Estate planning can accomplish many things, including protecting your assets. Guarding your property against creditors is essential to preserving your estate for your heirs. Creditors include bill collectors and anyone else who may have a legal judgment against you. Everyone can benefit from an asset protection plan, but you must create that plan before it is too late.
The purpose of asset protection
Creating an asset protection simply means analyzing your assets and organizing them in a way that provides the best possible protection against unnecessary risk or loss. Contrary to what some people believe, when done correctly, asset protection is completely legal. The complexity of your plan will depend on the size and nature of your estate, but your estate planning attorney will be fully capable of helping you minimize your risks. With the proper plan, you can be prepared for any unexpected circumstances that would otherwise put your assets at risk. You can do this without any form of tax evasion or fraud.
When to start asset protection planning
In order for your plan to be the most effective, it is necessary to put that plan in place long before debts and legal claims arise. If not, any attempts to move your assets around after a claim has been made, or a lawsuit has been filed, could appear to be a fraudulent transfer. Another reason for planning early is that most clients are not adept at recognizing potential sources of liability that would put their assets at risk.
Keep your personal assets separate from your business assets
If you own a business, it is crucial that you avoid commingling your business and personal assets. There are specific types of business entities, such as Limited Liability Companies (LLCs), which are specially designed to protect the personal assets of the owner. However, they can only provide protection if they are operated correctly. In other words, if personal assets and business assets are not kept separate, even the owner of an LLC will run the risk of putting their personal assets at risk.
Using a trust for asset protection
The most common estate planning instrument used for asset protection is an irrevocable trust. When you transfer assets to an irrevocable trust, they are essentially no longer a part of your estate. For that reason, they are considered to be outside the reach of creditors and legal claims. They are also no longer subject to estate taxes. Trusts can be very flexible and customizable, with different types of trusts having different purposes and benefits. So discuss all of your options with your estate planning attorney to determine the right plan for you.
Understanding the concept of fraudulent transfers
A fraudulent transfer or fraudulent conveyance refers to the action of moving your assets with the goal of evading a creditor or a legal liability. Put another way, if you convey assets to someone with the intent of hiding them from a legitimate creditor or judgment that is considered a fraudulent transfer. “Intent” does not require knowledge that hiding your assets is illegal. The only “intent” required is knowing that your assets could be have been used to satisfy a legitimate legal obligation, and you purposefully transfer them out of reach.
How to avoid the appearance of fraud
The easiest way to avoid the appearance of a fraudulent transfer is to be proactive. That means creating your asset protection plan before there is a legal judgment or debt. If you convey your assets when your asset protection plan is created, before legal proceedings have begun, you can successfully avoid the appearance of fraud. Basically, it is all about timing.
Liability insurance is an option for supplementing your protection
Liability insurance is one way to provide asset protection, especially for homeowners and business owners. If you are required to defend a lawsuit, for instance, your liability insurance provider will handle your defense and pay any settlement or judgment, if necessary. This is a good supplement to have because an asset protection plan is not really designed to defend legal actions or pay attorney’s fees. For that reason, business and home owners should not substitute an asset protection plan for proper liability insurance.
If you have questions regarding asset protection, or any other estate planning matters, contact Gaughan & Connealy for a consultation either online or by calling us at (913) 262-2000.
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