Asset protection refers to ways to both protect and preserve your assets from collectors as well as other entities who might attempt to spend these funds. After all, regardless of how well you plan or how bright the future looks, various events like bankruptcy, divorce, loss of employment, and lawsuits can unexpectedly deplete your assets.
Texas state law provides a variety of protection for certain types of assets. In many situations, these include a person’s homestead as well as a certain amount of personal property, life insurance, retirement accounts, and savings accounts. Other “non-exempt” assets enjoy various types of protection through the use of legal structures including family limited partnerships, limited liability companies, and irrevocable trusts.
This article reviews some of the important details you should understand about trusts as well as other strategies to protect your assets from adverse events.
How Trusts Can Provide Asset Protection
Utilizing trusts to guard assets is one of the protective techniques. Certain types of irrevocable trusts exist where a person can be the trust’s creator as well as the beneficiary. After transferring assets to the trusts, however, the assets are managed by a third-party trustee and are no longer owned by the trust’s creator. Despite relinquishing ownership, the trust’s creator still receives benefits from these assets and can control as well as manage them indirectly through the trustee. Some of the most common types of trusts that can be utilized to protect assets from the threat of creditors or lawsuits include:
● Domestic asset protection trust. These trusts exist entirely for the creator’s benefit. These trusts let the creator hold on to a degree of interest in the trust and also protect the trust’s assets from creditors. Currently, a limited number of states permit the creation of domestic asset protection trusts. While it is possible to create one of these trusts in Texas, some caveats exist. For example, the Texas Property Code’s Section 112.035 (d) (2) states that asset protection does not apply to a trust creator if he is the beneficiary of the trust he establishes. A loophole to this general rule exists, though. If the trust creator, however, becomes a beneficiary of the trust due to the exercise of the power of a third party’s appointment, the trust creator’s interest will remain protected from creditors.
● Lifetime qualified terminable interest trusts. These trusts exist for a spouse’s benefit and by utilizing the gift tax marital deduction can lead to a reduction of overall taxes. These trusts utilize the less wealthy spouse’s federal estate tax exemption as well as provide a lifetime asset-protected trust for the wealthier spouse’s benefit.
● Medicaid planning trusts. Through these trusts, a person or a spouse can qualify for Medicaid while maintaining an income for the non-applicant spouse. Assets placed in these trusts pass to heirs protected from the government’s estate recovery, which would otherwise necessitate paying back Medicaid assets received during the creator’s lifetime.
● Spousal lifetime access trust. These trusts are established for a spouse’s benefit and utilize annual exclusion gifts as well as the lifetime gift tax exemption. These trusts allow the creator to reduce the estate taxes they end up paying.
Utilizing Limited Liability Structures
Besides creating a trust, another powerful way to protect assets and guard from liability is to create a limited liability business structure. Limited liability companies (LLCs) exist as separate legal entities in which the owner is not personally liable for claims made against the business. If some lawsuits or liabilities arise from a business operation, an individual’s personal assets will be protected and consequently cannot be seized by creditors.
Retirement Funds
Many employer-sponsored retirement plans are protected by federal laws and are also frequently exempt from bankruptcy, which means that a person can retain these accounts even after filing for bankruptcy. These accounts are also better protected than ordinary personal assets are from creditors.
Homestead Exemptions
Texas’s homestead protection laws help individuals retain ownership of their homes in case of bankruptcy or financial hardship. In the state of Texas, each family as well as every single adult individual is entitled to a homestead exemption from creditor seizure with the exception of pre-existing liens or mortgages. Homesteads can involve either rural or urban property. Urban homesteads can be either homes or places of business. How a homestead is classified can impact issues like the amount of acreage subject to a homestead exemption as well as whether the property can qualify as a business homestead.
Utilize Discretion
Besides selecting the appropriate type of strategy, the best way to protect your assets is to practice a high degree of discretion. As soon as you let others know about the assets that you own, you place yourself at a higher risk of being subject to unsolicited lawsuits. Trusts are one of the best ways to effectively hide the assets that you own because they do not require or involve the creation of public records.
Other Issues to Consider
When it comes to deciding what asset protection techniques work best for you, it is a good idea to consider the types of assets that you want to protect. Whether you have your assets in bonds, real estate, or other types of holding will end up influencing what types of asset protection tools you should use.
Different types of assets should be protected in unique ways. Instead of utilizing only one asset protection strategy, it is almost always better to utilize a range of asset protection techniques.
When creating asset protection strategies, it is also a good idea to engage in estate planning sooner rather than later. Understanding the role of asset protection tools does not help if you do not take the steps necessary to create them before they are needed.
Contact a Knowledgeable Texas Estate Planning Lawyer at the Kazi Law Firm, PLLC.
Asset protection is just one of the goals that you might hope to achieve through estate planning. To discuss how to best realize your estate planning goals, it can help greatly to speak with an experienced estate planning attorney. Schedule your consultation today at www.kazilawfirm.com.
