Asset Protection:

Wealth depletion - lawsuits, judgments, creditors, ex-spouses, financial mismanagement, and the IRS - can be avoided or eliminated by the use of a Beneficiary Controlled Trust, created by someone else as Grantor and you as the Beneficiary/Investment Trustee. A spendthrift provision and a second Distribution Trustee shield your assets from predators.

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Asset protection works best when you start before you have a significant number of assets that need protection. You need to fix the roof before the rains pour in. The earlier a trust is created, the greater the benefits.

The time you usually worry about your assets - when facing a divorce, lawsuit, creditor demands, or the IRS lien - is when you can kiss your stuff goodbye. If you have not protected it by then, it’s not your property. It belongs to whoever the judge says it does.

Trusts used to be the last thing a middle class tax payer had to worry about. Estate taxes were the problem of the rich. A trust, along with appropriate use of corporations and limited liability companies, means never having to give your property to the ex-anyone again.

As it stands now, with modest homes in many parts of the U.S. fetching over $1 million, trusts are the most powerful asset preservation device available. In addition, all gifts and bequests should be made and kept in trust instead of being given outright.

What we call a BCT (Beneficiary Controlled Trust) goes by a more accurate description of “Crummey Defective Grantor Spendthrift Trust”.

Crummey is the name of an individual who challenged the IRS and won, not a depiction of the quality of the trust. For that alone he deserves your respect and admiration.

In our Beneficiary Controlled Trust, the beneficiary also serves as trustee, hence the control. Crummey powers are handled by the second trustee, known as the Distribution Trustee, but all control and decisions remain with the beneficiary/trustee.

The BCT is designed to:

1. Give the beneficiary beneficial use and control of trust property without having ownership which can be reached by creditors or distributed by a judge in a divorce case. You can’t lose property in a divorce settlement if you don’t own it.

2. Have no negative gift or estate tax for the beneficiary or the person creating the trust (Grantor).

3. Own businesses in the form of corporations or LLCs to provide protection from personal liability from debts of or judgments against the business entities.

4. Pass income earned by the trust to the beneficiary to be taxed at lower individual tax rates.

5. Provide a way for parents to use their annual gift tax exemption to transfer wealth to children or grandchildren without estate tax issues for either the grantors or beneficiaries.

6. Restrict income and principal distributions only for HEMS (health, education, support, and maintenance). Distributions are discretionary, not mandated. HEMS conforms with IRS standards to make sure the assets are not included in your estate, and cannot be reached by creditors.

7. Gives you the right to replace the Distribution Trustee (2nd trustee) at any time. While this might not seem important at first, this is one of the few irrevocable trusts that can be “rewritten”. The trust can continue for the beneficiary’s lifetime and for successive generations. The only caveat is that the beneficiary/trustee may not rewrite in such a way as to increase his own benefits.

8. Our BCT has special testamentary powers of appointment which allows you to direct who receives the trust property upon your death. To prevent assets from becoming a part of your estate, the BCT will prohibit you from giving any property to creditors, your estate, or estate creditors. You can now pass the trust assets on to your family or charities or anyone you choose.

9. For parents who want to help their children start a new business, funds given outright to the individual child are exposed to claims of creditors or ex-spouses. Seed money contributions to the trust can be used to form a corporation or to organize a new limited liability company. An LLC owned 98% by the BCT, and 1% owned each by two natural persons such as the parents, is the structure we have found to provide superior asset protection. The LLC can then acquire assets 98% owned by the trust.

10. The beneficiary has no enforceable right to demand income or principal from the trust, so creditors cannot step into the shoes of the beneficiary and force a distribution. In bankruptcy, the beneficiary cannot voluntarily or involuntarily assign his interest in the trust for the benefit of creditors.

If you have full ownership of property, creditors, spouses, and the IRS can come gunning for you. Failure to exploit trusts to their maximum advantage puts a bull’s-eye on your chest.

When distributions are subject to the absolute discretion of the independent Distribution Trustee, even though the beneficiary can replace that independent trustee, you now have unequalable divorce and creditor protection.

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Charles Lamm is a retired attorney and owner of Trustee and RA Services, Inc., in Coral Springs, Florida. His asset protection articles appear on his blog at: www.corp-llc-bct.com. To learn more about how to combine a corporation, LLC, and Beneficiary Controlled Trust for maximum asset protection and tax benefits, please email him at: asset-protection@corp-llc-bct.com.

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Asset protection is not just for the wealthy any longer. When a middle class home can easily run a half million dollars in Florida, and over a million in New York or California, anyone can become a target of lawsuits, divorce courts, and the IRS.

You have to dig a well before you are thirsty, or in this case, build a legal fortress before invading barbarians reach your gate.

Your tools to protect your assets are:

* “no asset” corporation
* limited liability company (LLC)
* beneficiary controlled trust

C-Corp:

A “no asset” C corporation will be the management company for your LLC. The two work together to protect your property from those who would take it from you.

You are employed by the C Corp, not the LLC. You can also be the sole shareholder and hold all of the officer positions. Your corporation owns nothing but a checkbook.

Your corporation can pay for:

- medical insurance for the officers
- life insurance ($50 thousand limit)
- retirement plan

As an officer, you can be reimbursed for out-of-pocket medical expenses through a medical expense reinbursement plan (MERP).

Entertainment expenses directly related to the business can include:

- training expenses
- travel
- meals
- computer expenses
- phone expenses
- business gifts up to $25 per recipient

Never let your corporation pay for personal items. Commingling of funds could pierce the corporate veil and make you personally liable for corporate debts in the event of a judgment against the corporation.

This is just a partial list of deductions for your corporation. Consult your CPA or tax advisor for the latest changes in allowable deductions.

LLC:

Your limited liability company is where you earn your income. Your LLC should also own any vehicles, equipment, computers, copiers, printers, and real property.

You want your Operating Agreement to make your corporation the Manager of your LLC.

Your LLC should also pay the bulk of your operating expenses for your office, supplies, travel, fuel, utilities, phone, computers, and more.

Your interest in the LLC will be as a 99% member will be owned by the trust.

Beneficiary Controlled Trust:

A beneficiary controlled trust is the crown jewel of asset protection.

While I will not go into detail here, a BCT works like this:

Someone other than yourself establishes an irrevocable trust with you as the beneficiary and as the Investment Trustee. A second entity or person is required as the Distribution Trustee.

My company, Trustee and RA Services, Inc., can act as your Distribution Trustee if you want to keep your affairs private from your friends and relatives.

We are located in Coral Springs, Florida, and we usually situs the BCT in Florida to take advantage of Florida’s excellent trust laws, as well as no state income tax.

The Grantor can put up to $12,000 per year into the trust without gift tax considerations, and you have an immediate right to withdraw the money as it is a Crummey defective grantor trust.

It’s complicated, but the idea is to leave the assets in the trust and use the trust to own the LLC and to take care of your needs.

The trust can purchase property, pay for your education and medical expenses, and take care of your physical well-being. You have full control over the trust assets without actually owning anything.

As the Investment Trustee, you control how the assets are used, and you can replace the Distribution Trustee at any time.

We often refer to this as the CakeTrust, as in “have your cake and eat it too”.

Summary:

You are now isolated from lawsuits, creditors, judgments, ex-spouses, and the IRS.

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Charles Lamm is a retired attorney who owns Trustee and RA Services, Inc., in Coral Springs, Florida. His asset protection blog can be found at www.corp-llc-bct.com. You can also reach him by email at asset-protection@corp-llc-bct.com.

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