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Dimitry Esquire
Dimitry Esquire, Attorney
Category: Estate Law
Satisfied Customers: 41221
Experience:  JA Mentor. I run my own practice that specializes in Estate Preparation and Administration
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I am looking to get an asset protection house

Customer Question

Hello,I am looking to get an asset protection for my house and I have read several solutions,but I need one solution that will stands in court in case any lawsuit,I have a few options to discuss and asks in coming correspendance
Submitted: 2 years ago.
Category: Estate Law
Expert:  Richard replied 2 years ago.
Hi there! My name is ***** ***** I look forward to helping you.
Typically when looking for an asset protection plan, the goal is not only to protect the asset from lawsuits, but also to retain control over the assets. If the retention of control was not important, you could simply put it into an irrevocable trust that you don't control. If both are goals, I find the most effective strategy is to put your non-exempt assets (retirement income and retirement account assets are exempt and can be left in place) into a family limited partnership. Carefully drafted, this converts assets that a creditor would find attractive to go after into a limited partnership interest with no control, no rights other than that of an assignment, no transferability, no marketability, and no right to distributions. The transfer is for fair market value…i.e., you are simply exchanging one asset for another of equal value to you. And, you maintain control through a general partnership interest that you control. Yet, when complete it essentially is an asset no one wants and thus the creditor is less likely to pursue the debtor. At the same time, you retain control through a small general partnership interest. Family limited partnerships must be carefully drafted and one would need an attorney experience in this area to do so, but once set up, the FLP is a very effective asset protection tool that allows you to retain control of the assets.
Thank you so much for allowing me to help you with your questions. I have done my best to provide information which fully addresses your question. If you have any follow up questions, please ask! If I have fully answered your question(s) to your satisfaction, I would appreciate you rating my service as OK, Good or Excellent (hopefully Good or Excellent). I thank you in advance for taking the time to provide me a positive rating!
Customer: replied 2 years ago.
I do not any assets except the house that I living with my daughter which I like to includes her in any asset protection plan, I want to stay in the house living and have the power to sell if that possible and also to stand strong in court
Expert:  Richard replied 2 years ago.
Thanks for following up. If you transfer title into a family limited partnership, you can continue to live in the house and have the authority to sell the house. Yet, within the structure of the family limited partnership, it will be protected from your creditors.
Customer: replied 2 years ago.
what else besides the Family limited partnership I can add for extra protection
Expert:  Richard replied 2 years ago.
You could transfer it to a limited liability entity, such as an LLC, and then have the FLP own the LLC interest. That would give you an added layer of protection. :)
Customer: replied 2 years ago.
Also if I still have any power in the family limited partnership,wouldn;t the court uses that against me
Customer: replied 2 years ago.
I was reading that forming an LLC without conducting business which I am not doing any business except living at home,will not stand in court
Expert:  Richard replied 2 years ago.
No, because the partnership agreement provisions would control and it would have all kind of "poison pill" language that would make the family limited partnership totally unattractive to a creditor because the creditor would have no right to any control in the partnership, including the right to make decisions, to distribute money, etc.
Customer: replied 2 years ago.
I will send you later the list of options I have searched and to ask you which one applies to my case.
Expert:  Richard replied 2 years ago.
I look forward to hearing from you later. :)
Customer: replied 2 years ago.
Hello,here some other options and questions
1-what means retain control? in my case what are pros and cons
2-your first answer was technical language which was little hard for me to comprehend,would you please give me examples for my situation.
3-I am on Medicaid and Ebt food stamps,How to preserve these benefits without paying back Medicaid from my house asset as I have read.
