Asset Protection

TidepoolsEstate Planning should not be done in a bubble, especially in these days where not only doctors, but property owners, accountants, business owners, and property owners all face higher risks from lawsuits.

When a lawsuit has been filed, it is generally too late, as any attempt to shield assets will be seen as fraudulent. If, however, you have integrated your asset protection into your estate planning prior to the claim, you stand a much better chance of protecting your assets against attachment by a judgment creditor in a lawsuit.

Here are six ideas to consider:

1. Tenants by the Entirety. If you are married and live in a state that allows married couples to hold property as “Tenants by the Entirety,” creditors generally cannot reach any part of the assets held in this form, unless both spouses are found liable. If, for example, you are a contractor and your spouse is not involved in your business, then a disgruntled client suing you on a job would have no ability to reach the tenants by the entirety property held by you and your spouse.

2. Fund Retirement Accounts. Many types of retirement vehicles receive protection under federal and/or state law, including exemption and protection in bankruptcy in some cases.

3. Use Gifting. Gifting not only can provide important estate planning benefits, but may also provide asset protection if done correctly. For example, assets properly gifted into an irrevocable trust for a child will be protected from the giver’s creditors, as well as the child’s creditors until the time the child gains control of the assets. College savings plans, if properly titled, can provide protection. Charitable gifting through charitable annuity trusts can insulate assets while providing a stream of income to the giver. Gifts to a spouse can also work to keep assets protected from the potential creditors of the giving spouse who bears risk in his or her profession.

4. Create an Entity. Consider incorporating, or becoming a limited partnership or limited liability company (LLC). These entities can provide estate planning benefits, as well as protection against judgment creditors.

5. Buy Insurance. Obviously, where liability insurance can be affordably obtained, it provides the first line of defense. Life insurance and annuities should also be considered, as in many states they receive protection.

6. Bold Measures. Some of the more aggressive alternatives for asset protection involve offshore trusts, and “Alaska Trusts.” Offshore trusts are expensive and sometimes risky; however, the mere presence of an offshore trust may be enough to thwart some creditors. Alaska Trusts, as they have become known, are available in states such as Alaska, Delaware, Rhode Island, and Nevada. Once qualifying trusts are established in those states, for four to six years, they receive protection against creditors. The downsides are that the assets must be in those states, held by an independent trustee (not you) and there is no guarantee that the trusts will work for out-of-staters.