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Asset Protection Planning

Asset Protection Book The firm is a leader in the area of asset protection planning. Few attorneys are so widely and well-respected in the area of asset protection planning as Chris Riser and Jay Adkisson. Their book written jointly, Asset Protection: Concepts & Strategies (McGraw-Hill 2004) is the all-time best-selling work on the subject worldwide -- literally -- having also been translated into Chinese and sold in the Far East beginning in 2009.

Chris Riser is a former Chairman of the American Bar Association's Asset Protection Planning Committee. Jay Adkisson has uniquely lectured to the U.S. Department of Justice and Internal Revenue Service about how to identify bust asset protection plans, and is nationally renown for his exploits in collecting against debtors in difficult situations. Both Chris and Jay are frequently asked to lecture on the topic of asset protection, and have done to so many professional groups from the American Bar Association, to various state and county bar associations, the Heckerling Institute, the Financial Planning Association, the American Society of Plastic Surgeons, and many similar groups nationwide.

Chris Riser integrates asset protection with estate planning to attempt to harmonize those objectives and is responsible for much of the firm's planning and drafting work. Chris also handles the tax planning aspects of all planning done.

Jay Adkisson has been frequently quoted on the subject of asset protection in the financial press, has been an expert witness to the U.S. Senate Finance Committee, is a contributing writer to Forbes and hosts their "Wealth Conservation" blog. He also actively litigates cases involving asset pro tection issues from both the creditor-side and the debtor-side.

Together, Chris and Jay create custom-tailored plans that are designed specifically for each client, and do not engage in any cookie-cutter work of any type. Their innovative strategies and tactics are based on sound law and they take a conservative and fail-safe approach to planning, often making novel use out of traditional but tried-and-tested planning structures.

Our LinkedIn™ group on asset protection planning is the largest group of its kind on the internet and has over 1,300 members. This group which is free and open for viewing to the public features regular updates and interesting discussions on the technical issues involving asset protection planning. Click here to visit

Our updates regarding asset protection planning are also carried on our Twitter feed. Click here to follow

Asset Protection Research Database

Since 1997, we have maintained the best and most exhaustive information on the technical issues of asset protection planning of any other firm or website and are considered by our peers to be among the leaders in the area of asset protection planning. The following resource is free, but must be viewed with great caution and is not any substitute for the advice and counsel of a licensed attorney in your state.

General Discussion


Statutory Exemptions


  • Homestead - Discusses the statutory homestead exemption for personal residences.

  • Life Insurance and Annuities - Discusses the statutory exemptions for life insurance and annuities.

  • Qualified Accounts and IRAs - Discussion of the statutory exemption of certain tax-qualified accounts, such as IRAs, SEPs, 401(k) plans, KEOGH plans, etc., from creditor collection.

  • Fraudulent Conversions - Discussion of the wrongful conversions of non-exempt assets into exempt assets in defraud of creditors.

  • Click here for our famous State-by-State Exemption Chart

Trusts and Foundations


  • Spendthrift Trusts - Discussion of the spendthrift protection for trusts and its effectiveness against the creditors of a beneficiary.

  • Foreign Asset Protection Trusts a/k/a Offshore Trusts - Discussion of self-settled spendthrift trusts formed in a domicile outside of the United States, which trusts are known as "Foreign Asset Protection Trusts" or simply "Offshore Trusts"

  • Domestic Asset Protection Trusts - Discussion of self-settled spendthrift trusts form in a U.S. state having laws that recognize such trusts, also known as "Domestic Asset Protection Trusts"

Business Entities


Fraudulent Transfers & Fraudulent Conversions


  • Fraudulent Transfers - Discussion of transfers made in defraud of creditors and the Uniform Fraudulent Transfers Act (UFTA)

  • Equity Stripping - Discussion of the removal of equity from an asset by borrowing against the asset

  • Civil Conspiracy - Discussion of civil conspiracy and related theories for asserting liability against non-debtor parties who have assisted the debtor in defraud of creditors

Bankruptcy


  • Bankruptcy Generally - Discussion of various issues in bankruptcy planning and litigation as it relates to asset protection planning

  • Involuntary Bankruptcy - What it takes for creditors to successfully file an involuntary bankruptcy petition for a debtor

  • Bankruptcy-Specific Exemptions - The federal bankruptcy laws provide certain of their own exemptions, and some states create exemptions that are only available in bankruptcy

Issues for Asset Protection Planners


Do not use non-attorney planners for asset protection! Only licensed attorneys offer the very important protection of attorney-client privilege for conversations, disclosures, and other communications made during planning. By contrast, discussions with non-attorney planners are discoverable by creditors, even if an attorney is hired later to implement or review the plan (the privilege is not retroactive). Such discoverable conversations often make it easy for creditors to unwind the asset protection. Also, in many states attorneys have certain privileges to perform certain legal actions that otherwise might create civil conspiracy liability. Therefore, ALL communications involving asset protection planning from the very start of the planning through completion should be done only with or through licensed attorneys. Beware contrary representations made by non-attorney planners as those representations are probably false.

