Asset Protection

Like well-fitting clothes, one size does not fit all!  Good asset protection planning typically consists of different recommendations for different clients, depending on their particular circumstances. An asset protection plan might involve an offshore trust or entity, or a domestic trust in a U.S. state with asset protection statutes. It might involve an LLC or other business structures, a prenuptial agreement, or even a post-marital agreement. 

We consider all of these options, as well as all of the ethical issues associated with asset protection planning. We guide each client through the process of ensuring there is no fraudulent transfer, selecting the best jurisdiction for the plan, and avoiding unwanted tax consequences. We also consider control issues, retention of benefits where feasible, and consideration of existing or projected family plans.

We first conduct a thorough review of a client’s existing financial and personal circumstances, called an “asset protection audit”, to determine the client’s exposure and vulnerability to potential creditors. When appropriate, we then develop, recommend, and help implement an asset protection plan, undertake a detailed due diligence process to prevent any fraudulent transfers, and assist in the on-boarding process with the trustee, as needed.

Some of the structures we often implement in Asset Protection planning:

  • Many international jurisdictions cater to asset protection clients by offering unique trust laws, non-charitable private foundations, and business structures that all limit the access of future creditors. Over a long period of practice in this area, our firm has developed a strong knowledge of the pros and cons of various jurisdictions. We have formed key relationships with fiduciaries in several countries. Additionally, we offer creative planning to balance all of a client’s goals, including maximum protection, income and transfer tax planning, ease of administration, ongoing local asset management or foreign asset management, and family involvement.

  • For clients who prefer to form an asset protection trust in the U.S., many states offer protective trust laws. Although it is generally agreed that offshore plans offer stronger protection, a domestic asset protection trust can provide cost-effective peace of mind. We conduct a thorough review of a client’s existing financial and personal circumstances to assess and comment on the client’s exposure and vulnerability to potential creditors. We then work with our client to develop a plan, including selecting the appropriate jurisdiction and choosing an appropriate trustee.  As part of the implementation process of the plan, we provide support to our client for the completion of all necessary on-boarding paperwork with the corporate trustee, funding of the structure, and coordinating with the client’s accountant to ensure proper reporting of such transfers.

  • In addition to advising private clients regarding asset protection, we advise business owners and businesses regarding their risks and planning opportunities. We advise individuals and business owners on the effective use of limited liability companies to separate certain assets or groups of assets from other, riskier assets. Also, we advise businesses on ownership structures and reinvestment strategies to limit the company’s exposure to future creditors.

  • A Blocker is often used as part of a planning structure for foreign investors.  Often foreign investors do not want to be caught in the U.S. income tax regime.  If the business in which the foreign investor is looking to invest is a partnership (such as private equity or hedge funds), then an entity, taxed as a C-Corporation can be established to absorb the income and the tax due on it.  It is important to note that while the use of a blocker corporation avoids the requirement of the investor having to file U.S. income tax returns due to the investment held in the blocker corporation, the resulting tax due to the blocker corporation could be equal to or greater than the tax that would have been paid by the foreign investor if the investor had held the interest directly.  We work with clients, their business attorneys, and their accountants to determine whether this type of structure would be a beneficial addition given the client’s personal goals.

  • One important estate planning and asset protection tool is a prenuptial agreement.  It can be used to protect assets both in the case of divorce and in the event of death.  Prenuptial agreements serve to protect non-marital property from division in the event of divorce or death.  Often they are used to keep a large inheritance separate from the marital estate.  In a “kitchen sink” jurisdiction like Massachusetts, in which the Court will consider everything in determining a property settlement during a divorce, these agreements can be key.  It is our goal to protect a client’s assets and work with the client, the client’s intended, and the intended’s attorney to fashion a prenuptial agreement that will benefit you and withstand attack down the road.

  • One often overlooked asset protection tool is a post-marital agreement. Although these agreements are not recognized in every state, they are recognized in Massachusetts. Like a prenuptial agreement, a post-marital agreement can also be used to protect a spouse’s inheritance. Additionally, although there is little law on this issue, we believe these agreements can be used to transfer property to a spouse, and the transfer may remove such property from the reach of third-party creditors of the transferor. This can be a useful tool in a situation where one spouse has a job that has a high risk of creditor liability (such as an entrepreneur, doctor, real estate developer, or attorney). If asset protection is a goal for you and your spouse, we can work with you to determine whether this tool is a viable option. 

  • Planning is key for individuals that are unmarried but living with a partner, because they are not protected under the law like married couples. Over the years, we have helped many cohabiting, unmarried couples to create a mindful plan for their future. Our goal is to make sure that if our client or their partner dies or becomes incapacitated, there will be peace of mind. This planning should include traditional estate planning documents like a durable power of attorney, healthcare proxy, and will, but it may also involve other creative solutions. For example, the couple might enter into a cohabitation agreement. This formal agreement can be made when the couple starts living together, or after the fact, and it can handle a variety of issues that can arise, including how property and debts will be handled if the couple terminates their relationship.