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FAQ'S PROBATE

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Asset Protection link

The best form of asset protection is to know a good trial lawyer and to have your asset protection plan created or at least reviewed by one who will stand by and defend the plan. Consider these real life facts: Mr. Smith stops his truck to make a delivery. A drunk driver comes along and hits a pedestrian running across the street near Mr. Smith's truck. The pedestrian is crippled. Result? Mr. Smith gets sued for $20 Million Dollars because he "obstructed" the drunk's view. (And because he had a "deep pocket".) Could this really happen? Absolutely. I know first hand because I successfully defended my client "Mr. Smith". Homeowners, business owners and employers are all vulnerable to lawsuits. So is anyone who owns a dog, hunts, owns a gun, a business or operates a boat or drives a car. Or you may have read about "Cohasset businessman John Lennon" who was sued when a teenager died after leaving Lennon's son's high school graduation party where alcohol was allegedly served? I defended Lennon successfully in both the civil and criminal actions against him when the D.A. tried to put him in jail and he was sued in civil court.

Lawsuit Protection

Discrimination claims abound and the trend today is for insurance companies to "deny coverage" on insurance policies that you paid for. If you have unprotected assets, then you are a "target" with a "deep pocket" in a civil damages lawsuit. Each year over 25 million civil lawsuits are filed. You have a probability of being sued several times during your life. You can insulate and protect yourself from losing your valuable assets from a lawsuit! If you have more than $50,000.00 in combined assets, you need to take action. These techniques in addition to and sometimes in coordination with other techniques often used in estate planning can insulate you from creditors and even taxes.

The combined selective use of newly recognized LLC's (Limited Liability Company's), Limited Partnerships and Trusts can limit your exposure to financial catastrophe and give you lawsuit protection. One of the strategies you can employ to discourage lawsuits is to separate and diversify assets. Having a plan to separate your safe assets from more vulnerable ones is the first place to start. A Family Limited Partnership, for example, allows you tremendous protection against creditors. You can control the partnership assets without exposing them to creditors if properly drafted.

Trusts, if used in tandem, can also achieve a measure of protection as can shifting control to a spouse if that spouse is less likely to get sued. Many more techniques such as the use of trusts, living trusts, charitable trusts and trusts for minors can greatly reduce your exposure to lawsuits as well as providing tax and estate advantages. Seperating your assets always helps to protect individual assets.

Regarding asset protection of different business entities: A Sole proprietor has unlimited liability. In Partnerships: Partners have unlimited liability. Limited Liability Company Members are not typically liable for the debts of the LLC. Subchapter S Corporation Shareholders are typically not personally liable for the debts of the Sub S corporation. Regular C corporation Shareholders are typically not personably liable for the debts of the corporation.

No matter what size your estate, there are basic and inexpensive things everyone can do to protect assets from creditors: You should always Prepare a homestead : Filing a Declaration of Homestead in Massachusetts gives you protection against creditors for up to $300,000 in the equity in your home. Single persons are eligible to file homesteads. Disabled persons can be entitled to EXTRA protection as are persons over the age of 62.
You can also Own your Home by Tenancy by the Entirety (Massachusetts)
This form of ownership affords in many circumstances excellent protection against creditors for married couples.

A good asset protection plan uses some or all of the following tools:

1) seperation of assets (very importatnt)
2) personal homestead
3) House held in Tenancy by the Entirety (if married)
4) a personal umbrella policy (very inexpensive)
5) use of Limited Liability companies, trusts and or family ltd partnerships
6) title not held in name of person likely to be sued (optional)
7) have a trial attorney prepare your asset protection plan so they can stand by and defend the plan they created - it costs no more in the short run but can save all your assets in the long run.

The only other advice I can give you is this: We suit people, win cases and collect judgements all the time. It is how we make a living. We have "pierced the corporate veil" of corporations set up to give their owners asset protection. Why did those plans fail? Why could we still grab those assets? Often because the defendants did not do the things necessary to maintain the corporation as an asset protection device. Most probably because we know both sides of the law and have years of experience creating and defending plans designed to give our clients a suit of armor. And we are quick to defeat inferior plans created by plan preparers who have no actual experience in court.

Your asset protection plan is only as good as the lawyer who will stand by it and defend you.

To receive more information, please call our office for information regarding your own "Asset Protection" Plan.