4- [ sample question and answer] :Is an irrevocable trust established with my assets free from the claims of my creditors?It depends. Michigan law does not allow for the creation of a so-called asset protection trust, where one transfers his or her own assets into a trust established for his or her own benefit. However, if the grantor (creator) of a trust transfers his or her own assets into an irrevocable trust established for the benefit of someone else, like a spouse or children, then the assets may be maintained free from the claims of the grantor's creditors and the creditors of the trust beneficiaries. Sometimes our clients establish so-called life insurance trusts, otherwise known as ILITS, which hold a life insurance policy (or policies) on the life of the grantor, and generally maintain these asset-protection benefits for the family, in addition to the benefits that life insurance proceeds are ordinarily received without tax to the recipient and the fact the cash value of the policy may in most instances grow tax-deferred.
Other Question:
Does a trust provide protection from creditors?Under Michigan law, generally "no"; Michigan does not recognize the so-called self-settled asset protection trust. This means to say that placing your own assets into a trust will not protect them from your own creditors. This type of protection is, however, afforded by certain trusts established under the laws of other countries, and certain states of this country (buyer beware as it relates to states that have enacted laws recognizing self-settled asset protection trusts because they have yet to endure significant challenge). All of this said, it is recognized and allowable in Michigan to establish a trust for the benefit of someone else (your children for instance) and protect the assets of that trust from their creditors. This is generally accomplished through what is called a "spendthrift" provision included in a trust document or through the establishing of a purely discretionary trust which provides the trustee's discretion both to distribute assets to a beneficiary and also the discretion not to distribute those assets to the same beneficiary. Asset protection planning should always be approached with a careful legal professional.
I have couple more options but will get to them when needed,in the mean time please answer my questions and please give me your opinion in these options I sent.to see which one fits my situation as well your option
Customer: replied 2 years ago.
last 2 lanes are my comments
Expert:  Richard replied 2 years ago.
Thanks for responding. Given all the different issues involved here, I'm not confident I can completely and accurately provide you information that is going to solve all your issues to your satisfaction. Therefore, I am going to opt out to open your question up to all experts so another expert can hopefully timely provide alternative insights that might be helpful to you. Please do not respond to this post as it will only slow the process of such an expert picking up your question. Take care.
Expert:  Richard replied 2 years ago.
.
Expert:  Dimitry Esquire replied 2 years ago.
Thank you for your post. A different professional here. Perhaps I can help assist you with your concerns.
Could you please repost your specific question(s) so that I can then attempt to answer, thank you!
Customer: replied 2 years ago.
Thank you,its a long question and option,can you read the prior post with other expert?
Expert:  Dimitry Esquire replied 2 years ago.
Hi,
I have, but I am not clear on what was answered and what is still open. Can you please elaborate further?
Customer: replied 2 years ago.
I wanted asset protection on my house to be strong and powerful from any creditor ,I live with my daughter who is 24, I am not working,I do not have other assets,I am on Medicaid and food stamps,
I searched for a good protection plan and found many solutions which I have listed in the prior post
Customer: replied 2 years ago.
please give me your opinion what is the best plan for me after reading other solutions from Michigan attorneys
Expert:  Dimitry Esquire replied 2 years ago.
Hi,
There is no such thing as protection from ANY creditor unless you place the funds into an 'irrevocable' trust that has someone else managing the assets. An irrevocable trust means that once assets are placed into it, you cannot get them back, which helps with creditors because any creditor who pursues you can 'step into the shoes' of the debtor (you) upon pursuit of assets. That means that they obtain the same rights and abilities that you would otherwise possess. If you can withdraw the assets, so can the creditor. Having such a trust with a spendthrift provision is likely the best ideal option if all your assets are your house and nothing else.
Sincerely,
Dimitry, Esq.
Customer: replied 2 years ago.
thank you,how Do I involve my daughter here in that trust? also is anything else additional can be done for additional protection? How about personal residential trust? Family limited partnership? with LLC?
Expert:  Dimitry Esquire replied 2 years ago.
Hi,
You can make her be the trustee (the one who runs the trust) and the beneficiary. You can likewise add an extra layer by placing such a trust into an LLC and have your daughter run the LLC. The family limited partnership would be too easy to break if the whole purpose here is to avoid creditors.
