Asset protection planning is important for everyone, from all walks of life. If you have any money, investments, or property that you want to protect, if you own a business or are starting one, you need to make sure you have a solid plan in place to protect your personal assets. There are many different risks to your financial security, and your plan for asset protection needs to focus on the things that are most likely to impact your savings.
Why is Asset Protection Planning Important?
Asset protection planning will benefit you by keeping your property and money protected during your lifetime. It can also ensure that you can leave a legacy for your loved ones. There are many specific reasons why asset protection planning is important including:
- The risk of incapacity: If you become incapacitated (ex: diagnosed with Alzheimer’s) you won’t be able to take care of your assets or manage your finances. Substantial losses could accrue unless you assign someone trusted and reliable to manage your assets. You should plan ahead and assure that you have chosen the right person to manage your assets in case you’re ever incapacitated. Incapacitation can be gradual (ie. dementia) but it can also happen suddenly (ie. falling comatose). It’s better to plan ahead and early; better be safe than sorry. A living trust and/or a power of attorney are useful legal tools that could be used to protect your assets in case of incapacity.
- The risk of business losses: If you run your own business, you could face the risk of personal loss if your business goes bankrupt or if you or your business is sued. You don’t want your own personal home or other property to be lost because of business problems so you should explore legal methods to ensure your own assets are kept safe. Incorporating or forming a Limited Liability Company (LLC) could be an appropriate solution because, as long as you follow corporate rules, you will limit the risk of losing money invested in your business and limit the risk of losing personal assets.
- The risk of going into a nursing home: As everyone ages, nursing homes are a common long-term care plan. However, the cost of a nursing home can be extremely costly and nursing homes are not covered by most types of insurance, including Medicare. Many people are forced to spend all of their money and even sell their property to pay for a nursing home if they need care. Once the money is spent, then Medicaid begins to pay. However, if you create an asset protection plan, you can prevent your property from being included when determining if you’re eligible for Medicaid so you can get nursing home costs covered without giving away or spending your assets.
- Losses due to estate tax: When you pass away and leave your assets to heirs, estate taxes could be imposed which could significantly reduce the value of an inheritance. This is mainly a problem for people with larger estates. As of 2021, estate taxes are assessed only if an estate exceeds $5.93 million. But, people with farms or business assets that count as part of their estate could quickly reach this amount and an inheritance could be at risk if there isn’t enough money to pay the taxes on potentially inherited farmland or business assets.
- The risks presented by your heirs: You should protect your money and property even after you are gone. You can structure an inheritance so it will not be lost or spent recklessly if heirs get divorced or go bankrupt. You can also opt for creating trusts like special needs trusts or spendthrift trusts to meet the specific needs of beneficiaries who will inherit your assets.
You work hard to amass money and property, and you deserve to protect what you have built so you can enjoy financial security in your old age and so you can make a difference by giving to people or causes you believe in after your death.
What Are Some Ways to Protect Assets?
1.) Trusts- Irrevocable, Revocable, Medicaid asset protection
Trusts are legal documents that establish legal transfers of your assets. There are many different types of trusts, each serving its own purpose. Three common types of trusts used to protect assets are irrevocable trusts, revocable trust, and Medicaid asset protection trust.
- Irrevocable trusts are trusts that cannot be amended once created. Once it has been made, it cannot be changed or terminated without the permission of the grantor’s beneficiary. You also relinquish control of the trust’s assets and control is transferred to the trustee, the person who is legally responsible for managing the trust, and all changes/distributions are left to their judgment. There are many types of irrevocable trusts like asset protection trust, special needs trust, charitable trust, and Medicaid trust. The most common is asset protection trust because, in the event that a creditor files a lawsuit against you, the assets you transferred to the trust will no longer be considered yours.
- Revocable trusts (aka living wills) are the opposite of irrevocable trusts. It lets you freely make changes to it up until you die. It allows you to keep control of your assets while you are alive as opposed to giving up control in an irrevocable trust. You can also use it to determine who will inherit your assets after you die. A revocable living trust is preferable to a will since it does not require probate and can be revoked or amended at any moment while you are still alive. Revocable living trusts actually provide little asset protection but are a great way to ensure that your estate avoids the probate procedure after you die.
- Medicaid Asset Protection Trust sometimes called Pooled Income Trust, is a tool to protect your assets and allow people to qualify for Medicaid long-term care. A Medicaid Asset Protection Trust is a type of irrevocable trust so the transfer of assets into this kind of trust is considered a “gift.” To protect your assets, the trust has to be created 2.5 years before home care Medicaid is needed or 5 years before nursing home care is needed. This is because Medicaid inputs a look-back period when someone applies for Medicaid.
A limited liability company (LLC) is a legal status given to businesses. This establishment means the business will be its own legal entity and the owner(s) can be relieved of personal responsibility for their company’s debts or liabilities. An LLC will protect a business owner’s assets like bank accounts, properties, and cars in the event of a bankruptcy or other legal disputes. The owner’s assets cannot be viewed as the company’s assets.
3.) Retirement accounts
If you have a 401(k), you might want to consider moving some cash into it. Individual retirement accounts (IRAs) enjoy protection under federal law as long as they are ERISA-qualified (such as a 401(k)). ERISA-qualified generally means the retirement account is employer-sponsored so pensions would count too. Your IRA might have even more protection depending on your state’s laws. Retirement accounts are also useful to avoid the probate process so some of your possessions can directly pass to your heirs without being dictated in the will
How can an Elder Law Attorney help?
Asset protection planning is not just for wealthy people, it’s important for everyone. If you have any money, property, or investments that you want to protect, you should create a plan. Planning is also important when you are young, because you can protect more of your assets if you take action early.