Asset Protection and Trusts

[coastymike]

I posted this over at Property Investing because a lot of people seem confused as to how asset protection works with trusts. There seems to be a misconception that having a corporate trustee means that the assets of the trust are not available to the creditors in the case of a law suit. NigelW may provide additional comments but essentially this is my understanding of how it works.

Firstly a trustee is personally liable to creditors in respect of debts and liabilities incurred on behalf of the trust. It is a statutory right found in the trustee's legislation in all States. The right to an indemnity provides the trustee with a right in the nature of an equitable lien or right over the assets of the trust. The creditors cannot make a claim against the assets of the trust but are subrogated to the trustee's right to be indemnfied.

So how does this provide protection. Well lets assume you run a business through a discretionary trust with a corporate trustee. Let's also assume you have a separate discretionary trust (or hybrid discretionary trust doesnt really matter) with a different corporate trustee over your investment property. If in this case the business was sued the creditors will only have the right for the trustee to be indemnified over the business assets. Because the investment property has a different corporate trustee in a different trust then that investment asset is not available to the creditors. That is why a corporate trustee is the preferred entity as oppossed to an individual trustee. If you had two discretionary trusts and both had the same trustee then yes you could have a problem. The creditors might claim that they have a right to be indemnified not only against the assets of the business trust but also the assets of the investment trust. The risk is low but always subject to the Courts. However if the investment trust and business trust have two totally different trustees then the assets of one trust are effectively protected against claims made against the other trust. Thats the asset protection.

Imagine that you are a business owner and have a company which you are also a director. The company is sued and they then sue the directors. Lets assume your investment assets are held in your individual name instead of in a separate trust with a separate trustee. Well you have a problem because the investment assets are the assets of the directors and available to the creditors when they take action against the directors. Not so when the investment assets are in a different trust with a different corporate trustee.

That is why some people like to have a separate trust and sometimes even a separate corporate trustee for every investment type. I have some clients who have a separate trust for every single investment and also a separate corporate trustee. For the average person this may be overkill and in fact would be very expensive. However for others it provides a secure peace of mind.

At a minimum however I would always suggest keeping your business assets and investment assets in two separate structures. Good asset protection.

There are also advantages with respect to streaming of income as suggested by gross, the refinancing principle which is rarely discussed and sometimes even more importantly the estate planning issues.

[monoply]

Hi Coastymike,

The above is my understanding also.

A seperate question I have is: If you had a family trust, with a corporate trustee, then your partner started up a company, and had shares in the company owned by the family trust with the corporate trustee, would this be leaving the family trust open to any problems if the company my partner was running was sued?

My automactic reaction is to not do this, and keep all passive investments, seperate to all business investments etc, but my parterner asked what is the difference between the family trust owning shares (stock market, public) or shares in a business (private)?

Cheers
mono

[Mry]

I also like to split up business assets from the actual entity running the business where practicable. Not only does it make suing the business an endeavour in futility since it has almost nothing to pay claims with, you can just start up a new business and provide the assets to that entity on the same terms as the last one.

You would of course have to be careful not to expose the business asset trust to the risks of the main business entity. It also doesn't work if the asset itself causes the damage (ie car accident, people going into comas after tripping next to the photocopy machine, etc.) Again, it isn't 100% asset protection but it adds a layer of safety between your assets and creditors.

[Mark Laszczuk]

My understanding of trust structures is this:

Trust holds assets
Trust has a corporate trustee ($2 company)
Trustee comes under attack

You then remove company trustee 1 and appoint company trustee 2 (another $2 company).

Since the original trustee is the one under attack and it does not hold assets, then the assets in the trust are safe from attack

This is the idea I have gotten from talking to a number of different people who set up trusts.

Mark

[coastymike]

Mark,

The same clawback provisions would try to be applied. The trustee had a right to be indemnified against the assets (which may have been substantial at the time of bankruptcy or possibility of bankruptcy) and the change of trustee occurred within the two year time frame. The argument being that the change in trustee was done only to prevent the original trustee being indemnified from the assets of the trust.

That is why Mry is suggesting you keep the business assets and the trading entity in two separate structures. if the business assets are in one trust and under a properly drafted service trust agreement providing the use of those assets to the trading trust then there is effectively no assets in the trading trust available for the trustee to be indemnified against.

Even if the trading trust has substantial goodwill then the business assets trust (which is controlled by a separate corporate trustee) will still be able to receive its service trust payments. So the creditor could keep operating your business but they still have to make all payments to the business asset trust. So why bother. They wont get anything. If the business cant continue then the argument will be that the goodwill is worth nothing. Even if it is worth something then the only way to obtain the value of the goodwill would be to sell the business and you still have a service agreement in place with your business assets trust.

[Mark Laszczuk]

coastymike - you were talking about bankruptcy cases - no worries, now we're on the same page.

