Rule2024-21888
Simplification of Share Insurance Rules
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 30, 2024
Effective
December 1, 2026
Issuing agencies
National Credit Union Administration
Abstract
The NCUA Board (Board) is amending its regulations governing share insurance coverage. The final rule simplifies the share insurance regulations by establishing a "trust accounts" category that will provide for coverage of funds of both revocable trusts and irrevocable trusts deposited at federally insured credit unions (FICUs), provides consistent share insurance treatment for all mortgage servicing account balances held to satisfy principal and interest obligations to a lender, and increases flexibility for the NCUA to consider various records in determining share insurance coverage in liquidations. The changes also increase consistency between the FDIC's Federal deposit insurance rules and the NCUA's share insurance rules.
Full Text
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<title>Federal Register, Volume 89 Issue 189 (Monday, September 30, 2024)</title>
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[Federal Register Volume 89, Number 189 (Monday, September 30, 2024)]
[Rules and Regulations]
[Pages 79397-79416]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-21888]
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NATIONAL CREDIT UNION ADMINISTRATION
12 CFR Part 745
[NCUA-2023-0082]
RIN 3133-AF53
Simplification of Share Insurance Rules
AGENCY: National Credit Union Administration (NCUA).
ACTION: Final rule.
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SUMMARY: The NCUA Board (Board) is amending its regulations governing
share insurance coverage. The final rule simplifies the share insurance
regulations by establishing a ``trust accounts'' category that will
provide for coverage of funds of both revocable trusts and irrevocable
trusts deposited at federally insured credit unions (FICUs), provides
consistent share insurance treatment for all mortgage servicing account
balances held to satisfy principal and interest obligations to a
lender, and increases flexibility for the NCUA to consider various
records in determining share insurance coverage in liquidations. The
changes also increase consistency between the FDIC's Federal deposit
insurance rules and the NCUA's share insurance rules.
DATES: This rule is effective on December 1, 2026, except for the
amendments to 12 CFR 745.2(c)(2) (instruction 5), 745.3 (instruction
7), and 745.14 (instruction 13), which are effective October 30, 2024.
FOR FURTHER INFORMATION CONTACT: Office of General Counsel: Thomas
Zells and Rachel Ackmann, Senior Staff Attorneys; or Robert Leonard,
Compliance Officer at (703) 518-6540 or by mail at National Credit
Union Administration, 1775 Duke Street, Alexandria, Virginia 22314.
Office of Credit Union Resources and Expansion (CURE): Paul Dibble,
Consumer Access Program Officer; or Rita Woods, Director of Consumer
Access at (703) 518-1150 or by mail at National Credit Union
Administration, 1775 Duke Street, Alexandria, Virginia 22314.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. General Background and Legal Authority
A. General Background
B. Legal Authority
II. Simplification of Share Insurance Trust Rules
A. Notice of Proposed Rulemaking
B. Policy Objectives
C. Background and Need for Rulemaking
1. Evolution of Insurance Coverage of Funds Held in Trust
Accounts
2. Current Rules for Coverage of Funds Held in Trust Accounts
3. Need for Further Rulemaking
D. Final Rule
E. Examples Demonstrating Coverage Under Current and Final Rules
F. Discussion of Comments
III. Amendments to Mortgage Servicing Account Rule
A. Policy Objectives
B. Background and Need for Rulemaking
C. Final Rule
D. Discussion of Comments
IV. Recordkeeping Requirements
A. Policy Objectives
B. Background and Need for Rulemaking
C. Final Rule
D. Discussion of Comments
V. Regulatory Procedures
A. Regulatory Flexibility Act
B. Paperwork Reduction Act
C. Executive Order 13132 on Federalism
D. Assessment of Federal Regulations and Policies on Families
E. Small Business Regulatory Enforcement Fairness Act
(Congressional Review Act)
I. General Background and Legal Authority
A. General Background
The NCUA is an independent Federal agency that insures funds
maintained in accounts of members or those otherwise eligible to
maintain insured accounts (member accounts) at FICUs, protects the
members who own FICUs, and charters and regulates Federal credit unions
(FCUs). The NCUA protects the safety and soundness of the credit union
system by identifying, monitoring, and reducing risks to the National
Credit Union Share Insurance Fund (Share Insurance Fund). Backed by the
full faith and credit of the United States, the Share Insurance Fund
provides Federal share insurance to account holders in all FCUs and the
majority of state-chartered credit unions.
B. Legal Authority
The Board has issued this final rule pursuant to its authority
under the FCU Act. Under the Federal Credit Union Act (FCU Act), in the
event of a FICU's failure the NCUA is responsible for paying share
insurance to any member, or to any person with funds lawfully held in a
member account,\1\ up to the standard maximum share insurance amount
(SMSIA), which is currently set at $250,000.\2\ The FCU Act provides
that the NCUA Board must determine the amount payable consistently with
actions taken by the FDIC under its deposit insurance rules.\3\ The FCU
Act also grants the NCUA express authority to issue regulations on the
determination of the net amount of share insurance paid.\4\ The FCU Act
further provides that ``in determining the amount payable to any
member, there shall be added together all accounts in the credit union
maintained by that member for that member's own benefit, either in the
member's own name or in the names of others.'' \5\ However, the FCU Act
also specifically authorizes the Board to ``define, with such
classifications and exceptions as it may prescribe, the extent of the
share insurance coverage provided for member accounts, including member
accounts in the name of a minor, in trust, or in joint tenancy.'' \6\
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\1\ See 12 U.S.C. 1752(5).
\2\ 12 U.S.C. 1787(k)(1)(A), (k)(6).
\3\ 12 U.S.C. 1787(k)(1)(A).
\4\ 12 U.S.C. 1787(k)(1)(B). The FCU Act states that
``[d]etermination of the net amount of share insurance . . . ``shall
be in accordance with such regulations as the Board may prescribe.''
\5\ 12 U.S.C. 1787(k)(1)(B).
\6\ 12 U.S.C. 1787(k)(1)(C).
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The NCUA has implemented these requirements by issuing regulations
recognizing particular categories of accounts, such as single ownership
accounts, joint ownership accounts, revocable trust accounts, and
irrevocable trust accounts.\7\ If an account meets the requirements for
a particular category, the account is insured, up to the $250,000
limit, separately from shares held by the member in a different account
category at the same FICU. For example, provided all requirements are
met, shares in the single ownership category will be separately insured
from shares in the joint ownership category held by the same member at
the same FICU.
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\7\ 12 CFR part 745.
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The NCUA's share insurance categories have been defined through
both statute and regulation. Certain categories, such as the accounts
held by
[[Page 79398]]
government depositors \8\ and certain retirement accounts, including
individual retirement accounts, have been expressly defined by
Congress.\9\ Other categories, such as joint accounts \10\ and
corporate accounts,\11\ have been based on statutory interpretation;
these accounts have been recognized through regulations issued in 12
CFR part 745 pursuant to the NCUA's rulemaking authority. In addition
to defining the insurance categories, the share insurance regulations
in part 745 provide the criteria used to determine insurance coverage
for shares in each category.
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\8\ See 12 U.S.C. 1787(k)(2).
\9\ See 12 U.S.C. 1787(k)(3).
\10\ 12 CFR 745.8.
\11\ 12 CFR 745.6.
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Notably, the FCU Act also defines the term ``member account.'' The
NCUA insures member accounts at all FICUs.\12\ Importantly, this term
is not limited to those persons enumerated in the credit union's field
of membership who have become members. It also includes as member
accounts certain nonmembers, such as other nonmember credit unions;
nonmember public units and political subdivisions; and, in the case of
credit unions serving predominantly low-income members, deposits of
nonmembers generally. In other words, the NCUA provides share insurance
coverage to members and those otherwise eligible to maintain insured
accounts at FICUs.
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\12\ 12 U.S.C. 1752(5).
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Finally, in addition to specific authority to draft share insurance
regulations under Sec. 1787 of the FCU Act, the NCUA also has general
rulemaking authority. Under the FCU Act, the NCUA is the chartering and
supervisory authority for FCUs and the Federal supervisory authority
for FICUs.\13\ The FCU Act grants the NCUA a broad mandate to issue
regulations governing both FCUs and FICUs. Section 120 of the FCU Act
is a general grant of regulatory authority, and it authorizes the Board
to prescribe rules and regulations for the administration of the FCU
Act.\14\ Section 207 of the FCU Act is a specific grant of authority
over share insurance coverage, conservatorships, and liquidations.\15\
Section 209 of the FCU Act is a plenary grant of regulatory authority
to the NCUA to issue rules and regulations necessary or appropriate to
carry out its role as share insurer for all FICUs.\16\ Accordingly, the
FCU Act grants the Board broad rulemaking authority to ensure the
credit union industry and the Share Insurance Fund remain safe and
sound.
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\13\ 12 U.S.C. 1751 et seq.
\14\ 12 U.S.C. 1766(a).
\15\ 12 U.S.C. 1787.
\16\ 12 U.S.C. 1789(a)(11).
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II. Simplification of Share Insurance Trust Rules
A. Notice of Proposed Rulemaking
At its October 19, 2023, meeting, the Board issued a proposed rule
to simplify the regulations governing share insurance coverage
(proposed rule).\17\ The proposed rule primarily sought to simply share
insurance coverage rules and increase consistency with changes adopted
by the FDIC in January 2022. The Board's overall objective was to
facilitate the prompt payment of share insurance in accordance with the
FCU Act. As discussed in more detail later in this preamble, the Board
is finalizing the proposed changes to the share insurance regulations
as proposed.
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\17\ 88 FR 73249 (Oct. 25, 2023).
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B. Policy Objectives
The Board is amending its regulations governing share insurance
coverage for funds held in member accounts at FICUs in connection with
trusts.\18\ Like the proposed rule, the amendments of the final rule
are primarily intended to do the following: (1) provide a rule for
trust account coverage that is easier to understand and apply; (2)
provide parity with changes the FDIC adopted in January 2022; \19\ and
(3) facilitate the prompt payment of share insurance in accordance with
the FCU Act. Accomplishing these objectives will further the NCUA's
mission in other respects, as discussed in greater detail later in this
preamble.
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\18\ Trusts include informal revocable trusts (commonly referred
to as payable-on-death accounts, in-trust-for accounts, or Totten
trusts), formal revocable trusts, and irrevocable trusts.
\19\ 87 FR 4455 (Jan. 28, 2022).
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Clarifying Insurance Coverage for Trust Accounts
The share insurance trust rules have evolved over time, and they
can be difficult to apply in some circumstances. The amendments are
intended to clarify the insurance rules and trust-account limits for
FICUs, their employees, their accountholders, and other interested
parties. The amendments reduce the number of rules governing coverage
for trust accounts, and they establish a straightforward calculation to
determine coverage. The amendments are also intended to alleviate some
of the confusion that FICUs, their employees, and their accountholders
may experience with respect to insurance coverage and limits.
Under the regulations currently in effect (current rules), there
are distinct and separate sets of rules applicable to shares of
revocable trusts as opposed to irrevocable trusts. Each set of rules
has its own criteria for coverage and methods by which coverage is
calculated. Despite the NCUA's efforts to simplify the revocable trust
rules in 2008, the consistently high volume of complex inquiries about
trust accounts over an extended period suggests continued confusion
about insurance limits.\20\ NCUA share insurance specialists have
answered over 17,000 calls with questions since the fourth quarter of
2019.\21\ The NCUA estimates that over 50 percent of these inquiries,
which do not include those received through email, submitted through
<a href="http://mycreditunion.gov">mycreditunion.gov</a>, or directed to NCUA staff responsible for credit
union liquidations, pertain to share insurance coverage for trust
accounts (revocable or irrevocable). Additionally, comments received in
response to the proposal also support the notion that there continues
to be confusion regarding share insurance coverage of trust accounts.
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\20\ 73 FR 60616 (Oct. 14, 2008).
\21\ The NCUA's Office of Credit Union Resources and Expansion,
which fields most share insurance inquiries, only began tracking
calls received on October 31, 2019. The high volume of trust-related
inquires predates this tracking.
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To better clarify insurance limits, the amendments will further
simplify insurance coverage of trust accounts (revocable and
irrevocable) by harmonizing the coverage criteria for revocable and
irrevocable trust accounts and by establishing a simplified formula for
calculating coverage that would apply to these funds deposited at
FICUs. The final rule uses the calculation the NCUA first adopted in
2008 for revocable trust accounts with five or fewer beneficiaries.
This formula is straightforward and familiar to FICUs and their
members.\22\ The amendments will also eliminate formulas in the current
rules for revocable trust accounts with more than five beneficiaries
and irrevocable trust accounts.
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\22\ In 2008, the NCUA adopted an insurance calculation for
revocable trusts that have five or fewer beneficiaries. Under this
rule, 12 CFR 745.4(a), each trust grantor is insured up to $250,000
per beneficiary.
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Parity
Adoption of the final rule will also align with changes the FDIC
adopted in January 2022, which took effect on April 1, 2024.\23\ As the
Board stressed in the proposed rule, as well as in the 2021 final rule
addressing the share insurance
[[Page 79399]]
coverage of joint ownership accounts, the Board believes it is
important to maintain parity, to the extent possible, between the
nation's two Federal deposit and share insurance programs, which are
backed by the full faith and credit of the United States.\24\ The Board
believes it is important that members of the public who use trust
accounts receive the same protection whether the accounts are
maintained at FICUs or other federally insured institutions.
Consistency between the FDIC's Federal deposit insurance rules and the
NCUA's share insurance rules promotes public confidence in the safety
of funds at depository institutions regardless of whether the
institution is an insured bank or insured credit union.
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\23\ 87 FR 4455 (Jan. 28, 2022).
\24\ 86 FR 11098 (Feb. 24, 2021).
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Prompt Payment of Share Insurance
The FCU Act requires the NCUA to pay accountholders ``as soon as
possible'' after a FICU liquidation.\25\ However, the insurance
determination and subsequent payment for many trust accounts can be
delayed when NCUA staff must review complex trust agreements and apply
various rules for determining share insurance coverage. The final
rule's amendments are intended to facilitate more timely share
insurance determinations for trust accounts by reducing the time needed
to review trust agreements and determine coverage. These amendments
should promote the NCUA's ability to pay insurance proceeds to
accountholders more quickly following the liquidation of a FICU,
enabling accountholders to meet their financial needs and obligations.
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\25\ 12 U.S.C. 1787(d)(1).
