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Wednesday, March 13, 2013

Why Nevada LLC's might just be the "best"!

SB 405 went into effect on October 1, 2011. It strengthens the asset protections available to Nevada-based entities. The updated charging order language affects Nevada Limited Liability Companies (LLCs), Corporations and Limited Partnerships (LPs). The law changed as follows: the new language in the statute makes the charging order the exclusive remedy of a judgment creditor- including single member LLC’s and single shareholder corporations. A charging order is a remedy issued by the court giving the creditor a lien over the debtor’s interest in the entity. As such, this new language solves the problem brought forth in case law (specifically single-member LLC cases). Using the generous provisions provided by Nevada statute, many opportunities for asset protection and estate planning can be designed to maximize protection and take advantage of the charging order as the exclusive remedy, discouraging litigation and encouraging settlement.

Main Advantages of Forming Entities Post SB 405: No Equitable Remedies Allowed

Most significantly, SB 405 adds key language to the entity statues specifically stating that no other remedies may be applied. Equitable remedies have served to allow a court to evade the “charging order as the exclusive remedy” language in the past. Equitable remedies are court-granted remedies that require a party to act or refrain from performing a particular act. Under the doctrine of limited liability, a corporate entity is liable for the acts of a separate, related entity (or individual) only under extraordinary circumstances, commonly referred to as piercing the corporate veil. Federal common law typically involves a two pronged test for piercing the corporate veil: the party sought to be charged must have used its alter ego to perpetrate a fraud or have so dominated and disregarded its alter ego's corporate form that the alter ego was actually carrying on the controlling party's business instead of its own. In the Ninth Circuit, cases suggest (at least in California cases), that fraudulent intent in incorporation need not be shown to pierce the veil, as long as it can be shown that the separate identity of the corporation has not been respected and that respecting the corporate form would work an injustice on the litigants.   The test for alter ego liability is almost identical to the veil-piercing test.  Alter ego has been defined as a lack of attention to corporate formalities, commingling of assets and intertwining of operations. Alter ego requires demonstrating that the two corporations (or individual and corporation/company) functioned as a single entity. Applying this notion, the court could set aside the protection afforded by the corporation or company by ordering that the company or corporation is the owner’s “alter ego” then piercing the corporate veil by stating that the company and the individual are one in the same (and going after the other’s assets in satisfaction of the judgment). Of course, veil piercing and alter ego concepts are separate and distinct. Piercing the corporate veil allows the court to find A vicariously liable for B's debts. By contrast, a contention that A is B's alter ego asserts that A and B are the same entity. Liability then is not vicarious but direct. Most other forums do not specifically disallow the court from applying equitable remedies and, as such, the court would have discretion to seek piercing the corporate veil under theories such as reverse veil piercing, alter ego, constructive trust and the like.  Of note is that one exception to SB 405 was made. Courts are allowed to apply the “alter ego” theory as the only equitable remedy as to corporations (not limited partnerships or LLCs).  As such, Nevada LLCs and LPs continue to be a favored structure for ease of management and asset protection.

 

Available Opportunities for Planning

SB 405 creates numerous planning opportunities for current business owners and those looking to create entities. Citing the precedent reached in Albright, A-Z Electronics, Modanlo and Olmstead among others, many estate and business planners in the past have been hesitant to utilize single member LLCs because a Court may state that a single member LLC doesn’t enjoy the charging order as an exclusive remedy. Per SB 405, this loophole is now specifically closed by statute. Additionally, out-of-state entities may enjoy protection as well. To bolster the protection provided by a foreign entity, there are many options available:

Start Over In Nevada

A client may choose to “start from scratch”, so to speak, and re-form the company here in Nevada, dissolving the foreign entity. This may be a good choice if the assets themselves are easily transferable.

Domesticate the Foreign Entity in Nevada

If the assets are hard to transfer (or if the entity owns many types of assets), it may be easier to domesticate the entity in Nevada, taking advantage of our favorable laws. In that instance, the individual assets would not need to be transferred, making it simple to effectuate.