[NigelW]

Generally I agree with what Mike has said. My observations in CAPS.

Cheers
N.

Originally Posted by coastymike

I posted this over at Property Investing because a lot of people seem confused as to how asset protection works with trusts. There seems to be a misconception that having a corporate trustee means that the assets of the trust are not available to the creditors in the case of a law suit.
YES THAT DOES SEEM TO BE A COMMON MISCONCEPTION. MADE POPULAR BY SOME "GURUS" WHO SHALL REMAIN NAMELESS. THERE HAVE BEEN PREVIOUS POSTS ON THIS. SEARCH FOR "TRUSTEE'S RIGHT OF INDEMNITY".

NigelW may provide additional comments but essentially this is my understanding of how it works.

Firstly a trustee is personally liable to creditors in respect of debts and liabilities incurred on behalf of the trust. It is a statutory right found in the trustee's legislation in all States. The right to an indemnity provides the trustee with a right in the nature of an equitable lien or right over the assets of the trust. The creditors cannot make a claim against the assets of the trust but are subrogated to the trustee's right to be indemnfied.

So how does this provide protection. IT PROVIDES PROTECTION BECAUSE THE TRUST ASSETS ARE NOT YOUR ASSETS AND YOUR ASSETS ARE NOT THE TRUST ASSETS. IF YOUR BUSINESS TRUST IS ATTACKED THEN ASSETS HELD IN YOUR OWN NAME (SUBJECT TO SOME EXCEPTIONS) ARE SAFE, BUT THE BUSINESS ASSETS IN THE TRUST ARE AT RISK. IF YOU ARE SUED THEN ASSETS HELD IN TRUST (SUBJECT TO SOME EXCEPTIONS) ARE SAFE BUT ASSETS HELD IN YOUR NAME ARE AT RISK.

kEY CONCEPT IN ASSET PROTECTION IS SEPARATION

Well lets assume you run a business through a discretionary trust with a corporate trustee. Let's also assume you have a separate discretionary trust (or hybrid discretionary trust doesnt really matter) with a different corporate trustee over your investment property. If in this case the business was sued the creditors will only have the right for the trustee to be indemnified over the business assets. Because the investment property has a different corporate trustee in a different trust then that investment asset is not available to the creditors. AGREE. That is why a corporate trustee is the preferred entity as oppossed to an individual trustee. IT IS, BUT THAT'S ONLY PART OF THE REASON. If you had two discretionary trusts and both had the same trustee then yes you could have a problem. TECHNICALLY NO, PRACTICALLY YES. The creditors might claim that they have a right to be indemnified not only against the assets of the business trust but also the assets of the investment trust. WHICH BRINGS UP THE KEY ISSUE, HOW TO PROVE WHICH ASSETS ARE YOURS AND WHICH ARE THE TRUSTS, OR IN THIS CASE WHICH ASSETS ARE THE BUSINESS' ASSETS AND WHICH ARE INVESTMENT ASSETS. BY HAVING ENTIRELY DIFFERENT LEGAL PERSONS I.E THE TWO SEPARATE COMPANIES, MAKES THE EVIDENTIARY ISSUES A BIT EASIER. The risk is low but always subject to the Courts. However if the investment trust and business trust have two totally different trustees then the assets of one trust are effectively protected against claims made against the other trust. Thats the asset protection. AGREE.

Imagine that you are a business owner and have a company which you are also a director. The company is sued and they then sue the directors. Lets assume your investment assets are held in your individual name instead of in a separate trust with a separate trustee. Well you have a problem because the investment assets are the assets of the directors and available to the creditors when they take action against the directors. Not so when the investment assets are in a different trust with a different corporate trustee.

That is why some people like to have a separate trust and sometimes even a separate corporate trustee for every investment type. I have some clients who have a separate trust for every single investment OVERKILL and also a separate corporate trustee. For the average person this may be overkill and in fact would be very expensive. However for others it provides a secure peace of mind.

At a minimum however I would always suggest keeping your business assets and investment assets in two separate structures. Good asset protection. ABSOLUTELY! THE RISK PROFILE IS DIFFERENT.

There are also advantages with respect to streaming of income as suggested by gross, the refinancing principle which is rarely discussed and sometimes even more importantly the estate planning issues.

[tubs]

"I posted this over at Property Investing because a lot of people seem confused as to how asset protection works with trusts. There seems to be a misconception that having a corporate trustee means that the assets of the trust are not available to the creditors in the case of a law suit.
YES THAT DOES SEEM TO BE A COMMON MISCONCEPTION. MADE POPULAR BY SOME "GURUS" WHO SHALL REMAIN NAMELESS. THERE HAVE BEEN PREVIOUS POSTS ON THIS. SEARCH FOR "TRUSTEE'S RIGHT OF INDEMNITY".
"

Who has actually said this?

[NigelW]

No one who frequents this forum.