Asset Protection Strategies for Business Owners

Hundreds of books, thousands of articles, every third (3rd) lawyer claims to be a knowledgeable, experienced, asset protection expert.

 

We have been helping clients with court tested, expert level estate planning for more than 30 years. We avoid canned approaches by evaluating and personalizing your plan to your specific family dynamics, protection of your wealth from unwanted creditors, elimination of probate, elimination of estate taxes, tax optimization, and tax-efficient transactions to preserve and grow your wealth. Let us go into more detail.

It happened!

A lawsuit is on the horizon and you are looking for an attorney. You knew!! that you should have done something before a “lawsuit” was more than just an “idle warning”…You gave it some serious thought, and even spoke to an  attorney a while back. You intended to do it, later…but,…

“Later” became a week, then a year, and now it has been at least three years. And, it just never got done.

Sound familiar?

THAT DYSFUNCTIONAL LEGAL SYSTEM. Contingent fee lawyers make a living off what they can extract from their targets, and there’s 100K more graduating from law school every year. It’s nothing new to you. You heard someone-else’s horror stories, divorce stories, victim stories. You just did not expect it – to become your story.

The internet is full of information. With every lawyer claiming they have the best solution. Who can you trust?

My 45 years of personal experience dealing with lawyers and lawsuits in business, right down to the “nuts and bolts” of wealth protection strategies for business owners.

REMOVE THE INCENTIVE TO SUE YOU

Linked financial investment, estate planning services.

INFORMATION BROKERS CAN’T FIND YOU. INTERNET SEARCHES, ARE USELESS.

You’re not certain if this litigation is going to begin in a month, six months, or year; but you definitely feel the stress related to it. The thought is consuming and dominating your daily life. If you have never gone through this nightmare, I can tell you: … IT’S EXHAUSTING.

90% of the time, the biggest problem is with fraudulent transfers. “Fraudulently transferring” property is merely giving a gift to the trust or any 3rd party. Every state requires 4 years to pass before they consider a gift to be “completed.” That’s called the “statute of limitations.”

This ominous fact is because regardless of what structure that you use, whether it be a limited partnership (LP), a family limited partnership (FLP), a domestic Limited Liability Company (LLC), a domestic corporation, a domestic Sub S corporation, or even an offshore trust, if the judge sees that your transfers were without fair market consideration (i.e. you never got paid a fair price for them when you gave them away), they can be clawed back by the court.

A few months later, he found out through a series of bounced checks that his bank accounts were frozen. The creditor got a preliminary judgment and brought it to his bank, freezing the accounts without his knowledge.

At that point, not only was there nothing that anyone could do, but he couldn’t even access funds to retain a defense attorney, because all of his money was frozen.

There are many kinds of creditors with really only 2 different objectives: Your creditor/PLAINTIFF is either in the business of:

1. Extracting of your money, because he sees an opportunity

2. Creating the maximum grief, regardless of cost, because he sees an injustice.

Your creditor’s first response is googling “contingent fee lawyers.” These are local entrepreneurs with a law degree and a state license. They realized that they could get many more clients if they did not charge a fee up front, but rather collect only when they provide results. “No recovery = No fee.”

They will not take a case unless there’s a short-term recovery.

Personally, I was a contingent fee entrepreneur in the real estate tax abatement business for decades. I knew exactly my costs based on my experience (knowledge) of hundreds of cases. And, I knew exactly my expected outcome.

Your Creditor/Plaintiff has the advantage within the politically correct legal system. Assuming that you can’t find a contingent fee lawyer, and because the creditor / plaintiff wants to inflict pain or seek justice, or other destructive motivations, they can hire a fee-for-service lawyer.

The fee-for-service lawyer has a different model and a different objective:

Run the clock.

When he interviews you, the plaintiff, for the “free initial consultation” he offers you NO advice unless you sign a contract and pay a retainer. His objective is his new Mercedes, next vacation, or his kid’s college education.

Easily, your legal expenses can amount to $50- $100,000.

