Asset Protection Law Journal : Asset Protection Lawyer & Attorney : Kenneth J. Laino : Schneider Smeltz Ranney & LaFond Law Firm : Trusts, Estate Planning

Offshore trusts are receiving far more media attention than they did in the past.  And much of the media attention is negative.  Floyd Norris, writing in the January 22, 2010 New York Times, shines the spotlight very brightly on the Cook Islands.  The Cook Islands (in the South Pacific) have a population of about 20,000 (which, as Mr. Norris points out, is less than some apartment complexes in New York City).  The islands are known mostly for tourism.  They contract their national defense to New Zealand, which is four hours away by plane.  Yet the Cook Islands have a thriving international trust business.

Mr. Norris acknowledges that a Cook Islands trust can provide some significant asset protection.  He notes that under Cook Islands law foreign court orders are frequently disregarded, which can be very helpful for someone trying to keep assets away from creditors.  There must be a local trustee, so anyone setting up a Cook Islands trust for asset protection purposes must surrender at least some control over the assets in the trust.

Mr. Norris notes, however, that over the years a number of "less than upstanding Americans" have taken advantage of the protection offered by Cook Islands law.  He explains that the latest among them is Jamie L. Solow.  Mr. Solow was recently convicted by a jury in West Palm Beach, Florida of securities fraud.  U.S. District Judge Donald M. Middlebrooks of the United States District Court for the Southern District of Florida has ordered Mr. Solow to prison for failing to turn over assets from a Cook Islands trust.  This case is yet another reminder that offshore trusts will not automatically result in foolproof asset protection.  Judge Middlebrooks is not the first federal judge to order a defendant incarcerated for failure to turn over funds from an offshore trust.  It is important to note that nearly all of the asset-moving activities in this particular case came after the Securities and Exchange Commission notified Mr. Solow that it intended to file suit.  Many of the asset transfers occurred after the jury rendered its verdict.  As I have explained in other posts, moving assets after you have a problem with creditors will usually be considered a fraudulent transfer.

An offshore trust can be an appropriate part of an asset protection plan.  But the use of such trusts by "less than upstanding Americans" is putting these trusts in an increasingly unfavorable spotlight.

SEE CORRECTION COMMENT FOLLOWING THIS POST.

• Email This
• Print
• Comments (1)
• Trackbacks

A couple recent inquiries from readers of this blog (as well as some recent client questions) reminded me of the critical role of the attorney in the asset protection planning process.

You will frequently benefit by getting input from multiple advisors -- such as your investment advisor, accountant, tax preparer, maybe even certain friends and family members.  Only an attorney, however, should ultimately render asset protection advice.  This is because once you have retained an attorney, your discussions with the attorney will be privileged.  The attorney-client privilege is a very strong one and is designed to facilitate open and honest discussions between you and your lawyer.  Correspondence and discussions with your investment advisor and most other professionals will generally not be privileged.  A reputable asset protection attorney will obviously not tolerate discussion about improper or unlawful activities.  It is nevertheless extremely important that you be able to speak freely and openly with your attorney about your particular situation and goals.  Again, input from other advisors is desirable.  But engaging in asset protection planning without the benefit of a trusted attorney is a big mistake.

Another reason that an attorney is so critical to the asset protection process is that only an attorney can lawfully draft certain documents.  For instance, while a financial advisor may have good advice with respect to certain provisions of a will or trust agreement, your financial advisor is not supposed to be drafting those documents.  In fact, that kind of drafting may constitute unauthorized practice of law.  Even putting aside the possible illegality of such action, it just does not make any sense.  I have had a couple instances recently in which I was presented with trust agreement provisions that had been prepared without the help of an attorney.  The poor drafting lead to all kinds of problems.

The failure of many individuals and organizations to engage in asset protection planning costs far more in the long run than the planning itself would have cost.  A team approach to asset protection planning is frequently advisable as long as a lawyer is a key team member.  Asset protection planning without the help of an attorney, however, is likely to be an accident waiting to happen.

• Email This
• Print
• Comments
• Trackbacks