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Most Trusts Do Not Protect Your Assets; Asset Protection Trusts; Revocable and Irrevocable; Us and Offshore

Roger McClure April 11, 2012

Bank Tells Her A Trust Will Protect Her. Sally called our office for an appointment to set up a trust to protect her proceeds from a new credit line to be placed on her home. She wants to protect the proceeds of the loan from her creditors and her Bank told her to set up a trust to do that. It is common for many people to think that a revocable living trust protects them from their creditors. It usually doesn’t. We told her the appointment was not a good use of her time and money. Instead, we helped Sally set up an LLC.

Self-Settled Trust. There is a legal doctrine in trust law or state statute in most states that says a self-settled trust does not protect you from past, present or future creditors. The policy behind this law is that you should not have the ability to set up a trust and remove those assets in the trust from your creditors. Otherwise, everyone would set up a trust and if they had a judgment against them, the owner of the judgment or the credit card company could not get a court order to take over the debtor’s bank account. No one would have to pay their debts.

Modification of Self-Settled Trust Law. Certain states, such as Delaware, Alaska, Virginia and South Dakota have passed new statutes that alter the self-settled trust doctrine. In very general terms, these new laws allow you to set up an Asset Protection Trust (APT) and place assets in it and these assets may be not subject to what you will owe new creditors in the future. They are usually strong restrictions on what funds you can take out. Also, federal bankruptcy law overrides state law and may open up the state law APT to attack for ten years. If you are resident of a state that still has a self-settled trust law, but have an APT in Delaware, Alaska, Virginia, South Dakota or other state than allows you to set up an APT, then your local court may choose to apply the law of your state and not the law of the state of the APT and bust up your APT.

Offshore. Offshore, the story is completely different. You can set up trusts offshore where the law of the offshore country is that the assets in a self-settled trust are protected, usually after a period of three years from the date of the establishment of the trust. The assets in the offshore trust do not have to be in the country where you set up the trust. This is a complex area where you should be guided by experienced and competent counsel. This is not an opportunity for a US citizen to avoid paying taxes on investments you have outside of the country. If a US creditor attacks your offshore trust, the US court will examine what powers you have retained and whether the court can force you to bring the money back to the US and make it subject to the US court’s orders. As a general rule, if the trust and assets are offshore and the court cannot force the offshore trustee to bring the money back to the US, the ability of the US court to do anything about the money offshore will be very limited.

Trusts for Others. This self-settled trust doctrine should not be confused with trusts you set up for others. Fred dies and leaves his assets in trust for his daughter Jane for her lifetime. Jane has her CPA as a Cotrustee. Jane did not set up this trust; Fred did, so for Jane, Jane’s trust is not a self-settled trust. In routine legal cases, the Jane type of trust provides high hurdles to jump over for any past, present or future creditor of Jane. Some spouses or life partners may decide to set up such Jane trusts for each other. These can provide substantial asset protection for spouses and partners as long as the trusts are not carbon copies.

Asset Protection. There is no bullet proof asset protection vehicle and do not believe anyone who claims to have one to sell you. But, careful planning and operation of the proper type of vehicles can provide substantial protection of your hard earned assets.

Next: Virginia’s new asset protection trust law.