The term asset protection is heard a lot in planning circles. However, it has no definitive definition and its role depends on the context in which it is used.
One aspect of asset protection is to protect the owner of those assets. Sometimes it refers to protecting those assets from possible seizure after a finding of liability, e.g., in a lawsuit. Other times it refers to legally minimizing or avoiding (not evading) certain tax liabilities such as the estate and gift taxes. Still other times it refers to protecting assets from unnecessary legal expenses such as probate and conservatorship proceedings or from having to spend down all of one’s assets to pay for long term care.
Another aspect of asset protection is to protect the assets that are intended for the chosen beneficiaries of one’s estate plan. Numerous situations can arise whereby those assets could be put in jeopardy without proper planning. One example is a gift left outright to a minor in which case a guardianship proceeding may be required. Similarly, gifts left directly to some young (and sometimes not so young) adult beneficiaries may be at risk of loss due to the financial immaturity or irresponsibility of that person. Other examples where a beneficiary might be at risk of losing his or her inheritance is when he or she is under the wrongful influence of drugs, alcohol, an abusive spouse or cult like group. Others may be in financial trouble thereby exposing their inheritance to possible creditors or even the bankruptcy court. A special kind of threat can arise for certain disabled persons who receive public benefits as an unrestricted windfall to them may have the unintended effect of disqualifying them from these vital benefits.
In the following blogs, we will discuss some options to address these issues.