Asset Protection Basics
Asset Protection is one of the most critical components of proper estate planning. While your estate plan writ large aims to ensure a transfer of wealth to future generations, it should be integrated with an asset protection plan that shields those hard-earned and valuable assets from creditors, predators, lawsuits, and disaffected family members. In other words, your estate plan as a whole directs how your wealth transfers to your heirs and beneficiaries, and an asset protection plan makes sure those assets can transfer by keeping them securely in your possession.
Business owners, professional practitioners such as doctors, dentists, lawyers, and accountants, and property owners are frequent targets for lawsuits, but the threat of costly litigation hangs over everyone’s heads like a sword of Damocles.
Assets can be put at risk by multiple vulnerabilities, including:
- Professional malpractice liability
- Personal liability of corporate officers and directors
- Lawsuits by former business partners
- Personal injury suffered on your premises or in a vehicle accident
- Liability as guarantor for the debts of another
- Liability arising from misconduct
We live in an increasingly hostile legal environment, and the odds are very good that you will face costly litigation at some point in your life. Even a seemingly minor lawsuit can potentially place your valuable assets at risk. The best way to avoid this situation is to incorporate an asset protection plan into your estate plan to keep your assets cordoned off from potential bad actors.
What Is an Asset?
Defining “asset” may not be as simple as some people think. Construed broadly, an asset could be anything you own that has value: a rental property, stock certificates, savings account funds, or your collection of Beanie Babies.
However, value is often more subjective than we would like. Certain assets have emotional value to a person or a family, which may not have an equivalent market value. Further, the value of some assets appreciates or actively produces income, while others depreciate.
Moreover, certain asset classes are inherently shielded from creditors (“protected assets”), but others are not (“exposed assets”) and require special planning to ward off potential lawsuits.
- Life insurance
- Retirement accounts
- Unemployment or disability benefits
- Social Security benefits
- Custodial accounts held for minor beneficiaries
- Florida pre-paid college tuition plans
- Owned as Tenants by the Entirety
- Individual or joint accounts
- Personal property
- Individually or jointly owned (non-married) real property
Due to these nuances, asset protection planning techniques are truly bespoke. A comprehensive analysis of your asset portfolio is critical so we can develop the most effective asset protection strategy for your situation.
What Asset Protection Strategies Are Available?
Fundamentally, asset protection planning involves taking potentially “exposed assets” (i.e. assets subject to creditor claims) and reallocating them such that they are exempt from creditors. Fortunately, Florida’s asset protection laws are quite fulsome and provide several options for asset protection, including:
- Florida Homestead
- Head of Household exemption
- Tenancy by the Entirety and Joint Tenancy
- Florida Irrevocable Trusts
- Family Limited Partnerships
- Limited Liability Companies (LLC)
- Offshore corporations and trusts
- 401(k)s and IRAs
- Life insurance
- Federal retirement plans
As you can see from this list, in order for your asset protection plan to be fully functional you need an asset protection attorney with expertise in a breadth of subjects. We help our clients establish Florida asset protection strategies to shield their assets and minimize risk to potential creditors. We are well-versed in an array of asset protection strategies:
- Domestic and offshore trust planning
- Domestic and offshore business entity formation
- State laws regarding asset exemptions
Shielding Assets from Creditors
Asset protection is about risk mitigation and reduction; think of it as a kind of insurance policy—Insurance that not only protects your wealth, but your financial legacy too by denying creditors access to your money, property, or business.
A creditor that initiates litigation against a person with a proper asset protection plan will be sorely disappointed when they realize that the person they’ve sued owns very few collectible assets. That’s because the assets owned by a properly structured trust, foundation, or other entity are generally not subject to creditor’s claims.
But just like insurance, it only works if you buy it ahead of time. Once a creditor has initiated legal action, many of your asset protection strategies are off the table. Attempting to implement late-stage asset protection strategies risks running afoul of Florida’s “fraudulent transfer” statutes.
If a transfer or conversion of property is made after a creditor has a claim against you, that transfer is vulnerable to fraudulent conveyance allegations. A creditor can claim that the asset was transferred to a third party (“transferee”) with the intent to hinder, delay, or defraud them.
Therefore, we need to carefully consider our entire asset protection toolbox before determining which tools are best suited to your needs. The exact asset protection strategies employed should be different for every situation and conform to the nature of the assets, the country of origin, and the tax regulations that apply to those assets. Remember, the ultimate goal is to protect your assets effectively, legally, and ethically.
Do I Need an Asset Protection Plan?
Anyone who has worked hard enough to amass significant assets and wealth should have an asset protection plan in place to ensure those assets and wealth don’t get stripped away by a disaffected creditor. Don’t risk your years of effort being undone in one fell swoop.
If any the following apply to you, we strongly advise you to call us now to develop and implement an asset protection plan:
Have equity in real estate or own multiple properties
Own a business
Do not have insurance policies on home, businesses, rental properties, or vehicles
Have joint assets, accounts, or properties
Have significant liquid (cash) assets, trusts, or stocks
Have assets in foreign bank accounts
May inherit retirement, disability, Social Security, or trust benefits
Do I Need to Update My Asset Protection Plan?
If you already have an asset protection plan in place, that is fantastic. However, asset protection is not a one-and-done event. Especially with the economic instability of the COVID-19 pandemic and the new presidential administration’s tax policies, reviewing and revising your asset protection plan in 2020 is more critical than ever.
Here are just a few questions to help you decide whether you need to call us to review your asset protection plan right now:
Are you certain your Florida homestead is titled as “Tenants by the Entirety”?
Are you and your spouse’s checking/savings accounts titled as “Tenants by the Entirety”?
If you have LLCs, does each have an operating agreement that was updated after 2014?
If you have any corporations (or professional associations), does each have a shareholders agreement that was updated after 2019?
Are all rental properties titled in the name of a multi-member LLC?
Do all your multi-owner business ventures have properly executed and updated buy-sell agreements?
If you weren’t able to answer a resounding “yes” to all of these basic questions, you should get in touch to review your current asset protection plan right away. The end of the year is fast approaching and updating these items takes predefined amounts of time.
Don’t Be an Easy Target for Creditors
Proactive planning is critical to ensuring that your financial legacy is secure and that your family and assets are protected. We urge you to take the necessary steps to protect yourself, your family, and your hard-earned assets and wealth. Whether you need to develop your first asset protection plan or update your existing asset protection strategies, we can help.
We will have a fulsome conversation about your short-term and long-term objectives, the complex legal and tax landscape, and the full range of asset protection strategies that are available so that you can craft a well-rounded asset protection plan that truly takes into account what you want your financial legacy to be. We can help take the fear and frustration out of the process. Call us today at (561)998-2362 or fill out the confidential form below to schedule your free Financial Legacy Review now.