Sincerely,
Dimitry, Esq.
Customer: replied 2 years ago.
I was reading the LLC do not stand in court because no business is transacted except living in the house,How i can make the LLC works as business ,is me renting considered a business? also please answer y question about family limited partnership or personal residential trust
Expert:  Dimitry Esquire replied 2 years ago.
Hello,
The LLC can rent out the house, which will create commercial activity and will protect the LLC if it is holding the trust within it as an asset. Renting is indeed a commercial activity provided that the rents go to the LLC.
Family limited partnership I answered above, it is too easily broken by creditors, same answer applies to a personal residential trust since the grantor (you) retain interest in the trust--that means that the creditors would retain an interest and would be able to take the asset out of the trust and pursue it.
Sincerely,
Dimitry, Esq.
Customer: replied 2 years ago.
Would you please summarize what exactly the plan,step by step ,would you draft it?
also is there any way in that plan for me a provision to regain control of the house or that will be considered a weak point for a creditor?
Expert:  Dimitry Esquire replied 2 years ago.
Hi,
I am sorry but I will not do that for you. I cannot and will not write this trust for you--that is something most attorneys charge from $3,000 to $5,000, and for good reason--writing such a trust can be very complicated and time consuming. This is simply not something that I can do based on the price value for the question and rules on this site, especially since trust laws differ from state to state.
A provision for you to regain the house is that 'retain interest' language I was referring to--and yes, it weakens your ability to keep the trust from creditors. You can add such language, surely, but then your creditors would have exactly the same right to get the house back in case of lawsuit or debt.
Sincerely,
Dimitry, Esq.
Customer: replied 2 years ago.
are your answers are in accordance with Michigan Law?
Expert:  Dimitry Esquire replied 2 years ago.
Hi,
Yes, they are.
Sincerely,
Dimitry, Esq.
Customer: replied 2 years ago.
Thank you so much,I have couple more options to ask later for your opinion
Expert:  Dimitry Esquire replied 2 years ago.
My pleasure and please take care!
If satisfied, kindly do not forget to positively rate. Thank you very much!
Sincerely,
Dimitry, Esq.
Customer: replied 2 years ago.
Hello,here one of the other options to get your opinion if that fits my situation:
We have outlined three basic strategies here to show you how to protect your real estate assets.1. “Equity Stripping”Let’s assume that you own a rental property worth $300,000. And let’s also assume that you have a first mortgage on it from Chase for $150,000. Therefore you have an equity of $150,000.You would form an Ultra Protective Wyoming or Nevada LLC or a Wyoming or Nevada FLP and use that to place a mortgage lien or, in other words, a second mortgage on that property for, say, $175,000. Now that piece of property does not have any equity left. The lack of equity will deter many lawsuits since few people want to spend $10,000 to $30,000 in legal fees suing someone without any assets. If someone filed a suit against you and won and filed a judgment lien against that piece of property, the judgment lien would be junior to your mortgage lien from your Wyoming or Nevada LLC and he still would collect nothing.2. Transfering OwnershipInstead of keeping the title of the property in your name, you form an Ultra Protective Wyoming or Nevada LLC with all the charging order protection features written in the operating agreement and then transfer the title of the property into the LLC. If you are sued and you lose, the only remedy available to your judgment creditor is a charging order against your LLC. Your creditor gets nothing if you don’t distribute any assets out of the LLC.You can also combine this with the equity stripping lien strategy and use a Wyoming or Nevada FLP to place a lien (mortgage) on the property in the LLC. This will give you double protection against loss of assets.3. Limited Partnership Using Equity Stripping With ConsiderationUsing the same example, let’s say you decide to form a Family Limited Partnership (FLP) with your wife and kids and fund it with $150,000. However, you do not have the $150,000 available in cash to fund it. So, you give a note to the FLP in the amount of $150,000. The FLP decides to take collateral for the note and you offer the equity in your real property as collateral. So the FLP now holds a mortgage lien on your property. The FLP provides you with the same charging order protection as the LLC.