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Facilitating Liquidations
The final rule's amendments will also facilitate the liquidation of
failed FICUs. The NCUA is routinely required to make share insurance
determinations in connection with FICU liquidations. In many of these
instances, however, share insurance coverage for certain trust accounts
is based upon information that is not maintained in the FICU's account
records. As a result, NCUA staff work with accountholders to obtain
trust documentation following a FICU's liquidation to complete share
insurance determinations. The difficulties associated with completing
such a determination are exacerbated by the substantial growth in the
use of formal trusts in recent decades. These amendments could reduce
the time spent reviewing such information, thereby reducing potential
delays in the completion of share insurance determinations and
payments.
C. Background and Need for Rulemaking
1. Evolution of Insurance Coverage of Funds Held in Trust Accounts
The NCUA first adopted regulations governing share insurance
coverage in 1971.\26\ Over the years, share insurance coverage has
evolved to reflect both the NCUA's experience and changes in the credit
union industry as well as statutory amendments.\27\
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\26\ 36 FR 2477 (Feb. 5, 1971).
\27\ See, 71 FR 56001 (Sept. 26, 2006) (implementing statutory
changes in the Federal Deposit Insurance Reform Act of 2005) and 80
FR 27109 (May 12, 2015) (implementing statutory changes in the
Credit Union Share Insurance Fund Parity Act).
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While the regulations addressing irrevocable trusts have undergone
minimal change, the regulations addressing revocable trusts have seen
numerous changes, largely aimed at providing increased flexibility and
simplifying coverage. Notably, in 2004 the NCUA amended the revocable
trust rules, pointing to continued confusion about the coverage for
revocable trust deposits and the need for parity with then recent FDIC
amendments.\28\ Specifically, the NCUA eliminated the defeating
contingency provisions of the rules, with the result that coverage
would be based on the interests of qualifying beneficiaries,
irrespective of any defeating contingencies in the trust agreement.\29\
This more closely aligned coverage for formal revocable trust accounts
with payable-on-death accounts. Importantly, and of relevance to this
final rule, defeating contingency provisions were not eliminated for
irrevocable trusts, and these provisions remain relevant for
calculating share insurance coverage under the current irrevocable
trust provisions.\30\ At the same time, the NCUA eliminated the
requirement to name the beneficiaries of a formal revocable trust in
the FICU's account records.\31\ The NCUA recognized a grantor may elect
to change the beneficiaries or the beneficiaries' interests at any time
before the grantor's death, and requiring a FICU to maintain a current
record of this information would be impractical and unnecessarily
burdensome.
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\28\ 69 FR 8798 (Feb. 26, 2004).
\29\ Prior to the changes adopted in 2004, if the interest of a
qualifying beneficiary in an account established under the terms of
a living trust agreement was contingent upon fulfillment of a
specified condition, referred to as a defeating contingency,
separate insurance was not available for that beneficial interest.
Instead, the beneficial interest would be added to any individual
account(s) of the grantor and insured up to the SMSIA, then
$100,000. An example of a defeating contingency is where an account
owner names his son as a beneficiary but specifies in the living
trust document that his son's ability to receive any share of the
trust funds is dependent upon him successfully completing college.
\30\ 12 CFR 745.2(d).
\31\ 69 FR 8798, 8799 (Feb. 26, 2004).
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More recently, the NCUA's experience and adoption of similar
revisions by the FDIC suggested further changes to the trust rules were
necessary. In 2008, the NCUA simplified the rules in several
respects.\32\ First, it eliminated the kinship requirement for
revocable trust beneficiaries, instead allowing any natural person,
charitable organization, or nonprofit to qualify for per-beneficiary
coverage. Second, a simplified calculation was established if a
revocable trust named five or fewer beneficiaries; in which case,
coverage would be determined without regard to the allocation of
interests among the beneficiaries. This simplification eliminated the
need to discern and consider beneficial interests in many cases.
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\32\ 73 FR 60616 (Oct. 14, 2008).
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A different insurance calculation applied to revocable trusts with
more than five beneficiaries. At that time, the SMSIA was $100,000;
thus, if more than five beneficiaries were named in a revocable trust,
coverage would be the greater of: (1) $500,000; or (2) the aggregate
amount of all beneficiaries' interests in the trust(s), limited to
$100,000 per beneficiary. When the SMSIA was increased to $250,000, a
similar adjustment was made from $100,000 to $250,000 for the
calculation of per-beneficiary coverage.
2. Current Rules for Coverage of Funds Held in Trust Accounts
The NCUA's current rules recognize two different insurance
categories for funds held in connection with trusts at FICUs: (1)
revocable trusts and (2) irrevocable trusts. The current rules for
determining insurance coverage for shares in each of these categories
are described below. Additionally, share insurance coverage is always
limited to FICU members and those otherwise eligible to maintain
insured accounts at the FICU. The NCUA's longstanding position has been
that, for revocable trust accounts, all grantors (sometimes described
as settlors) of the trust must be members of the FICU or otherwise
eligible to maintain an insured account.\33\ For irrevocable trust
accounts, the NCUA has maintained the position that either all grantors
(or settlors) or all beneficiaries of the trust
[[Page 79400]]
must be members of the FICU or otherwise eligible to maintain an
insured account.\34\
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\33\ See 12 CFR part 701, app. A. Art. III, sec. 6 (``Shares
issued in a revocable trust--the settlor must be a member of this
credit union in his or her own right.'').
\34\ See 12 CFR part 701, app. A. Art. III, sec. 6 (``Shares
issued in an irrevocable trust--either the settlor or the
beneficiary must be a member of this credit union.'').
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As described in greater detail in section II.E., in the 2023
proposal, the NCUA requested commenters' feedback as to whether these
positions should be revisited. This final rule will not alter these
longstanding positions. However, the NCUA will be continuing to
evaluate commenters' feedback and whether further changes are possible
and necessary.
Revocable Trust Accounts
The revocable trust category applies to funds for which the member
has evidenced an intention that the funds shall belong to one or more
beneficiaries upon the member's death. This category includes funds
held in connection with formal revocable trusts--that is, revocable
trusts established through a written trust agreement. It also includes
funds that are not subject to a formal trust agreement, where the FICU
makes payment to the beneficiaries identified in the FICU's records
upon the member's death, based on account titling and applicable state
law. The NCUA refers to these types of accounts, including Totten trust
accounts, payable-on-death accounts, and similar accounts, as
``informal revocable trusts.'' Funds associated with formal and
informal revocable trusts are aggregated for the purposes of the share
insurance rules; thus, funds that will pass from the same grantor to
beneficiaries are aggregated and insured up to the SMSIA, currently
$250,000, per beneficiary, regardless of whether the transfer would be
accomplished through a written revocable trust or an informal revocable
trust.\35\
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\35\ 12 CFR 745.4(a).
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Under the current revocable trust rules, beneficiaries with
insurable interests are limited to natural persons, charitable
organizations, and non-profit entities recognized as such under the
Internal Revenue Code of 1986.\36\ If a named beneficiary does not
satisfy this requirement, funds held in trust for that beneficiary are
treated as single ownership funds of the grantor and aggregated with
any other single ownership accounts the grantor maintains at the same
FICU.\37\
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\36\ 12 CFR 745.4(c).
\37\ 12 CFR 745.4(d).
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Certain requirements also must be satisfied for an account to be
insured in the revocable trust category. The required intention that
the funds shall belong to the beneficiaries upon the grantor's death
must either be manifested in the ``title'' of the account or elsewhere
in the account records of the credit union (using commonly accepted
terms such as ``in trust for,'' ``as trustee for,'' ``payable-on-death
to,'' or any acronym for these terms).\38\ For the purposes of this
requirement, a FICU's electronic account records are included. For
example, a FICU's electronic account records could identify the account
as a revocable trust account through coding or a similar mechanism. In
addition, the beneficiaries of informal trusts (that is, payable-on-
death accounts) must be named in the FICU's account records.\39\ The
requirement to name beneficiaries in the FICU's account records does
not apply to formal revocable trusts; the NCUA generally obtains
information on beneficiaries of such trusts from accountholders
following a FICU's liquidation. If a member's funds at a liquidated
FICU held in trust accounts exceed the SMSIA, a hold will be placed on
the portion of such funds in excess of the SMSIA until the NCUA can
fully review the member's trust agreement and related documents to
verify the beneficiary rules are satisfied. Therefore, this process can
result in delays to some insured accountholders' insurance
determinations and full insurance payments.
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\38\ 12 CFR 745.4(b).
\39\ Id.
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The calculation of share insurance coverage for revocable trust
accounts depends upon the number of unique beneficiaries named by a
member accountholder. If five or fewer beneficiaries have been named,
the member accountholder is insured in an amount up to the total number
of named beneficiaries multiplied by the SMSIA, and the specific
allocation of interests among the beneficiaries is not considered.\40\
If more than five beneficiaries have been named, the member
accountholder is insured up to the greater of: (1) five times the
SMSIA; or (2) the total of the interests of each beneficiary, with each
such interest limited to the SMSIA.\41\ For the purposes of this
calculation, a life estate interest is valued at the SMSIA.\42\
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\40\ 12 CFR 745.4(a).
\41\ 12 CFR 745.4(e).
\42\ 12 CFR 745.4(g). For example, if a revocable trust provides
a life estate for the member accountholder's spouse and remainder
interests for six other beneficiaries, the spouse's life estate
interest would be valued at the lesser of $250,000 or the amount
held in the trust for the purposes of the share insurance
calculation.
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Where a revocable trust account is jointly owned, the interests of
each account owner are separately insured up to the SMSIA per
beneficiary.\43\ However, if the co-owners are the only beneficiaries
of the trust, the account is instead insured under the NCUA's joint
account rule.\44\
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\43\ 12 CFR 745.4(f)(1).
\44\ 12 CFR 745.4(f)(2).
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The current revocable trust rule also contains a provision that was
intended to reduce confusion and the potential for a decrease in share
insurance coverage in the case of the death of a grantor. Specifically,
if a revocable trust becomes irrevocable due to the death of the
grantor, the trust account may continue to be insured under the
revocable trust rules.\45\ Absent this provision, the irrevocable trust
rules would apply following the grantor's death, as the revocable trust
becomes irrevocable at that time, which could result in a reduction in
coverage.\46\
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\45\ 12 CFR 745.4(h).
\46\ The revocable trust rules tend to provide greater coverage
than the irrevocable trust rules because contingencies are not
considered for revocable trusts. In addition, where five or fewer
beneficiaries are named by a revocable trust, specific allocations
to beneficiaries also are not considered.
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Irrevocable Trust Accounts
Accounts maintaining funds held by an irrevocable trust that has
been established either by written agreement or by statute are insured
in the irrevocable trust share insurance category. Calculating coverage
in this category requires a determination of whether beneficiaries'
interests in the trust are contingent or non-contingent.\47\ Non-
contingent interests are interests that may be determined without
evaluation of any contingencies, except for those covered by the
present worth and life expectancy tables and the rules for their use
set forth in the Internal Revenue Service (IRS) Federal Estate Tax
Regulations.\48\ Funds held for non-contingent trust interests are
insured up to the SMSIA for each such beneficiary.\49\ Funds held for
contingent trust interests are aggregated and insured up to the SMSIA
in total.\50\
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\47\ 12 CFR 745.2(d) and 745.9-1.
\48\ 12 CFR 745.2(d)(1). For example, a life estate interest is
generally non-contingent, as it may be valued using the life
expectancy tables. However, where a trustee has discretion to divert
funds from one beneficiary to another to provide for the second
beneficiary's medical needs, the first beneficiary's interest is
contingent upon the trustee's discretion.
\49\ 12 CFR 745.9-1(b).
\50\ 12 CFR 745.2(d)(2).
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The irrevocable trust rules do not apply to funds held for a
grantor's retained interest in an irrevocable trust.\51\ Such funds are
aggregated with
[[Page 79401]]
the grantor's other single ownership funds for the purposes of applying
the share insurance limit.
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\51\ See 12 CFR 745.2(d)(4) (The term ``trust interest'' does
not include any interest retained by the settlor.).
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3. Need for Further Rulemaking
As noted, the rules governing share insurance coverage for trust
accounts have been simplified and modified on several occasions.
However, these rules are still frequently misunderstood and can present
some implementation challenges. The trust rules can require overly
detailed, time-consuming, and resource-intensive reviews of trust
documentation to obtain the information necessary to calculate share
insurance coverage. This information is often not found in a FICU's
records and must be obtained from members after a FICU's liquidation.
Revision of the share insurance coverage rules for trust accounts
will reduce the amount of information that must be provided for trust
accounts, as well as the complexity of the NCUA's review. This revision
should enable the NCUA to complete share insurance determinations more
rapidly if a FICU with a large number of trust accounts is liquidated.
Delays in the payment of share insurance can be consequential for
accountholders, and the final rule will help to mitigate those delays.
Several factors contribute to the challenges of making insurance
determinations for trust accounts under the current rules. First, there
are two different sets of rules governing share insurance coverage for
trust accounts. Understanding the coverage for a particular account
requires a threshold inquiry to determine which set of rules to apply--
the revocable trust rules or the irrevocable trust rules. This requires
review of the trust agreement to determine the type of trust (revocable
or irrevocable), and the inquiry may be complicated by innovations in
state trust law that are intended to increase the flexibility and
utility of trusts. In some cases, this threshold inquiry is also
complicated by the provision of the revocable trust rules that allows
for continued coverage under the revocable trust rules where a trust
becomes irrevocable upon the grantor's death. The result of an
irrevocable trust deposit being insured under the revocable trust rules
has proven confusing for both accountholders and FICUs.
Second, even after determining which set of rules applies to a
particular account, it may be challenging to apply the current rules.
For example, the revocable trust rules include unique titling
requirements and beneficiary requirements. These rules also provide for
two separate calculations to determine insurance coverage, depending in
part upon whether there are five or fewer trust beneficiaries or at
least six beneficiaries. In addition, for revocable trusts that provide
benefits to multiple generations of potential beneficiaries, the NCUA
needs to evaluate the trust agreement to determine whether a
beneficiary is a primary beneficiary (immediately entitled to funds
when a grantor dies), contingent beneficiary, or remainder beneficiary.
Only eligible primary beneficiaries and remainder beneficiaries are
considered when calculating NCUA share insurance coverage. The
irrevocable trust rules may require detailed review of trust agreements
to determine whether beneficiaries' interests are contingent and may
also require actuarial or present value calculations. These types of
requirements complicate the determination of insurance coverage for
trust deposits, have proven confusing for accountholders, and extend
the time needed to complete a share insurance determination and
insurance payment.
