Estate Planning & Asset Protection

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What happens to your assets and loved ones when you pass away?

Estate Planning is the process of planning the transfer of your personal assets at death to your beneficiaries. We will help you plan your estate in a manner that meets your goals, whether drafting a Last Will and Testament or a Revocable Living Trust. We are sensitive to the personal nature of estate planning and will address your unique needs. In addition, we will create Durable Power of Attorneys with health care surrogate provisions to ensure that in the event you become incapacitated, you have appointed someone to make financial and medical decisions for you. 


Living Wills are also important to include in your estate plan. Living Wills give specific instructions to your doctors and loved ones concerning the withholding of life-prolonging treatment in the event you are diagnosed with a terminal condition. Many people believe that estate planning is only for people who are particularly wealthy, have elaborate schemes in mind for passing their money to their heirs, or for people who are acutely ill and contemplating their death. However, this is simply inaccurate. Persons who fail to plan during their lives and die without creating a will ‘die intestate’. Meaning, if you die intestate, your property will be distributed in a manner in which you may have no control. Property may go to people you do not want and in ways that you never intended. Dying intestate means no tax planning was done on your behalf. 


Estate planning is for every husband, wife, mother, father, grandparent, business owner, professional, or anyone else who has someone they care about, are concerned about providing responsibly for their own well being and for the well being of those they love, and for anyone who seeks to make a difference in the lives of others after they’re gone. Hence, estate planning is life planning. It is an essential and rewarding process for individuals and families who engage in it. When done properly, estate planning requires that a highly trained individual lead you through one or more in-depth meetings to uncover your hopes, fears, and expectations for yourself and for those who are most important to you. This process almost always requires the preparation of several sophisticated legal documents, but those documents themselves are not estate planning. 


Your estate plan is a snapshot of you, your family, your assets and the tax laws in effect at the time it was created. All of these change over time, and so your plan should evolve with the changes in your life. It is unreasonable to expect the simple will written when you were a newlywed to be effective now that you have a growing family, or now that you are divorced from your spouse, or when you retire and have an ever increasing number of grandchildren. Over the course of your lifetime, your estate plan will need check-ups, maintenance, changes, maybe even replacing. So, how do you know when it’s time to give your estate plan a check-up?Generally, any change in your personal, family, financial or health situation, or a change in the tax laws, could prompt a change in your estate plan. 


Planning is a process, represented by a complete strategy that is properly formulated, documented and maintained by a professional who has taken the time to get to know you, and who is committed to continuing to serve you.  That's where our services come into the picture. Please call us today at (239) 823-4541 for a complimentary estate planning consultation. 

Last Will and Testament

A will or a last will and testament is a legal document that tells the probate court how you want your property distributed after you die, and who has the power and responsibility to handle your affairs. Through the probate process, the court will give the executor of your will the authority to gather all of your property, pay any remaining creditors’ bills, and distribute your remaining property as you specify in your will. Because the will takes effect only after a court determined that it is a valid document, a judge must act before your executor can step in and manage your estate. 

 

Revocable Living Trust

Perhaps the most common type of trust is the revocable living trust. As the name implies, revocable trusts are fully revocable at the request of the trust maker. Thus, assets transferred to a revocable trust remain within the control of the trust maker; the trust maker(s) can simply revoke the trust and have the assets returned. Revocable trusts can be excellent vehicles for disability planning, privacy, and probate avoidance.


Revocable living trust based estate plan provides instructions that will allow you to:

  • Control your property while you are alive.
  • Take care of you and your loved ones in the event of disability.
  • Pass your property to your heirs when and how you want while maintaining privacy.
  • Ensure that you and your spouse have sufficient assets to maintain your standard of living.
  • Maintain maximum control and flexibility during your lifetime.
  • Provide for you in the event you become disabled.
  • Simplify administration upon your death or disability (and, thereby, avoiding probate & guardianship).
  • Avoid having your private matters being made public unnecessarily.
  • Ensure that the efforts you desire are used to save your life.
  • Have your property continue to benefit the survivor after one of you dies.
  • Protect your assets so that they cannot be lost as a result of remarriage after the death of one of you.
  • Ensure that the persons you select in fact become the guardians of your minor children.
  • Protect your children’s or grandchildren’s inheritance from mismanagement.
  • Structure your children’s or grandchildren’s inheritance in such a way that it installs values and virtues.
  • Educate your children and grandchildren.
  • Reduce the risk of litigation from heirs who receive less than they think they are entitled to.
  • Minimize income taxes to the extent possible.
  • Avoid or minimize capital gain tax on the sale of assets.
  • Eliminate as much estate tax as possible.

