Many people do not consider the need for an asset protection plan until they are threatened by a lawsuit. Unfortunately, this is too late for effective legal fences to be erected around assets. Those who should consider asset protection include anyone who could potentially be sued for professional malpractice, such as doctors and lawyers, or those looking to minimize extra capital gain taxes on property. An experienced Asset Protection Lawyer at https://jdblawfirm.com/ can design a strategy that makes sense for your unique circumstances.
The premise of asset protection is that a person can legally separate his or her ownership of property from actual possession. This may help prevent assets from being seized by creditors or lost through lawsuits, divorce settlements and other events. Various legal vehicles can be used for this purpose, including trusts. An experienced estate planning lawyer can help a client decide which trust to use and determine the best timing for the transfer of assets into the trust.
An irrevocable trust is an essential tool for protecting assets from future lawsuits or judgments by creditors. A trustee manages the trust’s assets on behalf of beneficiaries, who typically do not have direct access to the assets. The trustee can also set up a spendthrift clause to prevent the beneficiary from selling or giving away trust assets without specific stipulations. In addition to providing a level of security against creditors and lawsuits, an irrevocable trust can protect the beneficiary from taxes imposed by the state or country in which the trust is located.
Another type of trust is the domestic asset protection trust (APT). A domestic APT is a tax-efficient vehicle to shelter assets from creditor claims and lawsuits. A domestic APT can be established with a single beneficiary or multiple beneficiaries. The trustee is appointed by the grantor, and can be a family member or a professional. The trustee can control and manage the trust’s assets, as well as make distributions to the beneficiaries.
However, a domestic APT should be considered carefully before making the decision to establish one. It must be made clear to creditors that the APT is intended to shield assets from creditor claims and lawsuits. If the creditor or plaintiff can prove that the APT was created in order to avoid paying a debt or obligation, a court may invalidate the APT.
A legal vehicle that offers the most protection from creditors and lawsuits is a foreign asset protection trust (FAPT). A FAPT is a complex structure to establish, but it can provide significant benefits for a wealthy individual. A FAPT can protect assets from a spouse’s claim in the event of a divorce, and it can reduce or eliminate federal estate taxes. A FAPT can also be used to secure Medicaid benefits, although a person must meet certain eligibility requirements.
Limited Liability Companies (LLCs)
The use of a limited liability company is one of the most common and effective strategies for protecting assets against claims by creditors or judgment holders. These business entities are created by state law and, in most cases, provide a strong barrier between a creditor and the personal assets of the owners.
In many cases, the formation of an LLC can help to minimize federal income tax expenses as well, which can significantly reduce the amount of taxes a business pays. These benefits make the LLC a popular choice among entrepreneurs who want to incorporate their start-ups.
However, the protection offered by an LLC is not entirely foolproof, especially when it comes to non-business claims such as malpractice lawsuits or negligence claims for accidents. For this reason, some business professionals and property owners choose to combine an LLC with an asset protection trust to offer additional security against such claims.
The main benefit of using an LLC for asset protection purposes is that the entity’s statutes generally prevent creditors from seizing the company’s assets. Instead, a creditor can be granted what is known as a charging order. With a charging order in place, a creditor can only obtain the debtor-member’s distributional interest in the LLC, but not the ownership or control rights.
Another advantage of an LLC is that the entity is able to be managed by its members, who can include non-owners or professional managers. This can allow for a great deal of flexibility when it comes to day-to-day operations and can be a great asset protection strategy as long as the operating agreement is properly written.
The operating agreement should also specify that the LLC is a separate legal entity from its owners, which will further protect the personal assets of the members. It should also state that the owners will not be liable for the corporation’s debts, breaches of contract or damages to third parties caused by the corporation or its employees. In addition to an operating agreement, an LLC can be strengthened with the use of a partnership trust and offshore locations that offer superior protection to what is available in the United States.
Family Limited Partnerships (FLPs)
A family limited partnership is a very useful tool for asset protection planning. It functions much like a limited liability company (LLC). The difference is that FLPs are primarily used by families and can include non-family members as partners. They also offer a more flexible management structure.
FLPs allow family members to centralize all their assets in one entity and can help prevent the loss of personal assets in a lawsuit or bankruptcy. The family can also decide how income and distributions are allocated among partners. This is especially important for people with a significant number of assets, such as real estate income properties, intellectual property and business interests. It’s essential to segregate high-risk assets from low-risk ones to minimize risk.
Creditors are unable to touch assets in an FLP. In addition, a well-drafted partnership agreement can limit the rights of creditors to a charging order, which is an attachment against the general partner’s share of the profits and income generated by the entity. This is not a full shield, but it can be enough to force the creditor into settlement negotiations with the partners and reduce the value of their claims.
Depending on the state, an FLP can also provide tax advantages. Many states consider FLPs to be pass-through entities and therefore are exempt from federal income tax. This can save on taxes for many families with substantial assets.
Finally, FLPs can be used to transfer ownership to heirs in a tax-efficient manner. Parents can transfer ownership of their FLP interest systematically over time, utilizing gift exemptions and valuation discounts. This can be particularly beneficial for affluent families who want to transfer their wealth to younger generations.
We often use FLPs in conjunction with other sophisticated techniques to achieve comprehensive asset protection. For example, we may recommend separating business assets from personal ones in an FLP and placing those assets inside of a Living Trust. In this way, a judgment creditor can only go after the business assets in the FLP, while keeping his hands off your personal home, bank accounts and other personal items.
In many cases, a business owner will use some of their own personal assets to start up and run a successful enterprise. This might include cash, property and credit. As a result, their personal assets may be at risk from the business’s creditors or legal liabilities. Forming a corporation or other legal entity can help to safeguard the business’s assets and separate the owners’ personal assets from those of the company. The most useful type of structure for this purpose is a limited liability company (LLC), but there are other options as well. A consultation with an asset protection and estate-planning professional will help to determine the best business structure for a specific situation.
While some people attempt to protect their assets by hiding or concealing their ownership of property, this is illegal and can be considered fraudulent under the Uniform Fraudulent Transfer Act of 1984. Effective asset protection planning involves the legal restructure of assets to reduce exposure to potential liability in conjunction with estate and tax planning goals. This process should be started before a claim or liability occurs because it is often too late to implement any meaningful asset protection strategies once a lawsuit is filed.
The types of assets that are at risk from creditors and civil judgments vary according to the individual’s circumstances. The most common assets at risk from lawsuits are cash, real property and investments. Those in professions that carry some level of liability, such as doctors and lawyers, might need more substantial asset protection strategies than those who are less at risk.
A qualified estate planner can help to reposition assets so that they are out of reach from creditors and civil judgments. However, this is not a quick or temporary fix. It must be done well before a claim is made against you or you anticipate that a claim will be made. Waiting until a lawsuit is filed exposes any asset protection strategy to attacks and reversal by a court, and it’s too late to employ any significant strategies once a claim or threat arises.