Emerging Challenges in Asset Protection Planning

Asset protection planning has gained in popularity and acceptance among estate planners over the past two decades, and is now a headline topic at national legal conferences and a featured subject in law school curricula. While the self-settled spendthrift trust was once considered the domain of a handful of offshore jurisdictions, sixteen American states have now enacted legislation to facilitate such planning closer to home. This article examines the historical challenges and contemporary threats to asset protection planning, including: Past use of the contempt powers of the courts to compel debtors to repatriate assets held offshore; tort liability for civil conspiracy and civil RICO claims; attorney liability and ethical considerations; and the distinction between “fraudulent transfers” and “fraud.” Recent cases point to the emergence of a new doctrine – the per se fraudulent transfer rule – affecting asset protection planning even in those states that recognize self settled spendthrift trusts. Transitioning away from asset protection trusts to more modern, cutting-edge techniques – including captive insurance and LLCs – enable lawyers to offer a broader spectrum of solutions and better secure client assets from creditor threat