If having health, home and car insurance seem obvious, then why not insure your other assets too? You can create a trust for yourself, family or charity. An asset protection trust is not limited to estate planning, though. You may enjoy asset protection during your lifetime, with the trust becoming the foundation of an estate plan over time.
Trusts protect both personal and business assets while enhancing your privacy. Our trusts are anonymous which in turn makes you less of a target for treasure hunters. We draft Dynasty, Self Settled, Medicaid and other trusts. We like to say there are as many types of trusts as there are people and their situations.
Common misconceptions concerning trusts include the idea you lose control of the assets, cannot name yourself as a beneficiary, or you must establish an offshore trust. Properly forming a domestic asset protection trust avoids the above pitfalls.
People assume a credit event won't happen to them, but of the following list chances are most of us will experience at least one during our lifetime. Such events include, but are not limited to, frivolous lawsuits, aggressive creditors, divorce, accidents and good old fashioned bad luck. Each is an opportunity for a third party to attack your assets. Some of these events are foreseeable and others aren't, but given such odds it makes little sense to roll the dice.
The most common reasons people form trusts are:
A trust is an agreement between two or more people. Namely, the agreement is between the person who creates the trust and those who benefit from it. The person who creates a trust puts assets into it for a specific use, the trust owns the assets and the assets cannot be taken by creditors.
Every trust has three parts. They are:
The benefit of a trust, versus an LLC or Corporation, is that it can be used to protect not only business assets, but personal assets too. You cannot put your home into an LLC and expect protection, but that is just fine with a trust. Protectable assets include:
Trusts have been used for hundreds of years by anyone who is serious about asset protection or leaving a legacy. They are not solely the domain of High Net Worth Individuals. We have set up trusts for many individuals and families with less than a million dollars.
Trusts are commonly used by those who:
Trust law favors those who plan ahead.
Domestic Asset Protection Trusts are designed to deter present and future creditors. This deterrence may lead a creditor to decide that either bringing a lawsuit will be too costly and time consuming or will force them into settling for much less than would otherwise have been possible.
Structures your assets in a manner designed to simultaneously preclude seizure by third parties while still allowing you to benefit from said assets.
Trust law isolates ownership, control and the benefits of an asset from each other. In practical terms this means you can benefit from an asset, and control it, without directly owning it. This division of ownership prevents your personal creditors from seizing assets held in trust. There are three parts to a trust:
1) Settlor/Grantor: This is the person who creates the trust and puts assets into it; 2) Trustee: This person or company manages the trust; 3) Beneficiaries: These are the people who benefit from the assets held in trust.
administers/controls them and a party of your choosing (you) benefits from them. Domestic asset protection trusts create a distance between you and your assets and any possible distributions.
This distance creates a barrier between your creditors and the assets in question. This barrier can create sufficient reasonable doubt to deter creditor claims altogether, will give you a stronger position to bargain from and will at the very least buy you precious time.
These trusts, given you form the trust and are its beneficiary, are called self-settled trusts:
Thus, you may form a trust in a state of your choosing and it cannot simply be invalidated because it doesn't conform to another state's laws, usually the state you or your creditor resides in.
The first DAPT statute was ratified by Alaska in 1997. This is why such trusts are still often referred to as Alaskan Trusts, regardless of where they're formed. To this date, no creditor has pursued a DAPT through the whole court system. This is, presumably, due to the fact creditors assumed the domestic trust would ultimately stand up to scrutiny.
There are two cases to consider. First, if you reside in one of the # states with DAPT laws (x,y,z) then a properly created and funded DAPT will work. Nonresidents, on the other hand, still face the uncertainty of what should happen should the plaintiff refuse to settle and pursue the matter all the way through the court system. This uncertainty, though, creates doubt in your creditors mind as to whether the possible eventual pay off is worth the intervening effort and cost.
An asset protection strategy should be considered successful should
Don't allow the perfect to be the enemy of the good, a little bit of uncertainty should not deter you. Often those disliking certainty engage in no asset protection at all, and then the only certainty is that you'll have no protection from creditors. No strategy provides a 100% guarantee of success. The goal is to use all available techniques to stack the odds in your favor.
While each trust is a custom drafted document, there are a few general types of trusts and characteristics that we tend to blend in. Some
trust types, in no particular order, are:
A trustee is in essence the trust's manager. Every trust is required to have one. It is within your power to appoint and remove the trustee as you see fit. Historically, only a public trust company was available, but recently select jurisdictions have begun allowing Private Trust Companies ("PTC"):
A revocable trust does not offer asset protection. It can provide privacy, be used to avoid probate, and assist with larger estate planning goals. Though, it can be revoked at anytime with the assets in it used to pay off creditors if a judge so demands. For this reason only irrevocable trusts provide asset protection.
Hearing irrevocable can cause concern because of its seeming permanence.
We are passionate about what we do. Our family history includes a company which survived two world wars, the depression and a near fatal accident. None of these things kept us down. What did finally do the company in was an untimely divorce and estate taxes. We don't want this to happen to you.
Asset protection describes a wide sphere of legal techniques and structures. These stuctures are generally constructed to provide legal protections against lawsuits, creditors, divorces, bankruptcy and taxes.
Domestic Asset Protection Trusts can be employed for individuals and corporations seeking protection from aggressive creditors, or as part of a comprehensive estate planning process. Asset protection, also known as debtor-creditor law, is a type of legal planning to protect against civil judgements.
A commonly and easily used DAPT strategy is the “exempt asset strategy”, which, as the name implies, involves assets which are considered exempt from claims due to state law. Such assets may include primary residences, retirement plans, annuities, life insurance and some business assets. Another simple DAPT strategy is to transfer assets to a 3rd party. Putting assets into trust for a loved one can help shield the transferred assets from liabilities. There are two common downsides to these strategies. They are the transferor loses control and economic benefit of the assets transferred and the assets are not protected from claims which are made against both transferor and transferee.
Statutes determining creditor rights vary state-to-sate. Wyoming's legislature has enshrined a number
of debtor friendly laws which make it one of the best states in the union for protecting assets.
Only a handful of states have enacted legislation allowing for their use, some examples are
Wyoming, Alaska, Deleware and Nevada. One should prefer an experienced attorney for matters
concerning asset protection due to state-to-state differences
Businesses and individuals who are being unfairly pursued by creditors can benefit from these legal techniques. Fortunately, living in a state other than one of these in no way disqualifies an individual from enjoying the benefits of such an arrangement. As a member of the Wyoming Domestic Asset Protection Counsel we are familiar with assisting individual's and business' with setting up these structures and are happy to discuss them individually or as part of a comprehensive estate plan. Follow the link above for further information.
Individuals and corporations are increasingly seeking strategies to protect and preserve their wealth. This movement towards asset protection has been in part fueled by the realization certain litigations and hazards present to accumulated wealth. Examples of such hazards are worldwide economic problems, failed marriages and blended families. These all constitute exposure to undue financial risks.
Many will find they don’t need asset-protection planning, but there are groups with greater exposure and risk. Such groups are doctors, attorneys, accountants, directors and officers of public companies and real estate owners. Add to those groups anyone with significant means and there is a meaningful population that is or at the very least should be concerned with asset protection and risk management.
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