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Florida Asset Protection [A Key Part of Your Florida Estate Plan]

Asset Protection in Florida

If your  plan does not include asset protection in Florida, you may not have a complete estate plan or, what we refer to as, a 360 degree estate plan. Asset protection in Florida and estate planning in Florida are different sides of the same coin and this article will address why a one sided coin or incomplete plan just doesn’t work in Florida.

Why Florida Asset Protection is a Critical Part of Your Estate Planning

While asset protection includes safeguarding your finances in the event of a foreclosure, bankruptcy filing or civil lawsuit, it also entails placing your assets in the proper legal format so as to avoid hefty estate taxes and protect your heirs from having to pay exorbitant inheritance taxes. In this way, asset protection is an important part of your estate planning. Likewise, proper estate planning takes into account the disposition of your assets upon your death, and has as its goal the protection of your assets against devaluation by estate and inheritance taxes, as well as protecting your assets against creditors.

Using Trusts For Asset Protection

Establishing a trust is the most popular form of asset protection. Your estate planning attorney should be well-versed in the various forms of trusts and should explain to you which ones actually protect your assets. Not all do. For instance, a revocable living trust in Florida will provide for someone to carry on your financial matters in the event you are mentally incapacitated; and in the event of your death it will most likely enable your estate to avoid being probated (there are extenuating circumstances such as individual state laws which require a probate proceeding in order to obtain state estate tax waivers, cut off creditors’ rights, secure a homestead determination for a primary residence, and/or limit the time that a challenge can be made to the trust.) By avoiding probate, a revocable trust keeps all your financial matters private, out of the public record. But probate can only be avoided if your trust is fully funded – if all your assets have been properly re-titled and your insurance policies kept up to date with beneficiary designations.

A Florida revocable living trust, in contrast with an irrevocable trust in Florida, does NOT protect your assets from creditors during your lifetime. For that you need to establish an irrevocable trust in Florida. An irrevocable trust can be created by signed agreement or it can be established according to the terms of a revocable trust upon the death of the trustmaker. There are many forms an irrevocable trust can take. The primary uses for an irrevocable trust as part of your estate planning is to reduce estate taxes, protect your assets and provide for charitable giving.

Why Your Revocable Trust Offers You No Florida Asset Protection?

A revocable trust is not for your asset protection because it can be changed at any time through a trust amendment. If you become dissatisfied with the entire trust, it can be revoked completely or the contents changed entirely through an amendment and restatement. The key is that you still retain control of the trust and its assets. On the other hand, if you transfer assets into an irrevocable trust, you are giving over those assets to the trustee and beneficiaries of the trust so that you no longer own the assets. Therefore, they are asset protection and also aren’t subject to estate taxes when you die, because you no longer own them.

Using Irrevocable Trusts for Asset Protection?

You can still benefit from placing a percentage of assets in an irrevocable trust for both estate tax planning and asset protection purposes. By naming your spouse and/or children as beneficiaries of a SLAT trust or using a Charitable Trust in Florida, you can still provide your family with financial support, which is outside the reach of creditors. Some states even have irrevocable trusts called Self-Settled Trusts or Domestic Asset Protection Trusts which offer creditor protection and allow the Trustmaker to be a trust beneficiary.  These strategies can offer major federal estate tax planning advantages in Florida as well as asset protection, particarly given the uncertainites concerning estate taxes on the horizon.

The Importance of How Your Assets Are Titled?

Choosing the proper form of ownership for an asset is called asset titling in Florida and there are unique options for titling real estate for asset protection in Florida.  You can also offer protection against creditors, provide for devaluation of estate taxes and serve as a vehicle for transferring family wealth to the next generation. The limited partnership (LP) and the limited liability company (LLC) are the most common forms. A limited partnership consists of at least one general partner and one limited partner. The general partner is potentially liable for all the obligations of the partnership. The limited partner has limited liability. A limited liability company consists of one or more members which may be individuals, partnerships, limited partnerships, trusts, estates, associations, corporations, other limited liability companies or other business entities. The members of an LLC are afforded limited liability similar to shareholders of a corporation and have pass-through taxes comparable to a partnership.

Other Florida Asset Protection Advantages

Florida offers other asset protection advantages “by statute” such as FL.Stat 222.14  for Florida annuity and life insurance asset protection.  Florida homestead asset protection is another sought after protection if you have decided to make Florida your state of domicile by establishing residency.  Notably, Florida LLCs also offer charging order protection and can be designed as a multi-tiered family LLC to shield various assets.

Don’t Procrastinate with Your Asset Protection!

It can be intimidating to realize that you need professional help to make sure you’re Florida asset protection plan is up to par.  But it’s not something that should be put off because asset protection needs to be completed in advance. For instance, transferring assets at the start of a civil litigation (or even the hint of one!) with the intent to hinder, delay, or defraud a creditor constitutes a “fraudulent” transfer, and WE GET THESE KINDS OF EMERGENCY CALLS REGULARLY.  There are laws in each state to protect a judgment creditor against such transfers and a court will simply order that the transfers be reversed and the assets turned over to pay off the creditor.  So, you need to complete your Florida asset protection BEFORE a conflict arises.

This article is updated from an original post dated May 16, 2011.