Third, the complexity and variety of account holders' trust
arrangements adds to the difficulty of determining share insurance
coverage under the current rules. For example, trust interests are
sometimes defined through numerous conditions and formulas, and a
careful analysis of these provisions may be necessary to calculate
share insurance coverage under the current rules. Arrangements
involving multiple trusts where the same beneficiaries are named by the
same grantor(s) in different trusts add to the difficulty of applying
the trust rules. The NCUA believes simplification of the share
insurance rules presents an opportunity to more closely align the
coverage provided for different types of trust funds. For example, the
current revocable trust rules generally provide for a greater amount of
coverage than the irrevocable trust rules. This outcome occurs because
contingent interests for irrevocable trusts are aggregated and insured
up to the SMSIA rather than up to the SMSIA per beneficiary, while
contingencies are not considered and therefore do not limit coverage in
the same manner for revocable trusts.
Finally, as previously noted, adoption of this final rule will
align with changes the FDIC adopted in January 2022, which took effect
on April 1, 2024. The Board believes it is important to maintain parity
between the nation's two Federal deposit and share insurance
programs.\52\ It is imperative that members of the public who use trust
accounts for the transfer of ownership of assets better understand the
rules governing such accounts and receive the same protection, whether
the accounts are maintained at FICUs or other federally insured
institutions.
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\52\ 12 U.S.C. 1787(k)(1)(A).
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D. Final Rule
The final rule adopts the proposed changes to the trust account
rules as proposed. Specifically, the NCUA is amending the rules
governing share insurance coverage for funds held in trust accounts at
FICUs. Generally, the amendments will do the following: (1) merge the
revocable and irrevocable trust categories into one category; (2) apply
a simpler, common calculation method to determine insurance coverage
for funds held by revocable and irrevocable trusts; and (3) eliminate
certain requirements found in the current rules for revocable and
irrevocable trusts.
Merger of Revocable and Irrevocable Trust Categories
As discussed above, the NCUA historically has insured revocable
trust funds and irrevocable trust funds held at FICUs under two
separate insurance categories. The NCUA's experience has been this
bifurcation often confuses FICUs' staff and their members, as it
requires a threshold inquiry to determine which set of rules to apply
to a trust account. Moreover, all trust funds deposited at a FICU must
be categorized before the aggregation of trust funds deposited within
each category can be completed. The NCUA believes funds held in
connection with revocable and irrevocable trusts are sufficiently
similar, for the purposes of share insurance coverage, to warrant the
merger of these two categories into one category. Under the NCUA's
current rules, share insurance coverage is provided because the trustee
maintains the funds for the benefit of the beneficiaries. This fact is
true regardless of whether the trust is revocable or irrevocable.
Merging the revocable and irrevocable trust categories will better
conform share insurance coverage to the substance--rather than the
legal form--of the trust arrangement. This underlying principle of the
share insurance rules is particularly important in the context of
trusts, as state law often provides flexibility to structure
arrangements in different ways to accomplish a given purpose.\53\
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\53\ For example, the NCUA currently aggregates funds in
payable-on-death accounts and funds of written revocable trusts for
the purposes of share insurance coverage, despite their separate and
distinct legal mechanisms. Also, where the co-owners of a revocable
trust are also that trust's sole beneficiaries, the NCUA instead
insures the trust's funds as joint funds, reflecting the
arrangement's substance rather than its legal form.
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[[Page 79402]]
FICU members may have various reasons for selecting a particular
legal arrangement, but that decision should not significantly affect
share insurance coverage. Importantly, the merger of the revocable
trust and irrevocable trust categories into one category for share
insurance purposes will not affect the application or operation of
state trust law; it will only affect the determination of share
insurance coverage for these types of trust funds in the event of a
FICU's liquidation.
Accordingly, the NCUA is amending Sec. 745.4 of its regulations,
which currently applies only to revocable trust accounts, to establish
a new ``trust accounts'' category that includes both revocable and
irrevocable trust funds deposited at a FICU. The final rule defines the
funds that will be included in this category as follows: (1) informal
revocable trust funds, such as payable-on-death accounts, in-trust-for
accounts, and Totten trust accounts; (2) formal revocable trust funds,
defined to mean funds held pursuant to a written revocable trust
agreement under which funds pass to one or more beneficiaries upon the
grantor's death; and (3) irrevocable trust funds, meaning funds held
pursuant to an irrevocable trust established by written agreement or by
statute.
In addition, the merger of the revocable trust and irrevocable
trust categories eliminates the need for Sec. 745.4(h) through (i) of
the current revocable trust rules, which provide that the revocable
trust rules may continue to apply to an account where a formal
revocable trust becomes irrevocable due to the death of one or more of
the trust's grantors. These provisions were intended to benefit
accountholders, who sometimes were unaware that a trust owner's death
could trigger a significant decrease in insurance coverage as a
revocable trust becomes irrevocable.
However, in the NCUA's experience, this rule has proven complex in
part because it results in some irrevocable trusts being insured per
the revocable trust rules, while other irrevocable trusts are insured
under the irrevocable trust rules.\54\ As a result, an accountholder
could know a trust was irrevocable but not know which share insurance
rules to apply. The final rule will insure funds of formal and informal
revocable trusts and irrevocable trusts according to a common set of
rules, eliminating the need for these provisions (Sec. 745.4(h)
through (i)) and simplifying coverage for accountholders. Accordingly,
the death of a formal revocable trust owner will not result in a
decrease in share insurance coverage for the trust. Coverage for
irrevocable and formal revocable trusts will fall under the same
category and share insurance coverage will remain the same, even after
the expiration of the six-month grace period following the death of an
account owner.\55\
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\54\ As noted above, if a revocable trust becomes irrevocable
due to the death of the grantor, the account continues to be insured
under the revocable trust rules. 12 CFR 745.4(h).
\55\ The death of an account owner can affect share insurance
coverage, often reducing the amount of coverage that applies to a
family's accounts. To ensure that families dealing with the death of
a family member have adequate time to review and restructure
accounts if necessary, the NCUA insures a deceased owner's accounts
as if he/she/they were still alive for a period of 6 months after
his/her/their death. 12 CFR 745.2(e).
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Informal revocable trust accounts will also be insured under this
same trust account category but are unlikely to result in the creation
of an irrevocable trust account upon an owner or co-owner's death. As
is the case under the existing share insurance regulations, when a co-
owner of an informal revocable trust account dies, share insurance
coverage for the deceased owner's interest in the account will cease
after the expiration of the six-month grace period allowed for the
death of share account owners. After the expiration of the six-month
grace period, share insurance coverage will be calculated as if the
deceased co-owner did not exist and the deceased co-owner's name did
not remain on the account. This treatment of the account will be based
on the fact that all funds in the account will be owned by one person
(that is, the surviving co-owner).
Calculation of Coverage
As was proposed, the final rule uses one streamlined calculation to
determine the amount of share insurance coverage for funds of both
revocable and irrevocable trusts. This method is already used by the
NCUA to calculate coverage for revocable trusts that have five or fewer
beneficiaries, and it is an aspect of the rules that is generally well
understood by FICUs and their members. The final rule will provide that
a grantor's trust funds are insured in an amount up to the SMSIA
(currently $250,000) multiplied by the number of trust beneficiaries,
not to exceed five beneficiaries. The NCUA will presume that, for share
insurance purposes, the trust provides for equal treatment of
beneficiaries such that specific allocation of the funds to the
respective beneficiaries will not be relevant, consistent with the
NCUA's current treatment of revocable trusts with five or fewer
beneficiaries. This will, in effect, limit coverage for a grantor's
trust funds at each FICU to a total of $1,250,000; in other words,
maximum coverage will be equivalent to $250,000 per beneficiary for up
to five beneficiaries. In determining share insurance coverage, the
NCUA will continue to consider only beneficiaries who are expected to
receive the funds held by the trust in a member account at the FICU;
the NCUA will not consider beneficiaries who are expected to receive
only non-deposit assets of the trust.
The NCUA is deciding to calculate coverage in this manner, in part,
based on its experience with the revocable trust rules after the
modifications to these rules in 2008.\56\ The NCUA has found the share
insurance calculation method for revocable trusts with five or fewer
beneficiaries has been the most straightforward and is easier for
FICUs' staff and the public to understand. This calculation provides
for insurance in an amount up to the total number of unique grantor-
beneficiary trust relationships (that is, the number of grantors,
multiplied by the total number of beneficiaries, multiplied by the
SMSIA).\57\ In addition to being simpler, this calculation has proven
beneficial in liquidations, as it leads to more prompt share insurance
determinations and quicker access to insured funds for accountholders.
As discussed in section II.E., commenters also supported using this
calculation. Accordingly, the NCUA will calculate share insurance
coverage for trust accounts based on the simpler calculation currently
used for revocable trusts with five or fewer beneficiaries.
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\56\ 73 FR 60616 (Oct. 14, 2008).
\57\ For example, two co-grantors that designate five
beneficiaries are insured for up to $2,500,000 (2 x 5 x $250,000).
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The streamlined calculation that will be used to determine coverage
for revocable trust funds and irrevocable trust funds includes a limit
on the total amount of share insurance coverage for all of an
accountholder's funds in the trust category at the same FICU. As was
proposed, the final rule will provide coverage for trust funds at each
FICU up to a total of $1,250,000 per grantor; in other words, each
grantor's insurance limit will be $250,000 per beneficiary up to a
maximum of five beneficiaries. The level of five beneficiaries is an
important threshold in the current revocable trust rules, as it defines
whether a grantor's coverage is determined using the simpler
calculation of the number of
[[Page 79403]]
beneficiaries multiplied by the SMSIA or the more complex calculation
involving the consideration of the amount of each beneficiary's
specific interest (which applies when there are six or more
beneficiaries). The current trust rules limit coverage by tying
coverage to the specific interests of each beneficiary of an
irrevocable trust or of each beneficiary of a revocable trust with more
than five beneficiaries. The final rule's $1,250,000 per-grantor, per-
FICU limit is more straightforward and balances the objectives of
simplifying the trust rules, promoting timely payment of share
insurance, facilitating liquidations, ensuring consistency with the FCU
Act, and limiting risk to the Share Insurance Fund. The final rule will
also provide parity between the NCUA's regulations and those adopted by
the FDIC in early 2022.\58\
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\58\ 87 FR 4455 (Jan. 28, 2022).
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The NCUA anticipates that limiting coverage to $1,250,000 per
grantor, per FICU, for trust funds will not have a substantial effect
on accountholders, as most trust accounts in past FICU liquidations
have had balances well below this level. However, because the NCUA
lacks sufficient information to project the exact effects of the new
limit on current accountholders, the agency requested in the proposed
rule that commenters provide information that might be helpful in this
regard. As discussed in greater detail in section II.E., the comments
received did not indicate that the limit will have a substantial effect
on accountholders.
Under the final rule, to determine the level of insurance coverage
that will apply to funds held in trust accounts, accountholders will
still need to identify the grantors and the eligible beneficiaries of
the trust. The level of coverage that applies to trust accounts will no
longer be affected by the specific allocation of trust funds to each of
the beneficiaries of the trust or by contingencies outlined in the
trust agreement. Instead, the final rule will provide that a grantor's
trust funds are insured up to a total of $1,250,000 per grantor, or an
amount up to the SMSIA multiplied by the number of eligible
beneficiaries, with a limit of no more than five beneficiaries.
Aggregation
As was proposed, the final rule also provides for the aggregation
of funds held in revocable and irrevocable trust accounts for the
purposes of applying the share insurance limit. Under the current
rules, funds held in informal revocable trust accounts and formal
revocable trust accounts are aggregated for this purpose.\59\ The final
rule will aggregate a grantor's informal and formal revocable trust
accounts, as well as irrevocable trust accounts. For example, all
informal revocable trusts, formal revocable trusts, and irrevocable
trusts held for the same grantor at the same FICU will be aggregated,
and the grantor's insurance limit will be determined by how many
eligible and unique beneficiaries are identified among all of their
trust accounts.\60\ The share insurance coverage provided in the
``trust accounts'' category will remain separate from the coverage
provided for other funds held in a different right and capacity at the
same FICU.
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\59\ See 12 CFR 745.4(a) (``All funds that an owner holds in
both living trust accounts and payable-on-death accounts, at the
same NCUA-insured credit union and naming the same beneficiaries,
are aggregated for insurance purposes and insured to the applicable
coverage limits . . . .'').
\60\ For example, if a grantor maintained both an informal
revocable trust account with three beneficiaries and a formal
revocable trust account with three separate and unique
beneficiaries, the two accounts would be aggregated and the maximum
share insurance available would be $1.25 million (one grantor times
the SMSIA times the number of unique beneficiaries, limited to
five). However, if the same three people were the beneficiaries of
both accounts, the maximum share insurance available would be
$750,000 (one grantor times the SMSIA times the three unique
beneficiaries).
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However, some accountholders who currently maintain both revocable
trust and irrevocable trust deposits at the same FICU may have funds in
excess of the insurance limit when these separate categories are
combined. As noted in the proposed rule, the NCUA lacks data on
accountholders' trust arrangements that allow it to estimate the number
of accountholders who might be affected in this manner. As such, the
NCUA requested that commenters provide information that might be
helpful in this regard. As discussed in greater detail in section
II.E., the comments received did not indicate that the aggregate limit
will have a substantial effect on accountholders. The agency does not
believe this change will impact a substantial number of accountholders
and is finalizing it as proposed.
Eligible Beneficiaries
Currently, the revocable trust rules provide that eligible
beneficiaries include natural persons, charitable organizations, and
non-profit entities recognized as such under the Internal Revenue Code
of 1986,\61\ while the irrevocable trust rules do not establish
criteria for beneficiaries. As stated in the proposed rule, the NCUA
believes a single definition should be used to determine whether an
entity is an eligible beneficiary for all trust funds and proposes to
use the current revocable trust rule's definition. The NCUA believes
this single definition will result in a change in share insurance
coverage only in very rare cases.
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\61\ 12 CFR 754.4(c).
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As was proposed, the final rule will exclude from the calculation
of share insurance coverage beneficiaries who would obtain an interest
in a trust only if one or more named beneficiaries are deceased (often
referred to as contingent beneficiaries). This exclusion codifies
existing practice to include only primary, unique beneficiaries in the
share insurance calculation.\62\ This codification does not represent a
substantive change in coverage. Consistent with treatment under the
current trust rules, naming a chain of contingent beneficiaries that
would obtain trust interests only in the event of a beneficiary's death
will not increase share insurance coverage.
