Asset Protection Law

The Real Property, Trust and Estate Law Section is a leading national forum for lawyers, and currently has over 30,000 members. The Real Property Division focuses on legal aspects of property use, ownership, development, transfer, regulation, financing, taxation and disposal. The Trust and Estate Division focuses on all aspects of trusts, estate planning, employee benefits, insurance, and probate and trust litigation.

Under the Asset Guarantee Program (AGP), Treasury will guarantee certain assets held by the qualifying financial institution. The set of insured assets is selected by the Treasury and its agents in consultation with the financial institution receiving the guarantee. In accordance with section 102(a), assets to be guaranteed must have been originated before March 14, 2008.

Asset protection consists of methods available to protect assets from liabilities arising elsewhere. It should not be confused with limiting liability, which concerns the ability to stop or constrain liability to the asset or activity from which it arises. Assets that are shielded from creditors by law are few (common examples include some home equity, certain retirement plans and interests in LLCs and limited partnerships (and even these are not always unreachable)). Assets that are almost always unreachable are those that one does not hold legal title to. In many cases it is possible to vest legal title to personal assets in a trust, an agent or a nominee, while retaining all the control of the assets.

An asset protection trust is a self-settled spendthrift trust. This means it is a trust that an individual creates a trust for himself that is protected from creditors. Asset protection trusts are normally found outside of the United States. Asset protection trusts do not generally exist in the United States.

To address the financial crisis, the Financial Stability plan is designed to attack our credit crisis on all fronts with our full arsenal of financial tools and the resources commensurate to the depth of the problem. To be successful, we must address the uncertainty, troubled assets and capital constraints of our financial institutions as well as the frozen secondary markets that have been the source of a significant portion of our lending for everything from small business loans to auto loans.

This paper addresses a variation on the use of distressed assets (including creditors’ interests in debt) to shift economic losses from a tax-indifferent party to a U.S. taxpayer. A distressed asset trust (DAT) transaction typically involves the use of trusts to shift built-in losses from a tax-indifferent party to a U.S. taxpayer who has not incurred an economic loss.

The Office of the Special Inspector General for the Troubled Asset Relief Program ("SIGTARP") was established by the Emergency Economic Stabilization Act of 2008 ("EESA"). Under EESA, the Special Inspector General has the responsibility, among other things, to conduct, supervise and coordinate audits and investigations of the purchase, management and sale of assets under the Troubled Asset Relief Program ("TARP"). SIGTARP's goal is to promote economic stability by assiduously protecting the interests of those who fund the TARP programs - i.e., the American taxpayers.

The Troubled Assets Relief Program (TARP) was established under the EESA with the specific goal of stabilizing the United States financial system and preventing a systemic collapse.

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Sadly the first question usually asked when a lawsuit is being considered is the extent of the other parties net worth. And in Canada as long been the practice in the States, lawyers are now allowed to be take cases on an agreed percentage of the awards if they win. Asset protection strategies are definitely something every one needs to put in place.

Asset protection involves careful judgment about what would ultimately happen in a courtroom under various circumstances. An attorney who has participated in some trials and who has taken and defended depositions will more likely have a good idea what will happen in a lawsuit brought by one of your creditors. Experience with limited liability companies, limited partnerships and trusts is also important.

Trusts & Estates is the town center where experts who serve the planning needs of the ultra-wealthy gather to gain insight into their specialties and to learn about related professions. Community members include estate-planning lawyers, corporate and individual trustees, financial planners, accountants, investment advisors, charitable giving specialists, family office executives, insurance agents, and valuation experts.

Articles written by attorneys and experts worldwide discussing legal aspects related to Banking and Finance including: asset protection, capital markets, corporate finance, financial planning, financial services law, investment law, offshore accounts, private equity, project finance, public finance, securities, trade investment and venture capital.