Asset Protection Trusts: What Business Owners and Professionals Should Know

Many professionals and business owners spend years building significant assets through their careers and investments.

As wealth grows, it is natural to begin thinking about how to protect those assets from potential future risks while still maintaining a thoughtful estate plan.

One planning structure sometimes considered in these situations is an asset protection trust.

Understanding how these trusts work—and the legal limitations surrounding them—is an important part of evaluating whether they belong in an overall estate plan.


What Is an Asset Protection Trust?

An asset protection trust is typically an irrevocable trust designed to hold assets in a way that may provide protection from certain future creditor claims.

Once assets are transferred into the trust and the trust is properly structured, the assets are generally no longer owned directly by the person who created the trust.

Instead, the assets are owned and managed by the trust according to its terms.


Why Some Individuals Consider Asset Protection Planning

Asset protection planning is often discussed by individuals whose professions or business activities may expose them to a higher level of potential liability.

This can include:

  • business owners
  • physicians
  • executives
  • real estate investors
  • individuals with significant personal wealth

The goal is not to avoid legitimate obligations, but rather to create a structure that protects assets from unforeseen future risks while still allowing thoughtful estate planning.


Important Legal and Ethical Considerations

It is critical to understand that asset protection planning must be done well in advance of any creditor issues.

These strategies are intended to address potential future risks, not to avoid known obligations.

Asset protection trusts cannot legally be used to:

  • avoid existing creditor claims
  • shield assets from known liabilities
  • defraud creditors

Courts can set aside transfers that are considered fraudulent conveyances, meaning transfers made with the intent to hinder or delay known creditors.

For this reason, legitimate asset protection planning is always done proactively and transparently, before any claims arise.


How Asset Protection Trusts Are Structured

Because these trusts are intended to remove assets from the grantor’s direct ownership, they are generally irrevocable trusts.

They may involve:

  • an independent trustee
  • discretionary distributions
  • carefully drafted trust provisions governing access to trust assets

Some states have enacted statutes specifically addressing certain forms of domestic asset protection trusts, while other planning strategies may involve trusts created in jurisdictions with established trust laws.

The appropriate structure depends heavily on the individual’s circumstances and the governing state law.


Asset Protection as Part of a Broader Plan

Asset protection trusts are rarely used in isolation.

Instead, they are typically considered as part of a broader planning strategy that may include:

  • liability insurance
  • business entity structuring
  • traditional estate planning trusts
  • coordinated tax planning

Taken together, these elements can create a more comprehensive approach to managing both wealth and risk.


Planning Before Risk Arises

The most important aspect of asset protection planning is timing.

Planning that occurs long before any issues arise is far more likely to achieve its intended purpose than planning attempted after a claim has already developed. For individuals whose careers or investments expose them to potential liability, reviewing these issues early can help ensure that the estate plan addresses both long-term wealth planning and risk management.

Estate Planning for Business Owners Before a Liquidity Event

For many business owners, the most significant financial moment of their lives is a liquidity event—such as the sale of a business, a merger, or a public offering.

These events can create substantial wealth very quickly. But they can also create significant tax exposure and estate planning challenges if planning has not been addressed in advance.

The key is that many of the most effective strategies must be implemented before the transaction occurs.


Why Timing Matters

When a business is about to be sold or undergo a major transaction, its value is often expected to increase dramatically.

If planning is done early enough, it may be possible to transfer some of that future growth to the next generation in a tax-efficient way.

Once a transaction is already underway—or once the value has already been realized—the available planning opportunities can become much more limited.


Planning With Grantor Trusts

Many advanced estate planning strategies for business owners involve the use of grantor trusts.

A grantor trust is a trust that is treated as owned by the person who created it for income tax purposes, even though the assets in the trust may be outside the grantor’s taxable estate for estate tax purposes.

This structure can create powerful planning opportunities.

Because the trust is ignored for income tax purposes:

  • Transactions between the grantor and the trust are often not treated as taxable events
  • The grantor continues to pay income tax on the trust’s income
  • The trust assets may grow outside the grantor’s estate

In effect, the grantor’s payment of the income taxes on trust assets can allow the trust to grow more efficiently for the benefit of future generations.


Strategies Often Considered Before a Liquidity Event

Depending on the situation, business owners may explore strategies such as:

  • Grantor Retained Annuity Trusts (GRATs)
  • Sales to intentionally defective grantor trusts
  • Lifetime gifting of business interests
  • Family trust structures designed to hold future appreciation

These strategies are typically designed to shift future growth in the business to trusts for children or other beneficiaries while the owner retains control or economic benefits for a period of time.


The Importance of Valuation

A critical component of planning before a liquidity event is the valuation of the business interest being transferred.

Estate planning techniques often rely on carefully documented valuations that support the value assigned to the transferred interests.

Because transactions can move quickly once negotiations begin, addressing these issues well before a sale process begins is often essential.


