions in the trust document affecting whether a
beneficiary would ultimately receive his or her share of the trust
assets would be irrelevant. The FDIC would identify the beneficiaries
and their ascertainable interests in the trust from the depository
institution's account records and provide coverage on the account up to
$100,000 per qualifying beneficiary, subject to the same rules that now
apply to POD accounts. For example, a deposit account for a living
trust naming three
[[Page 38647]]
qualifying beneficiaries (with equal ownership interests in the trust)
would be insured up to $300,000, as long as the account is designated
as a living trust account and the beneficiaries and their respective
interests in the trust are indicated in the institution's deposit
account records. This coverage would be the same as that afforded to a
POD account with three qualifying beneficiaries.
Under Alternative One, as currently the case, the insurance
coverage provided for living trust accounts would be under the same
category of coverage as POD accounts. Thus, all funds that a depositor
holds in both living trust accounts and POD accounts naming the same
beneficiaries would be aggregated for insurance purposes. For example,
assume a depositor has a living trust account for $200,000 in
connection with a living trust naming his children, A and B. If the
depositor also has a $200,000 POD account naming A and B, the combined
coverage on the two accounts would be $200,000.
As with POD accounts, under Alternative One insurance coverage
would be provided up to $100,000 per qualifying beneficiary limited to
each beneficiary's ascertainable interest in the trust. Thus, if a
living trust provided that upon the grantor's death one qualifying
beneficiary received $125,000 and another qualifying beneficiary
received $75,000, the coverage on a corresponding living trust account
with a balance of $200,000 would be $175,000. The process would be to
identify the number of qualifying beneficiaries, determine each
beneficiary's ascertainable interest in the trust, and insure the
account up to $100,000 per such interest. Here the first qualifying
beneficiary has an ascertainable interest of $125,000. Based on that
beneficiary's interest in the trust, $100,000 of the balance in the
account would be insured and $25,000 would be uninsured. The second
qualifying beneficiary has an ascertainable interest of $75,000, all of
which would be eligible for coverage.
This methodology for determining living trust account coverage
would be consistent with existing rules. The FDIC's insurance
regulations now base the coverage for revocable trust accounts on the
beneficiaries' interests. Typically with POD accounts the beneficiaries
have an equal ownership interest in the account; thus, the rules
indicate that such ownership interests are deemed equal unless
otherwise specified in the institution's deposit account records. With
living trusts, beneficiaries commonly have different ownership
interests. For example, the trust might provide that beneficiary A
receives $50,000 and beneficiary B receives $100,000. In order for the
FDIC to determine the insurance coverage for living trust accounts, it
is important that the institution's deposit account records indicate
each beneficiary's ownership interest in the trust. Thus, the proposed
rule expressly requires that the deposit account records of the
institution indicate the ownership interest of each beneficiary in the
living trust. The information could be in the form of the dollar amount
of each beneficiary's interest or on a percentage basis relative to the
total amount of the trust assets. If such information is not provided
in the institution's records, the FDIC would have the discretion to
review the living trusts upon a depository institution's failure to
obtain the necessary information, but this review process would
substantially slow the payment of insured deposits to living trust
account holders.
Because a living trust sometimes provides for different levels of
beneficiaries whose interests in the trust depend on certain
conditions, in some situations it might be infeasible to identify and
indicate in a depository institution's records the ownership interest
of each beneficiary. For example, a living trust might provide that,
upon the grantor's death, the grantor's spouse receives all of the
trust assets; but, if the spouse predeceases the grantor, then the
grantor's two children each receives fifty percent of the trust assets.
The FDIC requests specific comment on how this situation should be
treated under Alternative One. One option would be for the FDIC to deem
each beneficiary to have an equal share in a trust that provides for
multi-tiered beneficiaries.
