Avoiding Asset Protection Pitfalls

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By: The American Academy of Estate Planning Attorneys

If you have creditors, you should consider which asset protection strategies might be right for you. Asset protection is the shielding of your property from creditors, potential creditors, and others. While most people don’t realize it, the estate planning process includes a number of opportunities for you to use asset protection strategies to protect yourself and your loved ones. Here are four asset protection pitfalls you can avoid with estate planning:

  1. Ignoring Medicaid Planning. As much as we hate to admit it, we’re all aging every day. As we get older, the likelihood of a debilitating illness increases. Along with this comes an increased chance of the need for expensive long-term care. Without excellent health and long-term care insurance, an extended stay in a nursing home or other long-term care facility can wipe out your savings. One way to avoid this unpleasant prospect is to include language known as “Medicaid triggers” in your Trust. This allows your Trustee to engage in Medicaid planning on your behalf in case you become disabled.
  2. Not Considering Your Children’s Asset Protection Needs. Using a Will or Trust to make sure your property goes to your children at the time and in the manner you wish is an excellent first step, but it might not be enough. If your son inherited from you and later divorced, his ex-wife could walk away with a chunk of his inheritance. If your daughter inherited and used the money to make bad investments, your hard-earned nest egg could just disappear. When you build asset protection into Trusts for your children, you provide for them and protect their inheritances.
  3. Failing to Protect Special Needs Children. Millions of parents have children with special needs, and the death of a parent can be particularly painful for these children – both emotionally and financially. When you have a child with special needs, leaving her a direct inheritance can deprive her of much-needed government benefits. You can avoid this problem by creating a Special Needs Trust for your child. A properly-established Special Needs Trust lets you put a Trustee in charge of your child’s inheritance, preserving her benefits and allowing you to provide her with an excellent standard of living, even after you’re gone.
  4. Not Protecting Your Real Estate. If you own a farm, a ranch, a sole proprietorship, or rental property in your own name, you’re exposing yourself to unnecessary risk. If someone is injured on one of these properties, they can sue you and collect against allyour assets, potentially forcing you into bankruptcy. If you own the property through a limited liability entity such as a corporation or a limited liability company (LLC), the injured party can only collect against the property owned by that entity. Your other assets are insulated from exposure, and your net worth is protected.

Asset protection is an important aspect of estate planning, not only for you but also for your children.

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