In April of 2018, the Georgia legislature presented to Governor Nathan Deal HB 441 for signature, which permitted the use of DAPTs in Georgia. The statute contained many of the similar flavors of other DAPT statutes, with a few notable exceptions like allowing tort creditors to reach assets in the DAPT. A few days after being presented with HB 441, Governor Deal vetoed the bill.
Our last case law discussion comes to us from the Ohio Supreme Court in Embassy Healthcare v. Bell. This case provides a great illustration of facts that many may one day encounter: a nursing home sought payment from a surviving spouse of a decedent spouse’s outstanding bill. But where this case is particularly interesting is the method by which the nursing home sought payment.
Our second decision comes from the Supreme Court of Alaska. This decision is a core illustration of the potential problems with establishing a domestic asset protection trust (DAPT) for a resident of a state that does not allow DAPTs.
Part One: In re Olson
Part one of our 2018 asset protection year-end review begins with the case of In re Olson. This case is yet another reminder that it is critically important to engage in asset protection planning before you have a creditor problem.
The decision comes to us from a U.S. District Bankruptcy Court in California. Olson was married to a NASA engineer who formed a startup company that sought to specialize in surveying for oil using an airplane and other specialized technology. The startup received hundreds of millions of dollars in investor capital, but when the price of oil collapsed, so too did the company. As a result of the collapse, Olson was served with a lawsuit from a creditor. After being served, she transferred $4.6 million in assets into a Cook Islands trust.
2018 saw a number of interesting cases and developments in asset protection law. I would like to discuss and summarize many of these key developments in a 2018 asset protection law year-end review. To prevent posting one very lengthy and detailed post, I will break the series into four parts. Parts 1-3 will summarize and analyze three relevant asset protection cases decided this year, In re Olson, Toni 1 Trust v. Wacker, and Embassy Healthcare v. Bell, and part 4 will discuss recent asset protection legislative developments in Georgia.
I hope you find the following posts informative, and if you have any questions or would like to discuss anything further, please do not hesitate to contact myself, Ken Laino, or Paul Fidler.
A recent release by a well-known Nevada asset protection lawyer ranks states by their domestic asset protection trust laws. Ohio was ranked in the top 5 nationwide, at number 4 (behind only Nevada – in which the ranking lawyer lives and practices law, South Dakota, and Tennessee).
In 2017 there have been a variety of discussions among leading estate planning attorneys about the extent to which Ohio law now protects a deceased person’s assets from the claims of a creditor. For many years it has been clear that a creditor could make claims against the probate assets (assets passing under a will) of the deceased person, at least so long as the claim is made timely (i.e., within six months of death) and presented appropriately (e.g., to an executor appointed by the probate court). Ohio’s procedures are friendlier to estates and more hostile to creditors than some other states, but the general ideas are similar.
During 2016, Ohio continued to stand out as one of the best asset protection jurisdictions in the country. I have noticed that more people are becoming aware of the significant opportunities offered by Ohio’s Legacy Trust statute. As I have mentioned in earlier posts, an Ohio Legacy Trust is an excellent way to protect your assets – – while still maintaining a meaningful degree of control over those assets.
Ohio amended its limited liability company statute earlier this year. As I explained in prior posts on June 16 and July 15, 2016, the amendments strengthened the asset protection provisions of the statute.
One of the most important changes was the addition of Ohio Revised Code §1705.031. This section specifically provides that Ohio’s limited liability company statute applies to all LLCs formed in Ohio – – whether the LLC has one member or more than one member. There had been some lingering questions about whether certain protections of the statute applied when a limited liability company had only one member. The amendment eliminates all doubt: the provisions of the Ohio statute apply to single member LLCs.
This is just one of many provisions of the Ohio LLC law that make it favorable from an asset protection standpoint.
As I previously noted in a post back in 2013, you can establish an Ohio Legacy Trust without giving up complete control of your assets. Your Trust must be irrevocable and you cannot serve as your own Trustee. But you can still maintain significant control over the assets in the Trust if you want to do so.
Ohio Revised Code §5816.05 specifically states that the Settlor (the person establishing the Trust) can reserve quite a few rights, including the right to:
- veto distributions
- remove the Trustee and appoint a new Trustee
- remove any advisor and appoint a new advisor
- receive trust income
Asset protection laws vary a lot from state to state. But the other fifteen or so states that have domestic asset protection trust statutes also have provisions allowing the Settlor to retain a variety of powers when establishing such a Trust.