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The Trident Press Financial Education Series

Asset Protection
What is Asset Protection? Different Types of Asset Protection Common Traps, Pitfalls and Mistakes Made in Structuring Asset Protection Case Studies to Prove The Value of Asset Protection Structures How to Inexpensively Set Up Onshore Asset Protection How to Inexpensively Set Up Offshore Asset Protection Advantages and Disadvantages of Each Type Of Asset Protection Frequently Asked Questions and Answers on Asset Protection Contacts to Help You Set Up Your Asset Protection One Question for You To Answer Daily Action Steps To Put Theory Into Practice

What is Asset Protection?


Asset protection is the adoption of advance planning techniques, which place one's assets beyond the reach of future potential creditors. In practice, it does not involve hiding assets, nor is it based upon secret agreements or fraudulent transfers. It is based upon proven sophisticated combinations of business and financial planning techniques. The methods employed vary from simply changing the ownership of assets to the sophisticated use of offshore trusts and companies. J. Paul Getty was once quoted as saying, When I go into any business deal, my chief thoughts are on how Im going to save myself if things go wrong This is the essence of asset protection. When things go wrongthat is when we need it, and value it. Its of no use, and too late to act when things have already gone wrong. I know from personal experience, that even the people closest to you and the most trustworthy, can turn on you. So, you must protect yourself. In the US, lawsuits are being filed at the rate of one hundred million cases a year. Many of these suits have nothing to do with right and wrong, but instead, are predicated on the desire of one party to extract wealth from another party. In many cases, this equation is not predicated on the desire to extract real wealth, but on a desire to extract small payments as "nuisance" settlements, because it is cheaper to pay out than to fight the case. If someone slips and falls in a business, or if a car taps their car's rear end, they react like they just won the lottery. If an armed thug breaks into a home in the dead of night, slips on a child's marbles, and breaks a leg, he can sue and possibly win. Here are some examples that may frighten you into action: One man strapped a refrigerator on his back and ran in a race. The strap broke and he hurt his back. He sued the strap manufacturer and collected $1.3 million. A woman in Texas was awarded US$780,000, by a jury after breaking her ankle, tripping over a toddler who was running amok in a furniture store. The owners of the store were very surprised by the verdict, considering the child was in fact the womans. A woman was awarded US$113,500 after she slipped on a spilt drink in a restaurant and broke her coccyx. Again,

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surprise, she was the one who had thrown the drink on the floor during an argument with her boyfriend. If lawsuits continue at the pace they do today, each person in the top 50% of income earners in the US will ultimately be sued five times. Australia, Canada and the UK are catching up too. One does not have to lose even one of these cases in order to lose their wealth, simply the cost of litigating these issues can be onerous enough. One solicitor told me if it goes to court youll be up for $50,000 win or lose, minimum. For many people the threshold issue in asset protection is: do I need it? Many people believe "this won't happen to me, it can't happen to my business, my family is safe, because we don't do anything that's dangerous." However, if you are a person who: Deals with the public Rents properties or you are an owner of a rental property Is a director of a company Is in the medical field Is involved in a white collar profession working for yourself Is wealthy

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You are talking a great deal of risk and as time goes on your chances of being sued, based on the laws of probability, increase. Its only a matter of time. The reality of life is that you don't have to do anything dangerous or negligent; all you really have to do is be in the wrong place at the wrong time. Ordinary people have extraordinary problems. In many cases these problems are not problems of their own doing, they were simply matters of circumstance. Once a judgment is made against you have to tell the court everything, regardless of how unjust the case is. You must tell them what properties you own, about your bank accounts, investments, absolutely everything. They will then place a value on it and then proceed to re-distribute your wealth elsewhere. Good isnt it? Now, you may say, I have insurance to cover that! Do you really? Check your policy, you may be surprised on how much you are not covered for. Also, if the insurance company can prove your negligence for whatever reason, theyll drop it back in your lap. What you need to do is ensure that it doesnt get to court and that you have nothing worth taking in the first place.

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Now it has all gone wrong and you have found yourself on the wrong end of a court case and you must pay up. You are known as a judgment debtor. As such you virtually have no rights, as the winner now owns everything up to the value of the judgment. And heaven help you (the defendant) if you fudge your testimony. If you conceal a safe deposit box with a few goodies in it youre committing perjury, a crime that carries mandatory sentencing guidelines. You could end up in jail! It is all too easy to go around saying it won't happen, but once it happens, it is too late. If money is transferred after an incident or accident, that is concealing assets, this can cause both criminal charges and civil loss of other assets. The law looks at it as stealing the property of the person who is suing, or who may sue. The defendant may think it is his lifetime savings from hard work, but legally he now holds it in trust for the person who has a pending claim. Presumed knowledge of the possibility of a claim is sufficient to invoke these fraudulent transfer laws. So if somebody moves their money the morning after an incident, it is likely to come back to haunt them. The only legally valid protection is to take careful and legal protective steps before there is even a potential claim against a person or his assets. In Australia, and several other countries it takes two years before your assets are truly protected because during this two years, any transfers can be reversed by the courts very scary!

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Different Types of Asset Protection (including the use of


International Business Companies)
There are several ways to protect your assets. They range from simply making some changes to who owns your assets and rearranging the directorships of your domestic company (which well discuss in the Onshore Asset protection section) to the more sophisticated use of Offshore Companies and Trusts which well discuss in the Offshore asset protection section. Which structure you use will really depend on your individual circumstances and what degree of protection you require.

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The most common structure used in asset protection is the Trust.


Here is a definition of what a trust is: Trusts are often used in connection with running a small business. A trust is not a separate legal entity in the same way that a company is. In simple terms it is a business structure where a trustee (usually a company) carries out the business on behalf of the members of the trust. A trust is set up through a trust deed. Types of trust There is a range of trusts: discretionary trusts - where the trustee has a discretion when distributing funds to the beneficiaries. The most common example is the family trust; unit trust - were unit holders have a number of units in the trust. Distribution from the trust is on the basis of the number of units held. hybrid trust - this is a combination between a unit trust and a discretionary trust. Terminology Appointor - this is the person who has power under the trust deed to remove the trustee and appoint another trustee. Beneficiaries - these are the people (can include a company) who are entitled to distributions from the trust. Settlor - this is a person (who is unrelated to the beneficiary or trustee) who provides an amount of money (eg $10) to establish the trust. Trustee - this is usually a company (it can be a person), which owns the assets of the trust, not in its own right, but as trustee of the trust. The trustee is responsible for the financial "health" of the trust and makes decisions about distributing income, borrowing money etc.

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The pros and cons Advantages of a trust include: there may be taxation advantages - although this depends on current tax laws; allows for income streaming; limited liability etc. The disadvantages of a trust include: possible implication for capital gains tax; distribution of tax losses; establishment and administration costs etc.

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Common Traps, Pitfalls and Mistakes Made in Structuring Asset Protection


Whilst considering the options available, you should remember that before implementing any asset protection strategies that there may be pitfalls and risks that need to be thoroughly examined prior to proceeding with a particular course of action. These could include: transfers of assets may be void if transferred for: less than commercial or fair consideration; for the purpose of defeating creditors; at a time when the business or individual was insolvent; or within a specified timeframe of insolvency occurring. assets that accumulate in separate legal entities may not be protected, if they accumulate purely as a result of physical or mental exertion of an individual; an individual may be liable for corporate debts in certain circumstances; costs such as stamp duty and tax may be encountered when transferring assets, and taxation exemptions and deductions may be lost (e.g. principal place of residence exemption) as a consequence of restructuring ownership of assets; and superannuation limits may be exceeded, therefore limiting the amount of protected superannuation.