Coordinating Estate Planning With Transaction Planning

Estate planning should be coordinated with:

  • business attorneys
  • tax advisors
  • transaction advisors

This ensures that the estate planning strategy works alongside the broader transaction structure.

When these professionals work together early in the process, business owners often have more flexibility in structuring both the transaction and their long-term estate plan.


Planning Ahead Can Make a Meaningful Difference

For business owners and executives, the period before a liquidity event can represent one of the most important windows for estate planning.

By considering planning strategies early—before a transaction is finalized—it may be possible to transfer future growth to the next generation in a thoughtful and tax-efficient way. Reviewing these opportunities well in advance can help ensure that a successful business transition also supports long-term family planning goals.

GRATs Explained: A Strategy Many Business Owners Use to Transfer Wealth Efficiently

For individuals with significant assets—particularly business owners and executives—estate planning often involves strategies designed to transfer wealth efficiently to the next generation.

One technique that is frequently used in sophisticated estate plans is the Grantor Retained Annuity Trust, commonly called a GRAT.

While GRATs can sound complex at first, the core concept is relatively straightforward.


What Is a GRAT?

A Grantor Retained Annuity Trust (GRAT) is an irrevocable trust designed to transfer appreciation on assets to beneficiaries while potentially minimizing gift and estate taxes.

When a GRAT is created:

  1. The grantor transfers assets into the trust.
  2. The grantor retains the right to receive an annuity payment from the trust for a fixed period of time.
  3. At the end of the term, any remaining assets pass to beneficiaries, often children or trusts for their benefit.

The goal is for the assets in the trust to grow faster than the assumed IRS interest rate used when the GRAT is created.

If that happens, the excess growth can pass to beneficiaries with little or no transfer tax.


Why GRATs Are Often Used With Business Interests

GRATs are frequently used by:

  • founders
  • business owners
  • executives with concentrated equity positions

These individuals often hold assets that may experience significant growth over time.

By transferring those assets into a GRAT, the future appreciation can potentially move to the next generation while the grantor continues receiving annuity payments during the trust term.


The Importance of the GRAT Term

A key element of the strategy is the length of the trust term.

If the grantor survives the GRAT term, the remaining assets pass to beneficiaries according to the trust structure.

Because of this, many GRAT strategies use relatively short terms, sometimes implemented in a series of rolling GRATs over time.


When GRATs May Be Appropriate

A GRAT may be worth considering when someone:

  • owns assets expected to appreciate significantly
  • has already accumulated substantial wealth
  • wants to transfer value to the next generation efficiently

Common assets used in GRAT planning include:

  • closely held business interests
  • company stock
  • investment portfolios expected to grow

GRATs Are Only One Piece of the Plan

While GRATs can be powerful, they are typically used as one component of a broader estate planning strategy.

Other planning structures—such as irrevocable trusts, lifetime gifting strategies, and coordinated beneficiary designations—often work alongside GRAT planning.

Because of the technical nature of the rules governing GRATs, careful drafting and ongoing planning are essential.


Planning Ahead Matters

For business owners and executives whose wealth may continue to grow significantly, thoughtful estate planning can make a meaningful difference over time.

Strategies like GRATs are designed to address that reality by allowing future appreciation to move outside the taxable estate under the right circumstances.

For families with significant assets, reviewing planning opportunities periodically can help ensure the estate plan continues to align with long-term financial goals.

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.

A Possible Reduced-Rate Roth Conversion for Business Owners

Here’s an idea that can be very powerful for some business owners.  The 2017 Tax Act provides business owners with a 20% deduction on their business profits (Qualified Business Income or QBI).  The catch is that the 20% is applied to taxable income if that’s lower.  In other words, if taxable income is going to be lower than QBI, then you miss the opportunity to have some income that will receive a 20% deduction.

Therefore, if you accelerate income, some of the cost of doing so will be eliminated by the increase you are creating with a larger QBI deduction.  There are a number of ways to accelerate income.  However, one of the most exciting ones is creation of an account that can grow tax free and be withdrawn on a tax-free basis: the Roth IRA. 
 
In conclusion, if your 20% deduction is not being applied to your full QBI, then check with your CPA and financial advisor about a Roth conversion.  You may be able to create an income tax-free account at a reduced cost.

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

Small Business End-Of-Year Checklist

The end of year is a busy time for many reasons. Travel plans, holiday hosting, and family visits tend to keep your calendar packed. But as a small business owner you have additional obligations that need to be addressed. The end of year is a perfect time to assess your current business, make some decisions, and set some overall goals to ensure you start the New Year off right. When 2019 rolls around be sure you took the time to self-assess with this Checklist:

(    )   December is not too late to make a number of moves that can lower your income tax bill. Consult with your advisor team about important income and deduction items as well as new structures that you may want in place for 2019.

(    )   Take the time to express gratitude to the folks who made positive differences for you this past year.

(    )   As you review your financial results for 2018, it’s a great time to set goals for 2019 and make an actionable plan that will help you start achieving these objectives right away.

 

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