By Tiffany A. Oshins and Steven J. Oshins, Esq., AEP (Distinguished)

Three-year-old student Tiffany A. Oshins (“Tiffany”) recently sat down with her father, estate planning attorney Steve Oshins (“Daddy”).  Tiffany interviewed Daddy about asset protection planning and Domestic Asset Protection Trusts.

Below are highlights from the interview.  [Daddy helped Tiffany with a lot of her spelling.]

Tiffany:  I overhear you talking about asset protection planning all the time.  How do you start this conversation with prospective clients?

Daddy:  Many of them come to me specifically for asset protection planning.  So the conversation is simple with them because they already have that objective.  But for the others, I simply ask them if they are interested in taking some chips off the table, and most of them are, so the conversation is very simple.

Tiffany:  What is a Domestic Asset Protection Trust?

Daddy:  A Domestic Asset Protection Trust is an irrevocable trust that a grantor sets up for the benefit of himself or herself and usually other beneficiaries.  There are 21 jurisdictions that allow these trusts.  Each jurisdiction has its own rules regarding how many years it takes before the protection kicks in and whether there are any so-called “exception creditors” who can pierce through the trust.  Nevada is the leading jurisdiction with South Dakota a very close second.  Then there’s a gap before you get to the second tier of Domestic Asset Protection Trust states which arguably are Tennessee, Delaware, Ohio and Alaska.

Tiffany:  Who is a good candidate for a Domestic Asset Protection Trust?

Daddy:  Anybody who has a net worth of, let’s say, $2 million or more is a spectacular candidate since the legal fees and costs are very much outweighed by the value of the protection from creditors.  Also, anyone who is in a risky profession such as a physician, a business owner, an officer or director in a corporation, or who is worried about the potential of a divorce is a great candidate.

Tiffany:  Are Domestic Asset Protection Trusts your go-to asset protection technique?

Daddy:  It depends upon the client’s state residence.  For my Nevada resident clients, absolutely.  But for residents of other states, we almost always use a Hybrid Domestic Asset Protection Trust which is like a Domestic Asset Protection Trust except that the grantor isn’t a beneficiary of the trust.  Instead, a trust protector can add the grantor as a beneficiary through a back door, but only if necessary.  This is much safer planning because it’s still not 100% clear whether a regular Domestic Asset Protection Trust protects the assets for a resident of another state.  It certainly appears that the assets are protected, and most people think they are, but it’s still a question for each particular court and I prefer not to take any risk wherever possible.

Tiffany:  How do Domestic Asset Protection Trusts and Hybrid Domestic Asset Protection Trusts compare to Foreign Asset Protection Trusts?

Daddy:  There’s never a situation where anyone should use a Foreign Asset Protection Trust.  They simply can gain greater protection using a Domestic Asset Protection Trust if they’re a resident of Nevada or South Dakota, or a Hybrid Domestic Asset Protection Trust if they’re a resident of another state.  The analysis is that simple.

Tiffany:  One of the kids at my school took my crayons from me yesterday.  Had I owned the crayons in a Domestic Asset Protection Trust, would he have been able to take them?

Daddy:  Nope!  What a perfect example!  You understand this better than most people!

RELATED EDUCATION

If you found this article interesting, you might also be interested in these other educational programs and products by Steve Oshins:

• The Spousal Lifetime Access Trust: A Gifting and Creditor Protection Technique
• Fear Factor: “Protecting Assets by Getting into the Creditor’s Head and Controlling His Mind”
• 2023 Trust Decanting Update
• Fixing Old “B” Trusts
• Trust Situs After Kaestner: Saving State Income Taxes Using Non-Grantor Trusts
• The NING Trust: Saving Significant State Income Taxes for Your Clients in High State Income Tax Jurisdictions
• DINGs and NINGs: Technical and Planning Issues
• Steve’s FREE State Rankings Charts

ABOUT THE AUTHORS

Tiffany A. Oshins was born on March 25, 2020 to parents Steve and Elena Oshins.  She has been featured in Congratulations to Steve & Elena Oshins, Ultimate Estate Planner (March 30, 2020) and in Nevada Trust Big Becomes More Dynastic, The Wealth Advisor (March 31, 2020).  She doesn’t have a phone number, email address or website (yet).

Steve Oshins, AEP (Distinguished) is a member of the Law Offices of Oshins & Associates, LLC in Las Vegas, Nevada. He was inducted into the NAEPC Estate Planning Hall of Fame® in 2011. He was named one of the 24 “Elite Estate Planning Attorneys” and the “Top Estate Planning Attorney of 2018” by The Wealth Advisor and one of the Top 100 Attorneys in Worth.  He is listed in The Best Lawyers in America® which also named him Las Vegas Trusts and Estates/Tax Law Lawyer of the Year in 2012, 2015, 2016, 2018, 2020, 2022 and 2024. He can be reached at 702-341-6000, ext. 2 or soshins@oshins.com.  His law firm’s website is www.oshins.com