I purchased on those Asset Protection Kits with CD’s DVD’s book, samples, forms - I found it so complicated and nothing that matched my situation, so calling their hotline yielded no return calls.
The other problem I found with the kit was that it structured asset protection through FLP (I have no family members), or Land Trust, again no family members to assign a a Trustee.
Should I go to an attorney to set this all up and would they understand it - can anyone refer someone good?
Thank you.
Jaggster,
Before you consider using a land trust or naming a family member as your trustee, there is much you must learn. 99% of attorneys know little or nothing about land trusts. And, you DON’T want to name a family member as your trustee. I STRONGLY RECOMMEND YOU USE A PROFESSIONAL NON-PROFIT CORPORATE TRUSTEE. Here are just a couple of reasons: An individual trustee’s failure to charge a fee would not support the land trust’s validity in court. The attempt to charge a fee would not be seen as adequate unless the party were a bonded entity.
An individual trustee’s death would embroil the property in his/her own bankruptcy, Probate and other personal legal actions.
An individual would most likely never be bondable as a trustee and would likely not have the resources to provide a completely separate, free and bonded collection and bill-paying service.
An individual would not be seen by the courts as a standard trustee, charging fees “commensurate with industry standards”: therefore severely impairing the integrity and structure of the land trust.
One’s own personal appointment would not be seen by a 2nd or 3rd co-beneficiary as a mutually trustworthy holding entity. Such likely bias obviously would not be in the best interests of any of the co-beneficiaries
A land trust is easy to set up, you just have to find someone who knows how to do it. Good luck.
Da Wiz
Jagsterr,
Before you implement an asset protection program, you probably need to do some serious studying regarding the subject. There are many books and courses available on the subject and there are also many attorneys that are on the REI seminar circuit. I would suggest joining your local REIA and attending one of these low cost seminars. You can usually talk to the attorney/presenter about your particular situation for free at these seminars.
Here are some of the basics.
Land Trusts (also called Illinois Land Trusts) do absolutely nothing to protect your assets, EXCEPT that they can make it difficult for a predator to find out who owns a particular asset. By putting the property in a trust, the “ownership” is listed in public records as the Trustee, while the actual owner is the Beneficiary (Beneficial Interest). The trust is merely the first line of defense in a layered asset protection program. Obviously, the plaintiff must decide who the owner is before they can sue you. However, if a plaintiff is determined, they can get through the trust without too much trouble. Contrary to what mtnwizard said, many states do not permit an entity to be the trustee of a land trust. Here in Ohio, a living, breathing human being must be the trustee.
LLCs (Limited Liability Companies) are legal entities that do provide some asset protection to the owners of the LLC. So, if you own a rental property in a LLC and a tenant decides to sue, theoretically the plaintiff can only get the assets of the LLC and your personal assets can’t be attached. However, if you are involved in your business, the plaintiff will sue both the LLC and you personally, thereby defeating the protection of the LLC.
Debt is another tool that can be used in an asset protection program. Most of these predatory scumbag lawyers work on contingency. They will usually not sue if they don’t think there is a big payday at the end. So, if your property is incumbered by significant debt, that can be a significant deterrent to would be bloodsuckers.
Finally, Insurance is the last line of defense in a multi-layered asset protection strategy. If a determined predator decides to sue you, insurance can be a life saver.
Good Luck,
Mike
This is what my Trustee says:
“Regarding ownership in the land trust, one’s beneficiary interest (being intangible personal property versus real property) provides a high degree of protection (though not absolute insurance) against a judgment creditor’s partitioning of one party’s interest from that of another: thereby forcing the sale of part of the property or liquidating it and dividing the proceeds. To best protect against such potentiality, it is prudent and highly advisable for land trust participants to hold their respective beneficiary interests in a Limited Liability entity such as, say, a Limited Partnership or a Limited Liability Company (LLC). In so doing, each beneficiary can then be free of concern about the accidental or untoward misdeeds of the other (i.e., dealings that could otherwise easily involve the property’s title by either party’s creditor’s claims, tax liens, bankruptcy, legal actions in marital disputes, probate, etc.).”
