When Is It Too Late For Asset Protection Planning?

Forbes

10 hours ago

The Judgment is the sword and Asset Protection is the shield.
Asset protection planning is where a person takes steps to disassociate themselves from their current assets so that they are no longer available to creditors. Although asset protection planning as a discrete practice area for attorneys has only existed since the 1980s, folks with valuable assets have been trying to legally distance those assets from potential creditors since there were valuable assets. The Romans, for instance, promulgated laws that prohibited a debtor from transferring away assets so as to cheat creditors, and these Roman laws were the basis of the fraudulent transfers laws found in Anglo-American law.
Some asset protection is proper and will be recognized as valid by the courts. Some asset protection is improper and the courts will set it aside, and may also issue certain penalties for the attempt. Questions of whether certain asset protection is proper or improper usually comes down to the timing of the transfers involved. If the asset protection planning is done too late, then it will likely be both ineffective and the debtor (and possibly the transferee) will be put into a potentially worse situation than before.
Understanding The Dividing Line
So, when does asset protection go from being proper to improper?
To answer this question, one must first understand the concept of a claim. The word claim is a term-of-art in fraudulent transfer law which basically means a legal liability arising from some event. A creditor has a claim against the debtor. The claim can be contingent or unliquidated. A claim arises at the precise moment in time that the event giving rise to the liability occurs.
To answer the main question: Asset protection goes from being proper to improper at the time that the claim arises, i.e., at the time that the event giving rise to the liability occurs. This is the relevant point in time. Asset protection planning done before a claim arises is proper; asset protection planning after a claim arises is improper. It is a clear delineation.
In explaining this concept to folks who contact me, they'll often say the following things:
Where this usually comes up is in the context of personal guarantees. The usual line that I hear will be something like this: "The loan is not in default yet, but I'm concerned that it might be and I've signed a personal guarantee." It's too late to do asset protection planning. For purposes of determining when a claim exists, the claim arose on the date that the guarantee was entered into. That is when the guarantee liability arose. Thus, if somebody has entered into a personal guarantee, it is probably too late to do any asset protection planning even if the project is still doing well and the underlying loan obligation is not in default. The next thing they'll say is, "Can I at least protect assets that were not on the financial statement that I gave to the bank?" No, that does not matter one iota. A personal guarantee is a pledge of all of one's non-exempt assets to back a debt, whether disclosed or not.
A similar circumstance is one that we could call "the retiring doctor". This is the physician who retires, but is concerned that something in the past has occurred that the doctor is not yet aware of, but which might later turn into a problem for the patient and thus trigger a malpractice lawsuit. Unfortunately, if the doctor has done something negligently, then that event has already occurred and the claim already exists whether the patient or the doctor knows about it or not. Thus, the doctor cannot do asset protection planning (unless the doctor has tail coverage against such negligence claims, in which case the doctor doesn't have to worry about this in the first place and can still do asset protection against other unforeseen future events). Note that the same is true for all professionals, e.g., the architect who is concerned about a skyrise condo collapsing someday.
Common situations where it is too late to do asset protection planning include:
In all these situations, asset protection cannot properly be done and at rate it is unlikely to be effective. In fact, trying to do such planning in these situations can easily make the debtor's situation worse ― and possibly much worse ― as will next be discussed.
Downsides Of Too Late Transfers
Once a claim has arisen, then it is not possible to do proper asset protection going forward aside perhaps from some exemption planning in certain states. At the point in time that a claim arises, the planning is not proper asset protection planning at all but simply good old fashioned fraud on creditors. This can generate a variety of bad outcomes:
In other words, by engaging in a fraudulent transfer a debtor can easily make their situation much worse than if they just let the creditor take the asset.
One of the problems in this area is that there are "planners" (and I use that term quite loosely) who will advocate and assist with the making of fraudulent transfers. These folks will take their fees from the debtor and then basically try to disappear when things go badly. If the debtor complains, their defense will be something like, "well, you were going to lose that asset anyway." Thankfully, the rise of theories of liability for creditors suing these planners have been expanding and there are now much fewer of them still around. Also, case law has now established that it is possible for a creditor, receiver or bankruptcy trustee to take over the debtor's malpractice cause of action against the asset protection planner who advised a transfer that resulted in a fraudulent transfer.
How To Avoid This Mess
To have a chance of succeeding, asset protection planning must be done in advance of any claims. It is analogous to getting a flu shot: You get the shot when you are healthy, not when your throat starts to feel scratchy because then it is too late. Continuing this analogy, trying to do asset protection after a claim arises is like getting the flu shot after you already have the flu. In the best case, it will not do anything. The difference is that, as described above, post-claim transfers can make the debtor's situation much worse.
For asset protection planning to be effective, it must be done at a time when there are no significant creditors, either known or unknown, and great care must be taken to ensure that enough assets remain outside of the asset protection plan such that there are no arguments of insolvency at the time of the planning.
But therein lies the problem with asset protection planning, which is that most people don't think of it until it is too late. Most folks are optimists in that they think they will not have a problem until the moment they do. By that point, however, asset protection planning can no longer be properly done.
So, don't wait until you get the creditor flu to get the asset protection shot.