The deed shows that my wife and I have a Revocable Joint Living Trust. Since title is in my son's name, am I protected from creditors even though I hold the mortgage?
If title is out of your name then the title to the real estate may be safe from creditors. The mortgage itself and the transfers may be more questionable and a real estate or estate planning attorney may need to read the terms to determine the creditor protection status further.
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I'm not sure a mortgage holder is completely protected, even if they do not hold title to the property. AS the other attorney explained, any judgement (for example) against a property holder attaches automatically to real estate. If the property holder is sued and loses, that judgment attaches to their real estate. If the judgment holder (winning party in the lawsuit) decides to foreclose on the real estate to collect their judgment, the mortgage holder would be first in line to collect. If the foreclosure and sale of the real estate does not cover the mortgage, the borrower would likely owe a deficiency (the difference between the money collected from the foreclosure sale of the property and amount owed. While you or your wife are alive, there is not protection through the living trust, because of the way a living trust is designed. Even after death a trust may still owe a deficiency under the above scenario, if the trust is the borrower on the mortgage.
You can see how this gets complicated, quickly. It may not be a great idea to have a mortgage for another's property. There are ways to plan for transfer of title or management of assets during illness or after death. An attorney can help plan for these issues, help clear them up before a creditor, for example, comes calling and provide the right service to make sure everything is documented properly. What are the odds of this happening - no idea, but the attorney can help decide your best planning moves.
Ian A. Taylor
The Taylor Law Office L.L.C. | (843) 314-4313
Pawleys Island, SC
Estates. Probate. Adult Guardianship. Real Estate. Insurance.
If the property was transferred correctly to your child, then only his creditors would have a valid claim to it. I encourage you to discuss this at length with an experienced probate or estate planning attorney as your facts are somewhat brief here and may not provide everything needed for an accurate answer.
GEORGIA ENACTS UNIFORM FRAUDULENT TRANSFER ACT
On April 4, 2002, Georgia Governor Roy Barnes signed House Bill 84, enacting the
Uniform Fraudulent Transfer Act (the “UFTA”) in Georgia, effective July 1, 2002. With this
enactment, Georgia joins 40 jurisdictions that have adopted the UFTA and repeals a version of
the Statute of 13 Elizabeth, which dates originally to 1818.
Generally, the UFTA protects creditors against a debtor that transfers property or incurs
liabilities or other obligations in two situations: (1) where the debtor makes the transfer or incurs
the liability or obligation with the actual intent to hinder, delay, or defraud its creditors, and (2)
where the debtor, regardless of intent, receives less than reasonably equivalent value for the
transfer, liability or obligation and is insolvent, is inadequately capitalized, or intends to incur
debts that are beyond its ability to pay as they come due.
In addition, the UFTA protects creditors against a debtor that repays debts owed to an
insider when the debtor is insolvent and the insider has reasonable cause to know of the
A successful fraudulent transfer claimant may, among other things, avoid the transfer or
obligation to the extent necessary to satisfy the creditor’s claim. Such a remedy can include the
recovery of any fraudulently transferred property or its value.
The UFTA contains a specific statute of limitations, which prior Georgia law did not. A
creditor generally must bring a fraudulent transfer claim within four years of the transfer.
However, a discovery rule also permits certain fraudulent transfer claims to be asserted beyond
the four-year period if they are brought within one year after the creditor discovers or reasonably
should have discovered the transfer. Claims to avoid or recover a repayment of debt made to an
insider must be brought within one year of the repayment.
Fraudulent transfer issues play important roles in the structuring of many corporate
transactions, including spin-offs, leveraged buyouts, acquisitions, and internal reorganizations.
The enactment of the UFTA in Georgia should provide debtors and creditors with greater
certainty and predictability in analyzing fraudulent transfer issues.
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