Asset Protection Today, Tomorrow and Beyond

We are coming to the end of a two years period, through the “Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010” (“2010 Act”) that a couple could have transferred up to $10 million without having to worry about their estate paying any estate taxes on the death the surviving spouse ($5 million per person).  The 2010 Act also unified the lifetime gift tax exclusion amount to $5 million.  This means that during the last two years the greatest amount of gifting has occurred in wealth shifting planning among family members or to charities.  Beginning in January 2013 the 2010 Act sunsets back to the pre Bush Tax period in 2001 of $1 million gift and estate tax exclusion amounts or $2 million per married couples.

The 2010 Act provides for a portability provision between spouses that allows the unused $5 million exclusion amount of the first spouse to die to be used by the surviving spouse on his or hers death for a total $10 million. Prior to the 2010 Act, in order for a married couple to assure this outcome, they used the A-B family trust on the death of the first spouse to transfer his or her assets into a bypass trust in order for it not to be taxed on the surviving spouse’s death.  This will become the norm again even if portability continues on under new legislation by congress.

What the 2010 Act did not do was provide any new asset protection for either a person or couple dealing with their family wealth and passing it on to their heirs.  If a couple dies during either 2011 or 2012 and had a combined $9 million estate or less, their assets from a wealth preservation or asset protection point of view did not change.  Beginning January 2013, only $2 million will escape estate tax unless congress enacts legislation to increase the exclusion amount above $1 million.   My guess is the estate tax exclusion amount will be increased to $3.5 million, which it was in 2009.  The question is: When will congress enact legislation and to what will be the exclusion amount?

What are some of the basic things individuals or couples should be thinking about in protecting their assets today, tomorrow and beyond?  The key to some of the planning is to do it prior to a creditor coming on the scene to avoid the fraudulent conveyance argument. Some of the items that I am discussing with my clients are:

  1. Umbrella Insurance
    This has always been a simple and inexpensive protection vehicle for an unexpected event.
  2. Life insurance and annuities
    Unless you use an irrevocable life insurance trust (“ILIT”), both the insured’s creditors and its beneficiaries creditors can reach the insurance proceeds.  An ILIT that has an ongoing trust for beneficiaries and a spendthrift clause.
  3. Retirement Assets
    Although traditional IRA and 401 K plans are exempt from creditors, what happens if you cannot go into bankruptcy and you are receiving the minimum distributions?  Converting to a Roth IRA can eliminate the minimum distributions.
  4. Transfer between Spouses
    There are many types of planning opportunities between spouses to protect assets.  They include outright transfers, tenants in common arrangements or advanced irrevocable trust planning.
  5. Entity planning
    Depending on the nature of the assets that are owned by the family, corporations, limited partnership and limited liability companies are an excellent way of protecting family wealth.  When you combine entity planning with other types of assets protection vehicles the asset protection planning can even have a more favorable outcome.

No matter what congress finally decides to do about the estate tax exclusion amount, protecting family wealth from creditors and preserving it should not be neglected.  It is just as important today, tomorrow and beyond.