Your creditor/plaintiff’s objective is to: delay, delay, delay. File motions, new motions, discovery, interrogatories, depositions, subpoenas, face to face interrogation, examination before trial, expert witnesses, continue your case, delay, delay, delay, any potential trial date, or settlement.

BUT… I’m sure you’re thinking, “well, by using an offshore trust, the judge doesn’t have any jurisdiction, so a ‘judgment’ is not executable and “it’ll be fine” and you’d be partially right… except for one small detail:

Offshore trusts for real estate work even less well:

Real estate that is physically located in a state that the court does have jurisdiction (even if the property is owned by an offshore trust), can be unwound if it is found that you gave up the property without getting anything for it.

And while setting up a structure and transferring property into it well before a problem arises is the best advice, the issue of “fraudulent transfer” still will come up because there is a 4-year statute of limitations for any transfer if you do not get paid for it.

This means that, even if you take action before a lawsuit happens, but less than four years from the transfer of the property, you could still be at risk of a fraudulent conveyance claim. So, if you take the wrong advice from an attorney, you could lose more than “just money,” you could be held civilly and criminally liable taking advice from every 3rd lawyer who claims to be “the Expert.” Most lawyers use the “gifting method” to transfer money or property. “GIFTING” is a Fraudulent Conveyance.

Under the Uniform Fraudulent Transfer Act you would be committing a crime, see Section 19.40.041

The Vanderbilts, Rockfellers, Carnegies, and other aristocratic or super-wealthy, have successfully shielded themselves from public prying eyes, identity thieves, scam artists, and other con-artists for generations.

Don’t underestimate your risk. Remove yourself from the probability of becoming the next creditor victim.

If a contingent fee (savvy business entrepreneur) lawyer determines that there are insufficient funds to pay a judgment, in all likelihood, the lawsuit will NOT be commenced.

What’s a Trust?

Any attorney will tell you that a “TRUST” is nothing more than a “CONTRACT” between the person who wants to protect wealth (the Settlor), the person who will manage the assets (the Trustee), for the benefit of all Beneficiaries – whomever you choose.

The [B]eneficiaries are the people that can use the stuff in the box: you, your spouse, your children, … anyone you wish. Like renting a car, you use it, you bring it back. You do NOT OWN the stuff in the box (you don’t own the car, you are merely renting the car).

Implemented correctly: you cannot be compelled to act, because you have no ownership and no control.

IRREVOCABLE TRUST

What type of trust, Grantor, or Non Grantor? What’s the distinction? A ‘Grantor’ Trust acquires a special regulation/loophole consequence within the IRS tax code. Our Ultra Trust® is an “Irrevocable Grantor Trust” for tax purposes is treated as a ‘disregarded’ legal entity. The IRS disregarded entity is “Income Tax Neutral” meaning that the original Grantor retained strings attached, so that for purposes of the IRS income tax reporting, the original owner (grantor(s) retains the property in his complete control, thus our Ultra Trust® is a “pass-through” to your form 1040 i.e. real estate tax deduction and mortgage interest deduction on his personal income tax return, INCOME TAX NEUTRAL.

Revocable, Irrevocable trust, what’s that mean? Revocable is when the original person with the property transfers (repositions) the money to a trust with strings attached. The Grantor, the Trustee, and the Beneficiary are the same person. Effectively you have done nothing, because it’s between you and you for the benefit of you.

A revocable trust does absolutely nothing to protect property because you can be forced to revoke it by a creditor or court. Many lawyers recommend revocable trusts for avoiding probate, recognizing that the trust is not worth the paper it’s written on for protecting property against frivolous lawsuits and the avoidance of estate taxes or the five-year Medicaid spend-down provisions.

IRREVOCABLE TRUSTS ADVANTAGES

A properly written, executed, and funded irrevocable grantor trust, such as the Ultra Trust®, is an extremely powerful shield. The opposite of revocable is “irrevocable.” No strings are attached by the Grantor. An “Irrevocable” trust advantages includes the fact that nobody can force you to revoke it, and thus if written, executed, and funded correctly, provides one of the best methods available.