Any property you fail to transfer to your living trust during your life will be transferred to your trust through the probate process; in order to avoid this, a pour-over will may be created, which contains a safety net provision. It will transfer all non-trust assets to your trust that are not controlled by beneficiary designations or by ownership with a joint tenant. Your goal is to avoid probate by ensuring that your pour-over will controls nothing. You must transfer all your assets to your trust during your life to avoid probate. Your will is merely your backup to ensure that all your assets are ultimately controlled by your living trust. Who will make decisions for you if you are unable to make them for yourself? Who will have the power to sign documents on your behalf, or make sure your bills get paid? 

Durable Power of Attorney & Advanced Directive

Durable Power of Attorney:


Without a durable power of attorney, someone who is mentally incapacitated must be taken to guardianship or conservatorship court to have the judge assign a decision maker for them. A carefully written durable power of attorney will allow you to name someone you trust to make decisions for you if you become disabled to the point of no longer being able to make those decisions yourself. 


Advanced Directive: 


A living will or directive to physicians directly informs your doctors that you do not want extraordinary medical measures taken, especially those that would cause you pain or discomfort, if those measures would only prolong the dying process. This document backs up your health care power of attorney. Anyone can deliver this document to your doctors if your agent under your health care power of attorney is unavailable to make health care decisions for you. 

Health Care Power of Attorney

A healthcare power of attorney allows your trusted friend or family member to make medical treatment decisions for you if you are unable to communicate your wishes to doctors. Without one, you must have a guardian or conservator  appointed by the court before decisions can be made on your behalf. A healthcare power of attorney not only saves precious decision making time, but it also makes sure that the individual you trust the most has the power to make these most important decisions for you if you are unable to make the decisions on your own. 


A Durable Power of Attorney and Health Care Power of Attorney should contain HIPAA Authorization provisions to ensure that your named decision maker is able to access your private information. The Health Insurance Portability and Accountability Act of 1996 (HIPAA), absent a written authorization from the patient, a health care provider or health care clearinghouse cannot disclose medical information to anyone other than the patient or the person appointed under state law to make health care decisions for the patient. The Regulations promulgated under HIPAA specifically authorize a HIPAA Authorization for release of this information to persons other than you or your personal representative. Thus, you should consider creating such an Authorization so that loved ones and others can access this information in addition to the personal representative.Consider acquiring a HIPAA Authorization for loved ones and others who potentially need access to your medical information if you become disabled. We can certainly help you with this step in the estate planning process, so please give us a call today. 

Asset Protection

You can protect your assets from lawsuits through asset protection planning, in which you take assets that are subject to creditors' claims, called nonexempt assets, and reposition them as assets that are out of the reach of creditors' claims, called exempt assets. One option is holding the property in a separate, discretionary lifetime trust for each beneficiary, creating a legal barrier between the property held in the trust and the beneficiary's creditors or a divorcing spouse.

