Business and Corporate - Stewart Law, P.A.

How To Protect Your Assets From Creditors

Protecting your assets from creditors (“asset protection”) is a topic you don’t think much about until a triggering event, and then it can jump to the top of your priorities. The triggering event may be an accident with personal injuries on your property, a contract commitment turning bad, or involvement in a financial project where substantial resources are lost.

Asset protection planning can take many forms, including changing asset titles or setting up structures, such as LLCs or Trusts, to own assets. With respect to Trusts, in the past these have probably gotten more press than their actual usage would merit. That’s because North American law basically prevented moving your assets to a trust that includes you as a beneficiary and using this to shield the assets from creditors.

Trusts serve many useful purposes, but in the U.S. asset protection for the person who establishes the trust wasn’t one of them. This changed in 1997 when Alaska became the first state to permit self-settled asset protection trusts, competing with offshore jurisdictions, such as the Cook Islands. The trend of U.S. states permitting individuals to use trusts to protect assets from their own creditors continues to pick up steam. With the recent additions of Indiana and Connecticut, the number of states with asset protection trust legislation now stands at 19.

While the rules for establishing these trusts differ by jurisdiction, they have some common themes such as:

(1) that state’s laws must govern the trust, (2) they require a Trustee and some assets in the state, (3) the trust must be irrevocable and, (4) it must contain provisions limiting creditors’ rights.

Domestic Asset Protection Trusts (DAPTs) are becoming much more common and are one technique to consider if you are interested in protecting your assets.

*Intended as general guidance only and not as legal advice.

Succession Planning: Overcoming Procrastination and Creating Confidence

Succession Planning: Overcoming Procrastination and Creating Confidence

If any of these sound like you, then you may be an entrepreneur who is reluctant to plan for the future of your business:

(1) Need for control; (2) Strong work ethic; (3) Immortality complex.

We have techniques to help business owners overcome their procrastination about succession planning.

These include providing assurance on financial security and cash flow, painting realistic exit strategies, and pointing out opportunities for tax savings. Utilizing these and other success strategies can give you greater confidence about the future, for your business and your family.

*Intended as general guidance only and not as legal advice.

3 Takeaways: 40th Annual Estate Planning Conference

The 40th Annual Estate Planning Conference, held as usual in Kiawah Island, South Carolina, just concluded. Below are three takeaways we believe you’ll find useful in your practice.

FLP Entities

John W. Porter, an experienced tax litigator with Baker Botts LLP in Houston, Texas spoke on several topics including family limited partnership style entities. There were a number of takeaways but a good summary is still “respect the entity.” Too many families treat these as personal bank accounts rather than business entities and do not get the results they hoped for. If your clients have these LLCs or LPs and still desire the benefits that led to their creation, encourage them to have at least an annual meeting with their advisors to help ensure that they are operating the entity as a business.

Kaestner

We’ve written before about the US Supreme Court decision that ruled North Carolina’s attempt to tax trust income merely on the basis of a beneficiary residing in North Carolina unconstitutional. N.C. Dept. of Revenue v. Kimberly Rice Kaestner Family 1992 Family Trust, U.S. Sup. Ct. No. 18-457 (June 21, 2019). The important planning opportunities going forward will involve advisors looking at the three factors that states basically use to determine whether they will tax a trust’s income and then assisting their clients in making strategic decisions accordingly. The three considerations that normally are involved in state income taxation of trusts are the location/residence of: (1) Grantor; (2) Trustee/Trust Administration; and (3) Beneficiary(ies).

Grantor Trusts

A third takeaway also comes from Porter and I’ve heard this called the “greatest estate planning technique” at various CEs for about the last 10 years. The technique is grantor trusts and it is indeed very powerful. If you want to make a gift outside the tax system, you normally need to keep it under the annual exclusion limit. With a grantor trust, however, you are allowed to pay all the income taxes for the trust and not report it as a gift. Trust assets (and other assets for that matter) grow quickly without the drag of income taxes. Mixing this technique with the magic of compound interest, many of us have seen this become so impactful that even very affluent clients eventually decide to turn it off and stop transferring wealth to younger generations with it. Furthermore, as Porter reports, the IRS really can’t attack it.

*Intended as general guidance only and not as legal advice.

Stewart Law, P.A. Attorney Recognized as Best Lawyers in America® 2020

Stewart Law, P.A., a boutique corporate, trusts, and estates firm in Charlotte, North Carolina is proud to announce that Founding Partner, Todd A. Stewart has been recognized as Best Lawyers in America® 2020 in Charlotte, NC. The Best Lawyers in America® program is the oldest and among the most respected attorney ranking services in the world. Todd was selected in the trusts and estates category. Attorneys named to Best Lawyers lists are recognized by their peers in the legal industry for their professional excellence in specific practice areas. To read their recently released press release click here.

Q&A: Qualified Opportunity Zones

Why would I be interested in Qualified Opportunity Zones (QOZs)?

This new tax provision was created to spur investment in certain under-performing economic areas known as Qualified Opportunity Zones. You can find a map of North Carolina’s zones here.

Investing in a QOZ is one of the few opportunities in the tax code to defer (and possibly eliminate) tax on gains. Thus, you can put the whole amount of your proceeds from a sale to work rather than the proceeds less income taxes.

How long can I defer paying taxes on my gain?

Until you sell or exchange your interest in the fund that invests in the QOZ or until the deferral period ends on December 31, 2026, whichever comes first.

Besides deferral, are there other tax advantages?

Yes – 10% of the gain will be completely eliminated (not just deferred) if your eligible investment is held for at least 5 years. If you hold for 7 years, then another 5% of the deferred gain will be eliminated. After holding the investment for 10 years, tax on appreciation of your investment in the fund is eliminated, though at this point the investment would need to be sold or exchanged before December 31, 2047 to achieve this.

What gains can be deferred?

Capital gains, such as gains from the sale of stocks, bonds, and mutual funds. Individuals selling businesses or highly appreciated publicly-held stocks will likely be among those most often looking to explore this tax incentive.

If you have any questions regarding Qualified Opportunity Zones, or if you are interested in techniques to defer, or possibly eliminate, income tax on certain gains from sales, please contact us to speak with one of our attorneys.

*Intended as general guidance only and not as legal advice.

High-Level Negotiation

By Todd A. Stewart, Founding Partner

Recently, Joe Hernandez talked with our Vistage group about “High Level Negotiation.” One key takeaway for me runs counter to something that you hear a lot. His point is that you should use anchoring (i.e., the idea that people rely heavily on an idea or number they’ve heard recently) to your benefit and be the person who makes the first offer. Our informal class exercise supported this and the final negotiated value for most groups clustered around the first offer, whether it was near $20,000 or three times this amount.

For more information: https://www.lionsharenegotiations.com/.

*Intended as general guidance only and not as legal advice.