Once funds are transferred from the Grantor(s) to the Irrevocable Grantor Trust, the Grantor has no control, other than possibly some very limited powers. It’s this clear-cut lack of control and ownership that makes this trust a very powerful  methodology – yet another one of the irrevocable trust advantages. You can’t be sued for things you no longer own or directly control. The fiduciary duty of an independent trustee of an irrevocable grantor trust is critical and viewed by the courts as golden (read more https://en.wikipedia.org/wiki/Fiduciary). The Trustee must preserve the assets entrusted to him at any cost. Courts take a very unpleasant view on a Trustee who has abused his fiduciary duty. Breach of fiduciary duties by a Trustee could be considered and intentional tort subject to punitive damages.

OUR irrevocable Ultra Trust®  when combined with a Limited Liability Company (LLC) or Family Limited Partnership (FLP) is a fortress, short of a foreign trust. A foreign irrevocable trust combined with the derivative financial instrument is the Rolls Royce – expensive to set up and maintain every year, but when properly executed, the creditor must restart a lawsuit in the new jurisdiction. The domestic irrevocable trust with an LLC and the derivative financial instrument to avoid a fraudulent transfers is the Tesla of asset protection – not inexpensive to set up, but minimal maintenance costs and if written, executed, funded correctly, 99.9% as strong.

WHAT’S A TRUST PROTECTOR? You won’t get this from your lawyer

Because you are concerned about the power and discretion granted to the Trustee, we add the Trust Protector to create the checks and balances you need to feel comfortable, while reinforcing the bullet-proofing of our Ultra Trust®.

The power of the Trust Protector is derived from the Irrevocable Grantor Trust Contract. The Agreement sets forth the dual function of the Trustee and the Trust Protector to give you a backup plan if the Trustee is not cooperative. While the Trustee can be a bank, CPA, trust company, or other financial institution, the Trust Protector is usually a person close to the family, a CPA, accountant, or lawyer who is already the family consiglieri.

The Trust Protector’s powers can take any form, limited only by the wishes of the Grantor(s) and their imagination. Generally, the powers granted the Trust Protector are:

1. Ability to remove or replace the Trustee without any explanation “You’re Fired.” Often this is the only power granted to the Trust Protector. In cases where the Trustee is a corporate body (bank, trust company, insurance company, or professional trustee) if the Trustee is unresponsive or not performing to the Trust Agreement for the benefit of all Beneficiaries, or changes in management, or investment choices, the Trust Protector can fire and replace the Trustee, at will, without explanation to the current Trustee.

2. Ability to change the Trust’s situs to take advantage of law changes or necessary steps to act in the best interest of beneficiaries if they move from low tax states to high tax states, i.e. from CA or NY (high tax states) to NH, TX, or NV (low tax states) or changes in laws occurring long after the initial implementation of the Trust Agreement.

3. Ability to resolve deadlocks between co-trustees or in squabbling between the Trustee and/or Beneficiaries.

4. Ability to veto spending over a certain amount. This level of control is significant if disbursements of the Trust are in excess of a pre-arranged amount requiring two signatures, the Trustee and the Trust Protector i.e. in excess of $20,000.

5. Ability to veto distributions to Beneficiaries. Before distributions are to occur the Trust Protector may want to investigate the financial stability of the Beneficiaries. For example, if the beneficiary is being sued, The Trust Protector may withhold distributions, or the Beneficiary is undergoing divorce proceedings, or the Beneficiary may be too young, is under duress, mentally incompetent, unable to manage, or otherwise unavailable. The Trust Protector can override/veto the Trustee and withhold distributions temporarily or permanently make other arrangements such as buy the property necessary for the benefit of the beneficiary (buy a house, a car, sign a rental agreement, but have the Trust own the properties, make loans, or make other provisions.