Under Alternative One, as now with POD accounts, insurance coverage
would be affected by the existence of non-qualifying beneficiaries in
the living trust. The current rule is that the trust interest
attributable to a non-qualifying beneficiary is considered the
grantor's single-ownership funds and, along with any other single-
ownership funds held by the owner at the institution, insured to a
combined limit of $100,000. For example, a deposit account with a
balance of $300,000 held in connection with a living trust naming the
grantor's two children and nephew as beneficiaries would be insured up
to $200,000 as to the living trust account. The $100,000 attributed to
the non-qualifying beneficiary (the nephew) would be considered the
grantor's single-ownership funds. If the grantor has no other single-
ownership funds at the institution, the $100,000 attributed to the non-
qualifying beneficiary in the living trust account would be fully
insured under the single-ownership account category. If in this
example, however, the grantor also has a single-ownership account with
a balance of $50,000, then that amount would be added to the $100,000
from the living trust account (attributable to the non-qualifying
beneficiary) and insured to a combined limit of $100,000. Thus, overall
the depositor's funds would be insured for $300,000 and uninsured for
$50,000. Both examples would yield the same result as a similar POD
account with non-qualifying beneficiaries. As currently required for
all revocable trust accounts, the depository institution's deposit
account records would have to indicate the names of all the trust
beneficiaries.\1\
---------------------------------------------------------------------------
\1\ The treatment also would be the same for PODs and living
trust accounts where there are no non-qualifying beneficiaries named
in the trust, but the balance in the account exceeds the maximum
available coverage. For example, if a grantor has a $200,000 living
trust account and there is only one qualifying beneficiary named in
the trust (and no non-qualifying beneficiaries), the coverage would
be limited to $100,000. As under current rules, the excess $100,000
would be uninsured. The result would be the same for a POD account
where the account balance exceeds the maximum insured amount
determined by the number of qualifying beneficiaries.
---------------------------------------------------------------------------
The FDIC believes Alternative One would be an easily understood
rule on the insurance coverage of living trust accounts. Coverage would
no longer depend on defeating contingencies in the trust; thus,
depositors would have a clear understanding of their account coverage.
Also, assuming depository institutions' records contain the living
trust information required under Alternative One, the FDIC would be
able to make expeditious payments to insured depositors when an
institution fails.
Under Alternative One, in making deposit insurance determinations
upon an institution failure, the FDIC would rely primarily on a
depository institution's deposit account records to identify living
trust beneficiaries and their interests in the trust. As under current
procedures, the FDIC would request living trust account holders to sign
an affidavit on whether the identified beneficiaries are qualifying
beneficiaries (i.e., the grantor's spouse, child, grandchild, parent or
sibling) for purposes of determining the amount of deposit insurance.
In order to identify possible errors in institution documentation and
to avoid potential fraud, the FDIC also would review a percentage of
the living trusts underlying the respective living trust accounts.
[[Page 38648]]
Current FDIC rules do not require that the institution's records
indicate the kinship relationship between a revocable trust account
owner and the trust beneficiaries. In this regard the rules require
only that the beneficiaries be named in the institution's deposit
account records. As indicated, when an institution fails the FDIC
requests a revocable trust account depositor to provide an affidavit
specifying the relationship between the owner and each beneficiary,
indicating whether those individuals are qualifying beneficiaries. In
order to avoid the delay in paying claims caused by having depositors
provide such an affidavit when an institution fails, one option would
be for the FDIC to require institutions to obtain beneficiary
relationship information when a depositor opens or amends a living
trust or POD account. At that time the depositor would sign an
affidavit indicating whether each beneficiary is a qualifying
beneficiary. This additional information would further expedite
payments to living trust and POD depositors when an institution fails,
but would impose an additional recordkeeping requirement on depository
institutions. The FDIC seeks specific comment on this option.
One consequence of Alternative One is that it likely would result
in an increase in deposit insurance coverage. The reason is that,
unlike under the current rules, beneficiaries would not have to have an
unconditional interest in the trust in order for the account to be
eligible for per-qualifying-beneficiary coverage. For example, assume a
trust provided that upon the grantor's death the grantor's spouse would
receive $100,000 and each of the grantor's three children would receive
$100,000, but only if each graduated from college by age twenty-four.
Under Alternative One, the amount of coverage would be up to $400,000.
Under the current rules, because of the defeating contingency that each
of children graduates from college by age twenty-four, the maximum
coverage would be limited to $100,000. As indicated in the table below,
based on a sampling of accounts at recent depository institution
failures, FDIC staff found that under Alternative One there would have
been an increase in insured living trust deposits.
Table 1.--Sampling of Accounts Under Alternative One
| |
Instituion 1
(millions) |
Instituion 2
(millions) |
Instituion 3
(millions) |
| Total Living Trust Deposits |
$132 |
$175 |
$30 |
| Total Insured Living Trust Deposits
Under Current Rules |
128 |
169 |
28 |
| Total Insured Living Trust Deposits
Under Alternative One |
131 |
173 |
29 |
It is uncertain the extent to which Alternative One as a final rule
would increase the overall volume of insured deposits in the depository
institutions industry. One reason for the uncertainty is that no
industry-wide data are maintained on this type of deposit account.
