Asset Protection Explained in a Nutshell - Video Transcript
My goal here at Asset Protection Training is to give you the tools you need to protect yourself, the tools you need to keep the professional takers, namely contingent fee litigators, all those banks and everyone else that may come after you in the future. In this video, I’m going to do a broad overview of asset protection planning. I’ll start with my favorite topic, offshore protection planning.
Should it or should it not include a family-limited partnership? Do those things work at all? Should it include an LLC? What about a corporation? I’m going to talk briefly about these things then I’ll go into domestic types of asset protection.
Usually, domestic things are free or very inexpensive. You don’t need to go pay a lot of money for somebody like me to do it. You can do most of those things yourself like homesteading, setting up an IRA, etc. You're not going to get any iron clad final, you know, take it to the bank answers just by watching this particular video; but you're going to get the vocabulary and that’s the key.
Well, I want to start with the key rules of asset protection. These are rules that are fundamental, that are basic. They're inalienable like rights of liberty.
What you don’t own- the first rule is, what you don’t own cannot be taken from you.
For example, you have a new baby, the day the baby is born, you give the baby $10,000 in a trust for education. You’ve made a gift.
Provided that the gift isn’t a fraudulent conveyance on your current creditors, nobody can take it away. If someone decides to sue you, they won’t be able to collect because you’ve set up a solid asset protection plan. They're going to be able to go after your 10 year old and take that college fund which is growing to $20,000. Why?
Because it's not yours and the act of transferring it to your child wasn’t a fraudulent conveyance. Well, trust is the same thing as a kid. You'll soon find all that out.
So, the first rule is, what you don’t own cannot be taken from you. The second rule, just as obvious, no country in the world automatically enforces U.S. judgments. Say it again.
No country in the world automatically enforces U.S. judgments. Every single country out there forces anybody who wants to take your money away to re-sue you and litigate in a hostile environment if they want to get to your money. The good parts about it are, most of the rest of world have serious impediments to people being able to win those suits.
99% of the rest of the world thinks contingency fee litigation is immoral and unethical as I do. I believe it's a complete conflict of interest.
We have 125,000-130,000 lawyers graduating each year, most of them with nothing to do. Well, anyone of them can file a lawsuit for $200 or $300, sue you for $10 or $20 or $30 million, ruin your health, ruin your sleep, ruin your capacity to move forward in some cases, all because they have the power to and they have nothing else to do.
So, what do we get to choose by applying those first two rules, we get to choose our battleground. Remember, the first rule is, what you don’t own cannot be taken from you.
Second rule, no country in the world automatically enforces U.S. judgments. It’ll start to make sense to you in a few minutes, but just file those away and tattoo them into your brain. That’s a good start.
I have a few rules you should always consider when you're thinking of hiring somebody. To be honest, most of you shouldn’t hire someone like me. I’m way too expensive.
You don’t need to spend that much money. With the tools I’m about to give you, you can go to an inexpensive attorney. You can sometimes do it yourself, although I don’t recommend that. I’m going to give you the tools to do your own planning, and I’m going to give you the tools to at least judge whether the people representing you are giving you good advice.
You’ll quickly find out that nine out of 10 of the people who claim to be asset protection experts are just idiots looking for something to do- unemployed estate planners who don’t know anything about what they're doing, unemployed financial planners, unemployed mortgage brokers- the ones who got half of you into the trouble you're in now.
If you take my online complete training course you'll be armed with the tools to know whether you're getting the straight scoop or hogwash from your advisors. The third rule is to trust nobody. Trust no one. Always assume, when you do asset protection, that your trustee and your advisors are not on your side. Why should you assume this?
Well, because they normally aren't.
Even lawyers, although they try to clothe themselves in the sacred shrouds of decency, justice, and integrity, they're mostly just callous, shallow people who want to make money only for themselves. The honor behind the justice system is pretty well gone, so don’t count on anyone looking out for you other than yourself. If you’re willing to listen, I’m going to give you the tools to do in my complete asset protection course.
By taking the complete course you'll get tools to control the risks you take. You’ll understand the advice you're paying for, and you’ll make sure you're getting good advice.