Form a Nevada Holding Company

This type of “hybrid” option involves forming a Nevada entity, such as an LLC, and transferring ownership of the foreign entity to the Nevada entity.  As such, no individual assets would need to be moved and the companies would enjoy Nevada-based protection. This is a great choice for clients who have a number of foreign entities or existing Nevada corporations.

What do I do if I have a corporation?

LLCs and LPs have been favored over corporations by many planners because of greater creditor protection. The alter-ego theory cannot be applied against LLCs or LPs, but can be applied against a corporation. Clients who have foreign and Nevada corporations would still like to make use of the protections now available under SB 405 to increase their creditor protection. The options above can still be used, relatively easily and with minimal expense. To conclude, Nevada’s passing of SB 405 greatly enhances its creditor protection laws for Nevada LLCs, LPs and corporations by excluding all potential equitable remedies (with the exception of the alter ego remedy for corporations).  It goes even further by stating that single member or single shareholder companies enjoy the limits of a charging order remedy, therefore setting our laws above and beyond the laws of the rest of the country.

 

-Tiffany N. Ballenger, Esq.


Wednesday, March 13, 2013

Domestic Asset Protection Trusts & Battley v. Mortensen

In May of 2011, a federal bankruptcy caseBattley v. Mortensen, Adv. D.Alaska, No. A09-90036-DMD (2011) led many planners and clients to doubt the protection afforded by Domestic Asset Protection Trusts (DAPTs). Judge MacDonald set aside Thomas Mortensen’s transfer of real property to an Alaska asset protection trust as a fraudulent conveyance. This case came in direct opposition from previous holdings on the same issue, as the Grantor of the trust was not only solvent when he transferred the subject property, but he was also beyond the state statute of limitations for transfers.  In Alaska, the statute of limitations is fours but only two years in Nevada. What does this mean for those who have created DAPTs as part of their overall estate planning and asset protection structures?

Following an expensive divorce, Mr. Mortensen drafted an Alaska Asset Protection Trust by himself. The trust was created to hold real property located in Alaska, worth only approximately $60,000 at time of transfer in addition to a cash gift of approximately $100,000 from his mother.   In 2009, more than four years after drafting the document, Mr. Mortensen become ill and subsequently racked up credit card debt.  He then filed for Chapter 7 bankruptcy.    Though he disclosed his personal assets and the fact that he had a DAPT, he did not disclose the property held by the DAPT.

Even though Alaska has a four-year statute of limitations on transfers to a DAPT, the court applied federal Bankruptcy law which enjoys a ten-year statute of limitations from the date in which a bankruptcy is filed.  Thus, the transfer to the DAPT was unwound, and the property transferred to the DAPT was sold to satisfy his creditors.

Practitioners are somewhat split as to this ruling.  Some believe that this case may be a death knell to transfers to a DAPT however, this case should be distinguished on its facts.  Unfortunately in this case, Mr. Mortensen drafted the DAPT and filed bankruptcy without legal counsel.   Had he not filed Chapter 7, Mr. Mortensen would have been protected from the unsecured creditors via the four-year statute of limitations and the ten-year federal rule would not have been applied.  Additionally, Mr. Mortensen was not in a good position to form a DAPT in the first place since he had declining income, low net worth and escalating debt.

Rather, I like to view this case as a whole as validating the fact that Asset Protection trusts should not be created to defraud creditors.  As such, this type of planning can still prove to be an integral part of one’s overall estate plan.

 

-Tiffany N. Ballenger, Esq.


Wednesday, March 13, 2013

How do I leave my assets to my minor children?

Every parent wants to make sure their children are provided for in the event something happens to them while the children are still minors. Grandparents, aunts, uncles and other relatives often want to leave some of their assets to young children, too. But good intentions and poor planning often have unintended results.