Thus, it is unclear what, if any, effect an increase in insured living
trust deposits resulting from the issuance of Alternative One as a
final rule would have on the Bank Insurance Fund (``BIF'') and Savings
Association Insurance Fund (``SAIF'') reserve ratios. The reserve
ratios are determined by dividing the BIF and SAIF fund balances by the
estimated insured deposits held by BIF and SAIF members, respectively
(12 U.S.C. 1817(l)).
Proposed Rule--Alternative Two
The second alternative to address the confusion surrounding the
insurance coverage of living trust accounts is, in essence, to create a
separate category of coverage for living trust accounts and to insure
such accounts up to $100,000 per owner of the account (``Alternative
Two''). That individual would be insured up to a total of $100,000 for
all living trust accounts he or she has at the same depository
institution, regardless of the number of beneficiaries named in the
trust, the grantor's relationship to the beneficiaries and whether
there are any defeating contingencies in the trust. The deposit
insurance coverage for a living trust account would be separate from
the coverage afforded to any single-ownership accounts the owner may
have at the same depository institution. In addition, if that
individual also has a POD account, that account would be eligible for
separate, per-beneficiary POD coverage, regardless of the existence of
the living trust account (assuming the requirements for POD coverage
are met). Where there are joint owners of a living trust account, the
account would be insured up to $100,000 per grantor. Such insurance
would be separate from the available joint and single-ownership
coverage of each grantor.
For example, a depositor with $100,000 in a living trust account,
$100,000 in a POD account (naming a qualifying beneficiary) and
$100,000 in a single-ownership account would be fully insured as to
each account (assuming compliance with the applicable procedural
requirements). Under Alternative Two the coverage on a living trust
account would be separate from a depositor's coverage on other
categories of accounts, such as POD and single-ownership accounts.
The FDIC believes Alternative Two would make the deposit insurance
rules for living trust accounts simple and easy to understand. With
this knowledge, depositors would be able to make informed decisions on
how to obtain the maximum insurance coverage on living trust accounts.
In addition, depository institutions would not have to indicate in
their deposit account records the names of the trust beneficiaries and
their trust interests.
Also, under this proposal the FDIC would be able to pay insured
living trust account holders expeditiously when an institution fails.
Currently a significant percentage of living trust depositors must each
produce their living trust for FDIC review upon a depository
institution failure. This process delays the payment process and
sometimes results in privacy concerns raised by depositors. Alternative
Two would eliminate these issues because the FDIC would no longer need
to review the living trust to determine the names of the beneficiaries
and their ascertainable interests in the trust.
One consequence of this proposal is that it likely would result in
reduced coverage for trust account owners with living trusts naming
more than one qualifying beneficiary. For example, currently an account
for a living trust with one grantor and three qualifying beneficiaries,
with no defeating contingencies, would be eligible for coverage up to
$300,000. Under Alternative Two coverage on the account would be
limited to $100,000. As indicated in the table below, based on a
sampling of accounts at recent depository institution failures, FDIC
staff found that under Alternative Two there would have been a decrease
in insured living trust deposits.
[[Page 38649]]Table 2.--Sampling of Accounts Under Alternative Two
|
Blank |
Instituion 1
(millions) |
Instituion 2
(millions) |
Instituion 3
(millions) |
| Total Living Trust Deposits |
$132 |
$175 |
$30 |
| Total Insured Living Trust Deposits
Under Current Rules |
128 |
169 |
28 |
| Total Insured Living Trust Deposits
Under Alternative One |
131 |
173 |
29 |
| Total Insured Living Trust Deposits Under Alternative Two |
124 |
168 |
23 |
Thus, it seems likely that some depositors would experience a
reduction in living trust account coverage under Alternative Two. A
grantor with over $100,000 in living trust assets can have the funds
fully insured, however, by placing up to $100,000 in different FDIC-
insured depository institutions using the same trust document.