6. Ability to veto investment decisions. This checking and balancing of investment decisions are based on the Trust Protector’s experience, prudence, and the Trust Agreement guidelines in protecting the wealth for the Beneficiaries.

7. Ability to sue and defend lawsuits against the Irrevocable Trust. The fiduciary duty of the Trustee and The Trust Protector has to save the property of the Trust, at any cost, for the benefit of all classes of Beneficiaries.

8. Ability to terminate the Irrevocable Grantor Trust is another of the Irrevocable Trust advantages. If in the opinion of the Trust Protector there are insufficient funds or the cost of administration is greater than available cost/benefit, the Trust Protector may terminate the Trust.

What is it? It’s a linked financial investment, estate planning services. The formation, development, and implementation of a ‘personalized’ investment of funds strategy(ies) for individuals, linked to a private investment contract that derives its value from the performance of an underlying class of assets, i.e. cash or near cash, a futures contract, an option, collateralized debt obligation, insurance contract, a credit default swap, a stock, a time deposit, a general debt obligation, bonds, mortgages, or any underlying property used as the medium of exchange between third parties to a financial instrument.

Avoiding Fraudulent Transfers: Derivative Financial Instrument

The Derivative Financial Instrument is the most critical part of planning that every attorney overlooks, but it is crucial to the success of any asset protection strategy for business owners.

When timely and properly implemented, the Derivative Financial Instrument™ will set the legal defense for potential civil conspiracy issues that may be advanced by the [P]ast; [P]resent; and [F]uture (not yet born) creditor.

The Derivative Financial Instrument™ is a restricted long-term personalized estate planning investment of funds strategy for individuals using a cash – asset class derivative contract executed at “fair market value,” non-marketable, non-amendable, non-assignable, non-transferable, non-anticipated, non-encumberable, whose market value is derived from the underlying property, indexed to an IRS supported interest rate, terminating at death.

In finance, a “derivative” is a contract that derives its value from the performance of an underlying entity. The underlying entity can be a class of assets, i.e. cash or near cash, a futures contract, an option, collateralized debt obligation, insurance contract, a credit default swap, a stock, a time deposit, a general debt obligation, bonds, mortgages, or any underlying property used as “the medium of [E]xchange.”

Intermediation is the process of matching positives with negatives to develop a desired outcome in a new contractual obligation method of [E]xchange between third parties.

The underlying entity(ies) considered in the Derivative Financial Instrument™:

1. Estate Planning
2. Gift Taxes
3. Intentionally Defective Grantor Trust (IDGT)
4. Grantor Retained Annuity Trust (GRAT)
5. Grantor Retained Unitrust (GRUT)
6. Commercial Annuity
7. Private Annuity
8. Installment Sale
9. Self-Canceling Installment Note (SCIN)
10. Treasury General Counsel’s Memorandum (GCM) 3953, May 7, 1986
11. Estate of Moss v. Commissioner, T.C. 1239 (1980) acq. in result, 1981-2 C.B.1
12. Estate of Costanza v. Commissioner, T.C. Memo 2001-128; reversed and remanded
13. 6th Circuit, No. 01-2207, February 18, 2003
14. Estate of Frane v. Commissioner, 998 F. 2nd (8th Circuit 1993)
15. Lazarus v. Commissioner, 58 TC 854, August 17. 1972
16. Estate of Musgrove, 33 Fed Cl. 657 (1995)
17. Estate of Kite, T.C. Memo. 2013-43
18. Estate of William M. Davidson, U.S. Tax Court Docket No. 013748-13
19. United States v. Davis, 370 U.S. 65 (1962)
20. International Freighting Corp. v. Commissioner, 135 F.2d310 (2nd Cir. 1943),
21. United States v. General Shoe Corp., 282 F.2d 9 (6th Cir. 1960);
22. Wood v. Commissioner, 39 T.C. 1 (1962)
23. CCA 201330033; Treas. Reg. § 25.2512-8
24. Revenue Ruling 80-80, 1980 1 C.B. 194
25. Revenue Ruling 55-119, 1955 – 1 C. B. 352
26. Revenue Ruling 86-72, 1 C.B. 253
27. Revenue Ruling 68-392, 1968 -2 C. B. 284; and 69-74, 1969-1 C. B. 43
28. Treasury Regulation 1.1275 4(c); (j); and § 25.7520-3
29. Treasury Regulations § 1.72-6(e); and 1.1001-1(j), October 2006
30. Life expectancy (determined under Reg. 1.72-9, Table V)
31. Federal Medicaid Act 42 USC 1396 et. Seq.
32. Internal Revenue Code (IRC) 72; and (IRC) 7520