Now, trust nobody, that’ll make sense to you in a little while. Especially if you start doing serious asset protection planning all the time. You'll be beset by people saying, trust me with your money. Put it in here. Put it in this bank account. Move it there. You never need to lose control of your money, ever.
The fourth rule is if someone promises you asset protection will save you any taxes, run because it doesn’t, just ask Wesley Snipes (he got in trouble by having a pure trust). Asset protection is compatible with all tax planning including insurance planning.
Pay your taxes. The United States, even though we all hate to pay them, has some of the lowest tax rates of any civilized country in the world.
We're unfortunately also one of the only countries that tax its citizens on their worldwide income from whatever source derived. You're taxed on your “worldwide income from whatever source derived.” Well, you know what, that’s a not bad deal; and I do have people expatriating, but that’s not for most people. You're one of the lowest tax rate jurisdictions in the whole world.
Opening an Offshore Bank Account
If you have an offshore plan, you will need an offshore bank account. Offshore bank accounts are dangerous and they're almost impossible to get nowadays. Fortunately, people who take this course and follow suggestions I give them will be able to get or should be able to get bank accounts.
Since the Patriot Act and the rest of the industrialized world’s effort to counter terrorism, there's been a real big focus on offshore banking and the know your customer rules from the Patriot Act, or the seven money laundering statutes. These things have made the most big offshore banks not want to do business with most American citizens. I'll show you how to get around that and find solid banks.
Never go to less than a Fortune 50 bank. You need somebody stronger than Bank of America, stronger than Chase, stronger than Wells Fargo. They really exist and don’t take some boutique bank. Don’t trust them. They’ll steal your money. I can almost guarantee you'll have problems. Stay away from the boutiques.
How do you spot problems?
You're going to be beset by people making promises to you. How do you spot the creeps out there? Well, again, if they ask you to trust them, run.
If they promise to save you taxes, run. If they tell you that your bank account is secret and in fact, a lot of them will tell you “you don’t have to report it, just get a debit card and you'll be safe and sound”, run. You'll end up rooming with Bubba or end up like Wesley Snipes.
You do not want to commit tax fraud. Every time you do asset protection it should be completely above board. It should never rely upon stealth. You should be able to hold your head up high, look at the judge, look at creditor in the eye and say yes, here is what I did. You're not going to volunteer anything because stealth does help, but you should never depend upon stealth.
Stay away from Nevada corporations & Fraudulent Conveyances
Unless you live in Nevada, you shouldn’t do it. Nevada corporations are in most cases worthless scams, absolutely worthless scams. There's no such thing as bearer shares in Nevada. There's no such thing. It was all started up by Bill Reed and his asset protection group. He’s in jail or at least went to jail. I hope he’s still in jail, complete scammer.
If you're going to do domestic entities- we'll talk about that later, but they almost always are ineffective. Even corporations, even partnerships standing alone are problematic. Don’t rely upon that. Another thing you should always try to avoid is the fraudulent conveyance issue. Don’t be paralyzed by it.
Fraudulent conveyancing is not a crime. What is it? It’s when you transfer money into a protected environment and don’t retain sufficient assets to meet your reasonably anticipated debts. That’s pretty much what it is. It's a much more complicated factor, much more complicated than that, but that’s it in a nutshell.
Always be careful when you're doing your planning, but don’t be paralyzed. If someone has sued you and you have a decent defense, don’t just lock up and say well, I guess I just can't do anything. I'll have to leave my $2 million sitting in Oppenheimer & Co. or Morgan. I have to let it sit in Chase because I don’t want to engage in a fraudulent conveyance.
Look, normally with a little analysis, you can come up with a reasonable guess from some input from your lawyers and your advisors. You can come up with a decent guess as to what you owe the people suing you if you’ve been sued and then protect the rest of it and, you know, have a good business purpose; and believe me it's a whole lot better than being vulnerable. Nobody else besides yourself is going to protect you.
You live in a dangerous world and they don’t care. Those bankers who you bailed out don’t care. Those lawyers who have nothing to do other sue you don’t care.
All they want to do is inflict pain and extract money, and this gives you the power to reverse it. Take control of your life. You never have to be vulnerable. That’s what I like about asset protection.