The FDIC believes that eliminating the widespread confusion
surrounding the insurance coverage of living trust accounts would
warrant the rule change. We have found that one reason for the current
high percentage of uninsured living trust accounts at failed
institutions is depositor misunderstanding of the applicable deposit
insurance rules. As a result, the FDIC has found at recent depository
institution failures that depositors with living trust accounts were
unaware and surprised that they were uninsured, especially because they
had used an attorney to prepare the living trust. Alternative Two
eliminates the current confusion and provides a simple rule for
depositors to follow to ensure they are fully insured. As under
Alternative One, under Alternative Two the potential exists for far
less unintended uninsured funds compared to the existing rule. It is
predictable that, when informed of the new rules on the insurance
coverage of living trust accounts, depositors would take the necessary
steps to obtain the maximum available deposit insurance coverage.
To mitigate Alternative Two's potential effect of decreasing
coverage for some depositors, the FDIC would propose to provide a six-
month grace period after the effective date of the proposed rule.
Living trust accounts that exist on the effective date of the rule
change would continue to be insured under the former (per-beneficiary)
rules for six months. If the accounts are held in the form of time
deposits, then the grace period would be either until the maturity date
of the time deposits or six months, whichever is longer. Time deposits
renewed during the six-month grace period for the same dollar amount
and duration as the original deposit would be insured under the former
rules until the new maturity date. In some cases applying the proposed
rule might yield more coverage for a depositor than the depositor would
be entitled to under the former rules. In that situation the FDIC would
apply the rules more favorable for the depositor.
This six-month grace period would be analogous to the grace period
provided in the Federal Deposit Insurance Act for depositors who have
funds at merging depository institutions (12 U.S.C. 1818(q)). In
addition, if Alternative Two is ultimately adopted as a final rule, the
FDIC would take steps to inform the industry and the public of the rule
changes. In this connection, the FDIC is requesting comments on how
best to inform depositors of the revised rules for insuring living
trust accounts.
Procedural Requirements for Alternatives One and Two
As is currently the case for all revocable trust accounts, the
regulations would require that the deposit account be designated as a
revocable trust account (in this situation a living trust account). As
under the current POD rules, under Alternative One the rules would
require that the deposit account records of the institution indicate
the names of the trust beneficiaries and their ascertainable interests
in the trust. This would not be necessary under Alternative Two because
under that proposal insurance coverage is not based on trust
beneficiaries. Under Alternative One, when a depository institution's
deposit account records do not indicate the beneficiaries' names, the
living trust account would be insured as the grantor's single-ownership
funds to a combined limit of $100,000. This treatment would be the same
as at present for POD accounts that fail to satisfy the disclosure
requirements. The FDIC is proposing to retain the discretion to waive
these disclosure and recordkeeping requirements in order to ascertain,
upon an institution failure, whether a living trust actually exists
and/or to ascertain the identities of the trust beneficiaries and their
ownership interests in the trust. The purpose for this discretionary
waiver authority would be to prevent potential hardships to depositors
resulting from an institution's non-compliance with these procedural
requirements.
Under both alternative proposed rules the FDIC would require that,
when a depositor opens a living trust account, institutions certify in
their deposit account records the existence of the living trust. At
institution failures, FDIC staff must confirm the existence of a living
trust in order to provide coverage for the corresponding deposit
account. Currently, this is done by asking the depositor to present a
copy of the trust. The delay in making deposit insurance payments
associated with this process could be avoided if the institution's
deposit account records confirmed the existence of the trust. The
institution would simply ask to see a copy of the trust and note in its
deposit account records that such a trust exists. For institutions that
conduct business by telephone or via the internet, this requirement
could be satisfied, for example, by having the depositor mail or fax a
copy of the first and last pages of the trust.
Although it is not an FDIC requirement, many institutions currently
retain a copy of the first and last pages of depositors' living trusts.
Obtaining a copy of the first and last pages of the trust would satisfy
an institution's obligation under both Alternative proposals to certify
the existence of a revocable living trust. This documentation, however,
would not satisfy the requirements under Alternative One that the
institution's records disclose the names of the qualifying
beneficiaries and their interests in the trust, unless that information
is actually provided on the pages of the trust document kept in the
institution's records. Preliminarily, the FDIC believes the
certification requirement would pose minimal inconvenience to
institutions. Specific comment is requested on this requirement.
III. Request for Comments
The FDIC requests comments on all aspects of the proposed
rulemaking. In particular, please indicate whether you prefer
Alternative One (living trust coverage of $100,000 per qualifying
beneficiary irrespective of defeating
[[Page 38650]]
contingencies) or Alternative Two (coverage of $100,000 per grantor of
a living trust) If you suggest another alternative, please provide the
details of that suggestion.