Fair market value is defined as “the price at which the property would change hands (the [E]xchange) between a willing buyer and a willing seller, neither being under any compulsion to buy or sell and both having reasonable knowledge of relevant facts to the transaction.” The fair market value of the Derivative Financial Instrument™ is generally determined under the annuity tables prescribed by the IRS. See 26 U.S.C. 7520(a); Treas. Reg. 20.7520-1. These tables provide a factor composed of an interest rate component and a mortality component that is used to determine the present value of an annuity. Treas. Reg. 20.7520-1.

A fraudulent conveyance, or fraudulent transfer, is an attempt to avoid debt by transferring money to another person or company. In civil litigation the creditor attempts to void the transfer and make the property available to him in satisfaction of his claim.

A transfer will be fraudulent if made with actual intent to hinder, delay or defraud any creditor. Thus, if a transfer is made with the specific intent to avoid satisfying a specific liability, then actual intent is present. However, when a debtor prefers to pay one creditor instead of another that is not a fraudulent transfer.

Under the Uniform Fraudulent Transfer Act, you would be committing a crime, see Section 19.40.041

Fraudulent conveyance has to do with transferring property at “less than the fair cash value” thereby defrauding a potential creditor or the “intentional divesting of money/wealth” which would have been available for satisfaction of his creditor claim. This intentional disregard can become a sticky-wicky for a judge who does not like to be undermined in “his” court-room.

The “civil conspiracy theory” has been defined by the courts as: (1) an agreement (2) by two or more persons (3) to perform overt act(s) (4) in furtherance of the agreement or conspiracy (5) to accomplish an unlawful purpose /or/ a lawful purpose by unlawful means (6) causing injury to another.

To be convincing, the creditor must allege not only the conspirators committed the act but also the act was tortious in nature. The conspiracy alone is not enough to trigger a claim for civil conspiracy without the underlying tort.

Gifting, by definition, is a Fraudulent Conveyance or Fraudulent Transfer because there is NO Exchange at the fair market value. The Derivative Financial Instrument™ solves this problem because the [E]xchange is at the fair market value.

REMARKABLE: The Derivative Financial Instrument™ is a contract for which, NOT EVEN BANKRUPTCY COURT CAN UNWIND because it’s at Fair Cash Value and not to the detriment of the Creditor. The Derivative Financial Instrument™ protects the funds/wealth even after the owner loses a lawsuit. This is because the courts cannot set aside the purchase . . . it’s not voidable by a creditor as a fraudulent transfer, nor by a bankruptcy court as an “executory contract.” The result is one of the best ways for small business owners to guard their wealth.

The “Trigger” for Estate Taxes is the value of ALL assets owned by the individual at the DATE OF DEATH, “the Gross Estate.” Our Ultra Trust® ELIMINATES the “Trigger” because on the Date of Death, ALL assets are owned by your Ultra Trust® Irrevocable Grantor Trust with an independent Trustee, and Independent Trust Protector. You cannot file an estate tax return. You cannot Trigger the estate tax return, you own nothing on the date of your death. Your Gross Estate is below the taxable threshold. It is the ultimate in wealth protection approaches that is not offered by your attorney.

We look forward to our visit with you and your professional representatives to assist you with the advancement of your estate planning.

The Ultra Trust® “Precise Wealth Repositioning System”