8 Point “Porcupine” Asset Protection Strategy

May the odds be with you –but frankly they’re not.    More than 60% of doctors over the age of 55 have been sued at least once, according to a new survey by the American Medical Association (AMA).  Doctors are not the only professionals at risk. Virtually all small business owners and professionals face multiple risks from the person injured at a party on  one of your properties, the “friend” who borrows your jet ski and hits a swimmer,  dissatisfied customers, disgruntled employees, and unhappy ex-partners.

It is a simple reality: We live in a hostile legal environment, and the chance you will not face costly litigation at some point in your career is not good. The good news is that you can fight back.  Here is a quick summary of our “Porcupine” Asset Protection Strategy with tested legal strategies that can help protect your investments and property.

1. Make Your Assets As Unattractive as Possible to Attack with a Good Asset Protection Strategy

The starting point for most persons interested in helping to ensure that their hard earned investments are well protected is to make an inventory of all assets and, in consultation with an experienced asset protection attorney, divide these assets into “Protected Assets” and “Exposed Assets.” The goal is to take the Exposed Assets and turn them into porcupines, so if the wolf (creditors or future persons who may try to sue you) appears at your doorstep, their reaction will be the reaction porcupines get from their predators: after sniffing around they back off.

Therefore, the key point of the Porcupine Asset Protection Strategy is to turn attractive assets or “low-hanging fruit” into Porcupines with the initial goal to preempt lawsuits.

Note:   What is the lowest of the low hanging fruit?  Answer: Real estate titled in your name or joint name with your spouse.

Real estate is the ideal asset for creditors, because (1) it does not disappear overnight; (2) creditors can quickly lien it; and (3) creditors can foreclose on it.  This is why almost all investment property should be in a multi-member Limited Liability Company (“LLC”) with a post 2012 Operating Agreement or Limited Partnership.  See 4 Take-Aways Under Florida’s New LLC Law.

2. Asset Protection Planning is Not Dogmatic

Good asset protection strategy is not dogmatic; by this I mean that it does not apply a one size fits all approach. Sometimes in this field, you will find attorneys who have a hard bias toward off-shore planning; others will have a strong preference for domestic asset protection trusts; while others may say just stay at home and take advantage of your strong Florida laws.   What is best for you depends on your unique goals, unique bundle of assets, and risk tolerance.

Good asset protection planning often combines multiple layers of protection with multiple defense options – not unlike Geno Smith, the legendary basketball coach of North Carolina, who employed a successful basketball defense based upon applying multiple defensive schemes.   Therefore, it is possible – and commonly used – to employ multiple asset protection techniques:  some assets will be protected by Florida law, some assets by a Delaware LLC, other assets by a Nevada Asset Protection trust; if the Nevada Asset Protection Trust  is seriously threatened, it can be moved off-shore and established as a Nevis Asset Protection Trust or a Cook Island Asset Protection Trust.

3. Not Based Upon Concealment

Many lay persons believe that they can protect their assets by concealing them from creditors.  For example, it may be tempting to transfer an investment real estate property to a family member or friend.  Such transfers are likely doomed to failure – and we are assuming your friend or family member does not get sued.   The reason is two-fold.  First, with modern discovery laws in the United States, a creditor can discover virtually any transfer you have ever made because they can simply depose you and you must tell the truth under penalty of perjury.  In addition, there is always a paper trail, in the form of texts, email’s, bank transfers, or tax returns.  The second reason concealment does not work is FUFTA, the Florida Uniform Fraudulent Transfer Act, F.S. 726.  Under this law, transfers made “with actual intent to hinder, delay, or defraud any creditor of the debtor” may be clawed back.  See Point #8,

Note:   While concealment should never be a basis for asset protection planning, there may be value in maintaining a low public profile, so that when a creditor performs a Google search your investment entities do not show up.   This could be particularly beneficial for any professional in a high-risk profession – such as a doctor, dentist, or health professional.

4. Take Full Advantage of Florida Law

It is often surprising to me that some Florida residents think they need to go to Wyoming or South Dakota to protect their assets when they often have good options under Florida law.  Florida has one of the strongest (if not the strongest) homestead laws in the United States.  Of course, this is one reason why O.J. Simpson moved to Florida:  he purchased an expensive Florida home and claimed it as his primary residence.

For decades, Florida courts have done a superb job of protecting homestead.   A good example is the Florida Supreme Court Havoco decision.  In this case, Havoco obtained a $15,000 judgment against Hill.   Three days before the judgment became enforceable, Hill purchased a $650,000 property claiming to make this property his homestead. Creditors argued this property could not be protected homestead because Hill converted non-exempt assets into the homestead with the intent to defraud his creditors.  Despite the obvious intent to defraud the creditors, the court found the homestead was protected.  See 790 So. 2nd 1018 (Fla. 2001).

Of course there are limitations to the Florida homestead protection that are beyond the scope of this summary.  Florida homestead is a complex and often misunderstood protection where you need to consult with an experienced Florida attorney.

