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Conservative Asset Protection Planning

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Conservative Asset Protection Planning CONSERVATIVE ASSET PROTECTION PLANNING Presented By: TOBY EISENBERG Bisignano & Harrison, L.L.P. 5949 Sherry Lane, Suite 770 Dallas, Texas 75287 (214) 360-9777, ext 26 [email protected] Co-Authored By Presenter With: SANDY BISIGNANO, JR. Bisignano & Harrison, L.L.P. 5949 Sherry Lane, Suite 770 Dallas, Texas 75287 ALVIN J. GOLDEN Ikard & Golden, P. C. 400 West15th Street, Suite 975 Austin, Texas 78701 State Bar of Texas 27th ANNUAL ADVANCED TAX LAW COURSE August 27-28, 2009 Houston CHAPTER 11 TOBY MATTHEW EISENBERG Bisignano & Harrison, L.L.P. 5949 Sherry Lane, Suite 770 Dallas, Texas 75225 phone: 214-360-9777 ext. 26 email: [email protected] EDUCATION Southern Methodist University, Dallas, TX Ph.D. Religious Studies – Expected December 2010 The University of Texas School of Law, Austin, TX J.D. – December 1999 Fuller Theological Seminary, Pasadena, CA M.A. Biblical Studies and Theology – August 1997 Rice University, Houston, TX B.A. Philosophy, Music Minor – May 1994 PROFESSIONAL ACTIVITIES AND CREDENTIALS Partner, Bisignano & Harrison, LLP Board Certified in Estate Planning and Probate Law by the Texas Board of Legal Specialization Member of the State Bar of Texas – admitted May 2000 PRACTICE CONCENTRATION Estate Planning. All facets of estate planning, which encompasses the drafting and planning for the disposition of wealth through the use of various planning techniques, including lifetime gifts, and intra-family sales, life insurance and other complex trusts, family limited partnerships, limited liability companies, wills, health care designations, powers of attorney and directives to physicians, and related planning for the protection of assets from creditors. Business Continuation Planning. Business continuation planning for owners of closely held businesses, including formation of closely held businesses, buy-sell agreements, split dollar life insurance agreements, business recapitalizations, and certain non-qualified deferred compensation agreements. Charitable Gift Planning. Charitable gift planning, including charitable remainder trusts, charitable lead trusts, and creation of exempt organizations in connection with charitable planning. Estate and Trust Administration. Administration of trusts and estates, including dependent, independent and ancillary probate procedures, guardianships, income tax planning, preparation of U.S. Estate and Texas Inheritance tax returns, audit negotiations with agents of the Internal Revenue Service and the Comptroller of Public Accounts of Texas, preparation of tax protests, private letter ruling requests and coordinating dissolution of partnerships and closely held corporations. Fiduciary Representation and Estate and Trust Controversy Matters. Representing fiduciaries and coordinating fiduciary litigation matters, including fiduciary liability issues, will contests, and trust modification and construction issues. Marital Property Issues. Texas community property system and related marital property matters, including premarital and postmarital partition and/or property agreements between spouses. Conservative Asset Protection Planning Chapter 11 TABLE OF CONTENTS I. INTRODUCTION ................................................................................................................................................... 1 II. BASIC CONSIDERATIONS. ................................................................................................................................. 1 A. Typical Reasons For Estate Planning. ............................................................................................................. 1 B. Another Important Reason In These Litigious TimesBTo Protect Assets From Contingent, Unknown, And Often Overzealous Juries And Judgement Creditors. ............................................................ 1 1. Litigious Society ...................................................................................................................................... 1 2. Economic Decline .................................................................................................................................... 1 3. Increased Emphasis on Asset Protection. ................................................................................................ 1 C. Scope of Outline .............................................................................................................................................. 1 1. Debtor and Creditor Rights and Marital Property Liability Rules .......................................................... 1 2. Estate Planning Techniques (including Domestic Asset Protection Trusts) ............................................ 2 3. Introduction of the Jones Family ............................................................................................................. 2 4. Designing a Plan for the Jones Family .................................................................................................... 2 D. Definitions and Assumptions .......................................................................................................................... 2 1. Preservation Planning .............................................................................................................................. 2 2. Assumptions: No Actual or Constructive Fraudulent Intent .................................................................. 2 E. What Clients Will Benefit From the Lessons of This Outline? ....................................................................... 2 III. STATE LAW RULES C DEBTOR AND CREDITOR RIGHTS, MARITAL PROPERTY LIABILITY, AND EXEMPTIONS........................................................................................................................................................ 2 A. A Little Context – U.S. v. Townley ................................................................................................................ 2 1. Facts ......................................................................................................................................................... 2 2. Opinion .................................................................................................................................................... 2 3. Impact of this Case .................................................................................................................................. 3 B. UFTA and Fraudulent Transfer/Conveyance Rules of Focus States ............................................................... 3 1. What is a “Transfer”? .............................................................................................................................. 3 2. Transfer with Actual Intent to Defraud Is Void. ...................................................................................... 3 3. What Is “Actual” Fraudulent Intent? ....................................................................................................... 3 4. Important Badges of Fraud ...................................................................................................................... 3 5. Insolvency Crucial Factor. ....................................................................................................................... 4 6. Statute of Limitations for “Actual Intent” Actions. ................................................................................. 4 7. Transfer Fraudulent if Debtor Insolvent. ................................................................................................. 4 8. Other Actionable Transfers...................................................................................................................... 4 9. Meaning of Insolvency. ........................................................................................................................... 5 C. Marital Property Liability Rules. ..................................................................................................................... 5 1. Relevant Marital Property Concepts. ....................................................................................................... 5 2. Relevant Rules of Marital Property Liability. ......................................................................................... 6 D. Homestead Exemptions. .................................................................................................................................. 7 1. General. ................................................................................................................................................... 7 2. Scope of Liability for Owner Occupant’s Debts. .................................................................................... 7 3. Who is Protected? .................................................................................................................................... 8 4. How Strong is the Exemption? ................................................................................................................ 8 5. Preservation Planning Potential. .............................................................................................................. 8 6. Drafting PointerBHomestead Designation. .............................................................................................. 8 7. Beware Revocable Management Trusts. ................................................................................................. 8 E. Personal Property Exemptions. ......................................................................................................................
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