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The above is not an exhaustive list and other issues may also need to be considered when formulating an appropriate asset protection strategy. Addressing the pitfalls and risks that may impact on your strategy from the outset will ensure that if the need arises, you are more likely to succeed in protecting your assets. Numerous questions are to be considered when addressing the most appropriate strategy to adopt, and to mitigate the potential pitfalls and the risks of asset protection strategies. The best time to consider and review your asset protection strategy is now. There may not be a need to change the strategy, but you should view it as a health check for your future financial security.

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Case Studies to Prove The Value Of Asset Protection


Case Study 1 - Employee problems A group of business partners got together for an informal lunch to discuss their work. One of the secretarial staff in the office is asked to go to a local restaurant to pick up an order for these partners. Unknown to the partners, this employee has a poor driving record, based on several accidents and many speeding fines. The secretary leaves the building, climbs into their car, and proceeds to pick up lunch. From time to time during her errand, she drives at excessive speeds. The employee pays more attention to the radio than to an upcoming stop sign. The stop sign is missed, the car is smashed, and a life is lost. A subsequent lawsuit, one would think, would simply blame the employee for her negligence, but unfortunately this is not the case. All of the partners are sued, as a result of their negligence, in not determining that this driver was, in fact unsafe. More importantly, this driver was on company business, and the heirs of the woman who died now seek retribution from the remaining partners. Their homes, their investments, their boats, their holiday homes, even their business are up for grabs. In the court case, several hundred thousand dollars are spent in an attempt to defend this claim. Unfortunately, this case is not settled because the main suing party, one of the remaining family, continues to expect more money to be found, more wealth to be uncovered. In many cases one of the prime financial elements that is being sought is insurance. In days gone by, insurance was a protector of the family and the business. These days it often acts as a target and will attempt, if it can to pass blame back to the insured and absolve itself from the claim. In this case, it amounted to a settlement by the insurance company but the business partners spent small fortunes in legal fees defending themselves (the insurance company refused to pay the legal fees) and they lost much sleep for many months. Is it worth it? Case Study 2 - A Nasty Scenario That Will Frighten Many Property Investors A property investor working for himself acquiring properties, renovating them, and selling some and keeping others to add to his portfolio, finds himself the subject of a lawsuit.

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The lawsuit is brought by a group of squatters. These are people who have entered vacant property, have set up households, and are living rent free in houses with no electricity, no water and none of the comforts most of us would expect in a home. The people who move in have small children. These small children eat some the paint coming off the walls in this property. Unfortunately, the old paint contains lead and is very toxic and the children become very ill. Now, keep in mind these people have no right to be in this property, they are squatting. This squatting family now brings a lawsuit against the property owner, and he must defend himself in court against this squatter suit. He eventually settles out of court to avoid the whole legal battle thing. He must pay for his legal costs, and the squatters are able to obtain free legal aid. How unfair can it be for someone to enter your property without your knowledge and without your permission, and through their own negligence, their children become sick, and then they turn around and attempt to sue you? To what degree can the system be so unfair? These are simply examples of what you could call extraordinary problems for ordinary people. The days are gone when only the rich and powerful were the subjects of lawsuits. The days are gone when right or wrong truly become the litmus test by which a lawsuit was either filed or dismissed. It is imperative that families and businesses today understand that they are at risk and that problems can arise. Asset protection is one solution doing nothing in life and hiding under your bed is the other. Case Study 3 - Inadequate insurance A doctor works all his life to provide competent and effective care for his patients. Surgery leaves the patient crippled. No surgeon is 100% successful, but the jury in the malpractice suit awards the plaintiff $20,000,000, an amount greater than the policy limits for this procedure. The doctor must make up the shortfall of $5,000,000 out of his own pocket. He is wiped out.

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How to Inexpensively Set Up Onshore Asset Protection Thats Right For You
For those people, not really wanting or requiring the added benefit of being able to go Offshore, there are Onshore ways and means to protect your assets. Methods to Protect Yourself #1 Simple Plan This simple method is for the average person who wants basic protection. You have a home and a few investments to protect You are in a risk category but your partner isnt Transfer the house and investments to her or him to reduce your exposure. There will be stamp duty to pay but this will only be on half the value of the transfers assuming that they are also in your name initially. Have your solicitor or lawyer put together a post nuptial agreement stating that, on dissolution of the marriage, these assets are to be included equally in any property settlement. Generally they will be anyway, but this cant hurt and it gives you extra piece of mind. Methods to Protect Yourself #2 Company Plan This protection method should be employed by people, whom have their own company, (usually a family business), to ensure protection for the directors assets. It was believed that a company structure provided protection for the business directors, but this is no longer true, in many cases. The attackers will simply by-pass the company structure knowing full well there are very few assets to go after, and go after the assets of the director or directors. The assets of the shareholders are unclaimable, only the directors assets can be claimed. Decide which of you should bear the brunt of any claims. This person will remain (or become) the director. These days you only need one director. The other partner should resign as director immediately, if they already hold this position. Shares of the company should then be consolidated and held by the NON-Director person. The shareholder should hold no official capacity other than as a part-time worker. Ensure the shareholder cant sign cheques etc. This will strengthen your argument that this person has no authority over the business on a day-to-day basis.

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The non-director / shareholder should also be the person that holds the familys personal assets etc. In this way the assets are held with the non-responsible person The director or responsible person holds all the authority but none of the assets.

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Remember this structure must be setup at least two years before you have any problems, to ensure that its not possible for courts to clawback or reverse what you have done to protect yourself. Methods to Protect yourself #3 Home Equity Plan If you are concerned about your home getting claimed in some future litigation, there is a simple way to ensure theres not much to run off with and at the same time picking up some money to invest. Go along to your bank or financial institution and apply for a Home Equity Loan. Borrow as much as you can, within your comfort level of course. This will mean that, just say, your home is worth $400,000 and you have an existing mortgage of $100,000, that leaves you with equity of $300,000. This is the amount a litigant can take off you if successful. Now, if you borrow a further $250,000 (subject to your ability to make repayments), your equity will reduce to $50,000. This is all that is at risk. However, you now have $250,000 to do something with. You place this either onshore or into our offshore structure that I will discuss in the next section, and it will be isolated from any litigant that is after you. Simple!! Placing it offshore is a better idea simply because demonstrated returns are better. There are benefits!! 1) The amount you borrow could be tax deductible if used for investment purposes 2) Your returns could easily be higher than your mortgage interest rate and you could be in front overall. 3) Your home is protected from litigation (to a great extent). However, things to keep in mind.. There are risks with any investment, so you must understand sometimes investments go down. Would you be able to cope with it? Interest rates on your home loan may go up, can you cope with this? If you find the whole thing unsettling or its not for you, you can always return all or part of the funds to you and pay off

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the loan. This would be the strategy to employ if rates start moving up quickly, however, this leaves you exposed again. Remember this structure must be setup at least two years before you have any problems to ensure that its not possible for courts to clawback or reverse what you have done to protect yourself.

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Succession Issues:
When considering any asset protection, there should also be a plan for succession. Your death could quite literally cause chaos for those left behind if no plan is made. This is a simple matter, by giving your solicitor a letter of wishes and a will stating that upon your death that he or she be appointed trustee of any trust you have established until such time as a new one be appointed (probably, a beneficiary or relative). Your solicitor should be consulted on all the issues discussed in this module of the program, as everyones situation is very different and requires due consideration.