  • If the beneficiary is a minor, then a trust will be required in order to keep the beneficiary's inheritance outside of a court-supervised guardianship. Many parents and grandparents choose to terminate a minor's trust at a specific age when they believe that the minor will be able to invest and manage their own inheritance. Once the beneficiary reaches the specified age, however, and the trust is terminated by distributing the assets remaining in the trust outright to the beneficiary, then the property will be considered the beneficiary's own property and automatically become subject to the creditors' claims of the beneficiary, including judgment holders in lawsuits and a spouse during a divorce. Instead, consider continuing the trust for the benefit of the young beneficiary during their entire lifetime. If drafted properly by an experienced attorney, as the beneficiary gets older the discretionary lifetime trust will create an asset protection barrier between the beneficiary and the beneficiary's creditors so that if the beneficiary gets sued or gets married but then goes through a divorce, the assets held in the beneficiary's discretionary lifetime trust will remain in the trust for the beneficiary's benefit and out of the pockets of a creditor and divorcing spouse. Please give us a call at (239) 823-4541 for a complimentary asset protection planning consultation. 
  • If the beneficiary is already an adult, then you should still consider setting up a discretionary lifetime trust for the benefit of the adult beneficiary,  including your spouse, for lifetime asset protection against creditors, judgments, and divorcing spouses.  For your spouse, the an AB or ABC trust can be designed to include asset protection for your spouse. If you already know that the adult beneficiary is not good with managing their own money or you're afraid that the beneficiary will spend their inheritance on shoes, jewelry, cars, and vacations, then the discretionary lifetime trust can be drafted to not only protect the beneficiary from outside influences, but also from the beneficiary's own bad decisions or excessive spending habits.
  • Avenues for Liquid and Tangible Asset Protection: 
    • For liquid assets, using a powerful tool such as an offshore asset protection trust fits the bill. Placing the funds held therein in a safe international financial institution puts assets outside of the local court’s reach. Of the top 50 safest banks, rated by Global Finance, only five are located in the US. The safest US bank is only 25th on this list as of this writing. So, there are banks overseas that are much safer than US banks. There are a number of asset protection tools at your disposal. Choosing the right one for your assets and specific situation should be done with professional help. You can take advantage of protective legislation and legal systems right away.  Having studied multiple international legal systems, Attorney Shanthy Balachanthiran can help you understand domestic law as well as foreign jurisdictional law and how your assets are protected in the event of a brutal legal battle.
    • People often look to protect assets after a legal claim arises. Most people look at ways to protect assets after being served with a lawsuit; however, courts look more favorably on those who have set up their asset protection plans well in advance of a claim. That is, when you have a legal storm brewing and you make a sudden transfer of assets, the likelihood of your opponent attempting the challenge the transfer is higher than if you had done so when the seas were calm. It is a sensitive procedure when exposed assets become protected after a legal threat has been revealed (i.e. cause of action). However it depends on the details, which is why you should seek immediate help and explain your situation to Attorney Shanthy Balachanthiran, who can do something to help. You should set up an asset protection plan as early as possible, even if you do not have outstanding judgments and/or creditors. 
    • For domestic tangible assets, setting up multiple entities for different segments of your enterprise can erect protective firewalls between them. If you have 5 convenient stores, a Taco Bell franchise, a dozen rental properties, several warehouses, and a gas station all owned by one company, that is simply a recipe for disaster. A lawsuit in any one of the businesses can expose the assets of all. Hold the rental properties in one or more limited liability companies, depending on the amount of equity in each. The other businesses should be held in separate corporations or LLCs. And Attorney Shanthy Balachanthiran can help you with this endeavor. Call us today at (239) 823-4541 for your complimentary consultation. 
    • Offshore asset protection includes the use of many powerful legal tools in jurisdictions that have debtor friendly laws and dedicated legal statutes protecting the assets of foreign investors. There are several of these financial haven jurisdictions that cater to foreign investment by offering the world’s strongest and most flexible legal framework that protect assets, such as the Cook Islands, Nevis and Belize to name a few. The use of corporations, LLCs and trusts in these jurisdictions provide a high level of protection, and when these instruments and jurisdictions are combined, it is the strongest asset protection planning one can implement. Offshore asset protection services offer an individual the world’s strongest privacy laws, the safest banking and case-law-backed asset protection statutes using multiple legal jurisdictions in a single plan. These protective jurisdictions frown on frivolous lawsuits, unlike the litigious U.S. legal system. When assets are protected offshore it creates a massive legal hurdle to pursue them and in most cases is cost prohibitive for a legal opponent. Just by having your assets encumbered in a properly established offshore service plan can reduce or nearly eliminate the chances of being sued.
    • Offshore legal structures can also be used to augment domestic asset protection planning for individuals who are less comfortable with an entirely offshore service plan. There is a myriad of ways to take advantage of these protective vehicles and one of them is to utilize an offshore instrument as a last layer of defense against a judgment. Through the use of business entities as control instruments and an asset protection trust, day-to-day management of assets can be conducted onshore for simplicity and in the event of legal duress custom management provisions transfer control to an offshore legal instrument. Combining on and offshore planning services is more complex and requires careful implementation, however can bridge the gap for those who wish to utilize a mostly domestic service plan with the benefits that offshore vehicles offer. Lawsuit deterrence, judgment proof protection, privacy and settlement negotiation power – once a legal opponent sees the uphill battle involved with pursing assets protected offshore, plus the additional legal costs, he/she may reevaluate the merits of filing a lawsuit or settle for a fraction of the intended settlement. This is a strong layer of protection and can be achieved by simply implementing a service plan offshore.  

Estate Planning & Elder Law Resources

The following resources are available for you to review. Please click on the links to take you directly to the organization and/or documents. 





  • 1031 Like Kind Exchanges – This section of the IRS website may be helpful in understanding the tax implications of transferring business or investment property, and how you can avoid the capital gains tax through careful tax planning.

 

Files coming soon.