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rvlaw, Attorney
Category: Business Law
Satisfied Customers: 8386
Experience:  NYC Trial Attorney 30+ years; Law professor ; BUSINESS LAW; CONTRACTS; TORTS; Arbitrator
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What is the safest way to safeguard our home against law

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What is the safest way to safeguard our 'home' against law suits or debtors. We also have a guest cottage that we rent and a small clinic on the property- Thanks

Dear JACUSTOMER - The best protection against liability lawsuits is good insurance coverage. Protecting against creditors is a bit more problematic. If you own it then it can be attached by creditors and if you don't own it you have no control over the property. The simple answer is to not have the property in your name or to have any control over it. That obviously does not solve the problem so the other avenues would be to transfer the property to a corporation or to a trust. Whether your current trust provides protection I cannot say since I am not permitted to give specific legal advice from this website nor can I review documents. There is always a trade off between protection and control of the assets and everyone has different financial circumstances and goals and exposure to creditors. So there's no simple answer that fits all situations other than if you don't own it no one can take it from you. As for Medicaid and long term health care, any transfer of assets has to be made more than five years prior to the application for Medicaid.

If you have multiple properties you can keep the business in a corporate ownership and not personally sign for any debts which would exclude the house from any suits against the business.

Customer: replied 5 years ago.
I'm not entirely satisfied with this answer. If you cant give more specific legal advice than you wont get paid.

The trust is a revocable (as in the type provide by Legalzoom) not a 'land' trust. Lets assume this isnt sufficient.

I have an LLC, is that sufficient entity in regards to 'corporate ownership'?

Also this is in the state of Hawaii. I assume you are familiar with 'law' in this state? I've never heard of the requirement that we must own more than one property to keep the business in a corporate ownership.
If you read our disclaimer you will see that we are not permitted to represent clients or give specific legal advice. I will opt out of the question.


Insurance is a good way

The Medicaid issue is real

LLCs, C and S Corps are not specific to each state.

You want to protect personal assets as well as real property and we don't know that situation here

Some helpful info:

LLC advantages:
An LLC can elect to be taxed as a sole proprietor, partnership, S corporation or C corporation (as long as they would otherwise qualify for such tax treatment), providing for a great deal of flexibility.
A limited liability company with multiple members that elects to be taxed as partnership may specially allocate the members' distributive share of income, gain, loss, deduction, or credit via the company operating agreement on a basis other than the ownership percentage of each member. S corporations may not specially allocation profits, losses and other tax items under US tax law.
Limited liability, meaning that the owners of the LLC, called "members," are protected from some or all liability for acts and debts of the LLC depending on state shield laws.
Much less administrative paperwork and record keeping than a corporation.
Pass-through taxation (i.e., no double taxation), unless the LLC elects to be taxed as a C corporation.
Using default tax classification, profits are taxed personally at the member level, not at the LLC level.
For Real Estate companies, each separate property can be owned by its own, individual LLC, thereby shielding not only the owners, but their other properties from cross-liability.

LLC Disadvantages
Although there is no statutory requirement for an operating agreement in most states, members of a multiple member LLC who operate without one may run into problems.
Unlike state laws regarding stock corporations, which are very well developed and provide for a variety of governance and protective provisions for the corporation and its shareholders, most states do not dictate detailed governance and protective provisions for the members of a limited liability company.
Thus, in the absence of such statutory provisions, the members of an LLC must establish governance and protective provisions pursuant to an operating agreement or similar governing document.
It may be more difficult to raise financial capital for an LLC as investors may be more comfortable investing funds in the better-understood corporate form with a view toward an eventual IPO. One possible solution may be to form a new corporation and merge into it, dissolving the LLC and converting into a corporation.
New York, for instance, levies a franchise tax or capital values tax on LLCs. In essence, this franchise or business privilege tax is the "fee" the LLC pays the state for the benefit of limited liability.
New York,also as an example, imposes a publication requirement upon formation of the LLC which requires that the members of the LLC publish a notice in newspapers in the geographic region that the LLC will be located that it is being formed. For LLC's located in major metropolitan areas (e.g. New York City), the cost of publication can be significant.
The management structure of an LLC may be unfamiliar to many. Unlike corporations, they are not required to have a board of directors or officers. (This could also be seen as an advantage to some.)
The principals of LLCs use many different titles-e.g., member, manager, managing member, managing director, chief executive officer, president, and partner. As such, it can be difficult to determine who actually has the authority to enter into a contract on the LLC's behalf.

Choice of S or C Corporation They are really not that different. It depends on your situation:

1. C corp : limited liability protection; ease of raising capital; ease of adding owners and shareholders;taxed as an entity (as opposed to S); C will involve double tx (not so with an S). A corporation may qualify as a C corpoaration without regard to any limit on the number of shareholders, foreign or domestic. It will last forever.

2. S corp: this is a flow through entity. It is not itself subject to income tax, rather the shareholders are subject to tax on their pro rata share of income based on their shareholdings. The corporation shares must be held by by a resident or citizen individuals or certain qualifying trusts.


Customer: replied 5 years ago.
Relist: Answer quality.
I want to try another expert.

No Problem. Good luck.


rvlaw, Attorney
Category: Business Law
Satisfied Customers: 8386
Experience: NYC Trial Attorney 30+ years; Law professor ; BUSINESS LAW; CONTRACTS; TORTS; Arbitrator
rvlaw and 2 other Business Law Specialists are ready to help you
Customer: replied 5 years ago.
sorry I had to leave for most of the day. Also, I didnt mean to click the relist: Answer quality on your answer (but the previous fellows).

Thanks for the information. There's enough 'meat' in this answer and I'm satisfied.

Thank you for your acceptance and bonus. I hope you will return to Just Answer when and if needed.