What’s an asset protection trust? What’s a Trust?
A “TRUST” is nothing more than a “CONTRACT” between the person who wishes to protect his assets (the Grantor) the person who will manage the assets (the Trustee) for the benefit of all Beneficiaries which may include the Grantor, his spouse, children and grandchildren.
The Trust Contract requires the transfer of assets from the original owner (Grantor) to a legal entity for the purpose for which the Trust Contract was created.
What type of trust, Grantor, or Non Grantor? What’s the distinction? A Grantor Trust take a special place within the tax code. A “Grantor-Type Trust” for tax purposes is treated as a disregarded legal entity. The disregarded entity is “Income Tax Neutral” meaning that the original Grantor retained strings attached so that for purposes of the IRS he retains the assets in his complete control, thus he did nothing for the purpose of asset protection.
Income tax benefits and income tax expenses are retained by the Grantor, thus he pays income taxes on the income of the trust. The Trust is a “pass-through” to his form 1040 i.e. real estate tax deduction and mortgage interest deduction on his person income tax return.
Revocable, irrevocable trust, what’s that mean? Revocable is when the original person with the assets transfers (repositions) the assets to a trust with strings attached. The Grantor, the Trustee, and the beneficiary are the same person. Effectively you have kissed yourself on the hand and blessed yourself as the Pope. A revocable trust does absolutely nothing for asset protection. Many lawyers recommend revocable trusts for avoiding probate, recognizing that the trust is not worth the paper it’s written on for protecting assets against frivolous lawsuits and the avoidance of estate taxes.
An irrevocable trust is when the Grantor (the person with the assets) gives-up complete control to an independent Trustee who in turn will use his judgment as Trustee to manage the assets for the beneficiaries of the trust. The fiduciary relationship of the Trustee is to the protection of the assets at any cost. The Trustee must protect and must diligently invest under the prudent man rules, he cannot ever deal for himself.
The courts do not look favorably on dereliction of duties while serving as Trustee. An irrevocable trust is the only significant asset protection device for avoiding frivolous lawsuits, avoiding the probate process, avoiding estate taxes, and is the only device for avoiding the mandatory spend-down provisions for qualifying into a nursing home.
An irrevocable asset protection trust when combined with a Limited Liability Company is an asset protection fortress, short of a foreign asset protection trust. A foreign asset protection trust is the Rolls Royce of asset protection, the irrevocable trust with an LLC is the Cadillac.