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How to Inexpensively Set Up Offshore Asset Protection Thats Right For You
Introduction Anyone with a reasonably substantial net worth could benefit from offshore asset protection, and this financial management strategy will be of particular interest to those working in professions where there is a high risk of litigation, for example doctors, lawyers, business owners, and financial planners, to name but a few. As discussed earlier, there are increasing numbers of lawsuits being brought, in which the defendant is being targeted not necessarily because of his culpability in the case, but because of his ability to pay. Individuals in the above high risk groups with savings or significant assets, could well fall in this 'deep pocket' category, and risk losing everything if there are not proper protection measures in place. Although professionals of many kinds are obliged to have liability insurance or professional indemnity insurance, this is becoming more and more expensive due to the increase in litigation (and of course the collapse of insurance companies like HIH). It is also becoming more expensive because of the rising level of damage awards. In many cases, whats worse, is that your insurance may not even cover the full size of an award. Therefore, it is increasingly important to consider putting in place, some additional asset protection measures. Asset protection strategies basically work by making the assets of an individual unavailable, or exceptionally difficult to recover, (and hence potentially more unattractive) in the event of legal proceedings being taken against them by employees, clients, patients, litigious family members or other creditors. Protection of assets can take a number of forms, and while there are many domestic alternatives, including family trusts, limited liability partnerships and companies, and family partnerships offshore vehicles, trusts and companies are usually more effective for this purpose, simply because not only are the structures straight forward, but your asset ownership lies outside your resident jurisdiction and therefore, out of sight and out of mind. Clawback attempts and litigation is made just that little bit more complicated and difficult. This is another great deterrent in the first place.
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The trust is the lynch-pin of offshore asset protection; although offshore bank accounts on their own can provide enhanced privacy and confidentiality, they are usually an integral part of an asset protection strategy. Banking secrecy laws in offshore jurisdictions are usually significantly stricter than domestic laws, and unless criminal activity or money laundering is suspected, you can expect that your details will not be made available to a third party. Banking secrecy legislation does however, vary from country to country, so you will obviously have to check the situation in your preferred jurisdiction before taking action. Offshore trusts and companies can be used separately or together (better together though) for asset protection purposes (usually in conjunction with an offshore bank account). In a trust arrangement, the settlor (the person who transfers assets to the trust) legally gives over control of his assets to a trustee (or trustees), who manages and controls them for the benefit of a beneficiary or beneficiaries (of which the settlor can be one). Although the settlor will usually provide a letter of wishes, detailing how he would like the money to be managed, and distributed, the trustees have legal control over the assets. Although trusts could once be used in order to break the link between an individual and his assets, this is less the case in recent times, as high tax countries have had time to develop legislation forcing at least some degree of transparency into trust arrangements. If a person sets up an offshore company (usually an International Business Company or IBC) to hold his assets, he will normally be a shareholder in that company and vulnerable to Court action. However, in many offshore jurisdictions, the agent establishing an IBC (or indeed a trust) on behalf of an individual, is not obliged to name the eventual beneficiary, and for this reason, an offshore company can still go a long way towards providing privacy and asset protection - after all, your creditors first have to find your company before they can sue it. The flaw in this line of reasoning, in many cases, is that you are obliged to disclose the existence of such assets to your local tax man, and once it's on your tax return, the whole world knows about it. There is also plenty of pressure on offshore jurisdictions to change their rules by installing 'know-your-customer' and mandatory registration rules. So the trust survives, and even prospers as the instrument of choice for asset protection. However, in Australia, the trust has to be declared even if just formed. Unfortunately, false information on your tax return can

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lead to serious problems. So, you must work with the requirements of disclosure making sure you dont qualify as someone who must disclose these requirements. An example of this is using the under $50,000 rule where you dont have disclose your interest if the amount offshore is less than $50,000. Also issues of ownership and control can be looked at. In order to ensure effective offshore asset protection, you need to establish the structure in a jurisdiction with effective IBC privacy legislation, strong banking secrecy laws, and modern trust legislation. Asset protection, however, is not something that should be attempted when legal proceedings are imminent, or already underway, as any attempt to transfer assets under these circumstances would be considered a fraudulent transfer. This is illegal, and would provide no protection against creditors whatsoever. However, a well-structured asset protection strategy, set in place ahead of time could prove a very valuable strategy. The beauty of this structure is that: It can be easily set up onshore for asset protection purposes When established offshore, it gives you the same asset protection and even possibly better, because the assets are located offshore. It will also allow you to invest offshore, whereas an onshore setup will still have the downside, of not allowing you to participate in some investments, due to you residing in Australia. What you will need: You will need a company to be established as well as a trust. This applies to both the Offshore and Onshore versions of this Asset Protection Plan. Firstly, a trust is a legal entity that can invest in shares, property, funds - virtually anything. It is controlled by a trustee. The trustee makes all the decisions on behalf of the trust, such as what it invests in and whom it provides distributions for i.e. Beneficiaries. The trust will hold all the assets in our structure. For example, if you invest in offshore funds and shares, it will own them. It will own them on behalf of the beneficiaries, who receive income or profits received by the trust. These people are like the companys shareholders, but unlike shareholders, beneficiaries have no say in the running of the trust. Shareholders in a company can remove the directors if they wish. The company is also a legal entity. It has a director and shareholder or shareholders. In our structure, it will act as the trustee.

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Finally, you will act as the companys director and shareholder. The structure will look like this:

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The Director and Shareholder of the Trustee Company


This will be you in the structure You get to control everything but you own nothing. In the event that they come after you. they can get nothing!

The Company
The Trustee The company manages the trustee and controls everything. As the director of company you have control over the trust ultimately. However, you and the company owns no assets, just controls them

The Trust
The Trust owns everything The trust owns all the assets i.e. investments etc and holds them on behalf of the beneficiaries. All the money it makes it distributes to the beneficiaries

The Beneficiaries
These people get all the benefits of the trust they could include you, your children, relatives your spouse

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Bringing The Together

Ultimate

Asset

Protection

Plan

I should point out a few rules here to the asset protection scheme: This structure should be used only to protect assets. Do not use it for business or run any personal business through it. You can use a separate trust called a service trust, which can use the same trustee company. The reason for this is simple. The only chink in the armour is if someone sues the trust itself. This can only happen in certain circumstances and they are: 1) if the trust is trading or operating as a business. So keep all your business operations in a separate entity, not related to this one. 2) if the trust owns a property that is rented and issues related to the property give rise to a dispute. This brings us to second rule. If you are using this trust setup for properties, its best to isolate each property in its own trust. That way the only thing at risk is the one property. If you have multiple properties in a trust, and one property goes wrong, then all the rest in the trust are at risk. While this may seem inconvenient, and a little more expensive, its worth it. You still, however, only need the one trustee company looking after all the different trusts. Also, before you put the family home in a structure, remember there are capital gains tax considerations, as well as stamp duty. So, it may be advisable to leave property, particularly your home out of these structures and employ: Methods to Protect yourself #3 Home Equity Plan shown a couple of pages ago

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Advantages and Disadvantages of Each Type Of Asset Protection


Onshore Protection Strategies
The Simple Plan Advantages This plan is very easy to put in place and can be done quickly by transferring the assets to a person out of harms way. Most solicitors think this is an effective way to protect the family home and assets and is very effective as long as the ownership person, remains distanced from any activities that may attract litigation Disadvantages The stamp duty can be very costly if the assets are already owned. Capital Gains Tax may be payable on the transfer of investments other than personal assets, business assets and the family home. Solicitors fees will be incurred (but usually no more than a simple property conveyance). It can make the person transferring the assets uncomfortable about giving up ownership. This should be thoroughly discussed with your solicitor to ensure rights are maintained. A power of attorney can be helpful, or even some sort of postnuptial agreement. Otherwise, trust in your partner is required.

