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Blog Posts in 2012

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For protection why can't I just title my assets to someone else so they can't be claimed by my creditors?

Using 'straw men' is always poor planning. Its pitfalls are obvious. First is the fraudulent conveyance pitfall. Gifting your assets to a friend or relative after you're sued with the ...
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It seems that the first step to defensive planning is to get your assets out of your own name. Correct?

We agree. Unless your assets are exempt, title them to a protective entity. As long as the entity itself is not a debtor, then a subsequent transfer by that entity will not be considered fraudulent ...
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How can one reduce their chances of a fraudulent transfer claim?

Use common sense. Avoid the badges of fraud. Don't invite suspicion and inquiry. Your transfers must pass a 'sniff' test. First, protect yourself before you have a liability. There's ...
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Can a creditor seize my assets or prevent me from transferring my assets before they have a judgment?

Generally not. Litigants, who have yet to win a judgment, ordinarily cannot commence a fraudulent transfer claim or freeze your assets. This is a remedy for judgment creditors. Nor can a pre- judgment ...
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Is it too late to protect my assets once I am sued or have a potential liability?

Not necessarily. No law obligates a lawsuit defendant to hold his assets for the benefit of his creditors, despite common belief to the contrary. In fact, Supreme Court Justice Antonin Scalia, in one ...
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It seems that the fraudulent transfer laws are somewhat subjective. How can you be certain a transfer isn't fraudulent?

Frequently you can't. When you review these three elements of a constructive fraudulent transfer, you still have hundreds of unanswered questions. For instance, is it fraudulent to exchange ...
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What do you mean by a transfer after you incur a 'present liability'?

If you sell an asset for less than its fair value, the creditor must secondly show that the transfer occurred after you had theliability. Once you have a present liability, you cannot safely transfer ...
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When is a transfer considered for less than fair value?

When is a transfer considered for less than fair value? One obvious situation is when the debtor merely gifts his assets. However, proving a sale was made for less than fair value can sometimes be ...
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What if I transferred my assets but didn't actually intend to defraud my creditor?

Since actual fraud cases are difficult for creditors to prove, creditors more often claim constructive fraud. Constructive fraud is a gift or sale of property for less than fair value (or fair ...
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What must a creditor prove to win a fraudulent transfer case?

There are two types of fraudulent transfers: 1) Fraud in fact, or actual fraud, and 2) Fraud in law, or constructive fraud. Actual fraud is when you actually intended to hinder, delay or defraud your ...
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What is a fraudulent transfer?

Every state has fraudulent transfer laws. Some call it the Uniform Fraudulent Conveyance Act (UFCA), and others the Uniform Fraudulent Transfer Act (UFTA). Fraudulent transfers or fraudulent ...
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What are the most common planning errors to avoid?

With asset protection planning there are many things that one can do wrong. The three biggest blunders are those mistakes that can breach your protection or get you into trouble. You'll want to ...
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How frequently should I update my asset protection plan?

Asset protection – like estate planning – must be continuous. You may hurriedly protect yourself if you are sued, but letting your plan fall into disuse once the threat passes can be ...
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What are the differences between a good and great asset protection plan?

Great lawsuit protection doesn't just happen. First and foremost, if you are to most effectively block litigants and creditors from claiming your assets, you should protect yourself before trouble ...
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Are there counter-offensive strategies that one can use to discourage lawsuits?

We follow the axiom – "The best defense is a good offense." This is no less true when it comes to asset protection. We use a number of strategies to impose liability against a ...
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Is it necessary for a client to lose control over their assets to protect them?

Not usually. For instance, limited partnerships and limited liability companies allow you to retain complete control over your assets, and these entities well-protect assets. As another example, you ...
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Would a good asset protection plan also help me avoid liabilities?

Yes. A good asset protection plan must do more than protect your assets from lawsuits. It should also limit your liability. You can, and must, insulate yourself personally from business and other ...
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How can I design a less costly plan?

Cost is always an important consideration. We are sensitive to this when we design our asset protection plans. Asset protection is a great 'investment,' still nobody wants to spend more than ...
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Is it true that most Asset Protection plans are complicated?

Some are, but most are surprisingly simple. Nor is a complex plan always the best plan. Simplicity is often better. We think that over-planning is a chronic planning error. Yes, you may want several ...
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Defense-in-depth sounds sensible, but isn't it also sound to title your assets to separate entities?

Absolutely. Diversification too is an important strategy. Deploying your assets into different protective 'baskets' is common sense and sound planning. Why keep all your eggs in one basket? ...
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If we are unsure whether a particular firewall will succeed in blocking a creditor, can we add firewalls?

Absolutely, and we usually do. Your asset protection plan may need only one firewall to well-shield an asset or it may require several. No matter how strong a particular firewall may be, there's ...
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Can other 'firewalls,' entities or tools also shield assets?

Of course! There are literally hundreds, or even thousands, of variations on the theme. There are many more entities we could discuss, but most entities and strategies, conceptually at least, fall ...
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What specific asset protection tools or 'firewalls' do you use in your planning?

We have any number of specific protective firewalls, but we most commonly use these eight 'firewalls:' 1) federal and state exemptions, 2) co-ownerships, 3) corporations, 4) limited ...
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How can can someone lawsuit-proof their assets?

Let's start with the basics. To lawsuit-proof a client's assets, we would normally use one or more of three basic strategies. The first strategy is to own only exempt assets. The strategy here ...
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Can you give us an overview on how an asset protection plan is designed?

If you ask five attorneys this same question, you would get five different responses. The same could be said about asset protection. This "same question, different answer" phenomenon is ...
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The Presser Law Firm, P.A. - Asset Protection Attorney
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