JAY ADKISSON'S FORBES ARTICLES

The Real McCoy: Living Trust Provides Spendthrift Protection To Assets Of Beneficiary In Bankruptcy


Kornman: The Impossibility Defense and the Self-Created Impossibility Exception


Cohen: Temporary Restraining Order Issued Against Those Assisting Debtor With Fraudulent Transfers


Cutter: Too Much Control And Right To Access Neuters California Irrevocable Spendthrift Trust As An Asset Protection Trust


Quaid Redux: Original Settlor’s Power To Revoke Protects Assets In Florida Trust


Easy Chart Regarding Effectiveness Of Asset Protection Trusts


Tucker: Involuntary Bankruptcy Just Not That Difficult For Creditors

Smith: Cook Islands Asset Protection Trust Results In Special Circumstances Allowing Less-Than-Three Creditors Involuntary Bankruptcy Petition


Peter Rogan And Attorney Fred Cuppy Indicted For Post-Claim Asset Protection Planning – Attorney Sued For Civil RICO – Trust Held Alter Ego Of Settlor


Mortensen: Alaska Asset Protection Trust Funded By Solvent Settlor Completely Fails To Protect Assets In Bankruptcy Against Future Creditors


The Sad Last Ballad of Jerry Lynn Williams: Divorce Decree Fails To Defeat Fraudulent Transfer Action


The Washington Woes Of Michael Mastro And Friends


Undercapitalization Again: Owner Of Sole Shareholder Corporation Gets Aced On Veil Piercing Claim At The U.S. Open


Murphy: Attempts To Dodge Personal Guarantees Means Misery For All Involved

Schofield-Johnson: Husband’s Failed Attempt To Shield Assets From The IRS By Transferring To Wife Who Transferred To An LLC


 ‘Tis The Season For Tax Shelters, Fa La La La La And Grab Your Wallet


Racsko: Bankruptcy Trustee Of Mother Can Invade Her Children’s Trust On Fraudulent Transfer Grounds


KKR, Bruno’s, the Fiduciary Shield Doctrine, and the Long Arm of Alabama


Why Do Creditors Win In Most Of The Reported Asset Protection Cases?


Khashoggi: Margin Scheme Leads Personal Liability For True Beneficial Owner Under Alter Ego Theory; Undercapitalization and Domination

Hot New Do-Nothing Strategy Draws Attention In Asset Protection Planning As Being 99% Effective

Dad’s Looting Of Corporation By Making Gifts To His Kids Gets Them Caught Up In Fraudulent Transfers


Buffa’s Bad Tuna: Debtor Owning 99% Of LLC Attempts To Dodge Charging Order By Paying Oversized Salary To Wife


 As An Asset Protection Trust, Henry’s Trust Was A Notable Failure


 Charging Orders and K.O.’d by the K-1 … Not


 Bankruptcy Opinion In Re Patel Illustrates Why Post-Liability Planning Can Be A Very Bad Idea


 Hawaii Updates Its Domestic Asset Protection Trust Legislation — Should You Care?

 Ten Rules For Asset Protection Planning


Noack: The Single Member LLC, Alter Ego, and Undercapitalization

DEAD ON ARRIVAL - WHEN IS ASSET PROTECTION TOO LATE?

Asset Protection is about taking chips off the table when times are good. Asset protection is not about cheating existing creditors. By the time that a person has signed a personal guarantee that pledges all their assets for some loan, or they have a serious accident, or they incur some other significant liability that threatens to wipe out their wealth, the time for asset protection has passed.

The real estate bust and economic downturn have spurred an enormous interest in asset protection planning. Unfortunately, for many people their interest in asset protection is simply too late.

The primary problem is the existence of fraudulent transfer laws that will nullify gifts and transactions that are meant to put assets out of the reach of creditors, and fraudulent conversion laws that limit a debtor's attempts to put their money into exempt assets.

The Statute of Limitations for for fraudulent transfers and conversions is usually around four years, although each state will have its own variations. This means that any transfer or conversion that was made within the last four years might be targeted by a creditor to be set aside. So, if you are in financial trouble now and just starting to think about asset protection, you are probably too late. Way too late.

The fraudulent transfer and fraudulent conversion laws do not look at lawsuits or judgments, but instead look at when a "claim" arose. A "claim" is a circumstance or event that could give rise to liability. So, if you suspect that you might be sued for something, but you have not yet been sued or even received a demand letter from the plaintiff's attorney, you might still be too late to do asset protection planning if the "claim" has already arisen.

Similarly, you may be DOA if you have personal guarantees. Basically, a personal guarantee is your pledge and commitment to back your obligations with the totality of your non-exempt worldly assets. If you have a personal guarantee and you attempt to protect your assets from the guarantee, the courts will basically view it as an attempt to take your chips off the table after you lost the hand, and will not be sympathetic.

To be effective, asset protection should be done before you get into financial trouble and especially before you enter into any personal guarantees. After those things occur, then you need other debtor planning or pre-bankruptcy planning but not asset protection planning.

If you engage in asset protection planning after a significant claim arises or after you have become illiquid, then not only will any transfers that you make be at risk of later being deemed to be fraudulent transfers and thus set aside by the Court, but you also may risk a denial of discharge if you later find yourself bankruptcy, voluntary or involuntary. Post-claim asset protection can make your situation worse -- a lot worse! Asset protection planning is not a game, and there can be serious consequences if you get it wrong after a claim has arisen.

One thing is certain if you are in trouble or financially slipping, the more quickly that you speak with an experienced creditor-debtor or bankruptcy attorney in your state, the better off you will be. In addition to bankruptcy counsel, some attorneys specialize in non-bankruptcy "workouts" with creditors and "wind-downs" of distressed businesses. But be very cautious about going to somebody who claims they can help you with post-claim "asset protection" because the odds are heavily against you and the stakes are high if the planner is wrong.

 The lesson is that if you want to engage in asset protection planning, you need to do so before you have any problems. For if you wait until you have problems, it will probably be too late. You can't wait until you have the flu to get the flu shot, and you can't wait until creditors are banging on the door to start asset protection planning because then the odds of it working will be very low.

Further readingBankruptcy Opinion In Re Patel Illustrates Why Post-Liability Planning Can Be A Very Bad Idea

STATE SPECIFIC ASSET PROTECTION

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