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\62\ See NCUA Your Insured Funds at page 42 (``The beneficiaries
are the people or entities entitled to an interest in the trust.
Contingent or alternative trust beneficiaries are not considered to
have an interest in the trust funds and other assets as long as the
primary or initial beneficiaries are still living, with the
exception of revocable living trusts with a life estate
interest.'').
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Finally, as in the proposed rule, the final rule will codify an
interpretation of the trust rules where an informal revocable trust
designates the depositor's formal trust as its beneficiary. A formal
trust generally does not meet the definition of an eligible beneficiary
for share insurance purposes, but the NCUA has treated such accounts as
revocable trust accounts under the trust rules, insuring the account as
if it were titled in the name of the formal trust.\63\ Additionally,
the Board wishes to clarify that if an irrevocable trust is named as
beneficiary of an informal revocable trust account, the informal
revocable trust account will also be treated as if titled in the name
of that formal trust.
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\63\ See 74 FR 55747, 55748 (Oct. 29, 2009).
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Retained Interests and Ineligible Beneficiaries' Interests
The current trust rules provide that, in some instances, funds
corresponding to specific beneficiaries are aggregated with a grantor's
single ownership deposits at the same FICU for the purposes of the
share insurance calculation. These instances include a grantor's
retained interest in an irrevocable trust \64\ and interests of
beneficiaries who do not satisfy the
[[Page 79404]]
definition of ``beneficiary.'' \65\ This adds complexity to the share
insurance calculation, as a detailed review of a trust agreement may be
required to value such interests so they may be aggregated with a
grantor's other funds. To implement the streamlined calculation for
funds held in trust accounts, the NCUA proposed to eliminate these
provisions. Under the proposed rule, the grantor and other
beneficiaries who do not satisfy the definition of ``eligible
beneficiary'' would not be included for the purposes of the share
insurance calculation.\66\ Importantly, this exclusion would not in any
way limit a grantor's ability to establish such trust interests under
state law. These interests simply would not factor into the calculation
of share insurance coverage. The Board has decided to adopt these
changes as proposed.
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\64\ See 12 CFR 745.2(d)(4).
\65\ 12 CFR 745.4(d).
\66\ In the unlikely event a trust does not name any eligible
beneficiaries, the NCUA would treat the funds in the trust account
as funds held in a single ownership account. Such funds would be
aggregated with any other single ownership funds that the grantor
maintains at the same FICU and insured up to the SMSIA of $250,000.
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Future Trusts Named as Beneficiaries
Trusts often contain provisions for the establishment of one or
more new trusts upon the grantor's death. The proposed rule sought to
clarify share insurance coverage in these situations. Under the
proposed rule, if a trust agreement provides that trust funds will pass
into one or more new trusts upon the death of the grantor (or
grantors), the future trust (or trusts) would not be treated as
beneficiaries for the purposes of the calculation. The future trust(s)
instead would be considered mechanisms for distributing trust funds,
and the natural persons or organizations that receive the trust funds
through the future trusts would be considered the beneficiaries for the
purposes of the share insurance calculation. The Board has decided to
adopt this position as proposed. This clarification is consistent with
the NCUA's current interpretations and would not represent a
substantive change in share insurance coverage.
Naming of Beneficiaries in Share Account Records
Consistent with the current revocable trust rules and the proposed
rule, the final rule will continue to require the beneficiaries of an
informal revocable trust to be expressly named in the account records
of the FICU.\67\ The NCUA does not believe this requirement imposes a
burden on FICUs, as informal revocable trusts by their nature require
the FICU to be able to identify the individuals or entities to which
funds would be paid upon the accountholder's death.
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\67\ See 12 CFR 745.4(b).
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Presumption of Ownership
As in the proposed rule, the final rule also states that, unless
otherwise specified in a FICU's account records, funds held in an
account for a trust established by multiple grantors are presumed to be
owned in equal shares. This presumption is consistent with the current
revocable trust rules.\68\
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\68\ See 12 CFR 745.4(f).
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Funds Covered Under Other Rules
Under the proposed rule, certain trust funds that are covered by
other sections of the share insurance regulations would be excluded
from coverage under Sec. 745.4. For example, employee benefit plan
accounts are insured pursuant to current Sec. 745.9-2. In addition, if
the co-owners of an informal or formal revocable trust are the trust's
sole beneficiaries, funds held in connection with the trust would be
treated as a joint ownership account under Sec. 745.8. The Board has
decided to adopt this as proposed. In each of the provided cases, the
NCUA is not changing the current rule.
Removal of the Appendix to Part 745
As was proposed, the final rule will remove the appendix to part
745, which provides examples of share insurance coverage. As noted in
the proposed rule, the NCUA plans to update its Your Insured Funds
brochure to reflect the amendments made to part 745.\69\ The Board
believes the updated brochure and other updated resources available on
<a href="http://mycreditunion.gov">mycreditunion.gov</a> will provide a more consumer friendly and easier-to-
update avenue for providing examples of share insurance coverage.
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\69\ <a href="https://mycreditunion.gov/sites/default/static-files/insured-funds-brochure.pdf">https://mycreditunion.gov/sites/default/static-files/insured-funds-brochure.pdf</a>.
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The final rule also removes references to the appendix in the
heading of part 745 and in Sec. Sec. 745.0, 745.2, and 745.13. As
such, once this portion of the final rule has gone into effect,
providing the appendix will no longer satisfy the notification to
members/shareholders requirement in Sec. 745.13. Instead, FICUs will
have to make available either the rules in part 745 of the NCUA's
regulations or the updated Your Insured Funds brochure.
Conforming Changes
As discussed in the proposal, the final rule's simplification of
the calculation for insurance coverage for funds held in trust accounts
permits the elimination of current Sec. 745.2(d) of the regulations
addressing the valuation of trust interests. As discussed further
below, the description of non-contingent interests in Sec. 745.2(d)(1)
and (2) is no longer relevant to trust accounts under the final rule.
Additionally, Sec. 745.2(d)(3) regarding the deemed pro rata
contribution of settlors to a trust is replaced by new Sec.
745.4(b)(4), which presumes equal allocation. Current Sec. 745.2(d)(4)
defining a ``trust interest'' is replaced by the definition of
``irrevocable trust'' in new Sec. 745.4(a)(3).
Regarding non-contingent interests, as was proposed, the final rule
moves the current description of a non-contingent interest in Sec.
745.2(d)(1) to the definitions section of part 745. The new definition
of ``non-contingent interest'' in Sec. 745.1 remains substantively the
same but will now only be relevant to evaluating participants' non-
contingent interests in shares of an employee benefit plan under Sec.
745.9-2(a). As was proposed, the new definition of ``non-contingent
interest'' adds language to include any present worth or life
expectancy tables that the IRS may adopt that are similar to those set
forth in Sec. 20.2031-7 of the Federal Estate Tax Regulations (26 CFR
20.2031-7). This change is not substantive but is instead intended to
provide flexibility if the IRS makes any changes. As part of this
change, the final rule also makes non-substantive changes to Sec.
745.1 to improve readability. The final rule also removes the reference
to Sec. 745.2 in current Sec. 745.9-2.
Finally, the final rule redesignates current Sec. 745.9-2 as Sec.
745.9 to reflect the elimination of current Sec. 745.9-1 governing
irrevocable trust accounts. The reference in Sec. 745.9-2(a) to Sec.
745.2 is also removed to reflect the elimination of the description of
a non-contingent interest in current Sec. 745.2(d) and adoption of a
definition of ``non-contingent interest'' in new Sec. 745.1.
Effective Date
The effective date of the trust account changes will be delayed
until December 1, 2026. This delayed effective date mirrors the
timeline the FDIC used in adopting its trust account changes. It is
intended to provide FICUs, accountholders, and the NCUA time to prepare
for the changes in trust account share insurance coverage. FICUs will
have an opportunity to review the changes in coverage, train employees,
and update publications if necessary. Accountholders may review
insurance coverage for their funds and adjust their share account
arrangements if desired. In addition, the NCUA must update its
[[Page 79405]]
share insurance estimator and share insurance coverage publications,
including publications that provide guidance to FICUs and
accountholders. The Board's rationale for adopting a delayed effective
date as was suggested in the proposal and not providing for any
continued application of the current rules to existing accounts is
discussed further in section II.E.
E. Examples Demonstrating Coverage Under Current and Final Rules
To assist commenters, the NCUA is providing examples demonstrating
how the final rule will apply to determine share insurance coverage for
funds held in trust accounts. These examples are not intended to be
all-inclusive; they merely address a few possible scenarios involving
funds held in trust accounts. The NCUA expects that, for most
accountholders, insurance coverage will not change under the final
rule. The examples here highlight a few instances where coverage could
be reduced to ensure the public is aware of them. The examples mirror
those provided in the proposed rule.
In addition, all examples involve members or those otherwise
entitled to maintain insured accounts at the FICU. Again, share
insurance coverage is only available to FICU members and those
otherwise entitled to maintain insured accounts. For revocable trust
accounts, all grantors must be members of the FICU or otherwise
eligible to maintain an insured account to receive share insurance
coverage. In the case of an irrevocable trust account, all grantors or
all beneficiaries must be members of the FICU or otherwise eligible to
maintain an insured account to receive share insurance coverage. Where
a revocable trust account has become irrevocable because of the death
of a grantor, the deceased grantor's membership will continue to
satisfy their membership requirement as long as the trust account
continues to be maintained at the FICU.
Example 1: Payable-On-Death Account
Member A establishes a payable-on-death account at a FICU. Member A
has designated three beneficiaries for this account--B, C, and D--who
will receive the funds upon member A's death and listed all three on a
form provided to the FICU. The only other share account that member A
maintains at the same FICU is a share draft account with no designated
beneficiaries. What is the maximum amount of share insurance coverage
for member A's shares at the FICU?
Under the final rule, member A's payable-on-death account
represents an informal revocable trust and would be insured in the
trust accounts category. The maximum coverage for this account would be
equal to the SMSIA (currently $250,000) multiplied by the number of
grantors (in this case one because member A established the account)
multiplied by the number of beneficiaries, up to a maximum of five
(here three, the number of beneficiaries is less than five). Member A's
payable-on-death account would be insured for up to ($250,000) x (1) x
(3) = $750,000.
The coverage for member A's payable-on-death account is separate
from the coverage provided for member A's share draft account, which
would be insured in the single ownership category because she has not
named any beneficiaries for that account. The single ownership share
draft account would be insured up to the SMSIA, $250,000. Member A's
total insurance coverage for shares at the FICU would be $750,000 +
$250,000 = $1,000,000. Notably, this level of coverage is the same as
that provided by the current share insurance rules.
Example 2: Formal Revocable Trust and Informal Revocable Trust
Members E and F jointly establish a payable-on-death account at a
FICU. Members E and F have designated three beneficiaries for this
account--G, H, and I--who will receive the funds after both members E
and F are deceased. They list these beneficiaries on a form provided to
the FICU. Members E and F also jointly establish an account titled in
the name of the ``E and F Living Trust'' at the same FICU. Members E
and F are the grantors of the living trust, a formal revocable trust
that includes the same three beneficiaries, G, H, and I. The grantors,
members E and F, do not maintain any other share accounts at this same
FICU. What is the maximum amount of share insurance coverage for
members E and F's shares?
Under the final rule, members E and F's payable-on-death account
represents an informal revocable trust and would be insured in the
trust accounts category. Members E and F's living trust account
constitutes a formal revocable trust and would also be insured in the
trust accounts category. To the extent the funds in these accounts
would pass from the same grantor (E or F) to beneficiaries (G, H, and
I), the funds would be aggregated for the purpose of applying the share
insurance limit. As under the current rules, it would be irrelevant
that the grantors' shares are divided between the payable-on-death
account and the living trust account.
The maximum coverage for members E and F's shares would be equal to
the SMSIA ($250,000) multiplied by the number of grantors (two, because
members E and F are the grantors with respect to both accounts)
multiplied by the number of unique beneficiaries, up to a maximum of
five (here three, the number of beneficiaries, is less than five).
Therefore, the coverage for E and F's trust accounts would be
($250,000) x (2) x (3) = $1,500,000. This level of coverage is the same
as that provided by the current share insurance rules.
Example 3: Two-Owner Trust and a One-Owner Trust
Members J and K jointly establish a payable-on-death account at a
FICU. Members J and K have designated three beneficiaries for this
account--L, M, and N--who will receive the funds after both J and K are
deceased. They list these beneficiaries on a form provided to the FICU.
At the same FICU, Member J establishes a payable-on-death account and
designates Member K as the beneficiary upon J's death. What is the
maximum amount of coverage for members J and K's shares?
Under the final rule, both accounts would be insured under the
trust account category. To the extent these shares would pass from the
same grantor (J or K) to beneficiaries (such as L, M, and N), they
would be aggregated for the purpose of applying the share insurance
limit. For example, member K identified three beneficiaries (L, M, and
N), and therefore, member K's insurance limit is $750,000 (or (1) x (3)
x ($250,000)). Member K would be fully insured as long as one-half
interest of the co-owned trust account was $750,000 or less, which is
the same level of coverage provided under current rules. In this
example, member J's situation differs from member K's because J has a
second trust account, but the insurance calculation remains the same.
Specifically, member J has two trust accounts and identified four
unique beneficiaries (L, M, N, and K); therefore, member J's insurance
limit is $1,000,000 (or (1) x (4) x ($250,000)). Member J would remain
fully insured as long as J's trust shares--equal to one-half of the co-
owned trust account plus J's personal trust account--total no more than
$1,000,000. This methodology and level of coverage is the same as that
provided by the current share insurance rules.
Example 4: Revocable and Irrevocable Trusts
Member O establishes a share account at a FICU titled the ``O
Living Trust.'' Member O is the grantor of this living trust, a formal
revocable trust that includes three beneficiaries--P, Q, and R. The
grantor, member O, also
[[Page 79406]]
establishes an irrevocable trust for the benefit of the same three
beneficiaries. The trustee of the irrevocable trust maintains a share
account at the same FICU as the living trust account, titled in the
name of the irrevocable trust. Neither member O nor the trustee
maintains other share accounts at the same FICU. What is the insurance
coverage for these accounts?
Under the final rule, the living trust account is a formal
revocable trust and would be insured in the trust accounts category.
