Today, I’m going to be talking about a very important, very fundamental concept; and yes we're going to do some deep training on it. There’ll be some 15, 20-minute sessions with the codes in all the statutes and cases – we'll be going over it in detail.
It's that important, but here it is in a nutshell. There's a concept that I use. I've been using it for 25 years called old and cold, old and cold matters and why?
Well this all comes down to the most common way asset protection planning is attacked. A creditor, particularly an aggrieved creditor who can't get to a planned asset, because remember asset protection done correctly-even if done for bad people at the wrong time works.
We don’t want to do that. We want to avoid that. We always want to do it at the right time and make it so we can hold our heads up high. And how do we do it? Why do we do it?
Because the most common attack on asset protection plans is to argue that the transfers to the asset protection entities- remember what you don’t own can't be taken from you, the first rule of asset protection, arguing that the transfers out of your balance sheet and onto the balance sheet of a trust or another entity were fraudulent.
That both before and after the transfers, you didn’t retain enough assets to pay your reasonably anticipated debt; and in fact you are just engaging in these transfers to screw your poor unfortunate creditors out of their just deserts.
Well, that may be true, but you always want to be able to point to the fact that your transfers were intelligent-done for reasonable, reasonable reasons other than just asset protection, although asset protection is a valid business purpose in and of itself. Don’t ever think that it's not a good thing to do.
The main way you attack it is to claim it's a fraudulent conveyance and then if the statute of limitations is not run, you will oftentimes see a judge order the assets returned.
This is where the creditor gets some power over you; because if you don’t comply with the judge’s order, and if you have the power to comply, you're facing some jail time- not for not returning the money, but for disregarding the judge’s order that you have the capacity to perform.
Now, we'll be dealing with this in detail. There is a course on – there's a section on criminal contempt which goes through all the details but you don’t want – let's just avoid the issue. Do asset protection, when the financial seas are calm let your plans get old and cold? A normally safe period is four years. That’s the normal statute of limitations in the United States, seven years if it's fraud and actually one day is normally enough.
If you do your plan and can prove that it wasn’t a fraudulent conveyance; and the next day you run over the neighbor’s daughter and you're facing a horrible awful financial calamity, that still should hold up.
But you always should think ahead, have the courage and foresight to do it before you are in trouble. It makes it cheaper. It makes it more effective. Okay, we'll talk about this in much greater detail. Just remember, old and cold matters.
Setting up a plan depends on you being able to satisfy your known creditors, both before and after the asset protection is implemented. A properly implemented plan starts the statute of limitations – relating to fraudulent conveyance – running the moment it is funded. It is cheap insurance. Do NOT wait until the world starts to fall down around you to do your plan. Do the plan when you are financially healthy.
Remember, asset protection assumes that there are people who want to take your money and property away from you.
The professional takers hunt down and corner people with unprotected assets. You must use preventative methods that will discourage the professional takers by making it too difficult and to expensive to take your money. This is legal, time-tested and it works!
A timely settled asset protection plan keeps your valuable assets (business, savings, house, cars, stocks, bonds, IRA’s etc.) from any creditors, legitimate or otherwise who want to take them from you.
To provide solid protection, your plan needs to be set up when the financial seas are calm. I use a term called “old and cold,” which means your plan has been established and in force long before any attack takes place, or before any creditors become known to you.
That way, no valid claim can be levied that states, “that you created your asset protection plan with the intent to commit fraud”; in other words, that you did it with the specific intent to keep your creditors hands off. If you make the decision to properly implement an asset protection plan, you can normally prevent:
- Your creditors from reaching your assets, or actually the assets of the trust
- Your soon-to-be-ex-spouse from taking you to the financial cleaners
- Your business partner’s mistakes from ruining your nest egg
- A disgruntled customer or employee from putting you out of business
- The government from seizing and keeping your money
In the unlikely event that you are sued, you’ll also be secure in knowing that you’ll normally have enough assets after a suit to:
- Start fresh
- Survive with the lifestyle you’re accustomed to
- Spend your money where you want and on whom
- Transfer wealth to those you love without the government or creditors touching it
- Retain complete control over the protected assets
All asset protection techniques have one thing in common, they each make it more difficult for a creditor to either find or take your assets. By implementing a properly crafted asset protection plan, you can legitimately put a significant portion of your assets out of the reach of judgment creditors and still retain complete control over these protected assets.