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The Company Plan


Advantages Very inexpensive to transfer ownership of the shares of a family company. Transferring directorships also inexpensive. Effective asset protection where the potential target is going to the business or the company. This attack will come against the business assets and in turn the director. Disadvantages Only protects the personal assets of the non-director and shareholders. The assets of the business not protected at all.

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Advantages In taking a loan against your assets (probably property) it frees up cash to invest elsewhere, hopefully via an asset protected structure. Effective in reducing exposed assets by reduction in the net value. No stamp duty or Capital Gains Tax considerations in transferring the house. For those on a budget, this is the best way to remove your home as a target. Disadvantages Not as effective as the Simple Plan as it still leaves a degree of equity exposed (but far cheaper). Fees will be charged by the bank and of course repayments and interest will be incurred. (This should be offset by investment income and gains in your asset protected investment structure.) The investments you use the equity for, could fall in value creating a net asset value decrease overall. Interest rates on your loan could go up. Offshore Protection Strategies Advantages By far the most effective way to protect assets by removing the right out of reach and out of sight. A long term solution and an effective way of structuring your familys estate planning, allowing future generations to use the plan. Allows offshore investment opportunities not available without a structure like this. This is a real plus and one of the main reasons for considering a structure like this. Provides financial privacy. Disadvantages Cost. It can cost up to $6,000 for a structure like this and will incur around a $1,000 per annum to maintain it. There are also, as with many of the other plans, stamp duty and Capital Gains Tax considerations.

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Frequently Asked Questions and Answers


WHO SHOULD CONSIDER ASSET PROTECTION PLANNING?
Any high income, high net worth individual whose business, investment, or other activities expose him or her to potential litigation. Clearly, doctors, lawyers, accountants, real estate developers, corporate directors, executives, and people in similar occupations are exposed. A net worth of approximately $500,000 is a guideline point, where the benefits of sophisticated asset protection planning begin to outweigh the costs. However, many levels of asset protection planning are available, and some strategies are available to almost everyone, by using the some of the steps that have been outlined earlier.

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ARE MY ATTACK?

ASSETS

SUSCEPTIBLE

TO

CREDITOR

Possibly. Depending on your profession and many other factors, you may be vulnerable. No one is judgment proof, or immune from lawsuits and creditor attack, but professionals, especially doctors, accountants, financial consultants, owners of closely held businesses, corporate executives and others with highly visible careers, are most susceptible to creditor lawsuits, including frivolous litigation.

WHAT DOES ASSET PROTECTION MEAN?


Asset protection is the adoption of advance planning techniques, which place one's assets beyond the reach of future potential creditors. In practice, it does not involve hiding assets, nor is it based upon secret agreements or fraudulent transfers. It is based upon proven sophisticated combinations of business and financial planning techniques. The methods employed vary from simply changing the ownership of assets to the sophisticated use of offshore trusts and companies.

I CARRY SIGNIFICANT LIABILITY INSURANCE COVERAGE - WHY SHOULD I BE INTERESTED IN ASSET PROTECTION?
If you review your insurance policy, you'll find that it does not cover you for punitive damages or intentional wrongdoing. In addition, with the ongoing crisis in the insurance industry, the financial stability of liability insurance companies is never certain, and the

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scope of coverage seems to be decreasing all the time. Finally, a claim can always be made which will exceed your coverage. Prudent planning might indicate a combination of asset protection strategies and liability insurance.

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HOW MUCH WILL IT ALL COST?


The costs will obviously vary depending on your needs. Simply rearranging directorships and share ownership in your company will cost very little and can be done yourself. However, transferring properties will attract some legal fees but mostly the costs will come in the form of Stamp Duty. These costs could be prohibitive and must be evaluated whilst considering your needs when it comes to asset protection. Forming a trust, whether that be domestic or offshore will run into much more money, but for some high net worth individuals with high levels of exposure, it may be well worth it. Costs, in this case, could run from $2,000 to as much as $6,000 for the offshore setup described in this section. Plus, of course stamp duty liability and the possibility of Capital Gains Tax on the transfer of certain assets.

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Contacts to Help You Set Up Your Asset Protection


Contact - Onshore: Your accountant or solicitor. They should be able to do it for you. The cost will vary of course but expect $1,500 - $5,000 depending on how much work they will need to do for your particular circumstances. effective tool in protecting both wealth and privacy. If you would like someone to help you establish an offshore asset protection scheme, these people are recommended. They know what they are doing and have an excellent record of honesty and integrity and they have been around for a long time. Contact - Offshore: Eilish Murphy ICSL Iberia Limited Av. Defensores de Chaves No 15. 6E 1000 109 Lisboa Portugal + 351 21 314 2030 Phone + 351 21 314 2031 Fax E-mail: eilish.murphy@icsl.pt

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One Question for You To Answer Daily


1. Do you have any assets? Next question, Do you care if you lose everything you own? If you answered YES to both questions, Do you think there is some value in Asset Protection? 2. Do you think Asset Protection should be a priority in securing wealth? 3. Describe the Asset Protection you already have in place. Do you feel it is adequate? 4. If your assets were attacked, how confident would you be that your assets would be safe? 5. Can you define your risks? Do you have concerns already or do you have some idea where the attack could come from? Describe your concerns. 6. After implementing the appropriate plan, how safe will you feel? Will it give you peace of mind? 7. Does peace of mind assist you in your goals?

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Action Steps To Put Theory Into Practice


1. Assess your risk. First calculate your net assets Identify the assets at risk Identify where an attack on your assets will come from 2. Plan Your Strategy Of the Plans discussed, assess (with the help of a solicitor) which plan would provide you with the protection you need. 3. Calculate the Costs Having determined the best plan for your needs, how much will it cost? For instance: Legal Fees ? Stamp Duty ? Capital Gains Tax ? In relation to capital gains tax and stamp duty on your home, this can be alleviated by using the Home Equity Plan and then applying a mixture of the other plans (or possibly all of them) to reduce exposure, at the same time keeping costs to a minimum. 4. Assess the Viability Now that you understand the full cost, is it still a consideration? Or do you believe that the costs are prohibitive? Is there a cheaper solution, one that while not providing you with absolute protection, is better than nothing? Ask yourself how much do you have to lose? 5. Establish your Plan Contact your solicitor to discuss the plans shown here and put things into place. If you are interested in the Offshore solution and understand the benefits, contact our agent in Portugal. They will be able to guide you through the process. Additional Note for The Offshore Plan: To start off with, you first must establish a company and secondly, a trust. The company can be a simple $2 company and it will act as the Trustee for the trust that will be established under it. The trust will own all the assets, and as there is technically no owner of the trust, just the Trustee (the company) and the beneficiaries, no one is subject to having themselves sued for the assets of the trust, therefore making the assets secure. One of the misconceptions of this type of arrangement is that the Trustee sort of owns the trust it doesnt.

Questions & Insights

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So, this is how it works. You become the director and shareholder of the company. This means you control the company and own the company as the shareholder. As the company is the trustee for the trust, you control the trust, but not own the trust. As I said before, no one owns the trust or its assets other than the trust itself. As all the assets are in the name of the trust, it owns everything, and the only people who can benefit from these assets are the Beneficiaries, not the trustee. As the trustee, the company (you) will nominate who the beneficiaries are. However, they have no say in the running of the trust, only the trustee does. You see how it works? You end up controlling the whole thing but have no ownership of anything and without ownership, nobody will sue you for what you havent got. Make sense? This is just a simple way to protect your assets. There are several ways to improve this situation, such as having multiple trusts to further isolate litigants from making a claim on the assets of the trust. However, this can only happen if someone has a claim on the assets of the trust, which would be rare, as the assets would be insured for third party claims. Rest assured, if your assets are in a trust like this, civil action against you personally, cant penetrate the trust and make a claim against the assets of the trust. This structure can also be expanded, by simply adding more trusts under the control of the trustee. For example, you can add further trusts for extra investments, add a trust for business, which would hold business assets and another one that could actually run the business. Doing things this way is essential, because you need to isolate assets so there can be no linkage of assets, if one trust for whatever reason gets into trouble. However, you only need one trustee company to control any number of trusts.