For example, many parents think if they name a guardian for their minor children in their wills and something happens to them, the named person will automatically be able to use the inheritance to take care of the children. But that’s not what happens. When the will is probated, the court will appoint a guardian to raise the child; usually this is the person named by the parents. But the court, not the guardian, will control the inheritance until the child reaches legal age (18 or 21). At that time, the child will receive the entire inheritance. Most parents would prefer that their children inherit at a later age, but with a simple will, you have no choice; once the child attains the age of majority the court must distribute the entire inheritance in one lump sum.

A court guardianship for a minor child is very similar to one for an incompetent adult. Things move slowly and can become very expensive. Every expense must be documented, audited and approved by the court, and an attorney will need to represent the child. All of these expenses are paid from the inheritance, and because the court must do its best to treat everyone equally under the law, it is difficult to make exceptions for each child’s unique needs.

Quite often children inherit money, real estate, stocks, CDs and other investments from grandparents and other relatives. If the child is still a minor when this person dies, the court will usually get involved, especially if the inheritance is significant. That’s because minor children can be on a title, but they cannot conduct business in their own names. So as soon as the owner’s signature is required to sell, refinance or transact other business, the court will have to get involved to protect the child’s interests.

Sometimes a custodial account is established for a minor child under the Uniform Transfer to Minors Act (UTMA) or Uniform Gifts to Minors Act (UGMA). These are usually established through a bank and a custodian is named to manage the funds. But if the amount is significant (say, $10,000 or more), court approval may be required. In any event, the child will still receive the full amount at legal age.

A better option is to set up a children’s trust in your will and name someone to manage the inheritance instead of the court. You can also decide when the children will inherit. But the trust cannot be funded until the will has been probated, and that can take precious time and could reduce the assets. If you become incapacitated, this trust does not go into effect…because a will cannot go into effect until after you die.

Another option is a revocable living trust, the preferred option for many parents and grandparents. The person(s) you select, not the court, will be able to manage the inheritance for your minor children or grandchildren until they reach the age(s) you want them to inherit—even if you become incapacitated. Each child’s needs and circumstances can be accommodated, just as you would do. And assets that remain in the trust are protected from the courts, irresponsible spending and creditors (even divorce proceedings).

credit: estate planning.com


Wednesday, March 13, 2013

Asset Protection Techniques

Every day, potential clients come to find out how to protect their assets from potential creditors and lawsuits. Nevada law offers many “free” exemptions under NRS 21.090. However, many assets are still vulnerable such as non-homesteaded real property, bank accounts and investments. Fortunately, Nevada also offers other options for helping to safeguard these exposed assets.

Once risks and areas of exposure have been identified and the potential protection strategies have been carefully explored, a cost vs. benefit analysis should then be conducted before finally deciding which asset protection strategies to employ.

Two of the most widely used Nevada asset protection structures are the Nevada Limited Liability Company (LLC) and the Nevada Asset Protection Trust (NAPT).

Nevada LLC

limited liability company formed in Nevada offers excellent domestic protection. Most practitioners agree that Nevada offers some of the most favorable corporate laws in the country. Some of the pros of a Nevada LLC are:

  • Nevada’s statues generally favor businesses;
  • The organizational requirements are quite informal- no annual meetings or minutes are necessary;
  • LLC’s are flexible structures that can be used in many different ways- to own property, to manage an operating business and to hold liquid assets;
  • LLC’s can be taxed in four different ways: as a disregarded entity, a partnership, an S-Corp or a C-Corp;
  • Nevada, unlike many other states, has no state income tax or corporate tax; and
  • Nevada LLC’s can be structured to maximize privacy and anonymity.

Perhaps most importantly, the members’ interests cannot be attached by a creditor. The only remedy against a member is to obtain a “Charging Order” allowing the creditor to lien or “charge” the member’s profit distribution rights when, or if, a distribution is made by the member of the LLC. As such, assets within the LLC are safe but trapped.

Nevada Asset Protection Trust

Nevada Asset Protection Trusts (NAPT) were created by The Nevada Spendthrift Trust Act, NRS 166.010 et seq. in 1999. Nevada is one of just a handful of states that provide a Trust of this sort.