Alternative One would expressly require that depository
institutions' deposit account records indicate the ownership interests
of living trust beneficiaries. Although this is currently a requirement
for all revocable trust accounts where beneficiaries have unequal
interests, the FDIC does not normally rely on the institution's records
for this information because the FDIC must review the living trusts
themselves for defeating contingencies. Under Alternative One defeating
contingencies would be irrelevant for deposit insurance determinations;
thus, the FDIC would rely primarily on an institution's records to
ascertain the beneficiaries' trust interests. The FDIC requests comment
on this aspect of Alternative One. For example, should the FDIC specify
a particular form for this purpose? Also, a living trust sometimes
provides for different levels of beneficiaries whose interests in the
trust depend on certain conditions. Thus, in some situations it might
be infeasible to identify and indicate in a depository institution's
records the ownership interest of each beneficiary named in the trust.
The FDIC requests specific comment on how this situation should be
treated under Alternative One.
Current FDIC rules do not require that the institution's records
indicate the kinship relationship between a revocable trust account
owner and the trust beneficiaries. In this regard the rules require
only that the beneficiaries be named in the institution's deposit
account records. Adding this requirement would further expedite the
insurance-payment process when an institution fails, but would result
in an additional recordkeeping requirement for depository institutions.
The FDIC seeks specific comment on this option.
As noted above, if finalized, Alternative One might result in an
overall increase in deposit insurance coverage and Alternative Two
might result in reduced living trust account coverage for some
depositors. Please comment on these aspects of the rulemaking. Also, if
Alternative Two is adopted as a final rule, how should existing
depositors be informed of this possible reduction in coverage?
For both proposals the FDIC would require that depository
institutions certify the existence of a living trust when a depositor
opens a living trust account. Please comment on this aspect of the
proposed rulemaking. In particular, how should this requirement be
applied to telephone and internet customers?
IV. Paperwork Reduction Act
No collections of information pursuant to the Paperwork Reduction
Act (44 U.S.C. 3501, et seq.) are contained in the proposed rule.
Consequently, no information has been submitted to the Office of
Management and Budget for review.
V. Regulatory Flexibility Act
The FDIC certifies that this proposed rule would not have a
significant economic impact on a substantial number of small businesses
within the meaning of the Regulatory Flexibility Act (5 U.S.C. 605(b)).
The requirement under the proposed rule that insured depository
institutions certify the existence of a living trust when a depositor
establishes a living trust account would take an institution employee
no more than a few minutes. Even for a depository institution with a
high volume of living trust accounts, this requirement would have no
significant impact. Accordingly, the Act's requirements relating to an
initial regulatory flexibility analysis is not applicable.
VI. The Treasury and General Government Appropriations Act, 1999--
Assessment of Federal Regulations and Policies on Families
The FDIC has determined that the proposed rule will not affect
family well-being within the meaning of section 654 of the Treasury and
General Government Appropriations Act, enacted as part of the Omnibus
Consolidated and Emergency Supplemental Appropriations Act of 1999
(Public Law 105-277, 112 Stat. 2681).
List of Subjects in 12 CFR Part 330
Bank deposit insurance, Banks, banking, Reporting and recordkeeping
requirements, Savings and loan associations, Trusts and trustees.
For the reasons set forth in the preamble, the Board of Directors
of the Federal Deposit Insurance Corporation proposes to amend part 330
of title 12 of the Code of Federal Regulations as follows:
PART 330--DEPOSIT INSURANCE COVERAGE
1. The authority citation for part 330 continues to read as
follows:
Authority: 12 U.S.C. 1813(l), 1813(m), 1817(i), 1818(q), 1819
(Tenth), 1820(f), 1821(a), 1822(c).
Proposed Rule--Alternative One
2. Section 330.10(f) is revised to read as follows:
Sec. 330.10 Revocable trust accounts.
* * * * *
(f) Living trusts accounts. (1) This section also applies to
revocable trust accounts held in connection with a ``living trust'' (or
``family trust''), a formal revocable trust created by an owner/grantor
and over which the owner/grantor retains control during his or her
lifetime. If a named beneficiary in a living trust is a qualifying
beneficiary under this section, then the account held in connection
with the living trust is eligible for the per-qualifying-beneficiary
coverage described in paragraph (a) of this section. Notwithstanding
any other provisions of the section, such coverage shall be provided
irrespective of any conditions in the trust that might prevent a
beneficiary from ultimately acquiring a vested and ascertainable
interest in the deposit account upon the account owner's death.