Questions & Insights

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The Asset Protection Guide Special Reports Section


Special Report 1 - The Living Trust
Avoiding Financial Disaster with a Living Trust Using a little foresight, let's say, you've written a will to distribute your assets to your children after your death and now you're feeling pretty secure that you've safeguarded your children's inheritance. But this may be a false peace or mind. You may be leaving for your children months, even years, of agony in court, whopping legal fees, hassles with court officials and emotional anxiety of waiting for their inheritances. Surprisingly, there's a simple solution to this problem and a growing number of people are taking advantage of it. The Revocable Living Trust -A Real Experience Like many people, Debby learned the value of a revocable living trust firsthand, but paid a heavy price for it. When her father died four years ago, he left his business, family residence, a holiday home and other assets to her. Fortunately, he had left a will and at first it seemed everything would go smoothly. But the problems started cropping up almost immediately. Although Debby, an accountant by profession, was named the executor and sole beneficiary of the estate, she had to hire a solicitor to probate the will. She was fairly familiar with her father's financial affairs but, when it came to probate, there was very little she could do to expedite the process. It seemed like the court and solicitors were getting involved in every decision. Finally, the probate was over more than two years later but took a heavy financial and emotional toll on Debby. The once-thriving business was pretty much ruined. After this experience, it did not take much to persuade Debby and her husband to set up a revocable living trust. All of their assets were transferred to the trust, with both of them acting as trustees. Because the trust is revocable, they can change its terms, or even cancel it at any time. When one of them dies, the surviving spouse will continue to act as trustee and control and manage their assets. In the event of incapacity or incompetence, the living trust will allow them to avoid lengthy and costly court proceedings. As Debby put it, "I want everything to be as easy as possible for my kids if something happened to me. I wouldn't want them to go through what I did with my father's estate." The Flexibility of a Living Trust The beauty of a revocable living trust is its flexibility. In setting up the trust, you transfer legal ownership of the assets to the trust, but you name yourself

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as trustee of the trust. Thus, although you've relinquished the nominal ownership of the assets, however you continue to be the beneficial owner; you can manage, sell, mortgage or give away your assets as you please and the trust won't interfere. If at some point in time you wish to change terms of the trust, including designation of beneficiaries, or even revoke it in entirety, you can do so quite easily. There are Few Disadvantages with a Living Trust According to most estate planners, revocable living trusts have few disadvantages. Most trusts are relatively simple to prepare, but you would need to formally transfer the title of various assets to the trust. This requires some paperwork and you'd need to contact your banks, brokers, insurance agents, etc. The biggest downside being the stamp duty involved in property transferral that can run into thousands, but this is a once off and will ultimately be worth it. Trusts are Difficult to Contest when Compared to a Will Living trusts are extremely hard to penetrate. A living trust is set up during your lifetime and, presumably, you've been administering the trust for several years. It would be difficult to challenge your competency to set up the trust under these circumstances. Upon your death, the trust estate is distributed to the named beneficiaries almost immediately, without the intervention of a probate court. Anyone wishing to contest the trust would have to sue each and every beneficiary, after they've received the assets, ruling out the possibility of blackmail. Remember, the trust is an entirely private affair and no one, other that the beneficiaries, needs to know the contents of the instrument. This precludes disgruntled heirs from using the threat of a court battle to tie up the estate in years of litigation. Placing Assets in Joint Tenancy is Not a Solution Most married couples (and often, a parent and a child) hold title to a property in joint tenancy with the right of survivorship. Upon the death of one joint tenant, the surviving joint tenant inherits the assets. So far so good. But when the second spouse dies, unless he or she has placed the property in joint tenancy with someone else, that property will be subjected to the vagaries of a will. A living trust is one sure way to avoid that problem. Most estate planners advise against joint tenancy for a variety of reasons. For some persons, in certain situations, joint tenancy may be a wise decision. However, in a vast majority of cases, joint tenancy spells major disadvantages. For instance, say you own your home and care in joint tenancy with your son. If the son gets into an accident, and the injured person files a lawsuit, you'd

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be named a defendant along with your son. rendered, your personal assets are at risk.

If an adverse judgment is

Or take this scenario. You and your wife own all assets in joint tenancy with a view to avoid probate when one of you dies. But your wife has to be put into a nursing home due to Alzheimer's disease. Now you would need to go to court before being able to do anything with the jointly-owned assets. In this case, joint tenancy actually turned out to be a curse. The Essence of a Living Trust is its Simplicity, Control and Flexibility Living Trust is set up by you while you're alive. You name yourself as "trustee" and you maintain full control over your assets just as before. You can do whatever you wish to do with them -- manage them, sell them, or give them away. The trust does not become effective till you die or become incapacitated. The person you would designate as beneficiary of the trust (your husband or wife or children) is called "successor trustee." Upon your death, the successor trustee takes over the estate immediately without going through probate and terminates the trust. It's that simple. You can also abolish the trust or alter its terms or change the beneficiaries at any time you wish. It provides you with the maximum amount of flexibility. This type of structure should really be considered as part or your asset protection strategies as well as ensuring the security of your family when you are gone.

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Special Report 2 - Hiding & Safeguarding Your Assets


Making things disappear from view has been a sport of rich people for years. They make these things disappear for many reasons, malevolent ex-spouses, greedy governments and of course the most hated of all asset thieves the vicious lawyer under the employ of an ex-employee, customer, passer by, neighbour, business partner etc. Lets assume for the purposes of this exercise that your government hasnt been taken over by fascists or communists and that the government isnt taking everybodys property including that owned by foreigners. If this in fact was the case, were all in serious trouble and viva la revolution! Instead, lets focus on the more likely scenario whereby, one of the categories of people described above are after all or part of your assets and you obviously have a desire to keep them to yourself. Now, before we start if you transfer assets after some legal action has commenced you could be guilty of a crime, so dont even think about doing that. Forward planning is the key. Get in early before your assets are attacked. Before I get right into it, there is an old solicitors trick that works quite nicely if you are concerned about your asset assailant being work related. Ensure your spouse has nothing to do with the business, such as being a director etc (shareholder is ok though) and transfer all the assets into their name. In this way, if someone has a shot at you, they will find there are few if any assets to sue you for and will probably give up. In the unlikely event that your spouse and you dissolve your relationship, the family law courts will still split the assets on the same basis as they would have if the assets had have remained in your name. The courts dont really care who owns what. They are more concerned about the sum total of assets between the partners. This solution is simple, quick and easy for most people and is a cheaper alternative, costing only stamp duty and some minor legal costs. Also, get your solicitor to issue you with a power of attorney so you can still use and sell the assets if you wish to. One thing that should be made perfectly clear, assets located in your home country are easy to find for any investigator worth his salt. The best place to have assets is offshore and not in your name if possible. This could and should include shares, property and other investments. Of course there will be the need to have some assets onshore, like property or shares etc, and this should be placed in an offshore entity if at all possible. However, keep in mind, your home remains capital gains tax free as long as its in your name, or your spouses. The most amusing and best idea for safeguarding your assets I have heard in a long time is the one cooked up by the wealthy PT father of a friend of mine. He had a trust established and had all his assets placed in this trust. Assets such as shares, bonds, properties and bank accounts, all in all worth many millions of dollars. The beneficiaries were the unborn children of his son and