The account containing the funds from the irrevocable trust account
would also be insured in the trust accounts category. To the extent
these shares would pass from the same grantor (member O) to
beneficiaries (P, Q, or R), they would be aggregated for the purposes
of applying the share insurance limit. It would be irrelevant that the
shares are divided between the living trust account and the irrevocable
trust account. The maximum coverage for these shares would be equal to
the SMSIA ($250,000) multiplied by the number of grantors (one, because
member O is the grantor with respect to both accounts) multiplied by
the number of beneficiaries, up to a maximum of five (here three, the
number of beneficiaries, is less than five). Therefore, the maximum
coverage for the shares in the trust accounts would be ($250,000) x (1)
x (3) = $750,000.
This example is one of the few instances where the final rule may
provide a reduced amount of coverage as a result of the aggregation of
revocable and irrevocable trust accounts, depending on the structure of
the trust agreement. Under the current rules, member O would be insured
for up to $750,000 for revocable trust shares and separately insured
for up to $750,000 for irrevocable trust shares (assuming non-
contingent beneficial interests), resulting in $1,500,000 in total
coverage. If that were the case, current coverage would exceed that
provided by the final rule. However, the terms of irrevocable trusts
sometimes lead to less coverage than expected. It is often the case
that irrevocable trust accounts are only insured up to $250,000 under
the current rules due to contingencies in the trust agreement, but
determining this with certainty often requires careful consideration of
the trust agreement's contingency provisions. Under the current rule,
if contingencies existed, current coverage would exceed that provided
by the final rule, as member O would be insured up to $1,000,000;
$750,000 for the revocable trust and $250,000 for the irrevocable
trust. In the NCUA's view, one of the key benefits of the final rule
versus the current rule will be greater clarity and predictability in
share insurance coverage because whether contingencies exist will no
longer be a factor that could affect share insurance.
Example 5: Many Beneficiaries Named
Member S establishes a share account at a FICU titled in the name
of the ``S Living Trust.'' This trust is a revocable trust naming seven
beneficiaries--T, U, V, W, X, Y, and Z. The grantor, member S, does not
maintain any other shares at the same FICU. What is the coverage for
this account?
Under the final rule, the living trust is a formal revocable trust
and would be insured in the trust accounts category. The maximum
coverage for this account would be equal to the SMSIA ($250,000)
multiplied by the number of grantors (one, because member S is the sole
grantor) multiplied by the number of beneficiaries, up to a maximum of
five. Here the number of named beneficiaries (seven) exceeds the
maximum (five), so insurance is calculated using the maximum (five).
Coverage for the account would be ($250,000) x (1) x (5) = $1,250,000.
This example is another instance where the final rule may provide
for less coverage than the current rule. Under the current rule,
because more than five beneficiaries are named, the account is insured
up to the greater of the following: (1) five times the SMSIA; or (2)
the total of the interests of each beneficiary, with each such interest
limited to the SMSIA. Determining coverage requires a review of the
trust agreement to ascertain each beneficiary's interest. Each such
insurable interest is limited to the SMSIA, and the total of all these
interests is compared with $1,250,000 (five times the SMSIA). The
current rule provides coverage in the greater of these two amounts. The
result would fall into a range from $1,250,000 to $1,750,000, depending
on the precise allocation of trust interests among the
beneficiaries.\70\ In the NCUA's view, one of the key benefits of the
final rule versus the current rule is greater clarity and
predictability in share insurance coverage because a single formula is
used to determine maximum coverage, and this formula will not depend
upon the specific allocation of funds among beneficiaries.
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\70\ For example, if all the beneficiaries' interests were
equal, coverage would be $250,000 x (7 beneficiaries) = $1,750,000.
This amount is the maximum coverage possible under the current rule.
Conversely, if a few beneficiaries had a large interest in the
trust, the total of all beneficiaries' interests (limited to the
SMSIA per beneficiary) could be less than $1,250,000, in which case
the current rule would provide a minimum of $1,250,000 in coverage.
Depending upon the precise allocation of interests, the amount of
coverage provided would fall somewhere within this range.
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F. Discussion of Comments
Overview of the Comments
The NCUA received 13 comments on the proposed rule, 11 of which
provided relevant substantive feedback. Comments were received from
individuals, a FICU, state credit union leagues and national trade
associations, a law firm, and an association of state credit union
supervisors. All 11 substantive comments supported the proposed rule,
with a number providing additional feedback regarding potential
revisions or other matters to contemplate further. As described below,
common issues commenters spoke to were parity with FDIC coverage, the
merger of the trust account categories, the proposed trust calculation,
and membership issues.
Parity With FDIC Coverage
Six commenters addressed the importance of parity with FDIC
coverage. One deemed it crucial for maintaining consistency and
fairness in the financial system. Another opined that if FDIC coverage
is easier to understand or provides additional coverage, it could
result in funds being moved to banks and could introduce reputational
risk to the credit union system. A commenter noted that while parity is
not reason enough to adopt a change, they recognized its importance,
particularly because the public tends to be more familiar with the FDIC
than the NCUA. As stated in both the proposed rule and this final rule,
ensuring parity between the share insurance and deposit insurance
regimes is an important basis for the NCUA making these changes to the
trust account rules.
Effects of the Changes on Understanding of the Trust Rules
Commenters universally believed the proposed amendments would make
insurance coverage for trust accounts easier to understand. One
commenter said trust accounts are already more complex than individual
share accounts, and the current rules increase the likelihood of
misunderstanding coverage by adding complexity with different rules and
calculation methods due to the type of trust, number of beneficiaries,
or other factors. A national trade association said its member FICUs
have reported the current system, with distinct rules for revocable and
irrevocable trusts, has caused significant confusion and led to
[[Page 79407]]
a high volume of complex inquiries. The association believed the
proposal will offer clear and straightforward guidance for FICUs, their
employees, and their accountholders. One commenter emphasized that
making share insurance coverage easier to understand is important
because the public is generally less familiar with the NCUA than the
FDIC. The commenter supported changes to enhance visibility or, at a
minimum, to make it easier for a consumer to understand the
similarities between FDIC and NCUA coverage.
The Board appreciates commenters' confirmation that the changes
will make share insurance for trust accounts easier to understand. In
the proposal, the Board also stated it believes that under the proposal
accountholders generally would have the information necessary to
readily calculate share insurance coverage for their trust accounts,
better allowing them to understand insurance coverage for their trust
accounts. However, the Board also asked if there were instances where
an accountholder would not likely have the necessary information.
Two commenters cited instances where accountholders may lack the
necessary information to calculate share insurance coverage under the
proposal. The first cited an accountholder whose trust is not readily
accessible, such as if it is old and maintained by a third party; this
commenter suggested the NCUA apprise accountholders of the rule and
remind them to find necessary documents. The second said complex trust
structures or changes in beneficiaries could cause a lack of necessary
information, particularly if the accountholder does not have immediate
access to updated details. The commenter believed this could make
determining the beneficiaries challenging, particularly in trusts
involving multiple generations or those set up for estate planning.
The Board agrees with commenters that fact-specific circumstances
related to individual accountholders' trust accounts may result in
individual situations where an accountholder lacks the necessary
information to readily calculate their share insurance coverage.
However, the situations described, and others like them, relate to
complexities in accountholders' individual trust arrangements that
would be difficult or impossible to ameliorate in regulations governing
share insurance. Instead, it is up to accountholders and those
maintaining these trusts to ensure their understanding of them, so they
can apply the share insurance regulations to them in evaluating their
share insurance coverage. The Board agrees with the commenter that
requested that the NCUA apprise accountholders of the rule changes and
remind them to locate necessary documents. The NCUA will be providing
publicly available resources to notify accountholders of the rule
changes and explain them. In doing so, the NCUA will also reiterate the
importance of understanding trust arrangements and maintaining
necessary trust documents.
Merger of the Trust Categories
Seven commenters specifically supported merging the revocable and
irrevocable trust account categories. Commenters believed this would
reduce confusion, minimize the number of questions to the NCUA, reduce
regulatory burden, and improve operational processes. One national
trade association said its member FICUs did not anticipate the merger
would result in reduced insurance coverage in practice. However, they
asked the NCUA to track any such outcomes in liquidations and suggested
revisiting the rule if stakeholder input or liquidations show reduced
coverage.
The Board agrees the merger of the trust categories should simplify
insurance coverage of trust accounts, reduce confusion, and alleviate
burden on FICUs, accountholders, and the NCUA. While the Board
appreciates the suggestion to track outcomes in liquidations where the
merger of the trust categories causes a reduction in insurance
coverage, it declines to create a formal process for doing so.
Simultaneously calculating insurance coverage under the current and new
trust rules would negate many of the efficiency and simplification
benefits the changes are intended to provide. While there will not be a
formal mechanism for tracking such results, should the agency become
aware of the trust account changes creating an unanticipated level of
decreased share insurance coverage, either during evaluation of
liquidations or through public input, the Board will consider whether
additional changes are needed, in consultation with the FDIC.
Methodology for Calculating Trust Coverage
Six commenters specifically supported the proposed method for
calculating trust account coverage. Commenters believed the more
straightforward uniform method would enhance transparency, as well as
FICU and member understanding; make it easier to inform members of
their coverage; provide consistency with FDIC coverage; and benefit
from FICUs and members being already familiar with it. One national
trade association said its member FICUs did not think the $1,250,000-
per-grantor cap was too low, as the vast majority of accounts are well
below that level, but did ask the NCUA to track liquidations to ensure
the cap is not too low. Additionally, one commenter suggested
clarifying in the final rule that a trust with more than one grantor--
such as a husband and wife--would have maximum coverage of $1,250,000
per grantor.
The Board agrees with commenters that the calculation method should
provide the described benefits. The Board also agrees the $1,250,000-
per-grantor cap is unlikely to be too low.\71\ However, as the
commenter requested, the agency does plan to continue to track
uninsured amounts in liquidations, if any, and can explore further
changes should it become warranted. Finally, the Board believes the
proposed rule was clear that a single grantor is eligible for a maximum
of $1,250,000 for all their trust interests. However, it reiterates
that is the case here. In other words, where a husband and wife
maintained one account at a FICU, a co-owned revocable trust account
with five named eligible beneficiaries, the account would be eligible
for up to $1,250,000 per grantor, for a total of $2,500,000.
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\71\ See Average Inheritance: How Much Are Retirees Leaving to
Heirs? [verbar] Boldin (stating that the median size of a trust fund
is around $285,000), citing the U.S. Federal Reserve's Survey of
Consumer Finances (SCF),'' Nov. 2023.
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Examples of Trust Account Coverage
One commenter encouraged the NCUA to maintain communications with
FICUs to ensure its examples sufficiently cover ownership structures
implemented by members. The Board agrees the NCUA should communicate
with FICUs about this issue and the agency will do so.
Effects on Call Report Filings
One commenter was concerned that reporting of insured shares on the
Call Report is inaccurate. The commenter said FICU computer systems
tend not to code trust accounts correctly for reporting insured shares,
causing them to go unreported as insured shares or to be missing some
beneficiaries. The commenter said many FICUs do not include
beneficiaries in their computer systems and only maintain that data in
paper records, which excludes many beneficiaries that would be included
in reporting insured shares. The commenter believed it might be more
accurate to take total outstanding shares and apply a factor to compute
insured
[[Page 79408]]
shares. While outside the scope of this rulemaking, this concern will
be evaluated by staff.
Effects on Other Types of Accounts
In the proposal, the NCUA asked if there are types of trusts not
described in the proposal whose funds maintained in FICU accounts would
be affected by the proposed changes. One commenter said the proposal
might not fully address trusts like charitable remainder trusts or
special needs trusts, noting they have unique characteristics that
could affect insurance coverage. The commenter also said trusts
operating under state-specific laws or provisions might have aspects
not contemplated in the rule, necessitating a broader consideration.
As the commenter noted, many trusts operate under state-specific
laws, which can vary. As such, the share insurance regulations could
not fully accommodate each and every type of trust. With regard to
special needs trusts and charitable remainder trusts, coverage will
depend upon the exact details of each trust arrangement, including
whether the trust names eligible beneficiaries.
Comments Addressing Other Changes to the Trust Rules
Two commenters supported the proposal to eliminate certain
requirements in the current trust account rules as a pragmatic step
towards reducing unnecessary regulatory burdens, leading to more
efficient operations and improved customer experience. One commenter
supported the proposed removal of the appendix to part 745 in favor of
updates to NCUA guidance. The commenter believed this would make it
easier for members to understand share insurance coverage.
Continued Application of the Current Rules to Existing Accounts or a
Delayed Effective Date
In the proposal, the Board noted it prefers a delayed effective
date for the trust account changes over continuing the coverage under
current rules for accounts existing at the time the final rule goes
into effect. This situation was referred to as ``grandfathering''
accounts under the current rules in the proposal. It is referred to as
``legacy coverage'' in this final rule. The proposal reasoned that
providing both legacy coverage for existing accounts and separate
coverage under the new rules for new accounts would result in
significantly greater complexity for the period when two sets of rules
could apply to accounts--especially in conducting liquidations. The
Board's belief was and remains that a delayed implementation date
allows stakeholders to make necessary adjustments for the new rules,
without the complications of two sets of rules coexisting. In
recognition that there could be instances that may not be easily
restructured without adverse consequences to the accountholder, such as
trusts holding share certificates or other account relationships, the
proposal asked whether there are fact patterns where legacy coverage
for existing accounts may be appropriate. The proposal also asked if
this approach would be appropriate with respect to the proposed rule's
coverage limit of $1,250,000 per FICU for an accountholder's funds held
in trust accounts.
Three commenters supported some form of legacy coverage for
existing accounts. Two urged providing legacy coverage at current
levels for existing trust accounts, such as if a member is the grantor
of both a revocable and an irrevocable trust at the same FICU. One of
these commenters argued that consumers with open accounts expect to
maintain their current coverage, providing legacy coverage for existing
accounts should not increase loss risk to the Share Insurance Fund
relative to current policy, and a reduction in coverage represents a
reputational risk to NCUA share insurance that could reduce public
confidence in the credit union system. The other said that providing
legacy coverage for existing accounts may increase complexity in
liquidations but believed it may be the best solution to avoid adverse
consequences to members. A third commenter said this legacy coverage
may be appropriate in certain scenarios to protect members, such as in
trusts with long-term investments like share certificates where
restructuring could lead to financial losses, or in complex estate
planning trusts requiring significant legal and administrative changes.
Four commenters supported a delayed effective date. One said that
if the NCUA avoids providing legacy coverage for existing accounts, it
should adopt an appropriately delayed implementation that recognizes
the potential hardships and allows stakeholders to make necessary
changes. Another believed that even with legacy coverage for existing
accounts, a delayed implementation date would be essential for FICUs to
review trust relationships and notify any negatively affected members.
