ASSET PROTECTION PLANNINGThere is a gambling saying that goes something like this, “If you want to be a winner, you have to walk away from the table a winner.” One time-honored method of reaching this result is to systematically take your chips off the table as you win them so that your potential for losses stays small. Asset protection planning is all about taking chips off the table in good times, so that you still can walk away from the table a winner no matter what happens in bad times. Those who worry the most about asset protection are those who are the most likely to get sued – think obstetricians and, more recently, real estate investors. However, any of us can get caught up in a difficult situation.
If you have something to protect, then the topic of asset protection should at least cross your mind. Technically, asset protection planning is the debtor’s side of creditor-debtor law. While creditors are concerned about the strategies and techniques of collection, debtors are interested in the strategies and techniques for protecting their most valuable assets from potential creditors. In this calculation, it is not just about protecting assets but also about making sure that one does not end up in jail for contempt or bankruptcy fraud for engaging in the process. There is no standard formula for asset protection planning. However, there are some very important guidelines:
- Start asset protection planning before you need it. The later you wait in the process, the less effective it becomes, and the more likely you will be dealing with fraudulent transfer considerations.
- Late planning usually fails. Late planning will cost you more in fees, and you may face numerous challenges that can be avoided by early planning.
- Asset protection planning is not insurance and does not replace insurance. Proper insurance planning is part of the asset protection picture.
- Personal assets and business assets should ALWAYS be kept separate.
- You have to give up some control to keep control of your assets.
- Asset protection and tax planning are two separate disciplines and are sometimes impossible to do together. The priority of concerns must be balanced in proper estate planning.
- Offshore planning is not necessarily foolproof in that you are still subject to the jurisdiction of the U.S. courts.
- Bankruptcy is not always a solution.
- If you do not understand it, it will not work for you. A complicated plan does not equal an effective plan.
- Asset protection planning is not about hiding. It is about protection.