In a recent interview, top asset protection attorney Rex Hogue, partner at Haiman Hogue in Frisco, TX, outlined how self settled asset protection trusts can leave people’s assets exposed. —
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When asked to comment, Hogue said, “While establishing self settled trusts in place of more conventional asset protection plans is trendy these days, there are some serious setbacks that could do more harm than good."
He added, "The most appealing aspect of a self settled trust is that the grantor and beneficiary are the same person. These are spendthrift trusts that the grantor forms for his or her own benefit. This is done for the purpose of attempting to protect the trust assets from creditors. But it doesn’t work for past creditors, for all assets, in every state, or in all circumstances. In fact, most U.S. states don’t recognize self-settled trusts at all."
Many people open foreign asset protection trusts under the false assumption that moving their assets overseas will help shield them from creditors.
“While it’s true that judges in US courts do not have jurisdiction over assets tucked away in foreign asset protection trusts, there are ways that the courts can still dole out punishment for any perceived wrongdoing.”
When asked for an example, Hogue explained, "For instance, if the IRS has deemed that you owe taxes and the court can prove you have enough money placed in a foreign trust to cover your tax liability, then you might be penalized for not repatriating money and paying the IRS."
He added that a judge can order that someone move his or her funds from a foreign trust back into the country.
Domestic asset protection trusts – which is one type of common self settled trust – is not recognized in every state, making people vulnerable both legally and financially.
“States often differ in their regulations surrounding domestic asset protection trusts. If a state doesn't legally recognize this type of trust, any assets that are put in that type of trust are not protected from debt collectors," he said.
While some states do recognize domestic trusts as part of their legislation, Hogue said that asset protection is still not guaranteed, particularly when it comes to bankruptcy.
"Creditors have and can submit an involuntary bankruptcy petition to the courts that are located in states that legally recognize domestic asset protection trusts. This has the potential to place your assets at risk," he said.
“Although self-settled trusts might seem appealing to many, the risk that your assets will be exposed while in this trust is far too great without the support of federal and state laws. Contact an experienced asset protection attorney to learn more about non-self settled trusts.”
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