A third opposed providing legacy coverage for existing accounts,
reasoning the intricacies involved could present challenges. The
commenter also stated, ``concerns arise regarding the potential
limitations of studying credit unions, as these may not fully capture
the dynamics of larger credit unions, potentially leading to adverse
effects on the relationships between [m]embers and credit unions.''
The Board has strongly considered the comments received and the
effects the new trust account rules will have on accountholders. The
Board continues to believe providing legacy coverage for existing
accounts poses complications and burdens to FICUs, accountholders, and
the NCUA that make such a system unworkable. The Board believes that by
providing a substantially delayed effective date that is in excess of
two years, FICUs and their accountholders should have enough time to
make any needed changes to their accounts to ensure adequate share
insurance coverage. Further, the Board remains doubtful the changes
will result in reduced coverage in most instances.\72\ Providing a
delay in effect for the changes that matches the one the FDIC provided
to insured depository institutions and their accountholders should
provide both FICUs and their accountholders with sufficient time to
complete any necessary adjustments.
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\72\ See footnote 71.
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Membership
Several commenters addressed the membership requirements for trust
accounts. One commenter advocated simplifying membership requirements
to establish a more straightforward approach with the goal of
redefining the criteria determining the eligibility of individuals or
entities for share insurance coverage, especially in the context of
trust accounts. One commenter said membership should be satisfied for
trust accounts if at least one member is on the account.
One commenter expressed support for the NCUA's efforts to simplify
share insurance coverage but believed that meeting the agency's goals
of providing clarity to FICUs and members and of providing parity with
the FDIC's treatment of trust accounts required clarifying membership
requirements for two types of accounts: (1) revocable trust accounts
where not all settlors are members; and (2) irrevocable trust accounts
where no settlors are members.
On revocable trust accounts where not all settlors are members, the
commenter believed the NCUA should provide coverage to nonmember co-
owners of a revocable trust account. The commenter correctly noted the
NCUA's position has long been that joint accounts where there is a
right of survivorship, which do not have beneficiaries, qualify for
[[Page 79409]]
share insurance for interests of both depositors even where there is a
nonmember co-owner; whereas a nonmember co-owner's interest in a
revocable trust account, such as a payable-on-death account, is not
eligible for share insurance. The commenter believed the addition of a
payable-on-death beneficiary should not defeat the extension of share
insurance to a nonmember co-owner. The commenter also said this
position is not explicitly contained in the regulations and is only
documented in the NCUA's Share Insurance Estimator FAQ, which is not
legally binding. The commenter emphasized that the FDIC clearly
delineates that all payable-on-death beneficiaries are treated the same
for insurance purposes, and the commenter believed the divergence from
FDIC regulations is contrary to the NCUA's parity goal. The commenter
concluded the proposed rule provides an opportunity to provide clear
instructions for calculating coverage for joint accounts with payable-
on-death beneficiaries or any other revocable trust account with one or
more nonmember settlors.
To clarify, the NCUA's longstanding position is that nonmembers may
be joint owners of a joint account with a right of survivorship (an
account with no beneficiaries) and have an insurable interest if one
joint owner of the account is a member. This position is based on a
specific statutory provision that allows for nonmembers to be co-owners
with a member if the account is held with a right of survivorship.\73\
In other words, the NCUA provides share insurance coverage to nonmember
owners of joint accounts (an account with no beneficiaries) where there
is a right of survivorship based upon a statutory exception to the
normal limitation that the NCUA only provides coverage to members. This
coverage for nonmember owners of joint accounts with a right of
survivorship (an account with no beneficiaries) is expressly provided
for in the NCUA's regulations.\74\
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\73\ See 12 U.S.C. 1759(a).
\74\ See 12 CFR 745.8(e).
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Conversely, the NCUA has not recognized a statutory exception for
providing share insurance coverage to nonmember co-owners of revocable
trust accounts, which are different from joint accounts with no
beneficiaries under the share insurance regulations. Unlike the
coverage for nonmember joint account owners expressly provided for in
the NCUA's regulations, the NCUA's regulations do not contain any
provision related to nonmember co-owners of revocable trust accounts
that negates the normal limitation that share insurance coverage is
provided to members. Instead, the agency's longstanding position has
been that co-owned revocable trust accounts are different from joint
accounts held with a right of survivorship; and as such, they require
co-owners (settlors of the trust) to be members to receive insurance
coverage for their interests in the revocable trust account. It is also
worth noting that while parity with FDIC coverage is an important aim,
the NCUA's coverage is generally limited to member accounts. Because
the FDIC coverage is not so limited, instances will inevitably occur
where coverage is not parallel.
In addressing irrevocable trust accounts where no settlors are
members, the commenter erroneously concluded the NCUA's position as to
membership requirements for irrevocable trust accounts would pose an
issue under the proposal. The commenter correctly noted that under the
current rules, irrevocable trust accounts can be established as long as
either all settlors or all beneficiaries are members of the FICU. The
commenter concluded that because the proposal would calculate coverage
for irrevocable and revocable trusts in aggregate to $1.25 million per
grantor, the NCUA would not provide coverage to an account where the
settlors were not members, but all beneficiaries were members. This
conclusion is incorrect. While coverage would be limited to $1.25
million in aggregate for a grantor, any interest related to an
irrevocable trust where all the beneficiaries were members would still
be insured based on the beneficiaries' membership status. The
limitation would only be related to interests for one grantor being
limited to $1.25 million, irrespective of the grantor's lack of
membership.
Other Comments
Two commenters agreed the changes should help facilitate the prompt
payment of share insurance. One commenter noted that, while NCUA Board
Members will often accurately say no member has ever lost one penny of
funds insured by the Share Insurance Fund, members have lost funds they
thought were insured due to misunderstanding the coverage rules. As
noted, the Board's goal with this rulemaking is to reduce this
confusion.
In response to the NCUA's request for input regarding empirical
information the agency should consider to help it understand the
effects of its proposed rule, a commenter provided an article detailing
an empirical study of the jurisdictional competition for trust funds.
Of most relevance, the article notes the difficulty of empirically
studying inter vivos (living) trusts due to various factors, including
these trusts' private nature and complexity.
III. Amendments to Mortgage Servicing Account Rule
A. Policy Objectives
The NCUA's regulations governing share insurance coverage include
specific rules on accounts maintained at FICUs by mortgage
servicers.\75\ These rules are intended to be easy to understand and
apply in determining the amount of share insurance coverage for a
mortgage servicer's account (MSA). The NCUA generally strives to
maintain parity with FDIC's regulations in furtherance of this aim.
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\75\ 12 CFR 745.3(a)(3).
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The NCUA proposed an amendment to its rules governing insurance
coverage for accounts maintained at FICUs by mortgage servicers that
consist of mortgagors' principal and interest payments. The proposed
change would mirror a change made by the FDIC in early 2022 that became
effective in April 2024, and which was intended to address a servicing
arrangement that is not addressed in the current rules.\76\
Specifically, some servicing arrangements may permit or require
servicers to advance their own funds to the lenders when mortgagors are
delinquent in making principal and interest payments, and servicers
might commingle such advances in the MSA with principal and interest
payments collected directly from mortgagors. The FDIC reasoned that the
factors that motivated the FDIC to establish its current rules for
MSAs, which the NCUA also adopted and are further described below,
weigh in favor of treating funds advanced by a mortgage servicer to
satisfy mortgagors' principal and interest obligations to the lender as
if such funds were collected directly from borrowers. The FDIC also
noted it seeks to avoid uncertainty concerning the extent of deposit
insurance coverage for such accounts. The proposed rule noted the NCUA
concurs with the importance of avoiding uncertainty regarding the
extent of insurance coverage and believes that an important aspect of
avoiding uncertainty is maintaining parity between the share insurance
and deposit insurance regimes.
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\76\ 87 FR 4455 (Jan. 28, 2022).
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After reviewing the comments received on this proposed change, the
Board has decided to finalize the change as proposed. As discussed
further
[[Page 79410]]
below, the Board has also decided to make this change effective 30 days
after publication in the Federal Register.
B. Background and Need for Rulemaking
The NCUA's rules governing coverage for MSAs were last amended in
2008, which corresponded to changes made by the FDIC. More
specifically, in 2008 the FDIC recognized securitization methods and
vehicles for mortgages had become more complex, exacerbating the
difficulty of determining the ownership of deposits consisting of
principal and interest payments by mortgagors and extending the time
required to make a deposit insurance determination for deposits of a
mortgage servicer in the event of an insured depository institution's
(IDI's) failure.\77\ The FDIC expressed concern that a lengthy
insurance determination could lead to continuous withdrawal of deposits
of principal and interest payments from IDIs and unnecessarily reduce a
funding source for such institutions. The FDIC therefore amended its
rules to provide coverage to lenders based on each mortgagor's payments
of principal and interest into the MSA, up to its standard maximum
deposit insurance amount per mortgagor (currently $250,000). The FDIC
did not amend the rule for coverage of tax and insurance payments,
which continued to be insured to each mortgagor on a pass-through basis
and aggregated with any other deposits maintained by each mortgagor at
the same IDI in the same right and capacity. The NCUA agreed that this
treatment of principal and interest payments provided greater and
fairer coverage for credit union members and decided to apply the same
approach in its share insurance rules.\78\
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\77\ See 73 FR 61658, 61658-59 (Oct. 17, 2008).
\78\ 73 FR 62856, 62857 (Oct. 22, 2008).
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Importantly, the 2008 amendments to the rules for MSAs did not
provide for the fact that servicers may be required to advance their
own funds to make payments of principal and interest on behalf of
delinquent borrowers to the lenders. However, in its recent rulemaking
the FDIC identified that advancing their own funds is required of
mortgage servicers in some instances. For example, the FDIC noted that
some IDIs identified challenges to implementing certain recordkeeping
requirements with respect to MSA deposit balances because of the way in
which servicer advances are accounted for and administered.\79\
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\79\ The FDIC noted that, to fulfill their contractual
obligations with investors, covered IDIs maintain mortgage principal
and interest balances at a pool level and remittances, advances,
advance reimbursements, and excess funds applications that affect
pool-level balances are not allocated back to individual borrowers.
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The NCUA's current rules, which mirror the FDIC's rules that were
in effect until April 1, 2024, provide coverage for principal and
interest funds only to the extent ``paid into the account by the
mortgagors''; they do not provide coverage for funds paid into the
account from other sources, such as the servicer's own operating funds,
even if those funds satisfy mortgagors' principal and interest
payments. As a result, advances are not provided the same level of
coverage as other deposits in an MSA consisting of principal and
interest payments directly from the borrower, which are insured up to
the SMSIA for each borrower. Instead, the advances are aggregated and
insured to the servicer as corporate funds for a total of $250,000. In
adopting changes to its rule in early 2022, the FDIC expressed concern
that this inconsistent treatment of principal and interest amounts
could result in financial instability during times of stress, and could
further complicate the insurance determination process, a result that
is inconsistent with their policy objective. As noted in the proposal,
the NCUA shares these concerns and believes it is important that parity
is maintained between the insurance regimes.
C. Final Rule
The NCUA is finalizing the rule as proposed with no changes. The
final rule will amend the rules governing coverage for funds in MSAs to
provide parity with the FDIC's regulation and provide consistent share
insurance treatment for all MSA balances held to satisfy principal and
interest obligations to a lender, regardless of whether those funds are
paid into the account by borrowers or paid into the account by another
party (such as the servicer) to satisfy a periodic obligation to remit
principal and interest due to the lender. Under the final rule,
accounts maintained by a mortgage servicer in an agency, custodial, or
fiduciary capacity, which consist of payments of principal and
interest, will be insured for the cumulative balance paid into the
account to satisfy principal and interest obligations to the lender,
whether paid directly by the borrower or by another party, up to the
limit of the SMSIA per mortgagor. Mortgage servicers' advances of
principal and interest funds on behalf of delinquent borrowers will
therefore be insured up to the SMSIA per mortgagor, consistent with the
coverage rules for payments of principal and interest collected
directly from borrowers.
The composition of an MSA attributable to principal and interest
payments will also include collections by a servicer, such as
foreclosure proceeds, that are used to satisfy a borrower's principal
and interest obligation to the lender. In some cases, foreclosure
proceeds may not be paid directly by a mortgagor. The current rule does
not address whether foreclosure collections represent payments of
principal and interest by a mortgagor. Under the final rule,
foreclosure proceeds used to satisfy a borrower's principal and
interest obligation will be insured up to the limit of the SMSIA per
mortgagor.
The final rule does not make any changes to the share insurance
coverage provided for MSAs comprised of payments from mortgagors of
taxes and insurance premiums. Such aggregate escrow accounts are held
separately from the principal and interest MSAs, and the funds therein
are held for the mortgagors until such time as tax and insurance
payments are disbursed by the servicer on the borrower's behalf. Under
the final rule, such funds will continue to be insured based on the
ownership interest of each mortgagor in the account and aggregated with
other funds maintained by the mortgagor at the same FICU in the same
capacity and right.
The Board is opting to make this change effective 30 days after
publication in the Federal Register. Given the change provides more
expansive coverage and should not impose additional burden on FICUs or
accountholders, the Board does not see a reason to delay its effect.
D. Discussion of Comments
Six commenters expressly supported the proposed rule's changes to
insurance of MSAs. In terms of the benefits cited, four commenters
noted the importance of parity with FDIC coverage. Three cited the
benefits of a standardized approach and fair and equitable treatment.
Five noted the greater clarity provided for FICUs and members. Two said
the change represents improved protection of the interests of all
parties, aligns with best practices, and offers additional security.
One stressed the change simplifies the complex landscape and enables
FICUs to manage MSAs more confidently and efficiently. That commenter
believed the change was crucial for maintaining the integrity and
reliability of the MSA system, as the change recognizes the practical
realities of servicing arrangements and the various sources of
[[Page 79411]]
funds that may be used to satisfy borrowers' obligations. The commenter
thought the inclusion of foreclosure collections particularly
important, as the current rule does not address it. Two commenters
stated the change would help promote financial stability. One said the
change would reduce financial institutions' counterparty risk exposure,
which also reduces liquidity risk to the FICU holding the MSAs. Another
said providing insurance for these advanced funds supports the mortgage
market and broader financial system's stability.
One national trade association reported its FICU members expressed
initial concerns with increased Share Insurance Fund costs due to
larger insured balances from covering funds paid by mortgage servicers.
