Sep 02, · In addition, the trust deed could provide that if an appointor commits an act of bankruptcy then that person ceases to be appointor. Beneficiaries. Assets in a discretionary trust are generally protected from claims by creditors of a bankrupt beneficiary as the trustee of a discretionary trust is the legal owner of those assets. May 22, · In other words, if one sets up a self-settled trust, i.e., Domestic Asset Protection Trust or a Foreign Asset Protection Trust, for asset protection purposes, then a creditor has up to 10 years. Asset protection is part of estate planning, but a living trust or self-settled irrevocable trust does nothing to protect assets from creditors. Confusing Bankruptcy Law and Asset Protection Law. Bankruptcy law does not affect Florida’s unlimited homestead exemption and other exemptions outside bankruptcy .
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Other good starting points include the names listed on monthly account statements or annual property tax bills. Identifying assets that may have title or designation issues is the first step in getting your plan in order. Below is a brief overview of asset title and designation formats, along with some estate planning tips.
An asset that is titled in your individual name will usually pass through your will to your revocable trust and, ultimately, to the beneficiary or beneficiaries named under your revocable trust as long as you do not have a transfer-on-death TOD , pay-on-death POD or other beneficiary designation in place for that particular asset. However, an asset that passes through your will is subject to probate, which is usually not an efficient result because of the fees and delays associated with probate administration.
To avoid probate, consider retitling individually-titled assets in the name of your revocable trust or in one of the alternative methods described below. Typically, all that is needed to retitle the asset in the sole name of the surviving owner is a copy of the death certificate of the predeceasing owner. Thus, it is important to consider whether having an asset pass immediately at death outside of your estate planning documents aligns with your current objectives.
For example, if a person designated Child A as a JTWROS on an asset but not Child B, then Child A would inherit the entire asset at death rather than the asset being split equally between the children under a traditional dispositive plan. To make it clear what type of ownership governs such property, you need some sort of paper for your records.
This can be the receipt you received from the store or a bill of sale. You can also prepare a document that says you own the property and are transferring it to yourself and your spouse or your children as joint tenants with rights of survivorship. Example : John owns antique furniture that is quite valuable. He wants the property to pass to his daughter, Sally, after his death without having to go through the probate process.
He prepares a letter describing the antiques and includes a statement that he is transferring the antiques from himself individually to himself and his daughter, Sally, as joint tenants with rights of survivorship. Second, such transfers may be considered a gift, which may have tax consequences if the value of the property is great enough. A second type of joint tenancy is tenancy by the entirety. Tenancy by the entirety historically served as a form of protection for the interests of spouses in real estate acquired during the marriage.
Today, each spouse owns an equal share of the asset. Tenancy by the entirety can be dissolved by divorce, death or sale of the asset. At the death of a spouse, his or her share passes automatically to the surviving spouse and is not subject to the probate process. As with JTWROS, if you use tenancy by the entirety, you must make certain that the ownership is consistent with your overall intentions. If you have children from a previous marriage that you want an account to go to at your death, but you use tenancy by the entirety, your spouse—not your children—will get the account.
Example : Mike and Jan are married. During their marriage, they purchase a home and title the property as tenants by the entirety. While they are alive, both have the right to use the property. Neither can sell or give away his or her interest in the property without the other's permission. When Mike dies, his interest in the home automatically passes to Jan. His will does not control the property, and therefore, the property is not subject to probate.
The third form of co-ownership is tenancy in common. A tenancy in common requires no fewer than two people to own the asset. Each person owns a share of the property often an equal share, but it does not have to be , and while alive, each person can use the property. At the death of an owner, his or her share of the property passes pursuant to his or her will or trust, or if there is no will or trust, to his or her heirs by law.
It does not automatically pass to the other tenant in common. Property held in tenancy in common does not avoid the probate process. Example : John and Mary are not married, but they own a house as tenants in common. While they are alive, both are entitled to use the property. John can sell or give away his interest in the property without Mary's permission. Consequently, Mary can become a tenant in common with a complete stranger.
When John dies, his ownership interest in the house passes to the beneficiaries named in his will. Those beneficiaries now are tenants in common with Mary. Mary still owns her share. LegalZoom gladly provides services to citizens of the EU wishing to start a business or protect their intellectual property in the United States. Additional costs may apply. LegalZoom Satisfaction Guarantee Details: If you're not satisfied, simply call us toll-free at during our normal business hours.
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Your home is protected from creditors in Florida subject to acreage limitations. If the home is in the county, then the exemption applies up to acres of contiguous property.
Protecting assets belonging to a business requires a different set of asset protection tools than protecting individual assets.
Business asset protection involves structuring business assets and income to make it more difficult for a creditor with a monetary judgment against the business to collect any assets.
You can learn more about business asset protection here. Asset protection planning usually does not shield tax debtors from U.
Some people believe they can move assets offshore to protect the assets from IRS collection or from the assets being subject to U. Offshore asset protection with after-tax money is legal. Moving assets offshore to avoid the recognition of income amounts to tax evasion. Offshore tax evasion is criminal. Asset protection works best when implemented before any legal problems are on the horizon. Reorganization of asset titles and asset transfers done before creditor problems arise are effective if liability does eventually arise.
Think of asset protection as a form of legal insurance; like commercial insurance asset protection works best when put in place before problems arise. Unfortunately, just as most people do not visit a doctor until they experience illness or pain, most people do not consider asset protection until they feel vulnerable to creditor lawsuits in the foreseeable future.
Asset protection strategy in the context of threatened litigation, or even after a lawsuit is filed, is difficult but not impossible. It is not too late to engage in some asset protection before a judgment creditor actually obtains an interest in your property by lien or execution.