Customer: replied 2 years ago.
please note I have no mortgage on the house
Expert:  Dimitry Esquire replied 2 years ago.
Hello and thank you for your follow-up.
Those options all have one flaw--if the creditor believes that you set up the LLC to hide assets, they can file suit to 'pierce the corporate veil' by arguing 'alter ego', specifically that you and the LLC are one person. That will permit them to go through the LLC and get at the assets, specifically your home.
Sincerely,
Dimitry, Esq.
Customer: replied 2 years ago.
Hello,here is the last option for your opinion:
http://www.rjmintz.com/wp-content/uploads/2011/01/MDNetGuideMay2005.pdf
Expert:  Dimitry Esquire replied 2 years ago.
Hi,
The problem with the RPT is the same as with the first trusts you discussed, since the transfer can be reversed, the creditors can likewise reverse the transfer. It is not a bad idea, but as you made it clear that the primary concern here is creditors, this is not the best available option.
Sincerely,
Dimitry, Esq.
Customer: replied 2 years ago.
OK,Thank you so much,after showing you all these options,what is the best iron plan protection that cannot be reversed by any creditor and will stand powerful in court for my situation.
Expert:  Dimitry Esquire replied 2 years ago.
My pleasure, truly.
Keep in mind that there is no 'iron plan' protection as any plan can be broken. Each and every option has the risk of reversal (there are no absolutes here). But likely the hardest to break would be an irrevocable trust that is placed within an LLC and one where the trustee rents out the property for a commercial purpose.
Sincerely,
Dimitry, Esq.
Please take care and kindly rate my answers to you at this time. If extra satisfied please do not forget to alos leave a bonus. Good luck!
Customer: replied 2 years ago.
Thank you for your recommendation,That should wrap up what we discussed:
1-How to put the irrevocable trust within LLC,what is the procedure?
2-and I take it I should not be the trustee? can My daughter be the trustee?
3-Does commercial purposes means i will lease the property? Like I pay rent to the trust? How the money in the trust can be spent?
4-Does the trust can sell the house?
5-Does the trust requires all utility and tax bills to be transferred to the trust ?
Expert:  Dimitry Esquire replied 2 years ago.
I am sorry but at this point this is far beyond the original scope of the question. I would ask that those questions, as each of them tend to be fairly detailed, be posted separately and I will be glad to answer them for you. However as it is very late, I will likely reply to them (if you post them to me and via separate threads) tomorrow morning or afternoon as I will be logging off to get some rest.
Please take care and please do not forget to rate.
Sincerely,
Dimitry, Esq.
Customer: replied 2 years ago.
How to post them to you for a new thread even I thought that I am allowed to ask all the questions and I have paid to get maximum detailed answers .
Expert:  Dimitry Esquire replied 2 years ago.
Sir,
You can start the subsequent questions 'For Dimitry...". While you can ask all the questions you wish, you are limited to one question per thread unless the questions are directly related. This whole thread was about different types of vehicles for asset protection, it was not a thread about how to draft it, and what responsibilities may or may not exist for the trust itself. This is no longer reasonable for me as you are now asking me to do substantial work without additional (or any) compensation as you have not yet rated my previous detailed responses.
Sincerely,
Dimitry, Esq.
Customer: replied 2 years ago.
Regarding the rating,I was waiting till I finish my questions. Regarding the new thread ,I can pay for another one but this time how to draft and what responsibilities may or may not exist for the trust itself as you stated.also where I find subsequent questions 'For Dimitry"
Expert:  Dimitry Esquire replied 2 years ago.
Hi,
You can go to this link below and post new questions directly to me:
http://www.justanswer.com/law/expert-dimitry-esq/?rpt=3800
Hope that helps and please take care!
Sincerely,
Dimitry, Esq.

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