State-Registered Investment Advisers (RIAs) are subject to numerous regulations in the state(s) where they do business, which, though they vary from state to state, generally have the goal of protecting investors from fraudulent sales practices. These rules require RIAs to file documents (such as Form ADV) with the state, maintain books and records, provide disclosures to clients, and act in the clients’ best interests whenever providing financial advice. Additionally, many (but not all) states set minimum financial requirements – in the form of minimum net capital and/or surety bond requirements – that RIA firms must maintain in order to become (and remain) licensed, to protect consumers from both the risk of fraud, and simply the consequences of negligent or inaccurate advice that could cause them harm. Because of the many differences between each state’s requirements, though, it’s important for RIA owners (especially the founders of new firms) to know their state’s particular rules and how to comply with them.
In this post, Kitces Senior Financial Planning Nerd Ben Henry-Moreland discusses how owners of state-registered RIAs can better understand their minimum net capital and surety bond requirements, and what protection they do (and don’t) provide for both clients and financial advisors themselves.
In states that set minimum net capital requirements, an RIA must hold a certain level of assets over its liabilities. This amount varies not only from state to state, but also often within states, depending on whether the RIA holds custody of client assets and/or has discretionary trading authority over client funds. In practice, states most commonly require RIAs to hold $35,000 of net capital if they have custody, $10,000 if they have discretionary trading authority (but not custody), and to have at least a $0 (i.e., positive and not-negative) net worth if they are an advice-only firm (no custody or discretion), which must be satisfied by holding cash or other marketable (i.e., liquid) investment assets.
In lieu of maintaining a certain amount of capital, though, some states permit RIAs to cover some or all of their net capital requirements with a surety bond instead. State rules for surety bonds can also vary widely, with some states requiring RIAs to hold a surety bond, others allowing firms to purchase a surety bond in lieu of maintaining the state’s net capital requirements, and some choosing not to sanction the use of surety bonds whatsoever. In states that do allow (or require) surety bonds, RIA owners need to know how surety bonds function, what the potential risks of having a surety bond may be, how their state’s surety bond and net capital bond requirements interact (and how to decide whether or not to buy a surety bond if they have a choice), and how to find the best surety bond provider to meet their needs. Though ultimately, surety bonds are appealing relative to net capital requirements because of their significantly lower cost – typically about 1% of the face amount, which means paying $100/year for a $10,000 surety bond.
While net capital and surety bond requirements provide some level of financial protection to RIA clients, that protection is minimal compared to what many clients may actually stake on their advisors’ recommendations. In practice, a legal claim by a dissatisfied client could result in a liability for the RIA that is many times greater than the state’s minimum financial requirements. Accordingly, RIA owners can protect themselves with additional layers of coverage (such as Errors & Omissions insurance) above the minimum amounts that may be required by the states in which they operate. Especially since a surety bond provider has the right to collect any client claims from the advisor, which means it does help ensure a client is made whole – similar to E&O insurance – but doesn’t actually protect the advisor’s own assets the way E&O coverage does!
The key point, though, is simply that because financial advisors are expected to give good advice, and can be held financially liable for advice that results in undesired financial outcomes for their clients, they must have the financial wherewithal available to cover any liabilities resulting from a client’s legal claims. State minimum financial requirements are one of the few ways to ensure that RIAs have assets available (or a surety bond in lieu of assets, where permitted) so clients can be compensated for any damages. But part of being a trusted professional is taking full accountability for the consequences of professional advice… which means it’s essential for the RIA to know not just how much coverage they need to secure to meet their state’s requirements (and in what form), but also how much additional coverage they may need to fully protect themselves (and their clients)!Read More…