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Will my personal assets be safe if I choose not to incorporate my business?

I own property and wondered if I MUST incorporate to ensure that I cannot be sued for my personal assets. Or is there insurance for this?

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Attorney answers (3)

Reputation Level 15
Asset protection should involve a number of strategies to provide the most safety for your personal assets. While insurance should always be considered, it is not foolproof and many times a claim against the business may not be covered by the policy. That is why, depending on the business risk and other factors, it is usually smart to get an entity (corporation, LLC, LLP, so on) in addition to insurance and other asset protection strategies.

You should contact a local business lawyer to discuss your business, the risks and the best strategies. It is money well spent as proper planning at the outset is always less expensive than trying to fix mistakes later. Just look through the questions on this site for proof of this principle.

DISCLAIMER—This answer is for informational purposes only and discusses general legal principles, trends, and considerations and is not intended as specific legal advice regarding your question. This answer does not establish an attorney client relationship.
2 people marked this answer as good
Warren Alan Kirshenbaum
Warren Alan Kirshenbaum, licensed in Massachusetts and 2 other states

Reputation Level 15
Without a corporate structure properly followed, any claim against your business could affect your personal assets. I always recommend incorporation for any business. While insurance can protect against certain risks (and should be obtained), only the corporate structure can separate your personal assets from any business assets.

Reputation Level 9
The short answer is yes, if the property you own is investment property.

In answering as i do, I am assuming that you own property in your personal name, and are now concerned about personal liability.

While you correctly assume that insurance may be a protection for you, there are various forms of potential liability.

If someone is injured on your property, then the insurance will be helpful. Regarding other forms of liability, however, insurance will not be helpful. For example, if there is liability because of a default on the mortgage, then you will be responsible. You won't avoid mortgage liability if you held the property in an entity versus personally, as the lender will usually require a personal guarantee from you, thereby eliminating the limited liability that an entity provides. The entity will, however, protect you from other debts and obligations incurred in the ordinary course of business, such as creditors. Insurance will not be helpful as an added protection in that regard. An entity also allows you to take a depreciation allowance and offset expenses against revenue, thereby lowering your tax bill.

So, on balance, it makes the most sense to incorporate and transfer the asset into the entity, but in any event, I would recommend you have insurance coverage as well.

To complete the transfer to an entity, you will need the consent of the lender, which is never a simple procedure, and you will have to have the deed assigned to the new entity, and recorded at the Registry of Deeds.

This is a general answer based upon the limited facts you state in the question, and should not be relied upon as legal advice. This answer does not, in and of itself, create an attorney-client relationship.

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