Asset Protection Planning

Developing a successful plan to provide for your financial security and for your children's education requires two key ingredients.

Build your Wealth

First, you must create a program for building wealth. That means utilizing available savings and investment strategies to accumulate investment capital and then managing your funds in the most efficient and productive manner. Techniques for accomplishing these objectives have always been the centerpiece of traditional financial planning. Books, magazines, television shows and daily seminars offer an abundance of advice on a variety of savings and investment vehicles such as mutual funds, annuities, IRA's, 401(k) plans, and investment real estate.

Protect your Wealth

The second ingredient of every successful financial plan is a program for protecting wealth. If your objectives are to provide for the needs of your family and to build a nest-egg for your retirement, building wealth is only one side of the equation. The other side is making sure that everything you have put together over the years remains safely intact and is there for you when you need it.

Asset Protection Strategies

Strategies for protecting wealth, known as Asset Protection, are designed to address particular dangers which pose a threat to your financial security. These dangers are primarily lawsuits and claims against you which can arise from many possible sources. By implementing sophisticated planning techniques, we can protect our clients' assets from creditors and lawsuits while, at the same time, allowing them to retain control over the assets and the income which they produce.

THE LAWSUIT DANGER

More than nineteen million lawsuits are filed in this country every year. Millions of people lose everything they own because of business problems, medical bills, divorce, IRS disputes, accidents and a host of other financial disasters. Additionally, anyone who has retirement savings is an attractive and visible target for frivolous lawsuits directed at "deep pocket" defendants.

  • Business owners face a constant threat of lawsuits from employees, lenders, customers, suppliers, landlords, competitors, partners and government agencies.
  • Property owners are endangered by potential lawsuits from tenants, visitors, lenders and buyers.
  • Attorneys, physicians, dentists, architects, CPAs, engineers, real-estate brokers, contractors and all other professionals are concerned with litigation arising from malpractice claims and business disputes.
  • Anyone who has accumulated a nest-egg for retirement can be confronted with lawsuits from auto accidents, a child's negligence, unforeseen medical expenses and disgruntled family members.

A lawsuit from any one of these sources, justified or not, can easily wipe out a lifetime's worth of work and savings. Ask yourself what happens if you lost everything you own. Are you prepared to start all over again? For most people the answer is certainly no. And that's why a sound financial and business plan always incorporates essential asset protection features.

WHAT IS ASSET PROTECTION PLANNING?

Asset protection planning is the method of preparing for the possibility of future lawsuits by rearranging the ownership of assets so that they are beyond the reach of potential creditors. It can act as a form of supplementary insurance in an overall strategy to protect you from the risks associated with businesses and professions; however, insurance policies have limits and exclusions.

  • Policies may not pay a claim based upon the commission of an intentional act or one resulting in punitive damages.
  • The amount of the claim may exceed the policy limits.

Asset protection planning is used to protect assets that would otherwise be at risk. Asset protection planning can be done to differing degrees. In general, the more complex the planning, the more effective the protection. However, complex plans generally cost more and contain more restrictions.

DO YOU NEED ASSET PROTECTION PLANNING?

If you have enough assets to require estate planning to avoid death taxes, then you probably have enough assets to require planning to protect them from lawsuits before death. It is a personal decision based upon your aversion to risks.

WHAT ASSETS CAN YOU PROTECT?

The simplest form of asset protection planning involves the ownership of "exempt" property that state law considers unreachable by creditors. Each state has its own laws defining exempt and non-exempt property. Certain property may be entirely exempt while the exemption for other property may be limited to a certain dollar amount. Examples of exempt property include:

  • Household furniture and furnishings
  • Clothing and Jewelry
  • Tools of a trade or business

Social security and other such benefits including life insurance may also be exempt property. Some states exempt all or a portion of one's home and adjoining land. If property is not exempt from your creditors, you may want to consider a simple form of asset protection planning: an outright transfer of the property to family members. Valuable assets may be transferred to a spouse or relative to insulate them from claims of potential creditors. Intra-family transfers can also often constitute effective estate planning. Transferring the ownership of assets now can protect them from creditors during your lifetime and from the tax collector at death.

Intra-family transfers should not be made before considering all ramifications and risks. The disadvantages include:

  • Your loss of control over the asset and any income that it might generate
  • The new owner's exposure to potential creditors
  • Any gift tax consequences of the transfer

ARE MY RETIREMENT ASSETS PROTECTED FROM CREDITORS?

Federal law provides that creditors cannot reach the assets held by so-called qualified retirement plans. This includes pension, profit sharing, and 401(k) plans. Self-employed plans and Individual Retirement Accounts may be protected from creditors depending upon your state's laws.

HOW CAN YOU PROTECT YOUR ASSETS WHEN STARTING A BUSINESS?

If you begin a business without incorporating it, then all of your personal and business assets will be at risk for all debts and claims against the business. This is also the case if two or more people run the business as a general partnership. In order to protect your personal assets from the risks of the business, an asset protection form of ownership needs to be utilized. The choices available in most states include:

  • Corporation
  • Limited Partnership
  • Limited Liability Companies

PARTNERSHIPS AND TRUSTS

During the past few years, the family limited partnership has been touted as the leading asset protection device. As the states have permitted the formation of limited liability companies, they, too, have been viewed as a favorable ownership form for asset protection.

It is more difficult for creditors to reach business or investment assets that have been transferred to these limited liability entities. In most states, a judgment creditor of a limited liability entity cannot attach a partnership's assets or foreclose on a partner's interest in order to satisfy his claim. Instead, a creditor is only entitled to a "charging order," which may limit their claim to partnership distributions.

Asset protection trusts are another asset protection planning tool. The laws of some states now authorize these trusts. There are a number of tax haven countries that are also used to form "off-shore" trusts. These countries have laws that are favorable to the creation of these trusts and can insulate the trust's assets from creditors.

FRAUDULENT TRANSFERS

Asset protection planning is considered to be both legal and ethical if it takes place before any event has occurred that could result in a claim against you. If you have already committed an act that could result in a claim or if you have been sued, then it is too late. Any asset transfers at that time (without adequate consideration) may be considered a fraud upon creditors, in which case, the law would not respect the transfers.


The Greening Law Firm, P.C. serves clients in Austin, Georgetown, Bee Cave, Lakeway, Lake Travis, Round Rock, Cedar Park, Pflugerville, Temple, Hutto, Leander, Manor, Dripping Springs, Blanco, Wimberley, San Marcos, Bastrop, Elgin, Westlake and Central Texas.