A New York asset protection attorney can help you protect your assets from creditors and predators. You worked hard to get to where you are today, and it makes sense to reduce financial risk by protecting your assets from lawsuits, medical expenses, divorce and creditors. Consider a variety of situations where your assets can be exposed to risk:
- Someone suing you for injury, accident or debt
- Someone suing you for a task you performed as a part of your job
- Someone suing you for a business obligation
- Your spouse divorcing you, or you divorcing your spouse
- Having to declare bankruptcy
- Having to go to a long-term care facility
- Having to incur medical expenses
- Your children going through a divorce
- Your children being sued or declaring bankruptcy
New York asset protection attorneys usually use trusts for personal asset protection and companies for business asset protection. We use established processes and well-accepted techniques to give the maximum possible protection to our clients’ assets under the law.
How A Trust Can Protect Your Assets
Irrevocable trusts (as opposed to revocable trusts) offer many asset protection benefits.
- Protection from creditors and lawsuits. A properly executed and funded irrevocable trust will shield the principal of the trust from creditors and lawsuits.
- Protection from medical and long term care costs. There are several types of trust that can help some individuals qualify for Medicaid, including home care and nursing home coverage. Learn more about Medicaid trusts.
- Protection from probate costs and delays. Probate proceedings can become expensive and delayed. It’s even more complicated if you have property in multiple states, because each state requires its own probate proceeding. Property that you will transfer to a trust will not have to go through probate.
- Privacy against casual creditor inquiries. Proceedings in probate court are public record. Any person or organization will be able to find out the extent and location of your assets, including potential creditors or predators. Not so with trusts, which are private.
- Protection from your children’s spouses and creditors. You may not want any of your hard-earned assets to go to your child’s spouse, whether in divorce or as an inheritance. You do not want any of the assets you give to your child to go to your child’s creditors, whether as a result of a lawsuit or in bankruptcy.
- Protection from irresponsible and inexperienced children. A trust provides limits on how your beneficiaries can spend the assets. For example, you can specify amounts upon reaching a specified age.
- Protect your minor children or grandchildren from mismanaged funds and hindering court oversight. Minor children or grandchildren cannot manage funds and they will need a trustee to manage the funds for them. If children inherit funds without a trust, the children’s parent or guardian will not be able to access the funds without a lengthy court proceeding and tremendous court oversight, we are talking about having the court endorse every check and having to file multiple reports each year.
- Protect your loved ones’ right to qualify for Medicaid and SSI – if your loved one is disabled and is on means-tested government programs such as Medicaid or SSI, a Special Needs Trust (also known as Supplemental Needs Trust) can help preserve their eligibility. They can continue to qualify to have the government pay for their care, instead of using your hard-earned assets.
- Protection from the effects of your disability. A trust lets you select a trustee – someone you trust to manage your estate on your behalf in the event you become unable to do so yourself. Read more in Planning for Disability.
- Protection of large estates from excessive estate taxes. Trusts can help you legally save a substantial amount on estate taxes. Read How to Avoid Estate Taxes to learn more about the credit shelter trust the life insurance trust. A “QTIP” trust or a QDT trust for the benefit of your spouse can further your tax savings goals. A Charitable Remainder Trust (CRT) or a Charitable Lead Trust (CLT) will help you maximize your tax advantage per charitable dollar. A Grantor Retained Annuity Trusts (GRAT), an Intentionally Defective Grantor Trusts (IDGT), or a Unitrust are advanced trusts that remove appreciation of your property from your estate. Read more in Advanced Estate Planning.
A revocable trust, on the other hand, does not offer enough protection to be considered a good asset protection tool. The law considers assets in the revocable trust to belong to the person who placed the asset into the trust, so forming an irrevocable trust, although it has some benefits, will have no impact on asset protection. This is because revocable trust gives a lot of control to the person who established the trust. You can even revoke the trust, reversing it completely. For this reason, only an irrevocable trust works as a tool that an asset protection attorney would use in New York.
How We Use Companies to Protect Business Assets
Asset protection attorneys use companies for business asset protection. The company can be a corporation, an LLC, or a professional association such as a PLLC. Doing business as a company provides a shield for an individual from business liability. A business asset protection plan is not fool-proof and can be in danger of being compromised. A business owner can make a mistake, such as not having all of the correct documents in the business folder or not filing the correct yearly documents with the state. A business owner can also take a calculated risk, like signing a personal guarantee on a business loan. You need a New York asset protection attorney to guide you through those decisions.