What is an asset protection trust?
A trust is nothing more than a little teeny tiny simple – I mean, it can have 200 pages, but it's nothing more than a contract between some one who puts something into a trust that’s called the “settlor” or a “trust maker”, a “grantor” and a “trustee”.
That’s the human or company with a license to or authorization to hold the stuff, whatever you put in the trust. The contract is between the settlor and the trustee or trust company. The trust company agrees to hold whatever the settlor gives them.
For instance, if you put $100,000 into a trust and say you went to your neighbor and said “will you hold this $100,000 for my kid until he graduates from college then give it to him”, that’s a trust.
A trust requires a settlor, a trust company and a beneficiary. In the above example, it was your kid who goes to school and gets the money when he graduates.
Trusts can be much more complicated; but if you do trust correctly in the asset protection world, he trust almost becomes a separate human being.
A trust that’s properly done has all the powers of a human being to do anything that a human being can. It is treated as if it were a living breathing person, and therefore transferring assets to a trust is a great way to trigger the first rule of asset protection, what you don’t own cannot be taken from you. What you don’t own is when you transfer it to the trust you no longer own. It's not yours. It's not available to your creditors.
Now, an asset protection trust (APT) will usually have a few other players. Usually APT will have a protector. The protector is somebody that’s there to say no.
The purpose of the protector is to stop the trustee from doing things that might not be in keeping with what your wishes were. Now, I sometimes have my clients be the trustee along with an offshore trust company.
That’s considered bad form by most of the uninformed people out there who have never really done too much asset protection.
If I have to choose between being vulnerable to theft or staying in control, I'll stay in control and trust the drafting to people that know how to get me out of control before I’m in trouble.
You hear an awful lot about people being put in jail for doing aggressive asset protection. Well, believe me, two of the biggest cases like this they try to hire me and I turned them down because it was obvious they were doing the wrong thing.
For an example, let’s look at the Andersons. They put their money in a trust after they heard their partner was indicted and that they were going to be attacked and charged with a crime by the Federal Trade Commission.
Same thing with a guy named Lawrence. He was fighting with Bear Stearns. He missed a margin call. He knew he owed them many millions of dollars.
What did he do? He put his money into an asset protection trust a week or two before the arbitration award came down. Lawrence is a complete crook. As well as the Anderson’s. They were all crooks.
They got thrown in jail not because they did asset protection, but because the judge ordered them to return the money and they refused to return the money. The judge decided that their refusal was an act of disobedience.
He decided that they had the power to return the money and were just disregarding the judge. That’s the only way you can go to jail.
A properly done trust should never expose you to that. You should never be that far out on a limb, and you should never be in a position where you have the power to break your trust and a judge can order you to do so. That should never happen.
That’s only very bad advice, very bad drafting that will ever allow anything like that to happen.
An asset protection trust will have some unique provisions. It will have a Cuba clause. A Cuba clause allows your trust to migrate from one jurisdiction to another.
They used to be automatic. We stopped making them automatic when the tax law changed roughly 10 years ago. The bottom line is, if your trust is in Belize or the Cook Islands or any other place and someone starts to attack your trust, your trust can migrate and move to another country.
It can migrate to another jurisdiction. That takes about 15 minutes of work on behalf of your advisors or yourself.
It takes your creditor about six or eight months to recover because they have to go hire a whole new team of lawyers in another country. They have to pay for them.
If there are conflicts of interest they'll even have to bring in lawyers from outside the country usually England, and it just makes it incredibly expensive. They'll have Cuba clauses.
They'll have anti-duress clauses.
An anti-duress clause is simply a clause that says, if a judge orders you to do something under duress the trustee is not to listen to it.
Now, it has to be really carefully written or you're going to have a lot of angry judges but, you know, after years and years and years and years and hundreds and hundreds of law firms and lawyers and clients and financial planners tearing trusts apart, we have some pretty good examples of what a duress clause should look like. Your asset protection trust will have a duress clause.
That’s important because if a judge orders the offshore trustee to return the money, you have to comply with that, if you were a trustee or you had any power.
You need to comply with it or you're going to have trouble. The good part is, your offshore trustee doesn’t have to and your offshore trustee will usually be a very sophisticated, very important person in his or her country.