However, after members reviewed the potential effect in greater detail,
they concluded any such increase in cost would be nominal. The
commenter urged the NCUA to monitor this change to ensure it does not
lead to an excessive increase in Share Insurance Fund-related
liquidation costs. The Board concurs that this change should only
nominally increase any Share-Insurance-Fund related liquidation costs.
However, the agency will continue to monitor such costs.
Only one commenter addressed the NCUA's request regarding whether a
delayed effective date is necessary. The commenter believed a delayed
effective date appropriate but had no concern with an earlier date. As
discussed, the Board is opting to make this change effective 30 days
after publication in the Federal Register. The comments received do not
give the Board the impression that commenters were opposed to the
change becoming effective without delay. Further, given the change only
clarifies and expands share insurance coverage, the NCUA does not
believe the change should impose any burden on FICUs or accountholders.
IV. Recordkeeping Requirements
A. Policy Objectives
The NCUA's regulations governing share insurance coverage include
general principles applicable in determining insurance of accounts.\80\
Among these general principles are provisions addressing
recordkeeping.\81\ The NCUA intends for these provisions to clearly
articulate the records the agency will look to when evaluating
insurance coverage. As discussed in more detail below, over time it has
become apparent that the recordkeeping provisions do not clearly
address all situations and may be especially unclear as to accounts
maintained by an agent, custodian, fiduciary, or other party on behalf
of a member or beneficial owner eligible to maintain an insured account
at a FICU. To better address these situations, the NCUA proposed to
amend the recordkeeping requirements.
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\80\ 12 CFR 745.2.
\81\ 12 CFR 745.2(c).
---------------------------------------------------------------------------
After reviewing the comments received on this proposed change, the
Board has decided to finalize the change as proposed. As discussed
further below, the Board has also decided to make this change effective
30 days after publication in the Federal Register.
B. Background and Need for Rulemaking
Section 745.2(c) of the NCUA's regulations addresses general
recordkeeping requirements. Other recordkeeping requirements applicable
to specific account types are addressed as needed in the relevant
sections of part 745. Current Sec. 745.2(c)(1) provides that, as a
general matter, the account records of the FICU shall be conclusive as
to the existence of any relationship pursuant to which the funds in the
account are deposited and on which a claim for insurance coverage is
founded. Examples would be trustee, agent, custodian, or executor. No
claim for insurance based on such a relationship will be recognized in
the absence of such disclosure.
Section 745.2(c)(2) provides that, if the account records of a FICU
disclose the existence of a relationship which may provide a basis for
additional insurance, as required under Sec. 745.2(c)(1), the details
of the relationship and the interest of other parties in the account
must be ascertainable either from the records of the FICU or the
records of the member maintained in good faith and in the regular
course of business. It is this provision that has raised questions
regarding accounts maintained by an agent, fiduciary, or similar party.
The NCUA has received several questions regarding whether records
maintained by an agent, fiduciary, or similar third party on behalf of
the member or beneficial owner eligible to maintain an insured account
would qualify as the ``records of the member.'' Due to the frequency
with which these agent or fiduciary arrangements will involve a party
other than the FICU or member maintaining records on the FICU's or
member's behalf, the NCUA proposed to add language explicitly
clarifying that such records, when maintained in good faith and in the
regular course of business, can be looked to when evaluating the
details of the relationship and the interest of other parties in the
account at the FICU.
C. Final Rule
The NCUA is adopting the proposed rule as proposed with no changes.
Section 745.3(a)(2) of the NCUA's current regulations provides that
when an account is held by an agent or nominee, funds owned by a
principal and deposited in one or more accounts in the name or names of
agents or nominees shall be added to any individual account of the
principal and insured up to the SMSIA in the aggregate. The NCUA will
also generally look to the principal or beneficial owner for satisfying
the membership requirement or other eligibility to maintain an insured
account at the FICU. As such, records maintained by an agent or nominee
on behalf of the member principal or beneficial owner may not clearly
be considered ``records of the member'' for the purpose of ascertaining
their interests in the account under current Sec. 745.2(c)(2).
The NCUA has previously issued a legal opinion stating that where
an agent or custodian ``has an agreement with the beneficial owner/
member to maintain custody of the beneficial owner/member's records,
[the] NCUA would consider those records to be `records of the member'
within the meaning of 12 [CFR] 745(c)(2).'' \82\ However, as the NCUA
acknowledged in the proposed rule, it would be beneficial for the
regulation to more clearly address this situation to allow the details
of the relationship and the interests of other parties in the account
to be ascertainable either from the account records of the FICU or from
records maintained, in good faith and in the regular course of
business, by the member or by some person who or entity that has
undertaken to maintain such records for the member.
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\82\ NCUA Legal Op. 97-0909 (Feb. 6, 1998), available at <a href="https://www.ncua.gov/regulation-supervision/legal-opinions/1997/pass-through-insurance">https://www.ncua.gov/regulation-supervision/legal-opinions/1997/pass-through-insurance</a>.
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Accordingly, the NCUA is adopting this change as proposed. This
change will provide greater clarity, particularly in the event of
multi-tiered fiduciary relationships, and would more closely compare to
language previously adopted by the FDIC.\83\ Importantly, the NCUA
retains discretion to determine when records are maintained on behalf
of a member, in good faith and in the regular course of business.
Ultimately, the NCUA must be able to establish ownership interests in
the account by following the chain of records
[[Page 79412]]
maintained by parties at each level of the relationship from the
account records maintained at the FICU.
---------------------------------------------------------------------------
\83\ 12 CFR 330.5(b)(2).
---------------------------------------------------------------------------
Additionally, Sec. 745.2(c)(3) of the current regulations provides
that the account records of a FICU in connection with a trust account
shall disclose the name of both the settlor (grantor) and the trustee
of the trust and shall contain an account signature card executed by
the trustee. This requirement goes beyond the recordkeeping
requirements of Sec. 745.2(c)(1) through (2) and poses an unnecessary
burden on FICUs and their members. Further, the FDIC previously
eliminated a similar requirement.\84\ To eliminate unnecessary
recordkeeping complexity and provide parity with the FDIC, the NCUA is
eliminating current Sec. 745.2(c)(3), as was proposed.
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\84\ 51 FR 21137 (June 11, 1986).
---------------------------------------------------------------------------
Section 745.2(c)(4) states that the interests of the co-owners of a
joint account shall be deemed equal, unless otherwise stated on the
insured credit union's records in the case of a tenancy in common. As
proposed, the NCUA is not making any substantive amendments to this
provision but is moving it to Sec. 745.2(c)(3) given the elimination
of the current requirement in that section.
Finally, Sec. 745.14(a)(2) notes that interest on lawyers' trust
accounts (IOLTAs) and other similar escrow accounts are subject to the
recordkeeping requirements of Sec. 745.2(c)(1) and (2). In doing so,
Sec. 745.14(a)(2) provides an example of how the details of the
relationship between the attorney or escrow agent and their clients and
principals must be ascertainable from the records of the FICU or from
records maintained, in good faith and in the regular course of
business, by the member attorney or member escrow agent administering
the account. As was proposed, the final rule amends this description to
conform to the change to Sec. 745.2(c)(2) to explicitly state that the
records detailing the relationship and the interest of other parties in
the account must be maintained, in good faith and in the regular course
of business, by: (1) the FICU; or (2) the member attorney or member
escrow agent, or a person or entity acting on their behalf.
D. Discussion of Comments
All seven commenters who addressed the proposed recordkeeping
requirement changes supported the changes. Two commenters stated
requiring the details of a relationship and the interests of other
parties in an account to be ascertainable from records maintained in
good faith is a sound practice, which should ensure transparency and
accountability. One said the proposal would provide an approach
consistent with FDIC pass-through deposit insurance expectations for
various types of ``other similar escrow account'' that may exist,
including sweep accounts. One commenter noted many FICU members rely on
trusted third parties for recordkeeping as part of their estate
planning. The commenter also believed this change should reduce
inquiries to the NCUA.
One commenter noted support for the proposed removal of the
requirement that the account records of a FICU in connection with a
trust account shall disclose the name of both the grantor and the
trustee of the trust and shall contain an account signature card
executed by the trustee. The commenter agreed the requirement poses an
unnecessary burden on FICUs and members.
Four commenters said the change provides FICUs adequate clarity as
to the records the NCUA will look to when evaluating the details of
account relationships and the interests of other parties in accounts
maintained at FICUs. One urged the Board to finalize the change as
proposed. Another understood there to be only limited confusion
regarding the issue but noted support for reduced burden and enhanced
usability of the rules.
In response to the proposal's questions on the subject, one
commenter said that, while the proposed change is a significant step
towards clarity and provides essential guidance in complex account
management scenarios, there may be alternative or additional steps that
could further align with the NCUA's policy objectives, including the
following: (1) adopting a definition of ``account records'' similar to
the FDIC's definition of ``deposit account records'' to standardize the
documentation framework, ensure uniformity, and reduce ambiguity in
what constitutes necessary records; (2) adopting specific detailed
provisions for multi-tiered fiduciary relationships akin to those
adopted by the FDIC, which would help clarify the responsibilities and
recordkeeping obligations in complex arrangements involving multiple
parties; and (3) adopting broader definitions and illustrative examples
for various account relationships, such as joint accounts or trusts
with multiple beneficiaries. The commenter said it is imperative to
ensure the recordkeeping regulations remain relevant and effective as
technology advances and banking evolves into a more digital domain. The
commenter suggested adding a periodic review and update clause for the
recordkeeping requirements to ensure regulations stay current with the
evolving banking practices. The commenter believed this would be
especially pertinent for handling international accounts or accounts
involved in complex transactions.
The Board will take these additional recommendations into
consideration as it continues to evaluate ways to improve the NCUA's
share insurance regulations. The Board notes that NCUA staff routinely
review rules for effectiveness, including through its annual review of
one-third of its regulations and the Economic Growth and Regulatory
Paperwork Reduction Act (also known as EGRPRA) process that the NCUA
voluntarily undertakes every ten years.
The proposal also requested comment on whether the NCUA should
consider adoption of heighted recordkeeping requirements, akin to those
the FDIC adopted in part 370 of its regulations, to facilitate prompt
payment of insurance when large institutions fail. Six commenters
addressed the possibility. None of the commenters supported adoption of
such requirements, but some did provide recommendations if the NCUA
were to adopt a similar regime. The Board will take this feedback into
consideration as it further studies the possibility of proposing
similar requirements.
The proposed rule asked about whether there was any reason to delay
the effective date of the recordkeeping change. This question intended
to elicit comments on whether a delayed effective date for the proposed
recordkeeping requirements changes would allow more flexibility when
evaluating share insurance coverage by clarifying that the NCUA can
look to records maintained by a third party on a member's behalf if
they are maintained in good faith and in the regular course of
business. One commenter believed a delayed effective date for those
changes appropriate but had no concern with an earlier date.
Another commenter seemingly interpreted this question as asking
about a delayed effective date for potential NCUA adoption of a regime
similar to the FDIC's, as was asked about in the previous question in
the proposal, rather than about a delayed effective date for the
proposed changes to the recordkeeping requirements. This commenter
believed timing pivotal and suggested the NCUA grant FICUs an extended
period to comply because of the intricacies of compliance, especially
in terms of recordkeeping, and need to
[[Page 79413]]
effectively adapt FICU processes and systems without experiencing undue
burden.\85\ Given the proposed changes would not increase burden on
FICUs or members, but instead clarify that the NCUA will look to more
expansive records to evaluate parties' interest in insured accounts,
the concerns the commenter raised do not seem applicable to the changes
proposed.
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\85\ This commenter specifically responded to this question.
However, it seems likely the commenter interpreted the question as
asking whether a delayed effective date would be appropriate for
adopting a part 370 type regime, which was asked about in the
preceding question.
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As discussed, the Board is opting to make this change effective 30
days after publication in the Federal Register. The comments received
do not give the Board the impression that commenters were opposed to
the change becoming effective without delay. Further, given the change
only clarifies that the NCUA has additional flexibility to look to
additional records to determine parties' interests in an account, the
Board does not believe that it will impose any burden on FICUs or their
members. The Board believes that clarifying that the NCUA has this
greater discretion to look to additional records will only provide
benefit.
V. Regulatory Procedures
A. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires that, in
connection with a final rulemaking, an agency prepare and make
available for public comment a final regulatory flexibility analysis
that describes the effect of the final rule on small entities. A
regulatory flexibility analysis is not required, however, if the agency
certifies that the rule will not have a significant economic effect on
a substantial number of small entities (defined for the purposes of the
RFA to include credit unions with assets less than $100 million) \86\
and publishes its certification and a short, explanatory statement in
the Federal Register together with the rule.
---------------------------------------------------------------------------
\86\ See 80 FR 57512 (Sept. 24, 2015).
---------------------------------------------------------------------------
The Board fully considered the potential economic effect of the
changes made by this final rule during its development. As noted in the
preamble, the final rule simplifies the NCUA's current share insurance
regulations covering types of trust accounts. It also provides more
flexibility on the coverage of MSAs. Finally, it explicitly provides
for additional flexibility in what records the NCUA can look to when
determining the details of account relationships and various parties'
interests in the accounts.
In short, the Board believes the principal consequence of the final
rule will be to streamline its administrative procedures for insurance
payouts on trust accounts when FICUs fail. Though the final rule will
require FICUs and their members to be familiar with the new trust rules
and the coverage limits imposed on trust accounts, the NCUA believes
this will not impose any new significant burden on FICUs, may ease some
existing requirements, and should reduce the complexity of questions
FICUs receive from their members on share insurance coverage.
Additionally, FICUs and their members are familiar with the new
formula as it is already applied to revocable trust accounts with five
or fewer beneficiaries. The formula is also simpler to understand and
implement than the previous rules governing revocable trust accounts
with six or more beneficiaries and irrevocable trusts.
Ultimately, the changes to the rule governing coverage of MSAs and
the changes to the recordkeeping requirements should only provide
greater flexibility for coverage of these accounts and should not cause
any new burden on FICUs or their members. Accordingly, the NCUA
certifies that this final rule will not have a significant economic
effect on a substantial number of small FICUs.
B. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (PRA) applies to rulemakings in
which an agency by rule creates a new paperwork burden on regulated
entities or modifies an existing burden.\87\ For the purposes of the
PRA, a paperwork burden may take the form of a reporting, disclosure,
or recordkeeping requirement, each referred to as an information
collection. The NCUA may not conduct or sponsor, and the respondent is
not required to respond to, an information collection unless it
displays a currently valid Office of Management and Budget (OMB)
control number.
