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The Role of DAPTS

Similar to irrevocable trusts, DAPTS offer increased flexibility regarding estate planning for clients. Michigan is just one of 17 states that have laws that allow the creation of DAPTs. For individuals who do not live in these states, a trust can still be created in one of the 17 states using a trustee. Once assets are placed into a DAPT, the trust creator permanently gives up those assets. Because a trust creator can name him or herself as a beneficiary, though, there is a possibility that he or she might retain some management rights regarding the trusts assets.

The Advantage of DAPTs

The primary advantage of DAPTs is that they offer asset protection. As a result, a person is able to place assets into a trust to be dispersed so that they can be used post-retirement. DAPTs also offer tax advantages. New tax laws have temporarily doubled estate tax exemptions from $5 to $11 million. While a person might not have this amount currently, an estate that grows to this amount by 2026 will place an individual above the exemptions limits.

How to Structure a DAPT

There are several methods used to structure a DAPT, which include:

• A client signs a solvency affidavit, which confirms that he or she will have the assets necessary after the transfer to pay for all future expenses. Some clients decide to support this statement with a current balance sheet and financial forecast, which help to provide a more fleshed-out picture about the clients finances.
• The client is not listed as a current beneficiary of the trust. Instead, someone is appointed in a non-fiduciary capacity to name descendants. If the client ends up needing any of the assets placed in the DAPT in the future, the client can be added as a descendant. The client will be unable to receive funds unless he or she is added.
• Someone else received the power to direct the trustee to make distributions to the client.

Speak with an Experienced Michigan Estate Planning Lawyer

No matter if you use them for asset protection or estate tax planning, DAPTs can be a particularly powerful tool because they present a way to secure assets while still leaving those assets accessible. If you are interested in creating a DAPT, you should not hesitate to contact an experienced estate planning lawyer. Contact Resnick Law today to schedule a free initial consultation, during which time we will discuss how to best resolve your case.

(image courtesy of Kody Gautier)

A domestic asset protection trust is a kind of irrevocable self-settled trust that a person can set up with an independent trustee to administer it. Because the trust is irrevocable, it means that once it is set up, the person creating the trust cannot voluntarily choose to terminate or end the trust. The person setting up the trust cannot be the named the trust’s trustee, although he or she can be a beneficiary and can control some aspects of the trust, such as directing the investment of trust assets.

In this way, the trustee does not have direct control of the assets in the trust, and legally the trust assets do not belong to him or her. Therefore, any increased value in assets that may be subject to division in a divorce as marital assets are protected. Unlike prenuptial agreements, the placing of assets into the trust does not require the other spouse’s consent if the trust is set up at least 30 days before the wedding.

Other than that, the trust acts very much like a prenuptial agreement in that trust assets are not generally divided as part of a divorce. However, it is important for trust settlors to remember that the domestic asset protection trust does not protect the trust property from claims made as part of a requirement to pay child support.

While a person is free to set up a domestic asset protection trust without the permission of a spouse, the person setting up the trust is required to sign an affidavit attesting to certain facts. The person setting up the trust has to attest to the fact that he or she holds full title to the assets being transferred into the trust. A false attestation that allows a person to transfer marital property into a trust without the consent of the other spouse is not likely to support the validity of the trust later on.

A domestic asset protection trust can also be beneficial in other situations, such as protecting assets from creditors. A creditor will nevertheless be able to reach the trust assets if the trust was only set up in anticipation of the creditor’s claim, or while the claim was pending. The creditor can file a fraudulent transfer claim against the trust settlor to void the protections of the trust.

Contact Us for More Information

For more information on Michigan’s laws on domestic asset protection trusts and how you can protect your assets from creditors and from division in a divorce, contact an experienced asset protection attorney at Resnick Law, P.C., in Bloomfield Hills and Detroit, Michigan. Our experienced attorneys can discuss the legal issues that will arise in forming an asset protection trust, and how these issues may affect you.

(image courtesy of Anne Edgar)

Signed into law at the end of the last legislative session by Gov. Rick Snyder, the law takes effect beginning on Feb. 5, 2017.

In short, a DAPT is a type of irrevocable trust that is self-settled and acts like a spendthrift trust; it doesn’t allow for “…the appointment of the trust’s assets to your creditors and permits you to be a beneficiary,” according to the Michigan Bar Association. In plain English, it’s a trust you can set up to protect assets from your future creditors and lawsuits against you.

With Michigan’s law coming into effect in February, there will be 14 states (15, if you include Colorado’s limited state statute) that allow for self-settled Domestic Asset Protection Trusts.

Other than in the case of a bankruptcy, DAPTs have proven to be quite effective as a bargaining chip for settling debts for a lesser amount and protecting assets from the reach of creditors and lawsuits, according to legal experts.

There are various state statutes for DAPTs across the country that govern how the trust needs to set up and how and from whom the assets can be protected. Most DAPT state statutes allow the DAPT to be a “Grantor” trust. This means, among other things, that the Grantor of the trust can pay the income tax on the income that the trust generates. Many types of assets can be transferred to a DAPT including cash, securities, real estate, and business interests, as examples.

Good candidates for this type of planning include doctors, lawyers, high-risk professionals, and other people of high net-worth who have high liability concerns. Naturally, the most effective way to guarantee a DAPT’s efficacy is to set the structure up far in advance of any creditor problem.

The lead time necessary for effect is due in large measure to a statutory waiting period required until the assets are protected. You also don’t want to get caught in the snare of a fraudulent transfer.

In the case of Michigan’s draft of the law, a two-year period beginning with the date the assets are transferred to the trust is required to satisfy statuary requirements, except in certain instances of fraudulent concealment. For bankruptcy, a longer statute of limitation may apply. A court could consider the transfer to a DAPT fraudulent if you transferred property to the trust after the threat of a creditor action or lawsuit has arisen.

In today’s litigious society, there is a definite increase in liability exposure. High net worth individuals exposed to liability often face a “victim mentality” world, where the revelation that someone has deep pockets can spur on a lawsuit or a threat of one.

Many professionals are fearful of malpractice lawsuits because of the notoriety of malpractice and errors and omissions legal actions. For instance, in 2006, there were more than 633,000 malpractice claims against physicians and surgeons alone, according to a report by the Physician Insurers Association.

Nearly all of states that allow for DAPTs also have exception creditor statutes. These statutes protect certain classes of creditors by allowing them access to a DAPT’s assets. One common exception creditor is a divorcing spouse.

To see whether a Qualified Asset Protection Trust is an instrument that would help shield your assets from liability, contact the Estate Planning practice group at Resnick Law for a consultation at (248) 642-5400 or contact us online.