“Since the interest of the beneficiaries under a land trust is personal property, and since the trust agreement expressly precludes the vesting of any legal or equitable right in a beneficiary, partition is not available.â€
Henry W. Kenoe, Keno on Land Trust, IICLE, p 3-012 Sec. 3-9 (1989)
CA. Civ. Code §872.210
CA Probate Code §50
CA. Probate Code §133(i)(c)
CA. Civil Code §955.1
Wile, “Judicial Assistance in the Administration of California Trusts,†1`4 Stan. L.Rev. 231, 245-250 (1962)
CA. Estate Administration, §§33.11 to 33.35 (Cont. Ed. of the Bar, 1959)
Aronson v. Olsen, 348 Ill. 26, 29, 180 N.E. 565, 566 (1932); Breen v. Breen, 411 Ill. 206, 210-12, (1952).
Probate Code §§11600 et. seq. & 2463;
These are his credentials: one of the founding Directors of the California Trust Deed Brokers Association. As past Vice President of this prestigious organization, he also sat on the Board of Directors as Legislative Co-Chairman, representing the organization at an advocacy level at the State Capital in Sacramento, California. His experience and integrity have been confirmed by the Court as an appointed Referee and Receiver by the Superior Court. He has handled thousands of trusts and not one penny has ever been lost.
PROTECTION FROM LIENS AND JUDGMENTS
A creditor may reach the corpus of a land trust, unless the trust is irrevocable, or there would be MORE THAN ONE unrelated beneficiary (as with the model of the NARS Equity Holding Trust System™). This concept appears to be based upon the idea that a co-beneficiary in a land trust can be seen as a “partner,†and a claim (or charging order) effected against a co-beneficiary would be impossible without a dissolution of the entity (the trust) and since an unrelated co-beneficiary is not responsible for the actions of the other: such dissolution would not be allowed.
Henry H. Keno on Land Trusts, IICLE, Springfield, Illinois (1989)
Smith v. B of A; Houghton v. Pacific Southwest Trust and Savings Bank: 111 CA 509, 295 p. 1079,
The CA. Code of Civil Procedures §697.510]
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In Ohio, land trusts are authorized by statute, Ohio Code (Revised) 5301-03 and 1335.01-.04. - The Trustee functions as the holder of legal and equitable title. Remember this is a revocable, inter-vivos living trust. Nuff said. It’s a warranty deed state and there is no requirement to have an attorney complete and file the paperwork.
Da Wiz
Da Wiz,
This stuff may pertain to California, but does not pertain to Ohio.
In Ohio, a real person MUST be the trustee.
Anyone can sue anyone, anytime regardless of the presence of an entity. I’m sure that is especially true in the wacko left-leaning state of California. No entity can prevent someone from suing you personally. Definitely not armor plated.
Triple net leases have absolutely nothing to do with asset protection.
Equity sharing does not mean that someone can’t sue you.
Another factor is that a good attorney can pierce the corporate veil of almost any entity. The vast majority of entities are not maintained properly and the corporate veil is therefore fairly easily pierced.
Obviously, I am not against proper entity structuring, but to ignore the realities of entities is not prudent. Proper entity structuring is a necessary evil in our society of victims and is definitely helpful in presenting lawsuits, but in no way protects you completely from lawsuits.
Good Luck,
Mike
As I said, In Ohio, land trusts are authorized by statute, Ohio Code (Revised) 5301-03 and 1335.01-.04. - As provided under this statute, the Trustee functions as the holder of legal and equitable title and should have at least cursory discretionary powers.
Everyone to his own opinion. My trustee and attorney disagree with yours. And, no matter how good an attorney, he/she cannot pierce a properly constructed land trust. Good luck to you.
Da Wiz