BEST ASSET PROTECTION: DOMESTIC ASSET PROTECTION TRUSTS (DAPT’s)

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Alaska was the first US jurisdiction to enact laws allowing protection for self-settled trusts (in 1997) and was shortly followed by Delaware, Nevada, South Dakota and a few others. These trusts are known as Domestic Asset Protection Trusts (DAPTs). Usually, a DAPT must comply with the following requirements:

The trust must be irrevocable and spendthrift;

At least one resident trustee must be appointed;

Some administration of the trust must be conducted in respective state;

The settlor cannot act as a trustee.

Trusts are generally governed by the laws of the jurisdiction that is designated by the settlor as the governing jurisdiction. There are two exceptions to the general rule, which may create conflicts of law: (i) states will not recognize laws of sister states that violate their own public policy, and (ii) if the trust owns real property, such property will be governed by the law of jurisdiction that is the property’s situs. Additionally, the Full Faith and Credit clause of the Constitution provides that each state must give full faith and credit to the laws of every other state. This means that if a court from another state refuses to recognize the protection of a DAPT and enters a judgment for the creditor, the creditor may be able to enforce the judgment against the trustee of the DAPT, even if that trustee was located in the DAPT jurisdiction. The efficacy of a DAPT may also be challenged under the Supremacy clause of the U.S. Constitution, under the applicable fraudulent transfer statute, or because the settlor retained some prohibited control over the trust.

These trusts should always be supervised by a lawyer for business who is proficient in estate planning law in order to ensure the best asset protection available to the particular estate in question.

BEST ASSET PROTECTION and POWER OF ATTORNEY

Generally speaking, if a principal is still living and capable of managing their own affairs their relatives cannot change the POA. However, if the person becomes incapacitated a General POA is extinguished and the relatives can petition for a guardianship of the person. If there is a Durable POA in effect it remains in effect even after the principal becomes incapacitated but the relatives can petition for a guardianship of the person. If granted, the POA will be extinguished. Moreover, if the principal is deceased the POA is extinguished and the next of kin must probate the estate by petitioning the court.

Presented by: BEST ASSET PROTECTION SERVICES GROUP at WFB Legal Consulting, Inc.: Lawyer For Business

Please be advised that the information in this blog is for general public informational use only and does not establish an-attorney-client relationship.

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