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the trustee was a kindly Egyptian man from the streets of Cairo. As my friends father had a long standing business relationship in Egypt he had a good understanding of how things work there. So, once the trust was established he simply found a beggar on the streets, offered him US$1,000 for his name and two signatures on two pieces of paper. The first was the trust deed agreeing to act as trustee and the second was an enduring power of attorney appointing my friends father to act in all things regarding the trust. As my friend had not yet had any children, then the beneficiary didnt exist yet, the Egyptian man had no idea what was going on and even if he did he couldnt read English and didnt know the name of the trust anyway or what it was all about. My friends father never saw the Egyptian man again and to this day remains the trustee even though the man holding the power of attorney (my friends father in actual fact) controls the trust without fear of being held to account for any matter arising from the trust, but has full rights to use the money as he feels fit. On the death of my friends father, the assets will be transferred to the beneficiary or a new Trustee will be appointed and no doubt another $1,000 will be spent on the streets of Cairo. Your assets have been seized! Its frightening just reading those words but it can happen it does every day. There are basically 3 categories of assets. Assets easily located and seized without notice Assets hidden but have been found and then seized without notice Assets that are hidden and immune from seizure Which category could your assets fall into if something happened? The first one, right? Most people are in the same boat, but it doesnt have to be this way. Lets look at each of the categories. Assets easily located and seized without notice Your home is the first thing that will go. Then shares, bonds, bank accounts, shares in private companies and cars in your name and in the name of associated entities. They use council records, tax records, the titles office, motor transport records, banks, ASIC, credit reference organisations, police records, electoral roles, Medicare records, telephone accounts etc. Wherever you and your assets are, theyll find you and them. Assets hidden but have been found and then seized without notice This is where things get a little harder for the authorities and they can make your life hell. These may be assets held in a third partys name such as a trust or company. Quite often these will often only delay the process once it can be proved that these assets are beneficially held for you. They can also find assets by checking all of your financial records including bank and credit card statements and cheques drawn. This can uncover those unlisted assets such as coins, art, travelers cheques, foreign cash and other minor assets. The democracy will cease to exist when you take away from those who are willing to work and give to those who would not. -Thomas Jefferson, US President

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Assets that are hidden and immune from seizure These are assets that are offshore in the name of a company or trust in which you dont hold shares or office. These could include bank accounts, shares, properties and the contents of safety deposit boxes in banks. In the case of a company its all pretty simple, you dont hold shares and dont hold any office such as director or secretary (see The Invisible World for more details) and as far as a trust is concerned as long as the trustee (not you) has control of the assets, they cant be seized. Other assets that cant be seized because they are out of your control include annuities, superannuation, and beneficial interests in irrevocable trusts. The bottom line is you should have at least some of your assets offshore tucked away in a secret company or trust. Contacts: Azaria Financial Services LLC 70 Walnut St, Suite 326, Wellesley MA 02181, USA Phone: 0011 1 781 239 8103 Fax: 0015 1 781 239 8095 Email: offsure@aol.com These people can help with a wide range of services including offshore banks, trusts, companies and asset protection. Offshore bank accounts also available. Privacy Services International 24 College Lane, Gibraltar Ph: 0011 346 108 04378 Fax: 0015 49 30690 88244 Email: privacyservices@yahoo.com.au Website: www.psi.gi Privacy Services do it all, offshore accounts, IBC, passports, driving permits and maildrops.

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Special Report 3 - How hidden assets are found .. By just about everyone!
I cant count the number of people who have written to me asking how to hide their assets. They fear being put upon by ex-wives, ex-husbands, litigants, greedy relatives, ex-friends, business partners, creditors.. the list goes on. Sometimes the best way to foil them is know how they will find your assets and this will give you a head start in heading them off. Checking passports (and travel agents) for evidence of visits to "high profile" destinations such as: Switzerland, Cayman Islands, The Bahamas, Isle of Man, Netherlands Antilles, and other known banking and tax havens. Travel to these types of areas will surely throw up a red flag, giving investigators a place to start looking for your assets. Examining telephone (home, business and hotel), fax and mobile phone records to identify undisclosed business connections and contacts. Reviewing credit card statements to determine who you do business with, where you travel (domestic & foreign), and what products and services you use. These records leave a paper trail a mile long. Garbage is often sifted through for information such as statements, invoices, correspondence, and other relevant material useful in tracking your affairs. Use a high quality paper shredder, discard your garbage at another location, or burn and crush it. It sounds drastic, but what you throw away says a lot about you, and many leads can be found there. Compiling a list of parties that you have a relationship with (business or otherwise) by recording the return addresses on your incoming mail. This technique can disclose friends, associates and partners. If you must receive important mail at your residence or business address, be sure to ask your correspondents to stop using a return address. And use a maildrop. Looking into banking transactions. All withdrawals and deposits of AUD$10,000 cash or more must be reported by your bank to the federal government, whether made by cash, cheque or electronic transfer. Keep your transactions under AUD$10,000. Checking private courier's logs (UPS, DHL, Federal Express, etc.) for delivery of special or important letters and packages.

The solution is to destroy or hide these records or better still, keep as much off these records as you possibly can. For example, use cash for purchases, use phone cards for telephone calls, use a maildrop for mail, destroy unwanted records and possibly get a second passport.

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Special Report 4 - Asset Protection with A Swiss Annuity


A little bit of thinking outside the square
One of the unhappy facts of financial life in a lawsuit- happy society such as the United States is the increasing danger of being sued. And if you should have the misfortune to wind up on the receiving end of some courtroom debacle, it could easily cost you your life savings. One of the best ways to protect yourself against such a calamity is to invest in a vehicle that will be beyond the reach of the courts. One such vehicle is a Swiss annuity. Swiss annuities can even be used to shield assets from a bankruptcy proceeding. That is because the rights of an insured person subscribing to a Swiss annuity policy are deemed to be located at the domicile of the Swiss insurance company, that is, Switzerland. Even if a court specifically orders the seizure of assets in a Swiss annuity, or orders that they be included in, say, a bankruptcy settlement, such an annuity will be protected under Swiss law. The only way a creditor can seize such an annuity is if the purchase of the policy, or the designation of the beneficiaries, is found to be a fraudulent conveyance under Swiss law. Fraudulent conveyance takes place only: (1) if the insured person bought the policy or named the beneficiaries less than six months before the bankruptcy decree was issued, or six months before some other collection action; or (2) if the insurance policy was bought or the beneficiaries chosen with the clear intent of damaging creditors. Of course, such intent cannot be proven if the policy was purchased and the beneficiaries named at a time when the insured person was solvent or when no creditors claims were outstanding. Nor can it be proven if your policy is not written for an excessively large sum, relative to the insurance needs of your family. Another item that can make an important difference in the amount of asset protection a Swiss policy provides is the designation of beneficiaries. Beneficiaries may be named on a revocable or irrevocable basis. As long as your beneficiary is your spouse, it doesn't matter whether he or she is named on a revocable or irrevocable basis. In either case, your asset protection remains intact. However, if your beneficiary is a third party (that is, neither a spouse nor a descendent), the designation must be made on a irrevocable basis. If not, the policy can be seized by a creditor. Note that an annuity or life insurance policy can involve up to four parties, each of which can be in a different country or jurisdiction. The four parties are:

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1. the insured individual. If he is not the policy owner, he does not have any rights. When he dies, the contract matures and benefits are paid to the beneficiaries. 2. the policy owner or policyholder. He chooses the policy options and designates the beneficiaries who are paid upon the death of the insured person. The policyholder may be an individual, a corporation, or a trust. 3. the beneficiaries. These may be individuals, corporations, or trusts. However, if asset protection under Swiss law is your concern, your beneficiaries should only be individuals, preferably your spouse and/or children. 4. the premium payer. This may safely be an individual, corporation, or a trust. Note that a properly written Swiss annuity policy affords better protection than Swiss bank accounts, or Swiss securities accounts. Swiss life insurance policies also make great estate planning vehicles, regardless of the risk of bankruptcy or asset seizure. If you would like more information, there is one Swiss insurance broker dealing with Overseas clients. Try contacting: JML Jurg M. Lattmann AG Swiss Investment Counsellors Germaniastrasse 55, CH-8033 Zurich, Switzerland telephone: +41 41 368 8233 fax: +41 41 368 8299 This adviser is highly regarded by those involved with Swiss Annuities.

