A major component of estate planning involves using the latest and most effective asset protection techniques. Asset protection refers to using legal means of protecting your assets from creditors and predators, including the tax collectors!
While many people think asset protection involves shady or dishonest techniques, there are many ways to protect financial reserves, personal property, real estate and other assets for retirement or for future generations. In addition to federal and state laws that exempt certain types of property from creditors’ claims, taxation or both, there are numerous estate planning tools that may be able to shield assets from future creditors and reduce or eliminate estate or income taxation.
For example, in some cases, you can contribute your assets to an irrevocable, self-settled asset protection trust and achieve asset protection. Virginia, Delaware, Nevada, Alaska and several other states offer statutes that allow grantors to establish these asset protection trusts. In other cases, you may want to use limited liability entities sch as corporations or limited liability companies to shield your personal assets from creditors of your business and to protect investment assets from your personal creditors. In extreme cases, you may want to use offshore trusts or other offshore entities for asset protection.
Whatever vehicle you select, you need to be aware of the constraints on all asset protection techniques. First, you cannot set up an asset protection vehicle to avoid claims of existing creditors without taking the risk that the entity may be unwound by a court as a “fraud” on your creditors. Second, you must NOT use an asset protection vehicle to evade taxes. While structuring your affairs to avoid taxes may be legitimate and permissible, tax evasion is the illegal practice of not paying taxes, by not reporting income, reporting expenses not legally allowed, or by not paying taxes owed.
Family Limited Partnerships and Asset Protection
A family limited partnership (FLP) can be one of the most valuable asset protection strategies for a family whose members want to preserve their assets while retaining control over them. FLPs are set up much like traditional limited partnerships with “general partners” (frequently parents) and “limited partners” (usually the children). General partners manage the partnership’s assets, make investment decisions, share in the FLP’s income and are responsible for the FLP’s debts. Limited partners have an ownership interest in the FLP and share in income generated by the FLP, but they have little or no control over the FLP’s activities and are responsible for the FLP’s debts only to the extent of her or his ownership interest.