Offshore Trust Asset Protection
The offshore trust is the best-known tool of offshore asset protection planning. An offshore trust is a trust agreement that is both created and holds assets in a jurisdiction outside the United States. Typically, an offshore trust is a “self-settled trust” where the trustmaker and the beneficiary are the same. The trustmaker appoints a trustee who is either an individual citizen of a foreign country or a trust company with no U.S. office or affiliation.
An offshore asset protection trust may have additional people serving as trust advisers or trust protectors. Advisors and protectors help administer and protect the offshore trust and its assets while having no beneficial interest in trust property. A protector can be given the power to change trustees, reallocate beneficial interests, or to direct the investment of trust assets.
An offshore trust protects assets from U.S. civil judgments primarily because the trust’s assets and its trustee are situated beyond the legal reach of U.S. state and federal civil courts. U.S. judges have no authority to compel an offshore trustee to take any action with trust assets. Creditors do not have legal means to levy upon or interfere with the administration of an offshore trust’s assets.
In other words, even if a U.S. court ordered a foreign trustee to turn over assets, the offshore trustee could ignore the order. To levy or garnish offshore trust assets, a U.S. judgment creditor would have to file and re-litigate the underlying U.S. lawsuit in the foreign courts and obtain a new foreign judgment. This is difficult, expensive, and rarely done.
What is Offshore Asset Protection?
Offshore asset protection is an asset protection tool that involves forming a trust or business entity in a favorable legal jurisdiction outside the United State. Offshore assets are placed under the control of trustees or managers who are not United States citizens and do not have a business presence in the United States.
People with both significant assets and higher risks of legal liability can employ offshore asset protection to move legal battles with creditors to jurisdictions beyond the reach of the United States courts.
Offshore Trust Jurisdictions
There are many academic publications and articles discussing the relative merits of various offshore trust jurisdictions. Common offshore trust jurisdictions include the Cook Islands, Nevis, West Indies, and Hungary. Each of these countries have trust statutes that are favorable for offshore asset protection.
There are subtle legal differences among offshore trust jurisdiction’s laws, but they have more features in common. The trustmaker’s choice of country depends mostly on where the trustmaker feels most comfortable placing his assets. A more detailed comparison of foreign trust laws is beyond the scope of this discussion.
Cook Islands Trust
One of the most commonly used offshore trust jurisdictions is the Cook Islands. Trust companies located in the Cook Islands are licensed and regulated by the Cook Islands government. Cook Islands law imposes strict procedures, qualifications on Cook Islands trust companies.
The Cook Islands was actually the first jurisdiction the enacted favorable trust laws enabling U.S. residents to protect assets. When the Cook Islands enacted the International Trusts Amendment Act of 1989, it became the premier offshore trust jurisdiction. The law affords the utmost asset protection, while still maintaining flexibility and privacy for U.S. trust-makers. Cook Islands trust companies are reputable, experienced, and thoroughly competent.
The Cook Islands are located in the South Pacific—same time zone as Hawaii.
Offshore Trust Example
Many offshore asset protection plans involve more than one legal entity. The U.S. person establishes, for example, an offshore trust and either a U.S. limited partnership or an offshore limited liability company. Most offshore LLCs are formed in Nevis, W.I. which for some time has been a favored LLC jurisdiction. The U.S. person first transfers his U.S. business interests, property, or money to the LLC. The LLC membership interests are owned solely by the trustee of the offshore trust. The trust beneficiaries are usually the trustmaker and his family.
For example, a U.S. person could form a Nevis LLC and transfer his assets to the LLC. The person next could establish a Cook Islands using an offshore trust company as trustee. The Cook Islands trust would own 100% of a Nevis LLC. The U.S. person could serve as initial manager of the Nevis LLC with the option of appointing an offshore manager should the person ever become under legal duress.
The benefits of this offshore asset protection structure include:
- The Nevis LLC are managed by the U.S. person when if there is no anticipated lawsuits. Once the legal issue arises, the trustee of the offshore trusts should remove the U.S. person as manager of the Nevis LLC and then appoint a successor manager that is also offshore.
- The plan diversifies control over two separate jurisdictions instead of putting all the assets in either the LLC or the trust.
Offshore Bank Accounts
Many people believe that they can protect cash deposits from their creditors simply by opening an offshore bank account. People assume that a judgment creditor can not garnish their accounts at a bank with no U.S. branches or offices.
However, it has become difficult for a U.S. citizen to open a foreign bank account in his own name. Most reputable foreign banks do not accept U.S. citizens as individual bank customers. Secret bank accounts do not exist because of treatises between the U.S. and most countries following 9/11.
In practice, the easiest way to deposit money in a foreign bank is to first establish an offshore LLC or offshore trust. Then, the debtor can request the foreign LLC manager or trustee open the account in the name of the foreign entity.
Foreign managers and trustees have relationships with banks that enable them to open accounts on behalf of their U.S. clients. Offshore trustees usually maintain their client’s financial accounts at E.U institutions with no U.S. branches. E.U. financial institutions can purchase U.S. marketable securities and maintain bank accounts in U.S. dollars. The trustmaker does not have direct access to offshore trust financial account, but he can request distributions from the offshore trustee.
Types of Assets Held in an Offshore Trust
Offshore trusts are most effective when protecting movable assets such as cash in the bank, marketable securities, small business stock, limited partnership interests, and LLC interests.
Offshore trusts are not as effective protecting real estate located in the U.S. In general, real estate remains subject to the powers of the courts of the jurisdiction where the property is located. Even if a debtor re-titles U.S. real estate in the name of an offshore trust or an offshore LLC , a U.S. court likely will still control the debtor’s equity and the property title because the property remains within the U.S. court’s geographical jurisdiction.
