Asset Protection Planning Part I By: Roccy DeFrancesco, JD, CWPP, CAPP, MMB Founder: The Wealth Preservation Institute Co-Founder: The Asset Protection Society
Is your asset protection plan put together? Most people only have a few pieces of their asset protection puzzle put together.
Don’t Put all of your Eggs in One Basket
Multiple Entity Approach
Personal Protection Tools
Life Insurance, Annuities
What is Asset Protection Planning?
The vast majority of time is spent protecting assets from negligence lawsuits (which is also what this presentation will focus on).
However, proper asset protection also protects against:
Taxes (capital gains, income, and estate)*
Losing money in the stock market *
Long-term care *
(*Covered in a separate presentation on “global” asset protection).
What is good asset protection planning?
It is NOT about “hiding” assets.
It uses existing laws to put up barriers in front of creditors to discourage creditors from attacking assets.
It is legal.
It can be complicated or simple.
It can be expensive or not.
It can be domestic or offshore.
Good asset protection CAN NOT prevent lawsuits.
Anyone can be sued for anything (although the claim might get dismissed, a defendant still has to deal with it).
Who needs asset protection?
Anyone with Money (the simple answer).
High income/net worth
Anyone who can not hide behind the asset protection of a corporation.
Even if a professional is acting as an employee of a company, he/she can not hide behind the limited liability of the company and can be sued personally.
Therefore, if you are in one of the above listed fields, you have a heightened need for asset protection.
Reasons non-professionals need asset protection
If your clients have or own the following, they
have asset protection problems:
Boat, automobile, waverunner, snowmobile (protect the estate from the asset not the asset from creditors)
Slip and fall at your home due disrepair of the property.
You could have a office, Christmas party, etc. at your home where you serve alcohol and someone drove home and caused and accident.
Teenage children who are driving your automobiles.
If you own a cell phone today you are a negligence suit waiting to happen (texting, e-mailing, etc. on the phone while driving).
Keys to asset protection planning
Do not wait
Clients (and their advisors) are famous for procrastination. Due to the busy professional and personal lives of most clients, it is not easy to find the time necessary to sit down with a qualified attorney to put together an asset protection plan.
Do not go cheap on your attorney
It is okay to go cheap on a lot of “experts” you will use in your life, but going cheap on an asset protection attorney will get you nothing but grief.
Other Keys to asset protection planning
Keep an open mind
Support of the family
What assets should be protected?
Family Home or Condominium
Stocks or Mutual Funds
Bank Account or CD’s
Planes, Boats, Automobiles, Wave runners or Motorcycles
Other business entity (especially S or C-Corp stock)
Collectible items that have significant value
Accounts Receivables (at the medical practice) *
Other personal real property of value
Future Inheritance for Family
The Homestead Exemption (HE)
Most states (through statute) protect some
value your personal residence through the HE.
However, a few have no HE and some states have unlimited exemptions.
Most exemptions are $5,000-$50,000.
Unless you live in a state that has an unlimited exemption, the some or all of the equity in your home may be at risk to creditors.
Life Insurance as an asset protection Tool
As may be aware, one of the best protective wealth building tools at your disposal is a properly designed cash value life insurance policy.
Almost all states have laws that protect the DB from creditors.
However, is the cash value inside a non-term life policy protected.
Over 50% of the states protect the majority or even all of the cash in a life insurance policy.
Some states do not protect any cash value and other states choose to protect a limited amount such as $5,000-$25,000.
Annuities are treated much the same way as LI.
Most states provide some protection and some provide complete protection.
One difference between LI and annuities is the fact that an annuity can be annuitized and pay a stream of income.
Therefore, it is important to know if your state protects the cash value and or an annuity stream (or some portion of one or both).
A fraudulent transfer is a transfer of an asset (or incurring an obligation) with the actual intent to hinder, delay, or defeat a creditor's claim ( actual fraud ), and, regardless of intent, making a transfer while insolvent or which renders the transferor insolvent ( constructive fraud ).
What is important to understand is that the claim does not need to be filed to have actual fraud.
For example : If Dr. Smith cut off the wrong leg, he knows a claim should come from that negligence. Any transfer made to defraud a creditor is actual fraud .
Constructive Fraud is much more difficult to prove.
It is more likely that a fraud will be more subtle such as selling an asset 1) for less than its fair market value , 2) when a claim for damages against the seller is known, or 3) that makes the seller insolvent.
FMV example, if you sell an antique car worth $40,000 to a brother or “friend” for $10,000.
Defenses to Fraud
Legitimate business purpose.
People who get sued still need to carry on their lives. If you need to continue on with a business, every transaction that is for a legitimate business purpose should not be a fraudulent transfer.
Transfer before liability incurred.
This is the classic way to avoid a fraudulent transfer.
Believing that the claim against you is frivolous is NOT a valid defense.
ERISA qualified plans are protected from creditors.
The following are ERISA qualified plans.
Profit Sharing Plan
Money Purchase Plan
New Comparability Plans
Defined Benefit Plan
412(i) Defined Benefit Plan
Therefore if you have money in the above listed plans, your assets are protected from creditors.
Non-ERISA Qualified Plans
Simplified Employee Pension plans (SEPs) and Keogh plans are not specifically protected by federal law.
Having said that, if they meet the guidelines outlined by the Supreme Court as to what an ERISA qualified plan is, a court could find that they are asset protected.
Until April of 2005, the federal government did not asset protect IRAs.
Then the U.S. Supreme Court in April of 2005 ruled on Rousey v. Jacoway.
IRAs are protected in a bankruptcy case .
This S.C. case may not be helpful if you do not file bankruptcy.
26 states give partial or complete asset protection to IRAs.
Therefore, if you have wealth including money in an IRA and live in a state that does not protect IRAs, you should take proactive steps to protect your IRAs assets.
Protecting IRA assets in a state that does not have favorable laws
If you are currently employed:
You can protect your IRA assets by rolling them into your current employer’s ERISA governed qualified plan.
If you are retired or your employer does not have an ERISA governed qualified plan:
You can create your own family limited partnership (FLP) used to “govern your assets” and then become an employee (manager).
Once you become an employee of such an entity, you can create your own ERISA qualified plan and roll the IRA money into the new plan.
IRA protection schematic 1.5 million- dollar IRA Newly formed FLP C.V. Life Insurance Brokerage Account New FLP With : Cash Value Life Insurance, Brokerage Account With : A new Employee AND newly created Profit Sharing Plan (PSP) Transfer Newly formed FLP PSP Transfer
Summary of AP Part I
You need to first understand if you are at risk to lawsuits
Do you own a residence, boat, automobile, waverunner, snowmobile, vacation rental, etc.?
Do you have teenage children?
Are you a professional with personal liability?
You need to determine what valuable assets are at risk:
Stocks, mutual funds, real estate, annuities, real estate, etc.
If you have liability issues AND you have assets of value to protect, then you NEED to implement an asset protection plan in a timely manner ( DO NOT WAIT ).
There is only one way to help you reach your goal to become asset protected.