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Special Report 5 - Special Asset Protection Report by Eesh Aggarwal


This report has been reproduced from The Q Newsletter produced by Quester Press www.questerpress.com.au (A Division of Trident Press Pty Limited) You need to protect your assets. You can lose your money in an endless variety of ways (everyone wants your money!): 1. Third party legal claims for damages 2. Creditors claims 3. Divorce 4. Bankruptcy 5. Probate 6. The taxman 7. Blackmail! 8. Unforeseen disaster You work hard all your life saving up for retirement and then one day, out of the blue, comes a third party claim against you for negligence. In disbelief, you sit down and reach for your insurance policy to see if you are covered. Oh dear, as is so usual, the insurance policy contains a clause that exempts it from liability in this particular case. You think back to all the times you came across asset protection schemes and suddenly you realise the value of such schemes. If only you could turn the clocks back a couple of years and hide your assets in such a scheme. Suddenly, the expense of such schemes seems insignificant. Are you a professional or self-employed person who is legally responsible for the quality of his own work? Are you getting divorced or separated and likely to lose most of your wealth to your partner? Do you live in a politically unstable country, where your assets may simply be seized or nationalised?

Self-employed
Ah, but my work is excellent and I can guarantee its quality. Do you have staff working for you? How can you guarantee the quality of their work? What can happen if a member of staff gives off-the-cuff advice that turns out to be incorrect? What happens, God forbid, if you make an error of judgement believe me, it happens more often than people care to admit. Claims against errors in the commercial world can reach ridiculous levels. For example, one of our clients was a self-employed engineer working for a major US motor car manufacturer. If he makes a mistake in his designs, the

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potential loss to the manufacturer could run to tens of millions of dollars. Our client sought our advice on this matter. We advised that the client could protect himself by: a. Taking out negligence insurance (or professional indemnity) unfortunately, insurance is not cheap and the premium is based on the amount insured. Not even our client could afford insurance cover for tens of millions of dollars. In addition, there is always the risk that the claim may not be covered due to a small, innocent exclusion in the policy wording. b. Trading as a limited company, rather than as a sole trader. This is a very good method of protection. However, you can always lose all the assets built up in the company. In addition, there is always the risk that courts will look through the company and make the director personally liable in certain circumstances in cases of negligence. Our client was not satisfied and wanted an absolute foolproof method of protecting the vast majority of his wealth. We then recommended he consider an asset protection trust. Eventually our client set up such a trust. He is now delighted that his assets are safe and does not worry about being penniless come retirement age. In addition, if he falls short of cash, he knows he can always access his funds.

Divorce/ separation
There is nothing more painful than a messy divorce or separation. All of a sudden, someone who was once your closest confidant becomes your worst enemy. Indeed, this enemy is lethal as this enemy knows all your secrets and weaknesses. Clients approach us for advice on protection of their assets from their partner, normally after a crisis has been triggered. We always advise that it is best to deal with financial matters amicably and to be fair to the other partner. Nine times out of ten we are told that I am being fair but my partner is a #@#*&! Im going to lose everything and I need your help. In such a situation, whom do you believe? Invariably, we cannot talk to the other partner and thus we have to rely on the facts given to us by our client, based on our clients point of view. A famous English king once said, when asked to arbitrate between two quarrelling parties, When I listen to one party, I know who is right and who is wrong. When I subsequently listen to the other party, I have no idea who is right or wrong. As advisers, we have learnt, sometimes painfully, over the years not to take sides in such disputes and simply advise on the facts we are presented with. From a purely moral point of view, we may appear amoral (as opposed to immoral) but again from a purely practical point of view, with the greatest

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respect for our clients, we are not social counsellors. Thus, we never make judgements (as we have only heard one point of view) and we simply advise objectively based on the position presented to us by our clients. One of our clients recently earned a commission of a few million dollars. He asked for asset protection advice such that the asset should not be visible to his partner. A simple solution was implemented. The money was paid to a Swiss bank account and kept there. Our client did not need the capital, merely the interest (which was a substantial sum per annum). This was routed back to our client such that it appeared as a receipt from an independent third party. Our client is very happy with this arrangement. In this case, our client controls his own funds. For foolproof protection, if the same assets were to be controlled by us as trustees under an asset protection trust, the funds would be totally safe from attack (depending on local matrimonial laws, of course). Indeed, if the commission were to be earned by the trust in the first instance rather than earned by our client, the assets would be safe in all circumstances!

Politically unstable countries


One of our clients is an expatriate Pakistani. Last year, in 1998 he transferred a large sum of money to a local bank in Pakistan as it was offering higher interest rates than in the western world. Pakistan then decided to detonate a nuclear bomb. Although our client was not injured by the radiation from the blast, he did suffer as a result of the politically nuclear fallout. The US government froze aid and loans to Pakistan and, as a result, Pakistan froze all foreign currency bank accounts. Our client was thus unable to access his funds. The last time we spoke to our client, we were advised that the Pakistani government was thinking of seizing all foreign currency accounts and giving government bonds denominated in local rupees in exchange. Of course, it is always easy to be wise after the event. However, had our client kept his money overseas, that in itself would have been a form of asset protection! In extreme cases, it is possible (though unlikely) some countries could ask for all foreign holdings to be repatriated by their nationals and then subsequently seize the assets in exchange for some government promises or even subject these to penal rates of tax. In such instances, if you have already gifted your money away to an asset protection trust, your government will not be able to gets its hands on those funds. You could even include a clause in the trust stating that if the government tried to claim against the funds that the whole nature of the trust be changed automatically such that the government could never legally make such a claim!

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Special Report 6 - What is an Asset Protection Trust (APT)?


Put simply an APT is a trust devised for the purposes of defeating creditors claims and is a trust that is not under the control of the person establishing the trust i.e. the settlor. The most common types of creditor claims are those made by separated or divorced spouses, bankruptcy creditors and commercial disputes. This type of trust was pioneered in the USA to try to defeat the claims made against professionals including doctors, surgeons, architects, etc. It is important to realise from the outset that the success of APTs really depends on local law. US law allows APTs. Your particular jurisdiction may not allow such trusts.

Who can create an APT?


Basically, anyone can provided he/she is not a minor (normally under 18 years old) or a lunatic! There are a few factors to bear in mind:

Solvency
Let us say you have $500,000 of assets and $200,000 of debts. If you gift away less than $300,000, that will be fine as you will have enough assets left to repay your creditors. However, if you try to gift away, say, $300,001, you will be technically insolvent, as you are now unable to repay your debts in full. In such a situation, the Courts can require the transaction be reversed and the money returned to the person gifting the assets away as it is presumed in law that the intention was to defraud creditors by gifting away assets. Of course, you can challenge this presumption by argument in the Courts we wish you luck! Thus, it is normal practice for the trustees to require an affidavit of solvency from the person creating the trust. Indeed, our firm normally requires this affidavit to be witnessed by a lawyer. In practice, we find most clients normally transfer 40-60% of their assets into a trust.

