Estate Planning -Does It Offer Creditor Protection?

Estate Planning -Does It Offer Creditor Protection?

By Randall D. Armour, Esq.

One of the most common questions that I am asked when meeting with a client to discuss estate planning is whether or not the estate plan will offer them protection from creditors. In today's litigious society, many people who invest in real estate or are involved in high risk businesses are constantly worried about potential liability to a tenant, customer, passerby or anyone else who may sue in an attempt to make a buck.

Basic estate planning usually involves planning for the management of assets upon incapacity and distribution of assets upon death with the least amount of cost and inconvenience. In most cases, these objectives are met by using a revocable living trust. A revocable living trust, however, provides no protection from creditors for the people who establish the trust and place their assets into the trust (self-settled trusts).

Because asset protection has become such an important issue in many peoples minds, I will discuss different methods that can and have been be used to protect assets from creditors. This is certainly not an exhaustive list of asset protection techniques and I am NOT an expert in this area of law. If you want asset protection you must consult an expert to determine the proper method, if any, given your specific circumstances.

Protecting Marital Property: The manner in which a married couple holds title to property can determine a creditor's ability to seize marital assets. In general, the community property can be attached for debts incurred by either spouse while the separate property of one spouse can only be reached by the creditors of the spouse who owns the separate property. However, significant tax and estate planning advantages may be lost by characterizing property as the separate property of one spouse.

Forming an Entity: Forming a corporation, LLC or limited partnership is often the best method for people who own a business or investment property that they want to segregate from other assets for liability purposes. The best type of entity will vary depending on the type of assets owned and tax considerations.

Being Properly Insured: Many people feel that the easiest and most cost-effective approach to asset protection is to insure themselves against liability. For example, if you have a $2 million umbrella policy and someone slips and falls at a property that you own and is awarded a $1 million judgment, your insurance policy will cover the judgment and you wontt lose any property. The problem is that you can never know for sure how much insurance is enough to cover any potential claims.

Asset Protection Trusts: There are many types of "asset-protection" trusts that are commonly marketed. Most jurisdictions, including California, have a prohibition against someone establishing a trust to protect their own assets ("self-settled" trusts). Many foreign jurisdictions and some states have adopted special laws to allow self-settled asset-protection trusts but the United States will generally not recognize these foreign laws and the laws of other states will generally not be effective for California residents. In my opinion, these trust are often over-hyped, over priced and ineffective. In recent years, the IRS has aggressively sought to impose severe civil and criminal penalties for tax evasion for both promoters and participants in offshore trusts.

Many asset-protection plans involve a combination of various devices. It is also important to keep in mind that there are laws in place to protect creditors against fraudulent transfers of assets Awith actual intent to hinder, delay, or defraud a creditor. These fraudulent transfer laws must always be taken into account when any asset-protection plan is devised and implemented