Asset protection consists of methods available to protect assets from liabilities arising elsewhere. It should not be confused with limiting liability, which concerns the ability to stop or constrain liability to the asset or activity from which it arises. Assets that are shielded from creditors by law are few (common examples include some home equity, certain retirement plans and interests in LLCs and limited partnerships (and even these are not always unreachable)). Assets that are almost always unreachable are those to which one does not hold legal title. In many cases it is possible to vest legal title to personal assets in a trust, an agent or a nominee, while retaining all the control of the assets. The goal of asset protection is similar to bankruptcy, and the two practice areas go hand-in-hand. When a debtor has none to few assets, the bankruptcy route is preferable. When the debtor has significant assets, asset protection may be the solution.
The four threshold factors that are either expressly or implicitly analyzed in each asset protection case are:
- The identity of the person engaging in asset protection planning
– If the debtor is an individual, does he or she have a spouse, and is the spouse also liable? If the spouse is not liable, is it possible to enter into a transmutation agreement? Are the spouses engaged in activities that are equally likely to result in lawsuits or is one spouse more likely to be sued than the other?
– If the debtor is an entity, did an individual guarantee the entity’s debt? How likely is it that the creditior will be able to pierce the corporate veil or otherwise get the assets of the individual owners? Is there a statute that renders the individual personally liable for the obligations of the entity?
- The nature of the claim
– Are there specific claims or the asset protection is taken as a result of a desire to insulate from lawsuits?
– If the claim has been reduced to a judgement, what assets does the judgement encumber?
– Is the claim dischargeable?
– What is the statute of limitations for bringing the claim?
- The identity of the creditor
– How aggressive is the creditor?
– Is the creditor a government agency? Taxing authority? Some government agencies possess powers of seizure that other government agencies do not.
- The nature of the assets
– To what extent are the assets exempt from the claims of the creditors? For example, the degree of protection offered by the homestead exemption, the exemption of the assets in a qualified plan, i.e. assets in a plan under the Employee Retirement Income Security Act (ERISA) etc.