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What are some risks involved in using an asset protection trust?

Irrevocable trusts are seasoned veterans in the area of asset protection. However, self-settled asset protection trusts (APTs) are relatively new creatures. This is because the essence of asset protection trusts revolve around giving the property away and no longer exercising dominion and control over it. Some states allow for self-settled APTs, like Alaska, Delaware, Nevada, Rhode Island, South Dakota, and Utah. With a domestic self-settled asset protection trust, you irrevocably transfer assets to the trust and name yourself as a beneficiary to receive distributions within the discretion of an independent trustee. You may, however, retain certain rights, including the right to remove and replace the trustee as long as the replacement trustee is also independent and not a related or subordinate party as defined in the Internal Revenue Code. By retaining a limited power to appoint the trust assets to specific family members at your death, the transfer is incomplete for gift tax purposes and therefore you are not required to file a federal gift tax return. If the trust is designed as incomplete for gift tax purposes, the trust remains part of your estate but the assets should remain free from the claims of your creditors. If designed as a completed gift for tax purposes, others will be the primary beneficiaries but you might still entitled to receive discretionary needs benefits should you be without sufficient resources to maintain your lifestyle. The self-settled asset protection trust laws vary from state to state and, therefore, there may be advantages to selecting one state's laws over another in your particular circumstances. Fortunately, you can elect to have your trust governed by a particular state's statute as long as you meet the requirements of that statute, which typically include that the trust assets be located within that state and managed by a local trustee.Note that self-settled asset protection trusts are only effective for future creditors, as the fraudulent transfer laws of all states prohibit transfers to avoid existing creditors. Also, the trust must be in existence for at least 10 years to protect you against creditors in bankruptcy.The benefits include the obvious -- asset protection without giving away the assets. The downside is the lack of litigation leaves them very untested. Since the odds are that you do not live in one of these states, another disadvantage is that you have to pay a trustee in the state in which the trust resides to administer the trust. Lastly, if you utilize an offshore APT, trustees' refusal to make distributions of assets to creditors with judgments has left the creator of the trust (grantor/settlor) in jail for contempt of court.

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