Insurance as an Asset Protection Tool
An insurance policy can be a powerful supplement to an asset protection plan and can be an asset protection tool in and of itself. An insurance company will likely not only pay for the claim against you but will also pay for an attorney to defend the claim. An asset protection attorney can help you sort through your options in deciding how best to incorporate insurance into your asset protection plan.
We Cannot Protect You Against an Existing Claim
People frequently call asset protection lawyers saying “there is a lawsuit against me, I am being sued, I need to protect my assets.” As a variation of this theme, people say “I know that a lawsuit is about to be filed against me, I’m about to be sued, I need to protect my assets before it’s too late.” The problem is, at that point, it’s already too late. An asset protection attorney can only protect your assets before a claim arises. In this respect, asset protection is like insurance – once the claim already happened, it’s too late to start. A court will typically overturn an asset transfer conducted in preparation for a specific claim.
A late asset protection plan can backfire. The court can require the unsuccessful “planner” to pay the judgment creditor’s attorney’s fees, and a bankruptcy court can deny them a bankruptcy discharge. An attorney involved in hiding assets from a pending lawsuit or bankruptcy can be disciplined for ethical violations. For this reason, asset protection attorneys stay away from helping their clients transfer assets when a claim already arose.
We Don’t Use Offshore Trusts
Offshore trusts are not effective because you are not offshore. A judge can order you to bring the money back to the United States, under threat of criminal contempt of court. Judges have the power to hold a person in jail until they bring their assets back to the United States. For this reason, most New York estate planning attorneys don’t use offshore trusts.
Asset Protection as a Hedge Against Bankruptcy
While bankruptcy can be a powerful tool to start fresh, it’s still best to avoid it. A modern bankruptcy proceeding has the effect of transferring most of your assets to your creditors. Having an asset protection attorney create a trust or a corporation for you before you are faced with having to declare bankruptcy is the best way to make sure that your assets are protected for your loved ones and your family. As we’ve discussed earlier, transferring your assets out of your name in contemplation of bankruptcy is a fraudulent transfer and can be set aside by the bankruptcy judge.
When it Comes to Asset Protection, Simple is Best
When it comes to asset protection plans, it’s best to keep it simple, with a trust or a corporation. A complicated web of transfers looks suspicious and will set off alarm bells in the judge’s head. As a rule of thumb, you should be able to explain why you created the asset protection plan. There are legitimate reasons for making a trust or a company, as we’ve discussed above. Making things more complicated usually does not help and can make an asset protection plan less effective.
Asset Protection is Not About Hiding Assets
If your goal is to hide assets from your creditors or the government, then asset protection is not for you. Asset protection is a 100% legal proactive way to manage risk. A New York asset protection attorney will not help you hide assets. What we do is help you form legal entities that you will disclose if asked in a deposition, by a judge or by a bankruptcy trustee, and will disclose on lawsuit information responses, bankruptcy petition and government assistance forms. Assets do not have to be hidden to be protected.
Situations that a New York Asset Protection Attorney can Protect Against
There is a seemingly limitless number of situations that a New York asset protection attorney can protect against. We have discussed the major ones above. A few more come to mind:
- a medical malpractice lawsuit against a doctor (especially obstetrician)
- a professional malpractice lawsuit against an attorney, architect or any other professional
- a car accident
- a slip and fall on your property
- a copyright infringement claim
- a lawsuit by a customer or a guest of your business
- a lawsuit by a shareholder of your company or your business partner
- a debt lawsuit by a bank or credit card company
- a dog bite lawsuit
- sexual or physical assault allegations
- medical debt and Medicaid for nursing home or medical costs
- any type of negligence lawsuit
A New York asset protection attorney can utilize powerful tools to protect your assets. The best time to start planning is now, if it’s not already too late. We will not be able to protect your from an existing claim, and hiding assets will not help either. You need an asset protection plan ahead of time. Call now and speak with a New York asset protection attorney. You can call Albert Goodwin at (212) 233-1233 or (718) 509-9774.