Potential claims
Let us suppose that you have net assets of $200,000 (as above) and you know that someone will soon sue you for negligence. You discuss this with your friends and you are advised that if you gift your assets away before any legal action commences, you can safeguard those assets from third party claims. In other words, you will defeat the negligence claim. Isnt that great?
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Unfortunately, the law is unlikely to be on your side. Most countries have legislation which will reverse transactions entered into prior to commencement of third party claims. The onus of proof is normally on the person being sued for a fixed period of time prior to being bankrupted (say three years, depending on the country concerned) to prove that he gifted the assets away when he had no idea whatsoever that he may be sued in the future. If he had any notion whatsoever that he could be sued, that will be enough for the Courts to reverse the gift. Thus, our firm will normally require a statement confirming that the settlor is unaware of any potential claims against him/her.

Step by step guide to setting up an Asset Protection Trust


(1) The person giving away the assets is called the settlor. (2) The settlor gifts the assets to an overseas irrevocable discretionary trust, which is run by persons called the trustees; i.e. the trustees physically control the assets and related bank accounts. (3) The assets are held for the benefit of the settlor i.e. in due course, the trustees will be obliged to return the assets to the settlor. Thus the settlor is also the beneficiary.

(4) The trust must be located overseas in a jurisdiction that does not automatically recognise creditor judgements of other countries. For example, a creditor judgement won in Australia will not be automatically recognised by Cypriot courts. Thus, the creditor will have to incur great expense in retrying the legal case in Cyprus. That alone will put off many creditors! (5) The trust must be irrevocable. In other words, the settlor must not retain the right to force the trustees to return the assets to him/her. This is because, in the event of bankruptcy of the settlor, the court will appoint a trustee in bankruptcy to act on behalf of the settlor. This trustee in bankruptcy can then simply force the return of assets for onward distribution to creditors. (6) The trust must be discretionary. Put simply, this means that the timing and decision of deciding when to return the assets held by the trust to the beneficiary rests solely with the trustees. In a normal trust, a beneficiary can make this decision and force the trustees to release all assets. This is dangerous because, should the settlor (who is also the beneficiary) become bankrupt, then all his affairs will be dealt with by the trustee in bankruptcy this person could then force the trustees of a normal trust to release the assets held in the trust. The release of assets cannot be forced upon the trustees of a discretionary trust. At this point, many people think say Aha, Im giving my assets away to some overseas trustees. How do I know they wont run off with my hard earned money? How can I force the trustees to release the funds when I need them?

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Good questions. Here is the good news and the bad! The bad news is that you really do have to trust someone to look after your assets. If you retain control of the funds, asset protection will not exist. The good news is that most trustees are very honourable and their professional fees are set at such a level that they have no need to run off with the settlors funds. In addition, it would be a criminal offence and thus the trustees would always be on the run from the police. Thus the key is choose trustees you trust. The best approach is personal recommendation from your friends and relatives. The last thing you should do is trust someone because you discovered him or her on a website or an advertisement! If ever in doubt, do not go ahead with the structure. If you have doubts about someone, in our view, you should not proceed with implementation. Let us now assume that you have found trustees you trust! Even at this stage, some people will still have an element of doubt about the safety of their assets. Is there anything they can do at this stage to further safeguard their assets? The good news is yes, they can! Another person can be appointed to look after the trust assets, in addition to the trustees. Thus, you now have added protection for your assets. For example, you may require all cheques to be countersigned by this other person, who is acting to protect your assets. This person is referred to as a protector. Thus, a protector is a person, who basically has a veto over some powers of the trustees or whose consent or permission is otherwise required by the trustees. Note that the protector is not a trustee i.e. his powers are limited such that he may block certain transactions decided upon by the trustees but he cannot initiate transactions. For example, the trustees may wish to sell a particular freehold property. The protector may stop this sale if he feels it is not in the best interests of the trust. On the other hand, if the protector feels he has discovered a good investment property, he cannot force the trustees to accept his suggestion. As the protector is not a trustee, common-sense would indicate that he is not accountable to the beneficiaries (the trustees are accountable). However, it has held in Court cases that if the protector is paid, the trustees can take him to Court if he withholds consent for certain transactions unreasonably. In addition, if the duties of the protector are detailed in the trust document, then the beneficiaries can sue him for breach of duty if he fails to carry out his duties in accordance with the trust deed. Thus, if someone acts as a protector, he/she is taking on certain responsibilities.

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The normal powers of a protector include, inter-alia, the following: 1. Veto over payment of capital to beneficiary 2. Addition of new beneficiaries 3. Agree trustee fees 4. Right to obtain trust accounts and/or arrange an audit 5. Conduct periodic reviews of the administration of the trust by the trustees 6. Remove and appoint new trustees 7. Initiate the migration of a trust to another country, or decide whether certain events have occurred that will result in the automatic migration of the trust overseas (discussed later) 8. Right to be consulted or have veto powers over sales of particular shareholdings or other trust property. The best protector really would be a very close personal friend or family member, or a professional from an independent firm to the trustees. Professionals, of course, cost a lot more than friends and relatives but this has to be weighed against the emotional problems that may be encountered when dealing with people you know socially. The choice is entirely that of the client. In practice, we find most people do not bother with protectors as they trust their advisers absolutely. We would, however, state that in our view the most practical method would be to: 1. not use a protector if the trust funds are small in value the definition of small depends on the client 2. Use a protector where the funds are substantial, as the cost of having a protector will probably equate to that of an insurance policy! Aggressive APT practitioners often suggest that the settlor can also act as a protector. That may be very well in theory as the protector cannot initiate any action but in practice it is dangerous as, in the event of the client being made bankrupt, the trustee in bankruptcy would become the protector. The main danger here is that a normal power of the protector is that he has the right to appoint new trustees. In this situation, your creditors would push for the appointment of more sympathetic trustees who would be willing to release the funds to the beneficiary. Heres a list of some good providers of Trust advice. Obviously, there are hundreds more, but we have knowledge of each of these people, and know that they all provide excellent services. Graeme Aarons: Suite 219, Collier House, 163-169 Brompton Road, London, SW3 1PY. Tel: + 44 171 581 2524 (UK 0171 581 2524). Or contact his Swiss office in Neuchatel: Tel + 41 32 722 1841.

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Fax: + 41 32 722 1842. (Specialist in Australian & UK Trust Law.) Howard Stamer, Pearce Trust: 12 Grosvenor Place, London, SW1X 7HH, England, UK. Tel: +44 171 259 5992 (0171 259 5992) Fax: +44 171 259 5985 (UK 0171 259 5985) Email: info@pearce-trust.ie Kurt Johnson, Universal Trust Services: 125 E. Sunnyoaks Avenue, #103, Campbell, CA 95008, USA. Tel + 1 408 374 1462. Fax + 1 408 374 1534. Michael Chatzky, JD, LLM, Chatzky & Associates: 888 Prospect Street, # 320, La Jolla, CA 920037, USA. Tel: + 1 619 456 6085. Fax: +1 619 456 6099. Email: mgchatzky@aol.com David Melnik, QC: 350 Lonsdale Road, Suite 311, Toronto, ON M5P 1R6, Canada. Tel: +1 416 488 7918. Fax: +1 905 877 7751. Email: dm1976cp@ntcom.ca Timothy D. Scranton, JD: 180 East Bay St., Charleston, SC 29401, USA. Tel: + 1 843 937 0110. Fax: + 1 843 937 4310. Email: tenstate@aol.com

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