Starting a business takes a lot of time, patience, and financial investment. At Rebecca W. Geyer & Associates, we know how important it is for business owners to avoid costly mistakes, while protecting both personal and business assets.
BACKGROUND OF INDIANA DOMESTIC ASSET PROTECTION TRUSTS
In 2019, Indiana became the 18th state to allow the creation of Domestic Asset Protection Trusts, or DAPTs. The new law specified that, for assets to be transferred to such a trust, certain things must be true, including:
- The transferor must not have any pending or threatened court actions against him/her.
- The property transferred must not have been derived from unlawful activities.
- An Indiana court must exercise jurisdiction over the trust.
ASSET PROTECTION TRUSTS IN ESTATE PLANNING
As Indiana estate planning lawyers, we often recommend putting assets into a trust rather than giving money to family members directly. Arranging for children’s share of assets to be held in an irrevocable trust can help safeguard against several contingencies, including:
- a recipient’s careless spending
- recipients’ creditors
- predators and scammers
- divorce litigation
- contesting of a will by family members who do not support a same-sex relationship
ASSET PROTECTION TRUST FOR BUSINESS PLANNING
(Our blog editor interviewed Stuart Green of Stuart Green Law*; his firm provides asset protection and tax planning services.)
Unlike other kinds of trusts, Green explains, Domestic Asset Protection Trusts (“DAPTs”) are “self-settled”, which means the client establishes an irrevocable trust for his/her own benefit. This allows business owners to safeguard assets from potential lawsuits while still retaining a good measure of control over those assets. With a DAPT, the grantor of the trust can be both creator and beneficiary, but someone else must be appointed to manage the assets of the trust under Indiana law.
Many business and practice owners, particularly those who personally generate loans, are looking for greater protection than is available through an LLC structure, Green comments. “They may have achieved a certain level of wealth, but, due to the nature of their enterprise, they realize they will be taking on extra levels of legal risk.”
For example, one Green Law client, in establishing a home health care agency (an area rife with legal liability exposures) was able to shield both personal and professional assets through setting up separate LLCs within the asset protection trust itself.
In his experience, Green adds, it often occurs that the very fact that assets are being held in a DAPT has deterred would-be litigation against a business owner.
Far from being a “one-and-done” process, asset protection trust laws are designed to protect legitimate creditors’ interests along with those of the business or practice owner, we explain to our Geyer Law clients. Each state has its own statute of limitations before assets in the trust are protected, which in Indiana is two years from the time the assets were contributed to the trust.
In both estate planning and business planning, the purpose of an Asset Protection Trust is to help deter costly litigation before it ever begins!
*Stuart Green is founding & Managing Attorney of Stuart Green Law, providing asset protection and tax planning services to clients throughout the U.S. Learn more by visiting www.stuartgreenlaw.com, or contact him directly at [email protected] or (713) 424-4024.
– by Ronnie of the Rebecca W. Geyer blog team