Offshore Trustee Issues
Trustee selection is the most important part of offshore trust asset protection. The offshore trustee controls the trustmaker’s assets. The offshore trustee can be a bank, a trustee company, or an individual in another country. The offshore trustee controls the trustmaker’s assets.
The trust plan works best where the trustee is professional, reliable, and most importantly, is willing to defend the offshore trust against attacks initiated by creditor collection. A person considering an offshore trust should investigate, and if feasible meet with personally, a foreign trustee before appointing them as trustee of their offshore trust.
Most people prefer to retain control of their own assets held in their offshore trust by having the power to remove and replace the trustee. Retaining the power to change an offshore trustee creates legal risks. A U.S court may not have direct authority over assets held offshore, but the court does retain personal jurisdiction over the trustmaker who resides in the U.S.
A judge could order the debtor to exercise his retained rights to substitute a creditor agent for the current offshore trustee. Therefore, offshore trust asset protection trusts work best if the trustmaker has no control over trust assets or other parties to the trust. The trustmaker should not retain any powers that he could be forced to exercise by a U.S. court order.
Some trustee companies permit the trustmaker to reserve primary discretion over trust investments and account management. This arrangement gives the trustmaker some control over assets conveyed to the trust, and the trustmaker can give up rights if he is threatened with legal action, leaving the offshore trustee in sole control. Another option is for the trustmaker to name a trust protection who is not subject to U.S. court jurisdiction. The trust protector can remove a trustee who is not responsive or who is not taking good care of trust assets.
Offshore Trusts in Bankruptcy
An offshore trust does not function as effectively if the U.S. debtor files bankruptcy. A bankruptcy debtor is responsible to surrender all of his assets and legal interest in property wherever held. Bankruptcy courts have worldwide jurisdiction and are not deterred by foreign countries’ refusal to recognize general civil court orders from the U.S.
A U.S. bankruptcy judge may compel the bankruptcy debtor to do whatever is required to turn over to the bankruptcy trustee all of the debtor’s assets throughout the world, including the debtor’s beneficial interest in an offshore trust. Bankruptcy debtors who have refused such orders have been held in contempt and have been incarcerated.
Taxes from Offshore Entities
Offshore asset protection trusts will not reduce or avoid U.S. income tax. This is a common misconception. Offshore trusts are not an effective income tax planning vehicle.
Generally, a foreign irrevocable trust will be treated as a “grantor trust” regardless of whether the trustmaker reserved any powers associated with domestic grantor trusts. A grantor trust is a trust whose taxable income is reported by the grantor so that the trust is disregarded for U.S. tax purposes. The trustmaker must report as ordinary income all trust income, including capital gains, on his personal tax return. This taxation treatment applies regardless of whether the assets themselves are in the Unites States or offshore.
In addition, there are IRS reporting requirements for trustees and beneficiaries of offshore trusts. In 1996 Congress imposed substantial penalties for failure to report offshore trust financial information. A trustmaker must work with a CPA experienced with foreign trust reporting and taxation.
Is Offshore Asset Protection Worth it?
Offshore trusts are not cheap. Increasingly invasive “know your customer” (KYC) regulations have made establishing offshore entities more difficult. An offshore trustee usually conducts more investigation of potential U.S. clients than the U.S. person undertakes to investigate possible offshore trustees. The increased scrutiny and KYC “red tape” have caused U.S. attorneys to increase their legal fees to establish an offshore trust plan.
After paying to set up the trust and convey assets to the trustee the trustmaker will incur annual administration fees. Trustee companies charge annual fees in the range of $1,000 to $5,000 per year plus hourly rates for extra services.
Offshore asset protection is not for everyone. For most people living in Florida a domestic asset protection plan will be as effective for much less money. But for some people facing difficult creditor problems the offshore trust is the best option to protect significant amount of assets.
Key Points About Offshore Trusts
There are ten important considerations regarding the offshore asset protection trust:
1. Offshore trusts are designed to place the trust assets and trust parties beyond the jurisdiction of U.S. courts enforcing a domestic civil judgment.
2. Offshore trusts are less effective in personal bankruptcy because bankruptcy courts have jurisdiction over a debtor’s assets wherever they are located worldwide.
3. Offshore asset protection trusts are less effective against IRS collection, criminal restitution judgments, and family support obligations.
4. Even if a U.S. court does not have jurisdiction over offshore trust assets, the U.S. court still has personal jurisdiction over the trustmaker, and the courts may try to compel a trustmaker to dissolve a trust or bring back trust assets.
5. The trustmaker must be willing to legal rights and control over your trust assets for an offshore trust to effectively protect these assets from U.S. judgments.
6. Selection of a professional and reliable trustee who will defend an offshore trust is more important than the selection of an offshore trust jurisdiction. Trustmakers should interview, and if possibly personally meet, prospective trustees of your offshore trusts.
7. Offshore trusts are irrevocable. The trustmaker cannot change the beneficiaries, trustees, or terms of an irrevocable offshore trust.
8. Offshore trusts are treated as “grantor trusts” for tax purposes meaning that trust income, including capital gains, is treated as the trustmaker’s ordinary income for U.S. tax purposes.
9. Most internet information about offshore trusts, including most advertising of offshore trusts, is published by document preparation companies that are not attorneys and that do not employ their own attorneys. People who “buy” an offshore trust package from a non-attorney company likely will not have effective asset protection.
10. Offshore trusts are complicated and expensive. Most Florida residents can achieve asset protection with traditional asset protection tools.
What to Do Next
We help people go through their assets and income and determine what is at risk of collection from a judgment creditor. We then develop a plan to protect any exposed assets from collection. If you’re interested in protecting your assets from monetary judgment creditors, contact us or schedule an appointment online.
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