So, you got somebody who can hold their head up high, oftentimes like one of my people I use a lot is the president of the bar association of a major country.
They simply won't look bad if they refuse to return the money because they have a fiduciary duty to whom, the beneficiaries.
Remember, all the trusts have a settlor, a trustee, a protector and beneficiaries. If you have beneficiaries other than yourself, and you always should, then you have a fiduciary duty or the trustee has a fiduciary duty to somebody other than yourself- good excuse to not return your money and look at the real purpose of this.
The real purpose is to make your creditors spend $10 to collect 10 cents.
They get really tired of that because no lawyer in the entire world litigates on principle. ACLU does and a few public service type groups but real lawyers, real litigators, they do it, for one thing, that’s to make money. They're not going to continue to waste their time.
They maybe mad at you, but you're going to get to keep your money. I do a lot of asset protection trust that is combined with family limited partnerships. That means I have the family-limited partnership, and by the way, there's no such thing as a family-limited partnership. It's just a word that lawyers invented to make partnerships more expensive.
Trust partnership you might charge $2,000 for they'll charge for $5,000, $10,000 for because what? It's a family-limited partnership. It has a few extra pages. It's no different.
It's no different, don’t fall for that. Anyway, if you take a partnership and have it owned 99% or even sometimes 100% by the trust, that’s a great way to have a U.S. side as bank accounts that are protected. I oftentimes do that.
I use the partnership to separate ownership which stays with the limited partner, usually 99% from control which stays with my client. My client will usually own a very small portion, 1% or less but have 100% control by virtue of their status of being the general partner.
Limited partner trust will have no control. Therefore, the limited partner trust is not liable to be sued, and if it is sued it's dismissible because the limited partner trust has no capacity to take any action. They can't commit a tort. They can't do anything bad because limited partners by virtue of the statutes in all the States have no power at all to make important decisions that expose the partnership to a liability.
Well, the good part about that structure is it allows the trust, which anything in a trust is off your balance sheet, to have bank accounts in the United States that are still protected.
They're still not yours. The statute of limitations has started to run the moment it's funded even if the money is sitting in the Bank of America. The money only really needs to move if you're looking down the barrel of a 12-gauge shotgun and you just want to be careful that you don’t leave all your money sitting in a judge’s backyard, because you can't trust judges.
If you think you can, you're watching the wrong video. You cannot trust judges. They will take your money and redistribute it as they see fit. I've seen it happen too many times, I’m not just some jaded old man, that’s the truth.
Another thing about family-limited partnerships and LLCs, they are touted all over the internet as the greatest asset protection thing since sliced bread. Well, that’s a bunch of crap. They're not. They're great.
I used them constantly, but they are not decent asset protection vehicles. They are decent tax planning vehicles. They're decent vehicles to hold assets, but they're not going to protect you from a lawsuit.
Say for example you and I are in partnership and we own a car dealership. You as the general partner at least will be held responsible for torts, for anything that goes wrong because you're in control.
Same thing with a corporation. We always hear about the corporate veil, Rich Dad, Poor Dad, we have that author saying everybody needs a corporation.
Well, I think everybody does need a corporation. It's great for saving self-employment tax in some cases and it can – it's a smart thing to do. It's nice to have a separate entity, but does it give you asset protection? Hell, no.
If you're the president of a corporation and you have your corporation commit a tort, it's a doughnut shop and your boiler blows up and burned somebody badly, you're going to be sued because you knew or you should have known that you have some dangerous equipment.
The corporate veil is an illusion when it comes to asset protection. You can't count on it. The same thing with LLCs, it's a bunch of bull.
LLCs offer horrible asset protection.
Don’t count on it. People will try to sell you one. Why?
Because they can go form one for $200, $300 or $400, get a few hundred bucks from you. You feel protected. You paid them. You don’t find out that they're work of poor quality until three or four years later. By then they're back to mortgages. Stay away. It doesn’t work.
Domestic Asset Protection Planning Pro’s & Cons
I want to talk now about domestic asset protection planning. You hear a lot about Alaska trust, Delaware trust, 14, 15 places now are touting asset protection and domestic asset protection trusts. Again, it's a bunch of bull. It does not work. Why?
