Asset protection is designed to keep your assets from being reached by a judgment creditor if you are successfully sued, whether the lawsuit it based on a tort claim (such as fraud or misrepresentation) or by a bank or other lender for a deficiency judgment against you after they have foreclosed on your commercial property and the value of the property was less than the balance you owed.
Through proper advance planning, nonexempt assets may be converted to exempt assets and placed out of the reach of creditors.
Asset protection planning cannot be started when you are already facing an action by a potential judgment creditor. Judgment creditors are protected against people who transfer their assets out of their names with the intent to hinder, delay, or defraud them. Such transfers are deemed fraudulent transfers, and the courts will order that the transfers be reversed and the assets turned over to pay off the creditor. Instead, asset protection planning must occur before a lawsuit is threatened or a default occurs on an obligation. In order to put together a comprehensive asset protection plan you will need to integrate two important goals:
- Establish a detailed financial plan to set forth your short term and long term financial goals, and
- Your estate planning goals.
Once your financial plan is in place, you can create a comprehensive estate plan to address issues such as who will take care of you and your assets if you become mentally incapacitated, who will take care of your minor children if you die, and who will manage your assets and take care of your spouse or other family members after you die. Your estate plan can also include asset protection planning through the use of advanced estate planning techniques such as family limited liability companies and irrevocable trusts.
Once you have positioned your assets to be protected from creditors, you will have a comprehensive asset protection plan in place. Then, if a creditor holding or threatening a judgment against you surfaces, you will be in a stronger position to negotiate a favorable settlement.