---------------------------------------------------------------------------
\87\ 44 U.S.C. 3507(d).
---------------------------------------------------------------------------
The final rule does not contain information collection requirements
that require approval by OMB under the PRA. The final rule will not
create new or modify any existing paperwork burdens. Rather, the final
rule will simplify the share insurance regulations by merging the
revocable and irrevocable trust account categories into one trust
account category and applying a simpler, common calculation method to
determine insurance coverage for funds held in revocable and
irrevocable trust accounts. The final rule will also provide consistent
share insurance treatment for all MSA balances held to satisfy
principal and interest obligations to a lender, regardless of whether
those funds are paid into the account by borrowers or paid into the
account by another party (such as the servicer) to satisfy a periodic
obligation to remit principal and interest due to the lender. Finally,
the final rule will explicitly allow the NCUA, when undertaking share
insurance determinations, to look to records held in the normal course
of business that are maintained by parties other than a FICU and its
members on their behalf. As such, no PRA submissions to OMB will be
made with respect to this final rule.
C. Executive Order 13132
Executive Order 13132 encourages independent regulatory agencies to
consider the effect of their actions on state and local interests. The
NCUA, an independent regulatory agency as defined in 44 U.S.C. 3502(5),
voluntarily complies with the principles of the Executive Order to
adhere to fundamental federalism principles. This final rule will only
impact the NCUA's regulations related to share insurance coverage; it
will not affect state law related to trust accounts. The final rule
will also not alter the NCUA's relationship or division of
responsibilities with state regulatory agencies or bodies because the
final rule will affect the NCUA's Federal share insurance
determinations exclusively. This final rule will not have a substantial
direct effect on the states, on the connection between the national
government and the states, or on the distribution of power and
responsibilities among the various levels of government. The NCUA has
determined that this final rule does not constitute a policy that has
federalism implications for the purposes of the Executive Order.
D. Assessment of Federal Regulations and Policies on Families
The NCUA has determined that this rule will not affect family well-
being within the meaning of section 654 of the Treasury and General
Government Appropriations Act, 1999, Public Law 105-277, 112 Stat. 2681
(1998). Under this statute, if the agency determines the final
regulation may negatively affect family well-being, then the agency
must provide an adequate rationale for its implementation.
The NCUA has determined that the implementation of this rule will
not negatively affect family well-being. The NCUA believes that any
negative effect
[[Page 79414]]
will be limited because the trust changes may not affect many accounts,
and members or others maintaining those accounts will have time and
notice to modify the accounts before the final rule goes into effect.
Further, the MSA and recordkeeping changes offset negative effects
because they will instead provide the NCUA more flexibility to provide
share insurance coverage with respect to funds dedicated to pay loans
and other obligations related to family homes and businesses. If the
NCUA ultimately finds that the rule does have a negative effect as the
statute describes, it believes the benefits that the preamble describes
in simplifying coverage and potentially reducing costs for the NCUA and
for FICUs would support implementing the rule.
E. Small Business Regulatory Enforcement Fairness Act (Congressional
Review Act)
The Small Business Regulatory Enforcement Fairness Act of 1996
(Pub. L. 104-121) (SBREFA) generally provides for congressional review
of new agency rules that qualify as ``major'' under criteria specified
in the Act.\88\ The NCUA's analysis indicates the rule falls short of
qualifying as ``major'' under SBREFA's criteria. As required by SBREFA,
the NCUA is submitting this final rule and its economic impact analysis
to OMB for concurrence on the ``not major'' determination. The NCUA
also will file all other appropriate congressional reports.
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\88\ 5 U.S.C. 801-804.
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List of Subjects in 12 CFR Part 745
Credit, Credit Unions, Share Insurance.
By the National Credit Union Administration Board on September
19, 2024.
Melane Conyers-Ausbrooks,
Secretary of the Board.
For the reasons discussed in the preamble, the Board is amending 12
CFR part 745 as follows:
PART 745--SHARE INSURANCE COVERAGE
0
1. The authority citation for part 745 continues to read as follows:
Authority: 12 U.S.C. 1752(5), 1757, 1765, 1766, 1781, 1782,
1787, 1789; title V, Pub. L. 109-351;120 Stat. 1966.
0
2. The heading for part 745 is revised to read as set forth above.
Sec. 745.0 [Amended]
0
3. Amend Sec. 745.0 in the first sentence by removing the words ``and
appendix''.
0
4. Revise Sec. 745.1 to read as follows:
Sec. 745.1 Definitions.
For the purposes of this part:
Account or accounts mean share, share certificate, or share draft
accounts (or their equivalent under state law, as determined by the
Board in the case of insured state-chartered credit unions) of a member
(which includes other credit unions, public units, and nonmembers where
permitted under the Act) in a credit union of a type approved by the
Board which evidences money or its equivalent received or held by a
credit union in the usual course of business and for which it has given
or is obligated to give credit to the account of the member.
Member or members mean those persons enumerated in the credit
union's field of membership who have been elected to membership in
accordance with the Act or state law in the case of state-chartered
credit unions. It also includes those nonmembers permitted under the
Act to maintain accounts in an insured credit union, including
nonmember credit unions and nonmember public units and political
subdivisions.
Non-contingent interest means an interest capable of determination
without evaluation of contingencies except for those covered by the
present worth tables and rules of calculation for their use set forth
in Sec. 20.2031-7 of the Federal Estate Tax Regulations (26 CFR
20.2031-7) or any similar present worth or life expectancy tables which
may be adopted by the Internal Revenue Service.
Political subdivision includes any subdivision of a public unit, as
defined in paragraph (c) of this section, or any principal department
of such public unit,
(1) The creation of which subdivision or department has been
expressly authorized by state statute;
(2) To which some functions of government have been delegated by
state statute; and
(3) To which funds have been allocated by statute or ordinance for
its exclusive use and control. It also includes drainage, irrigation,
navigation improvement, levee, sanitary, school or power districts and
bridge or port authorities, and other special districts created by
state statute or compacts between the states. Excluded from the term
are subordinate or nonautonomous divisions, agencies, or boards within
principal departments.
Public unit means the United States, any state of the United
States, the District of Columbia, the Commonwealth of Puerto Rico, the
Panama Canal Zone, any territory or possession of the United States,
any county, municipality, or political subdivision thereof, or any
Indian Tribe as defined in section 3(c) of the Indian Financing Act of
1974.
Standard maximum share insurance amount referred to as the
``SMSIA'' hereafter, means $250,000 adjusted pursuant to subparagraph
(F) of section 11(a)(1) of the Federal Deposit Insurance Act (12 U.S.C.
1821(a)(1)(F)).
0
5. Effective October 30, 2024, amend Sec. 745.2 by revising paragraph
(c)(2) to read as follows:
Sec. 745.2 General principles applicable in determining insurance of
accounts.
* * * * *
(c) * * *
(2) If the account records of an insured credit union disclose the
existence of a relationship which may provide a basis for additional
insurance, the details of the relationship and the interest of other
parties in the account must be ascertainable either from the records of
the credit union or the records of the member, maintained in good faith
and in the regular course of business by the member or by some person
who or entity that has undertaken to maintain such records for the
member.
* * * * *
0
6. Further amend Sec. 745.2 by:
0
a. Revising paragraph (a);
0
b. Removing paragraph (c)(3);
0
c. Redesignating paragraph (c)(4) as paragraph (c)(3);
0
d. Removing paragraph (d); and
0
e. Redesignating paragraphs (e) and (f) as paragraphs (d) and (e).
The revision reads as follows:
Sec. 745.2 General principles applicable in determining insurance of
accounts.
(a) General. This part provides for determination by the Board of
the amount of members' insured accounts. The rules for determining the
insurance coverage of accounts maintained by members in the same or
different rights and capacities in the same insured credit union are
set forth in the following provisions of this part. While the
provisions of this part govern in determining share insurance coverage,
to the extent local law enters into a share insurance determination,
the local law of the jurisdiction in which the insured credit union's
principal office is located will control over the local law of other
jurisdictions where the insured
[[Page 79415]]
credit union has offices or service facilities.
* * * * *
0
7. Effective October 30, 2024, amend Sec. 745.3 by revising paragraph
(a)(3) to read as follows:
Sec. 745.3 Single ownership accounts.
(a) * * *
(3) Mortgage servicing accounts. Accounts maintained by a mortgage
servicer, in a custodial or other fiduciary capacity, which are
comprised of payments of principal and interest, shall be insured for
the cumulative balance paid into the account by mortgagors, or in order
to satisfy mortgagors' principal or interest obligations to the lender,
up to the limit of the SMSIA per mortgagor. Accounts maintained by a
mortgage servicer, in a custodial or other fiduciary capacity, which
are comprised of payments by mortgagors of taxes and insurance premiums
shall be added together and insured in accordance with paragraph (a)(2)
of this section for the ownership interest of each mortgagor in such
accounts.
* * * * *
0
8. Revise Sec. 745.4 to read as follows:
Sec. 745.4 Trust accounts.
(a) Scope and definitions. This section governs coverage for funds
held in connection with informal revocable trusts, formal revocable
trusts, and irrevocable trusts. For the purposes of this section:
(1) Informal revocable trust means a trust under which deposited
funds pass directly to one or more beneficiaries upon the owner's death
without a written trust agreement, commonly referred to as a payable-
on-death account, in-trust-for account, or Totten trust account.
(2) Formal revocable trust means a revocable trust established by a
written trust agreement under which deposited funds pass to one or more
beneficiaries upon the grantor's death.
(3) Irrevocable trust means an irrevocable trust established by
statute or a written trust agreement, except as described in paragraph
(e) of this section.
(b) Calculation of coverage--(1)General calculation. Deposited
trust funds are insured in an amount up to the SMSIA multiplied by the
total number of beneficiaries identified by each grantor, up to a
maximum of five beneficiaries.
(2) Aggregation for purposes of insurance limit. Deposited trust
funds that pass from the same grantor to beneficiaries are aggregated
for the purposes of determining coverage under this section, regardless
of whether those funds are held in connection with an informal
revocable trust, formal revocable trust, or irrevocable trust.
(3) Separate insurance coverage. The share insurance coverage
provided under this section is separate from coverage provided for
other funds at the same federally insured credit union.
(4) Equal allocation presumed. Unless otherwise specified in the
account records of the federally insured credit union, deposited funds
held in connection with a trust established by multiple grantors are
presumed to have been owned or funded by the grantors in equal shares.
(c) Number of beneficiaries. The total number of beneficiaries for
trust funds deposited under paragraph (b) of this section will be
determined as follows:
(1) Eligible beneficiaries. Subject to paragraph (c)(2) of this
section, beneficiaries include natural persons, as well as charitable
organizations and other non-profit entities recognized as such under
the Internal Revenue Code of 1986, as amended.
(2) Ineligible beneficiaries. Beneficiaries do not include:
(i) The grantor of a trust; or
(ii) A person or entity that would only obtain an interest in the
deposited funds if one or more named beneficiaries are deceased.
(3) Future trust(s) named as beneficiaries. If a trust agreement
provides that trust funds will pass into one or more new trusts upon
the death of the grantor(s) (``future trusts''), the future trust(s)
are not treated as beneficiaries of the trust; rather, the future
trust(s) are viewed as mechanisms for distributing trust funds, and the
beneficiaries are the natural persons or organizations that shall
receive the trust funds through the future trusts.
(4) Informal trust account payable to member's formal trust. If an
informal revocable trust designates the account owner's formal trust as
its beneficiary, the informal revocable trust account will be treated
as if titled in the name of the formal trust.
(d) Account records--(1) Informal revocable trusts. The
beneficiaries of an informal revocable trust must be specifically named
in the account records of the federally insured credit union.
(2) Formal revocable trusts. The title of a formal trust account
must include terminology sufficient to identify the account as a trust
account, such as ``family trust'' or ``living trust,'' or must
otherwise be identified as a testamentary trust in the account records
of the federally insured credit union. If eligible beneficiaries of
such formal revocable trust are specifically named in the account
records of the federally insured credit union, the NCUA shall presume
the continued validity of the named beneficiaries' interest in the
trust.
(e) Deposited funds excluded from coverage under this section--(1)
Revocable trust co-owners that are sole beneficiaries of a trust. If
the co-owners of an informal or formal revocable trust are the trust's
sole beneficiaries, deposited funds held in connection with the trust
are treated as joint ownership funds under Sec. 745.8.
(2) Employee benefit plan deposits. Deposited funds of employee
benefit plans, even if held in connection with a trust, are treated as
employee benefit plan funds under Sec. 745.9.
Sec. 745.9-1 [Removed]
0
9. Remove Sec. 745.9-1.
Sec. 745.9-2 [Redesignated as Sec. 745.9]
0
10. Redesignate Sec. 745.9-2 as Sec. 745.9.
Sec. 745.9 [Amended]
0
11. Amend newly designated Sec. 745.9 in paragraph (a) by removing the
phrase ``, in accordance with Sec. 745.2 of this part''.
Sec. 745.13 [Amended]
0
12. Amend Sec. 745.13 in the second sentence by removing ``, the
appendix,''.
0
13. Effective October 30, 2024, amend Sec. 745.14 by revising
paragraph (a)(2) to read as follows:
Sec. 745.14 Interest on lawyers trust accounts and other similar
escrow accounts.
(a) * * *
(2) Pass-through coverage will only be available if the
recordkeeping requirements of Sec. 745.2(c)(1) and the relationship
disclosure requirements of Sec. 745.2(c)(2) are satisfied. In the
event those requirements are satisfied, funds attributable to each
client and principal will be insured on a pass-through basis in
whatever right and capacity the client or principal owns the funds. For
example, an IOLTA or other similar escrow account must be titled as
such, and the underlying account records of the insured credit union
must sufficiently indicate the existence of the relationship on which a
claim for insurance is founded. The details of the relationship between
the attorney or escrow agent and their clients and principals must be
ascertainable from the records of the insured credit union or from
records maintained, in good faith and in the regular course of
business, by the attorney or the escrow
[[Page 79416]]
agent administering the account, or by some person who or entity that
has undertaken to maintain such records for the attorney or escrow
agent. The NCUA will determine, in its sole discretion, the sufficiency
of these records for an IOLTA or other similar escrow account.
* * * * *
Appendix to Part 745 [Removed]
0
14. Remove the appendix to part 745.
[FR Doc. 2024-21888 Filed 9-27-24; 8:45 am]
BILLING CODE 7535-01-P
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</html>Indexed from Federal Register on September 30, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.