Because the Constitution has the full faith in credit clause. If I get a judgment against you in California and you have a Delaware domestic asset protection trust, do you think a Federal court is going to hold Delaware law above the Constitution of the United States? No.
The Constitution says that a judgment in California needs to be given the full faith in credit. It needs to be given complete recognition in every other State. Domestic asset protection is a marketing gimmick. The State legislators are trying to make it work. It just doesn’t work.
The only time it could possibly even come close to working, say with a Delaware trust, is if you had a plaintiff in Delaware. Everything involved took place only in Delaware.
The defendant was only in Delaware. They money was in Delaware. It was only involving Delaware law. There was no involvement from anybody else anywhere. Possibly then there’d be no Federal issues at all, and possibly your Delaware partnership would work. All they’d have to do is sue you in another State and you're out of luck. So, stay away from it.
It doesn’t work. Don’t get taken by that.
Now, let's talk about some of the statutory things just briefly.
You all need to do this. You all need to take care of your families. You all need to homestead your homes. You all need to do it.
Some States it's automatic. Some States requires some action, some documents to be filed- not such a big deal to do that, but you need to do it. Make sure you look at pension planning.
ERISA plans are safe. They are really safe.
As long as they're not overfunded, your ERISA plan will withstand a creditor attack. It's what kept O.J. in the pink after he murdered that lady or I guess he didn’t murder that lady.
At least justice is done, he’s finally in jail. ERISA plans work. Do IRAs work? That’s something you can't ever be sure about.
There are tricks to turn IRAs into ERISAs. There are tricks to get money out of IRAs and protect it. Any Asset protection trust is infinitely better than most IRAs, but IRAs are still pretty darn good.
If somebody can prove that you never will need the money, then a creditor can get it. It's pretty hard to prove that so you sometimes just the take the risk with IRAs. Insurance is great. Life insurance is usually asset protected. Spencer provisions and trust, the reason why I’m in business.
The reason why people pay me to do asset protection is because of that one set of rules. You can't do a self-settled asset protection trust in the United States. If you put together a trust for yourself and try to rely upon a spendthrift clause, is it effective?
If you put a spendthrift clause in a trust you do for somebody else like a child, say your child is a son, say his name is Bill. You say, here’s a $100,000 for Bill and I want Bill’s creditors not be able to get this money as long as it's in the trust.
Believe me, that will work. That works. Bill’s creditors cannot get to that money, but Bill didn’t settle the trust, you did. You can't do it for yourself. That’s the only reason I even make a living.
Don’t forget to put spendthrift clauses in every single trust you ever do. Don’t forget tenancy by the entirety. Thirteen States have that.
That’s a good way to protect your home in many States. In a lot of those States, creditors can't take your assets that are held in tenancy by the entirety away until both the husband and wife is dead. It's kind of a nice thing.
Beware of the bankruptcy exemptions. Beware of the insurance exemptions. Beware of or be aware of plans for, you know, college saving plans for kids that are good.
Take advantage of the easy things. Also, always have a decent estate planner. I’m telling you, you can do asset protection planning in large part by yourself if you take the time to educate.
It's never as good as hiring somebody, but compared to not doing it; you're better off doing it and doing it with 80%, 90% accuracy and getting a little help over the bumps that are hard.
You're better off with the asset protection plan that works than you are with none.
Estate planning is not the same. Always have an estate planner and an accountant on your side. Now if you can't afford it, there are alternatives like hard work and lots of reading. Don’t take it lightly and it can save you an awful lot of taxes if you do that correctly.
Your asset protection plan should always be integrated with your estate plan.
It's very easy to do if you’ve done an asset protection plan correctly. It is always integrated with your estate plan by some provisions. I'll be sharing with you later on in these courses if you take them. That’s my overview in a very short very few minutes of asset protection.
I hope it's been helpful to you. I hope that you enjoyed it. I urge you to take some of the other courses here. Today, there are over 30 short videos on the key issues that you're welcome to look at. This is Rob Lambert and I do look forward to getting to know a number of you, and I do look forward to helping you protect yourselves.
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