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Asset Protection Planning
Have you built up a nest egg and want to protect it from possible creditors? Or do you work in a profession where you are likely to be sued? Or, are you concerned that when your children receive your assets that they will be subject to the claims of creditors or ex-spouses? By planning in advance you may protect your money through the use of an Irrevocable Trust. A special type of Irrevocable Trust called a Medicaid Asset Protection Trust can be used to protect your assets from the costs of long term care, and is described in more detail in our Elder Law section. Other types of Irrevocable Trusts used for asset protection are Spendthrift Trusts, Dynasty Trusts and Delaware Asset Protection Trusts.
A Spendthrift Trust is a trust that is established for a beneficiary that has creditor problems, such a parent setting up a trust for a child. The Trustee of the trust can make distributions from the trust to your children, but the distributions are discretionary and not mandatory. The Trustee can be another family member, or a third party such as an attorney, an accountant or a bank, but your child cannot be the trustee of the trust. If your child has creditors or an ex-spouse that is trying to collect money from your child, the funds in the trust are protected and not available to the creditor or ex-spouse.
A Dynasty Trust offers the same protections as a Spendthrift Trust, with the added advantage of providing estate tax savings for your family. Normally a Spendthrift Trust would end with the death of your child and the funds remaining would be distributed to your grandchildren. But a Dynasty Trust can continue to hold the funds in trust for your grandchildren and great-grandchildren, further protecting the money from their creditors. It also allows the funds in the trust to avoid estate taxes at the death of your child, and again at the death of your grandchildren, allowing the funds to grow tax free. A Dynasty Trust must be established in a state that allows such trusts to exist, such as Delaware, South Dakota and Alaska. We can help you establish a trust in these states with the use of a corporate trustee, even if you reside in New York.
A Delaware Asset Protection Trust can allow you to protect some of your assets from the claims of future creditors. Traditionally if you place assets into a trust that you create, and you may receive some benefits from the trust, then the assets in the trust are not protected from the claims of creditors. However Delaware has a law that allows self-settled trusts to be protected from creditors in certain cases. We will work with you and a Delaware Trust Company to find a solution that will protect your assets by using an Asset Protection Trust.
