A Florida asset protection attorney is a lawyer with experience in several areas of law that are involved in the asset protection process. A good asset protection attorney in Florida must understand the debt collection law that creditors use to attack a judgment debtor’s assets and must be knowledgeable about Florida’s constitutional and statutory exemption laws to know what assets are protected from creditors. In addition, knowledge of bankruptcy law is essential because most case law applying Florida exemptions has occurred in bankruptcy court litigation. Last, a Florida asset protection attorney needs experience with estate planning and tax law to explain to the debtor any tax and estate planning consequences of asset transfers designed for creditor protection.
Florida Asset Protection Process
Asset protection is the process of arranging asset ownership in a manner that places assets beyond the reach of judgment creditors. A Florida asset protection attorney will design for each client a customized asset protection plan that takes advantage of Florida asset protection law for the client’s unique circumstances. The plan design is the most important part of the asset protection process.
The attorney’s initial step in the planning process is his discovery and review of the client’s assets and family situation. The client must accurately describe all of his assets, including how each of his assets is legally owned and titled. Asset titling means the names of owners that appear on public record (land, cars, etc.) or documents (such as bank statements) that describe the asset. A client who is not sure how his assets are owned should provide his asset protection attorney with a copy of a recent monthly statements and transfer documents.
Many people have interests in corporations or LLCs that operate businesses or own property. The Florida asset protection attorney needs to understand how the shares or membership interests in business entities are titled on the business records and business federal tax returns.
The asset protection lawyer also needs to know the client’s family situation—specifically, marriage status, and legal dependents. Marriage and support obligations provide Florida residents with substantial asset protection tools.
Asset Protection During Ongoing Litigation
The Florida asset protection lawyer must know whether the client is a party in civil litigation or has been threatened with litigation. If there is already a money judgment entered against the client, the asset protection lawyer must know the judgment’s date, the amount, and the court that entered the judgment. The client must also tell the asset protection attorney whether the judgment creditor is actively attempting to collect an existing judgment by, for instance, requesting client financial records or scheduling an oral deposition in aid of collection.
Existing judgments and current litigation do not preclude asset protection planning, but the status of litigation or collection helps the Florida asset protection attorney know the client’s options for changes in the client’s non-exempt assets that will endure a fraudulent transfer challenge.
Exemption Assessment
Based upon client’s description of assets and asset ownership the asset protection attorney will explain which assets are exempt from creditors and which assets are non-exempt and vulnerable to judgment collection. The asset protection attorney will develop a plan to best protect the client’s non-exempt assets in light of the client’s litigation status and family situation.
An experienced asset protection attorney will confirm that the client understands each asset protection tool, and he will describe the costs and likely effectiveness of alternative asset protection strategies given current Florida law.
Implementation of Florida Asset Protection
An asset protection attorney should provide each client choices of different asset protection tools to improve the client’s negotiating position with his creditors. Asset protection tools and strategies vary in their degree of complication, their costs, and probable effect.
The client, not the attorney, chooses which asset protection tools are most appropriate and affordable for the client’s personal situation. Once the client selects their asset protection tools the client and the asset protection lawyer discuss an implementation plan.
The client and his attorney should understand what implementation work the client will handle and what legal work will be handled by the asset protection attorney. The client reasonably may ask his attorney for an estimate of the attorney’s legal fees and completion time for the attorney’s further legal services.
How to Find and Choose a Florida Asset Protection Attorney
As discussed above, asset protection is a narrow area of the law that involves several different areas of legal specialization. A competent asset protection attorney must have knowledge and experience in each of these legal fields including experience with debt collection, estate planning, tax, and bankruptcy law. The attorney’s geographical location within the State of Florida is not important especially given recent trends in video conferencing—what is more important is the attorney’s knowledge about applicable Florida law, the length of asset protection experience, and his professional reputation.
Page last updated on February 19, 2021