Katya Sverdlov Blog

Some people think that asset protection is only relevant when you have a bankruptcy looming in the near future. Nothing could be further from the truth. Attempting to hide your assets when there are known creditors may be classified as ‘fraudulent conveyance’ and may not be effective.

Instead, asset protection is a legal method of arranging your assets in such a way as to make them impervious to a future creditor attack. It is most effective when done ahead of time, with the benefit of thought and planning. Below are 5 scenarios where asset protection would be appropriate:

1. Protecting Money from Irresponsible Young Children. If a parent dies without a will, or leaves everything in his will directly to the children, then under the New York law, children will receive the money (including life insurance proceeds) at the age of 18. Some may think that this is too early, because lots of children are still irresponsible at that age. Wills and trusts can be written in such a way as to delay the receipt of money until either a specified age, or a specified time in a child's life (marriage, college graduation, etc).

2. Medicaid Planning. An elderly person may need to receive long term care in the future (such as home care or nursing home care). In New York City, full time home care and nursing home care costs approximately $13,000 a month. Very few people have sufficient savings to be able to afford this cost for the needed time. As a result, asset transfers either to trusts or directly to children achieve the result of preserving the assets for the family, while making the parents eligible for long term care assistance from the government. To be most effective, these transfers should be done before the care becomes needed.

3. Special Needs Planning. A child or a relative with special needs may require government assistance for the rest of his life. Yet government programs cover only the most basic needs and parents and relatives may want to enhance the life of the child. There are ways of providing money for a special needs relative in a way that preserves his eligibility for government programs.

4. Protecting Money from Irresponsible Adults. Some families have members with problems – drug, alcohol, gambling, creditors, etc. Leaving money directly to that person is almost like throwing the money away. Trusts can be written in such a way as to control the distribution of money to a profligate family member, with the result that the money will be protected – both from the person and from his creditors.

5. Protecting Money from Your Own Future Creditors and Financial Loss. If you are engaged in a business where there is a possibility of you getting sued, then you may want to shield as many of your assets as possible. Moving your assets after the creditor has already materialized may be considered fraudulent and will not be effective. There are many ways to shield your assets: irrevocable trusts, LLCs, corporations, family limited partnerships, trusts in other jurisdictions, etc. The key to protecting your assets is to do so before asset protection becomes a necessity.

What are the ABLE Accounts? Not many people are aware of it, but if you have a disabled relative, you can save money for their benefit, WITHOUT jeopardizing their receipt of Medicaid or SSI. In the past, a Supplemental Needs Trust was the only option.  Under the Achieving a Better Life Experience (ABLE) Act, family and friends may now contribute up to $14,000 a year to an ABLE account, without the cost of setting up a Trust.   

What can the money be used for? The money in the account can be used for the qualified disability expenses, which include beneficiary’s education, housing, transportation, employment support, financial management and wellness.  Similar to the money in the more familiar 529 Plan, all income in the account grows tax free and all withdrawals for the qualified  disability expenses are also tax free.

Impact on Government Assistance? Regardless of the amount of assets in the ABLE account, the beneficiary’s Medicaid eligibility will not be suspended. However, if the beneficiary is receiving Supplemental Security Income (SSI), no more than $100,000 is permitted to be kept in the ABLE account.  

Medicaid Payback Provision? In the event the beneficiary of the ABLE account dies (or ceases to be an individual with a disability) with remaining assets in the ABLE account, the remaining assets will be distributed to the New York Medicaid to repay the cost of the medical assistance provided to the beneficiary after the creation of the ABLE account.

When can you open an ABLE account? The legislation was passed by Congress at the end of 2014 and has been recently signed by President Obama. Now, individual states must pass the required legislation, to enable the individual accounts in each state.

Why a Supplemental Needs Trust may still be a better option.

1. A Supplemental Needs Trust, set up by a relative for the benefit of a disabled beneficiary, does NOT need to have a Medicaid Payback Provision. As a result, any money left over after the death of a beneficiary will be able to be passed on to the remaining family members.

2. A Supplemental Needs Trust can be set up at any point. The legislation to be able to do so in New York must  still be passed.

3. A Supplemental Needs Trust does not have the multitude of restrictions that are contained in the ABLE legislation:

1. A Supplemental Needs Trust may contain any amount of money, without a $100,000 limit for the purpose of SSI benefits.

2. An ABLE account beneficiary must have been classified as ‘disabled’ by the time he turned 26.  There is no such restriction for the beneficiary of a Supplemental Needs Trust.

3. A maximum contribution that an individual can make to an ABLE account is $14,000 per year. There is no maximum contribution limit for a Supplemental Needs Trust (although a gift tax return may need to be filed for higher amounts).

Generally, most estate planning literature focuses on married individuals. However, according to the Census Bureau, in 2013 almost half of Americans age 15 and older were single. If you are single and die intestate (without a will) your money will be distributed in ways you may not like.