Asset protection attorneys who are involved in defending against post judgment discovery and related collection activity have long been aware that debtors are required to submit to creditor examinations and provide information. Nonetheless, many debtors refuse to comply with court orders, transfer assets to third parties in defiance of such orders and take whatever actions they deem necessary to frustrate the efforts of the collection attorney. It is at this stage that the collection attorney will ask the court to issue a permanent injunction ….. a very powerful equitable tool used by the court to impose its will on the recalcitrant party. Continue Reading
Asset protection lawyers are almost universally in agreement that assets in an irrevocable spendthrift trust established by a third party (often a parent) for the benefit of a beneficiary (typically a child) are not available to satisfy the debts and liabilities of the beneficiary. Indeed, that is one of the principal reasons for including spendthrift language in the trust. And case law is clear that settlors have every right to place their assets outside the reach of their beneficiaries’ creditors. Compare this traditional planning with the self-settled spendthrift trust – the typical domestic asset protection trust – where under laws of certain states a settlor is entitled to convey the settlor’s own assets to a trust which is not reachable by the settlor’s creditors.
In a recent Massachusetts divorce action, Pfannenstiehl v. Pfannenstiehl, the marital estate was found to include the husband’s beneficial interest in an irrevocable spendthrift trust established by his father. Because the trust was not a party in the divorce case, the husband was ordered to make 24 monthly payments to his ex-wife insuring the ex-wife received her 60% share of the marital estate which included the value of the husband’s interest in the trust. Continue Reading
For a period of time, asset protection planners were quite concerned (and rightly so) about whether single member limited liability companies would be treated the same as multi-member LLC’s if a member’s creditor sought to reach the member’s interest in the LLC. While there was general agreement that in the case of multi-member LLC’s a creditor’s sole remedy was to obtain a charging order, such was not the case with single member LLC’s. Indeed, there was much commentary and analysis in the asset protection world following the Olmstead and Albright cases, where courts decided that single members of LLC’s were not entitled to the same protections as LLC’s with more than one member.
Some states then took action to clarify their positions on single member LLC’s and provide that the charging order remedy is the sole remedy for creditors of LLC members irrespective of whether the LLC is owned by one or several members. In an amendment to the Michigan Limited Liability Company Act in 2012, the legislature made it clear that single member LLC’s will be treated no differently than multi-member LLC’s if creditors come calling. So, if that is the situation today, why can’t asset protection planners in Michigan feel comfortable that a single member LLC is as protected from creditors as one with multiple members. Continue Reading
Background: Richard and wife Lois entered into a trust in 1986. They were the co-trustees and sole beneficiaries of the trust during their lifetimes. It contained a standard spendthrift clause. The trust could be amended or revoked only by the joint action of both Richard and Lois. Either Richard or Lois, acting alone, is considered a Managing Trustee. In other words, either one acting alone could exercise any power granted to a trustee under the trust.
Richard filed for bankruptcy in 2012. Richard disclosed the trust on his bankruptcy asset list but claimed that the trust assets were not property of the trust estate and that the spendthrift provision in the trust was effective to block a creditor from reaching trust assets. The trustee brought a summary judgment motion claiming that (i) the spendthrift provision of the trust is not enforceable under Michigan law, (ii) the trust is against public policy and unenforceable because it is a self-settled trust designed to place the assets outside the reach of the settlor’s creditors and (iii) the assets of the trust should be included in the bankruptcy estate. The trustee sought a declaratory judgment and order for surrender of the trust assets. Continue Reading
For a decade and a half there were no court opinions upholding challenges to domestic asset protection trusts (“DAPT’s”). Indeed, there were no decisions at all. This lack of jurisprudence gave asset protection planners renewed confidence to consider using DAPT’s when clients sought protection against future creditor claims.
Asset protection planners invariably deal with insurance and discuss its place in the asset protection plan. No legitimate asset protection planner, irrespective of the elegance of the plan he or she may have conceived, will advise a client to forego obtaining and maintaining auto insurance, home insurance or malpractice insurance coverage. There is no such thing as establishing a structure that is one hundred percent invulnerable to creditor claims; therefore, having liability insurance as the first level of defense just makes good sense. It is in this context that I am going to discuss whether consumers are adequately represented by their insurance agents. And why it is so important for consumers to thoroughly investigate their insurance needs and the products offered to satisfy those needs.
Asset protection planning attorneys need to be vigilant that strategies they are recommending do not violate the Michigan Fraudulent Transfer Act (“Act”). In Bentley Terrace Dillard Family Trust v. Schlussel, the Michigan Court of Appeals provided and detailed and well-reasoned opinion and concluded that a debtor lawyer’s transfer of assets to his wife for the ostensible purpose of paying ordinary household expenses was a fraudulent transfer.
As an asset protection planning attorney, it is interesting how often other attorneys ask me about the exposure of their clients’ social security and pension monies to creditors’ claims. The frequency is probably directly correlated to the fact that social security benefits and pension benefits are ubiquitous and so the question comes up all the time. While the law is clear on the debtors’ and creditors’ rights in these situations, unless the attorney practices in the asset protection planning arena, he or she may not be aware of the specific rules. Therefore, a brief summary may be helpful to the readers of my blog.
The bankruptcy case of Running v. Miller (In re Miller) is one of those cases where the Trustee in bankruptcy, in a zealous effort to grab the debtor’s assets, ignores the Internal Revenue Code (“Tax Code”), common practice and common sense. Here, the debtor filed a Chapter 7 bankruptcy case and scheduled an individual retirement annuity as exempt under 522(b)(3)(C) of the Bankruptcy Code. If an individual retirement annuity meets the Tax Code 408(b) definition, the annuity is not part of the bankruptcy estate and is exempt from creditor claims.
Asset protection planning attorneys are often asked about protections that are available for qualified retirement plans and whether retirement plan assets are subject to claims of creditors. As a general rule the account of a participant in a qualified retirement plan, such as a profit sharing plan or 401(k) plan, is exempt from creditor claims with limited exceptions. For example, a spouse in a divorce can seek a qualified domestic relations order to reach the participant spouse’s interest in the account and the IRS can access the account for unpaid taxes. But typically banks and judgment creditors cannot reach the debtor’s interest in a qualified plan.
A 2013 Bankruptcy Case has now identified a set of circumstances where the general rule is not applicable and where the debtor’s interest in the plan is fully accessible by his general creditors (Daniels v. Agin, 736 F.3d 70 (2013)).