Florida homestead is not the only Florida law that residents should take advantage of.   Real estate investors should almost always consider LLC’s – limited liability companies – to protect their real estate and limit creditors to an unattractive remedy called a charging order.  The two fundamental take-aways on Florida LLC’s is that they should be multi-member (unless owned by a limited partnership) and they must have a robust LLC Operating Agreement drafted after 2012 because the Florida LLC law was fundamentally changed in 2012.  See Basic LLC Checklist.

Other investments protected by Florida law are (1) IRA & qualified plan benefits; (2) wage exemption; (3) wage accounts (but only for 6 months); (4) life insurance, both term and cash value provided the policy is owned by the insured; (5) annuities; (6) Florida Pre-Paid Plans; (7) 529 college plans.   Note: this is not a complete list.

5. Domestic Asset Protection Trust – That Can Be Moved Off-Shore – As A Core Planning Tool

Most persons considering the best way to protect their cash, stocks and other equities likely need a Domestic Asset Protection Trust (“DAPT”).   This is where Florida residents usually need to consider another state jurisdiction because Florida does not protect “self-settled” trusts:  a trust where the grantor is also the beneficiary.  However, Nevada, Delaware, Alaska and other states do have strong legislation protecting self-settled trusts.

Nevada has modern laws designed for robust DAPT’s.  The 5 major advantages of a Nevada DAPT are:  (1) no state income tax; (2) 2 year statute of limitations for future creditors; (3) 2 year statute of limitations or 6 months from date of discovery for pre-existing creditors; (4) No pre-existing torts exception creditors; (5) allows self-settled trusts.  For a more complete discussion of such trusts, and specifically the Hybrid Nevada DAPT, see my article Nevada Asset Protection Trusts: Your Best Option?

6. Asset Protection Plan integrated with Estate Plan

Prior to the new federal tax law, the Tax Cut and Jobs Act of 2017, much asset protection planning could have a sound estate tax avoidance rationale.  Now, with the estate tax exemption of  $5.6 million in 2026 (the current exemption is $11.2 million, but this is temporary and drops down to $5.6 million in 2026)  such a rational is not realistic for many persons.   However, there are often fundamentally sound estate planning reasons to do such planning because a good asset protection plan should usually be integrated with your estate plan.   Usually the goals are not just to protect your assets now and for the rest of your life, but also to protect them for your children and grandchildren.  No one wants to spend your life working to build a valuable nest-egg, only to see a big piece of this nest-egg lost in your child’s divorce case.  Further, the core component of most estate plans is a revocable living trust; such a trust must be integrated with all domestic corporate entities and other trusts.   The take-away here is that you should not do asset protection planning without connecting and integrating it with your estate plan.   If challenged, you have a legal basis to claim that transfers made were done as part of your over-all estate planning, and not attempts to “to hinder, delay, or defraud any creditor”.

7. Insurance As War Chest – Not An Incentive For Lawsuit

Insurance – such as malpractice insurance for the professional or casualty insurance for the real estate investor – is a critical component of a comprehensive asset protection plan.  However, in determining how much insurance you need consider that a primary purpose of your insurance should be to give you a war chest to defend a legal attack.   More commonly, insurance is an incentive to a lawsuit.   The first request you will get from a personal injury for a person injured at your business is a demand letter for disclosure of all insurance that you have on the property.  You are required to disclose this information under Florida law.   If the damages are substantial, the PI attorney will want to go beyond the policy limits and sue you personally.   Insurance – not coupled with an asset protection plan – is a big incentive for a lawsuit; it is the equivalent of putting a bulls-eye target on your assets. Under our Porcupine Asset Protection Strategy we want to minimize any such incentive.  Therefore, the two big take-aways here are:  First, have adequate insurance to fund a war chest to vigorously defend a lawsuit.  Second, do not rely simply on insurance – take advantage of Florida law and other laws to protect these assets with a good asset protection plan.  In the long run, such a plan is far cheaper than paying for large insurance policies.

8. Timing Is Critical

Timing is one of the most critical considerations in asset protection planning.  Asset protection planning is usually not viable after:

• Parent of 18 year old driver who seriously injures a young biker
• Owner of rental real estate where late night party results in a fight and guest getting stabbed;
• The doctor who is served with a summons after a botched surgery;
• Pre-divorce planning by a husband trying to scam his wife (or wife trying to scam her husband. (Here there is a good pre-marriage legal solution: it is called a Prenuptial Agreement.)
• Owner of house where worker pressure cleaning the roof falls off and breaks back.

In such situations it may be too late to do any planning.  The reason is FUFTA: Florida Uniform Fraudulent Transfer Act, F.S. 726.  This is a powerful creditor civil remedy (not a criminal remedy) that allows a creditor to claw back any transfer made “with actual intent to hinder, delay, or defraud any creditor of the debtor”.  Creditors may rely upon the “badges of fraud,” such as making transfers to an asset protection entity that renders the creditor insolvent.

The take-away on this is simple: Plan when waters are quiet – before the problem arises.  Do not put this planning off to another time; do it now.

Conclusion

Asset Protection Planning covers a wide breadth of law; it requires an experienced attorney who concentrates in such planning.  For more information contact Rarick & Bowden Gold at info@raricklaw.com or call (305) 556-5209.