This unique law lets an individual create a valid Grantor Trust where he or she is both the Trustee, the person who controls the Trust assets, and the beneficiary, while the assets within the Trust remain protected from creditors. Unlike many other states with similar laws, the Trust creator does not need to be a Nevada resident to create a NAPT. Additionally, any category of asset such as real property, personal property or liquid assets in any location can be protected with a NAPT.

NAPTs work in the following manner: By law, the Trust prohibits the assignment, alienation, acceleration and anticipation of any interest of the beneficiary under the Trust by the voluntary or involuntary act of the beneficiary or by operation of law or any process. Payments by the Distribution Trustee, a third party who has discretion to make distributions, are made only to the beneficiary who can also be the person establishing the Trust. The Trustee of a Spendthrift Trust is required to disregard and defeat every assignment or other act, voluntary or involuntary, that is attempted contrary to the provisions of the Nevada Spendthrift Act.

Some of the benefits of the Nevada Asset Protection Trust are:

  • You keep control of your assets;
  • You may receive the full benefit and use your own assets;
  • You don’t need to give away your assets;
  • You can protect any type, and an unlimited amounts, of assets from creditors;
  • The Nevada Asset Protection Trust is less expensive to form and maintain and much less complex than foreign or offshore Trusts which are often troubled by IRS audits and complicated tax reporting requirements;
  • The Nevada Asset Protection Trust may avoid loss of the assets through a bankruptcy; and
  • The Nevada Asset Protection Trust can be integrated with your estate plan (remember, a “Living” or “Family” Trust does NOT provide the creditor protection benefits discussed above).

With all of its benefits, there are some disadvantages to an NAPT. If the Grantor of the Trust is also a beneficiary, a third party Distribution Trustee must serve as well, which means that the Grantor does not have absolute discretion. Additionally, there is a two-year seasoning period. If a creditor is a current creditor when the transfer of the asset to the NAPT occurs, the creditor must bring suit against the property transfer within two (2) years of the transfer or within six (6) months after the creditor discovers, whichever is later. After the seasoning period is over, the creditor is barred from bringing suit to recover said property.

Both of these techniques, amongst others, can be extremely useful in protecting assets and providing peace of mind in our volatile economy.

 

-Tiffany N. Ballenger, Esq.


Wednesday, March 13, 2013

Nevada's Homestead Protection

The Nevada’s Homestead Exemption Protection law provides homeowners with an excellent asset protection device.  Nevada defines a “homestead property” as: Land with a dwelling on it; a mobile home whether or not the underlying land is owned by the mobile home owner; and/or a unit (such as a condo).  This protection is only available for one’s primary residence, not investment properties or second homes.

The amount of protection from creditors is the equity associated with the property up to the limit of $550,000.  A homesteaded property is not subject to forced sale on execution or any final process from any court, except as otherwise provided by subsections 2, 3 and 5, and NRS 115.090 (and unless otherwise provided by Federal law.)  Furthermore, judgments cannot be executed against homesteaded properties, as defined by In re Contrevo, 23 Nev. Adv. Op. No. 3, March 8, 2007.

Remember, this protection is not automatic.  You must record a valid homestead claim/declaration.  If you have previously recorded a homestead declaration, but later refinanced the property or quitclaimed it to your living trust, please ensure that that you still have a valid declaration recorded.

If your residence qualifies for the exemption (as provided above), and you record the appropriate forms per NRS 115 , the equity in your residence up to $550,000 will be protected from creditors’ claims. Of course, a homestead declaration does NOT protect homeowners from any mortgage or deed of trust (including junior lien holders such as second mortgages or HELOCs).  Also, it does not protect against super-priority lien holders such as HOA fines.

The Clark County Assessor’s website is a wonderful resource for more information on Nevada’s homestead law, as well as information regarding completing the Homestead Declaration Form.

 

-Tiffany N. Ballenger, Esq.


