The policyholder is insolvent and urgently needs money. There would be the possibility to sell the right to his private pension. How the framework for this is set and when a transfer can fail, describe attorney Dr. Johannes Fiala and actuary Peter A. Schramm in their contribution “The ordinary right to a private pension could be sold in the event of the company’s own insolvency.
Ten years’ challenge of intent
All that would then remain would be the ten-year premeditated challenge with regard to the transfer (section 133 of the Insolvency Code (InsO), section 3 of the Avoidance Act), as well as the three-month suspension of sections 88, 130, 131 InsO.
In the event of a (even partial, i.e. mixed) donation of the insurance, the disposal of the
insurance contract
or the payments are contestable for four years, section 4 AnfG, section 134 InsO.
In addition, there is the ten-year claim for recovery – for example, by the tax office, also attachable – due to (subsequent) impoverishment of the donor, section 528 of the German Civil Code (BGB).
The social welfare office can also transfer such legal claims to itself. Who certainly does not
gift
, will have to ensure through an actuarial report that the benefit and consideration are equivalent.
Irrevocable favourable treatment
Another possibility: Instead of an assignment, an irrevocable preferential treatment is chosen: A favours B for the private pension paid on A’s life. Beneficiaries may also be granted a preferential right of survival even if the pension is already running. B pays an appropriate value, i.e. the subscription right is transferred for full consideration.
If the benefit and consideration are actuarially equivalent in value, the InsO will regularly require you to wait only up to three months to see whether the seller of the policy has not been declared bankrupt by then.
Hardly any investors have yet discovered the business of buying up existing private pensions.
life insurer
often don’t offer any here at all
surrender value
more, or a relatively low one. This is precisely why the sale is worthwhile for both sides.
Death insurance is advisable
Additional protection by means of a death insurance policy for the life of the insured person is advisable if the possible actuarially limited risk of termination of pension payments on death cannot be borne by spreading the risk over a large number of purchased pensions.
If a policy has been purchased by a “relative”, for example from the own family, the own company, or by friends, a two-year appeal is always possible, section 138 InsO. The burden of proof lies legally with the buyer, provided that he does not intervene with a trustee: However, an insolvency administrator can also easily uncover such circumvention transactions.
Insurer must acknowledge assignment
If, however, the purchaser only has knowledge of imminent insolvency or over-indebtedness on the basis of relevant indications according to case law, it would be contestable for longer, section 133 InsO, section 3 AnfG.
Insolvency occurs as soon as 90 percent of the debts due can no longer be paid immediately with liquid funds – i.e. if one would be dependent on deferral. Normally, this is given to the buyer of a
pension insurance
stay hidden.
Only such knowledge would nevertheless expose a so-called cash transaction, which is normally free of challenges (if within up to 30 days an equivalent payment is made directly into the assets of the seller, e.g. also through exemption from a liability) to challenges.
If the assignment is not recognised by the insurer, a three-year period of limitation will run from the end of the year – as with any other refusal to pay benefits – in order to take action against the insurer and, if necessary, to obtain insurance benefits with judicial assistance, Section 14 of the Insurance Contract Act (VVG).
by Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm
with friendly permission of www.cash-online.de, published on 04.04.2016
Link: http://www.cash-online.de/versicherungen/2016/private-rente/314611
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About the author
Dr. Johannes FialaPhD, MBA, MM
Dr. Johannes Fiala has been working for more than 25 years as a lawyer and attorney with his own law firm in Munich. He is intensively involved in real estate, financial law, tax and insurance law. The numerous stages of his professional career enable him to provide his clients with comprehensive advice and to act as a lawyer in the event of disputes.
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