(Example: Depositor A has a living trust account with a balance of
$300,000. The trust provides that, upon the grantor's death, the
grantor's husband shall receive $100,000 and each of her two children
shall receive $100,000, but only if they graduate from college by age
twenty-four. Assuming A has no other revocable trust accounts at the
same depository institution, the coverage on her living trust account
would be $300,000. The trust names three qualifying beneficiaries.
Coverage would be provided up to $100,000 per qualifying beneficiary
regardless of contingencies.)
(2) The rules in paragraph (c) of this section on the interest of
non-qualifying beneficiaries apply to living trust accounts.
(3) In order for a depositor to qualify for the living trust
account coverage provided under this paragraph (f), the title of the
account must reflect that the funds in the account are held pursuant to
a formal revocable trust. Also, the deposit accounts records of the
depository institution must indicate the names of the beneficiaries of
the living trust and their ownership interests in the trust. Upon the
closing of a depository institution, in its discretion the FDIC may
waive these disclosure and recordkeeping requirements in order to
ascertain whether a living trust actually exists and/or to ascertain
the identities of the trust beneficiaries and their ownership interests
in the trust.
(4) Insured depository institutions must certify in their deposit
accounts records the existence of a living trust
[[Page 38651]]
when a depositor opens a living trust account.
Proposed Rule'Alternative Two
2. Section 330.10(f) is revised to read as follows:
Sec. 330.10 Revocable trust accounts.
* * * * *
(f) Living trusts accounts. (1) Funds held in one or more accounts
established in connection with a ``living trust'' (or ``family trust'')
shall be separately insured up to $100,000 as to each owner/grantor of
the living trust, irrespective of the number of qualifying and non-
qualifying beneficiaries named in the living trust. A living trust is
defined generally as a formal revocable trust created by an owner/
grantor and over which the owner/grantor retains control during his or
her lifetime. (Example: Depositor A has $200,000 in a living trust
account. The living trust names A's two children as beneficiaries.
Assuming A has no other living trust accounts at the same depository
institution, A's insurance coverage would be $100,000 for the living
trust account. Because living trust coverage is limited to $100,000 per
owner, $100,000 of A's funds would be uninsured. If the living trust
had two owners/grantors, then the living trust account would be insured
to $200,000.)
(2) The insurance coverage for living trust accounts is separate
from the coverage provided under other provisions of this part,
including coverage for other types of revocable trust accounts.
(Example: Depositor A has $100,000 in a living trust account; $100,000
in a payable-on-death account (naming a qualifying beneficiary) and
$25,000 in a single-ownership account. Assuming A has no other accounts
at the same depository institution, A's insurance coverage would be
$100,000 for the living trust account, $100,000 for the POD account,
and $25,000 for the single-ownership account. Living trust coverage is
separate from a depositor's coverage on POD and single-ownership
accounts.)
(3) In order for a depositor to qualify for the living trust
account coverage provided under this paragraph (f), the title of the
account must reflect that the funds in the account are held pursuant to
a formal revocable trust.
(4) Insured depository institutions must certify in their deposit
accounts records the existence of a living trust when a depositor opens
a living trust account. (The current industry practice of maintaining
copies of the first and last pages of a depositor's living trust would
be one way to satisfy this requirement.)
(5) Living trust accounts that exist on [the effective date of this
amendment] shall continue to be insured under the FDIC's former rules
for the insurance coverage of living trust accounts for six months from
[the effective date of this amendment]. If the accounts are held in the
form of time deposits, then the grace period expires either upon the
maturity date of the time deposits or six months after [the effective
date of this amendment], whichever is later. Time deposits renewed
during the six-month grace period for the same dollar amount and
duration as the original deposit are insured under the former rules
until the new maturity date. If, however, during this grace period it
would be more beneficial for a depositor to be insured under the
amended rules than under the former rules, the FDIC shall apply the
rules more favorable for the depositor.
Dated: May 7, 2003.
By order of the Board of Directors of the Federal Deposit
Insurance Corporation.
Robert E. Feldman,
Executive Secretary.
[FR Doc. 03-16400 Filed 6-27-03; 8:45 am]
BILLING CODE 6714-01-P
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