Wednesday, March 13, 2013

How Nevada AB 223 May Protect Your Estate

Existing law allows a judgment creditor to obtain a writ of execution, attachment or garnishment to levy on the property of a judgment debtor or defendant in certain circumstances (NRS 21 and 31). What this means in laymen’s terms is that if you are sued, and the creditor wins, they have the right to collect on that judgment by taking certain property (real property and money held in bank accounts) and even garnishing wages. Nevada provides some protection, however: certain property is exempt from execution and therefore cannot be the subject of such a writ. (NRS 21.090)

This new law, which applies to civil actions, provides that a certain amount of money held in apersonal bank account that is “likely to be exempt from execution” is not subject to a writ of execution or garnishment except in certain circumstances; it provides a procedure to execute on property held in a safe-deposit box; it revises the procedure for claiming an exemption from execution on certain property; and makes various other changes to provisions governing writs of execution, attachment and garnishment.

Specifically, Section 3 of this Bill provides that $2,000 (or the entire amount in the account, whichever is more) held in the personal bank account of a judgment debtor which is likely to be exempt from execution is not subject to a writ of execution or garnishment and must remain accessible to the judgment debtor except in certain circumstances. Monies that are deemed “likely to be exempt from execution” are defined as Social Security Benefits, Veterans’ Benefits, Federal Retirement Benefits and specific types of annuities and all other benefits protected by Federal Law. Section 3 further provides immunity from liability to a bank which makes an incorrect determination concerning whether money is subject to execution. Section 4 of the Bill delineates that if a debtor has accounts with multiple institutions, the writ may attach to all money in the various accounts, and then the debtor may claim any exemption that may apply.

Section 5 of the Bill provides the method of execution of property held in a safe deposit box. It further goes on to revise the form for the writ of execution to include notice to banks of whether the judgment is for support of a person (child or spousal support).

Section 7 of the Bill provides additional exemptions from execution provided by Nevada law (NRS 21.090), such as proceeds received from a private disability insurance plan, money in a trust fund for funeral or burial services, unemployment benefits, PERS benefits, money paid for vocational rehabilitation, and public assistance benefits.

Finally, the Bill revises the procedures for claiming an exemption from execution, and for objecting to such a claim of exemption, such as various forms for writ of execution, attachment, garnishment and notice requirements.

This new law further bolsters Nevada’s already generous stance on asset protection. In addition to generous homestead protection ($550,000), non-ERISA retirement protection ($500,000), and the Nevada Spendthrift Trust statute, Nevada has stepped forward to protect its citizens as they attempt to rebuild in one of the worst economic environments in modern history.

 

-Tiffany N. Ballenger, Esq.


Thursday, January 24, 2013

Do I Really Need Advance Directives for Health Care?

Many people are confused by advance directives. They are unsure what type of directives are out there, and whether they even need directives at all, especially if they are young. There are several types of advance directives. One is a living will, which communicates what type of life support and medical treatments, such as ventilators or a feeding tube, you wish to receive. Another type is called a health care power of attorney. In a health care power of attorney, you give someone the power to make health care decisions for you in the event are unable to do so for yourself. A third type of advance directive for health care is a do not resuscitate order. A DNR order is a request that you not receive CPR if your heart stops beating or you stop breathing. Depending on the laws in your state, the health care form you execute could include all three types of health care directives, or you may do each individually.


Read more . . .


Thursday, January 24, 2013

Overview of Life Estates

Establishing a Life Estate is a relatively simple process in which you transfer your property to your children, while retaining your right to use and live in the property. Life Estates are used to avoid probate, maximize tax benefits and protect the real property from potential long-term care expenses you may incur in your later years. Transferring property into a Life Estate avoids some of the disadvantages of making an outright gift of property to your heirs. However, it is not right for everyone and comes with its own set of advantages and disadvantages.


Read more . . .


Thursday, January 24, 2013

Beware of “Simple” Estate Plans

“I just need a simple will.”  It’s a phrase estate planning attorneys hear practically every other day.   From the client’s perspective, there’s no reason to do anything complicated, especially if it might lead to higher legal fees.  Unfortunately, what may appear to be a “simple” estate is all too often rife with complications that, if not addressed during the planning process, can create a nightmare for you and your heirs at some point in the future.   Such complications may include:


Read more . . .


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