Asset Protection

The Taboo Subject of Estate Planning and Firearms

Posted on: January 25th, 2017
A guest contributor on Southern Gun Law Group, Dennis Gayness is a Certified Firearms Appraiser with the Triangle Shooting Academy. In his guest post he delves into events throughout history that have influenced rare and collectible firearms passed down through generations....

Why North Carolina Trustees Should Acquire Liability Insurance

Posted on: January 25th, 2017
Without liability insurance, trustees remain personally accountable for trust administration mistakes. Certain insurance policies help to manage trustee liability. These errors and omissions insurance policies for trustees provide coverage in the event that claims, lawsuits, or damages occur as a result of the trustee’s actions or inaction....

Inherited IRA Ruling: Distinctions Between Federal and State Tax Law

Posted on: July 22nd, 2016
Our attorneys strive to share notable rulings and case law to help clients and other advisers understand how a court or officials might respond to a particular set of circumstances. In early June 2016, Private Letter Ruling 201623001 rejected a woman’s request to rollover part of her son’s inherited IRAs....

Terminating a Trust in North Carolina

Posted on: June 13th, 2016
Revocable and irrevocable trusts follow unique termination procedures. Although their name implies they cannot be changed, irrevocable trusts may be modified in certain circumstances. The circumstances surrounding a trust termination, and the type of trust, help to determine how a trustee may handle termination....

Estate Planning for Multiple Homes

Posted on: April 29th, 2016
Families may consider ownership of multiple properties for different reasons. Some folks prefer to have an extra property closer to family, for professional purposes, for leisure, or as an investment. While owning multiple properties may accomplish one or more of these goals, acquiring additional property can cause liability issues, tax complications, and probate concerns....

3 Things Living Trusts Won’t Control

Posted on: April 28th, 2016
Trusts can help to minimize an estate tax burden and allow the trust grantor to retain control and flexibility. While trusts may serve as a powerful estate planning tool, there are some aspects that a living trust will not control....

North Carolina Ranks 15th For Trust Decanting in 2016

Posted on: February 15th, 2016
Trust decanting is a process that allows assets of a trust to be distributed to another trust with different terms; generally the newer trust offers terms that better satisfy the needs of the beneficiary. Some states impose burdensome administration requirements for trust decanting, while others offer easier means of use....

Almost 1 in 4 Caregivers are Millennials

Posted on: January 19th, 2016
New research shows that almost 25 percent of caregivers are Millennials. The research came from a joint study between the National Alliance for Caregiving and the AARP Policy Institute....

Problems With Old Trusts

Posted on: November 21st, 2015
Even if one’s goals were accomplished when a trust was initially created years ago, those goals might not align with current tax legislation and, sometimes, could result in overly complicated trust administration....

Tax Considerations in Structuring Inheritances

Posted on: November 18th, 2015
When dividing assets in an estate plan, the testator might be inclined to evenly split assets for heirs. However, if not planned for properly, federal and state tax requirements nevertheless could result in an uneven split of assets upon distribution...

Legal Planning: Greater Costs for Dementia and Alzheimer’s Care

Posted on: November 17th, 2015
End-of-life treatments in particular cost 81 percent more for dementia patients than others. Cognitive impairments such as dementia and Alzheimer’s impose significant care expenses on the aging population....

Elective Share Waivers in North Carolina

Posted on: October 13th, 2015
A case from the North Carolina Court of Appeals highlights the critical function of financial disclosure in the elective share process, while also showing the legal entitlements of a soon-to-be-former-spouse navigating divorce in North Carolina....

Protect an Elderly Relative’s Identity During Life and After

Posted on: September 28th, 2015
Identity theft is not only a concern during one’s lifetime; some fraudulent parties specifically target the identities of the elderly or deceased. Identity theft risks the security of one’s assets and can be costly to resolve....

3 Questions to Ask if You Own Real Property With Joint Title in NC

Posted on: September 23rd, 2015
There are several ways to hold joint title to real property in North Carolina. The method of titling can also leave the property at risk to certain claims while both owners are alive, a factor which might be considered when choosing how to hold title. ...

Assets Not Distributed According to One’s Will

Posted on: September 2nd, 2015
Keeping one’s last will and testament and other estate planning documents up-to-date is a critical part of maintaining one’s estate plan. However, merely creating and updating one’s estate planning documents is not enough, by itself, to adequately provide for distribution of every asset....

3 Financial Scams Targeting the Elderly

Posted on: July 7th, 2015
A challenge seniors face is being the target of elder financial abuse. Aside from an unscrupulous family member mismanaging a senior’s assets, third party organizations use underhanded tactics to take advantage of seniors....

Phone Scam Using Our Firm Name

Posted on: June 24th, 2015
Be advised we do not make unsolicited phone calls to persons with whom we have no prior relationship, regarding tax advice or any other legal or financial services....

NC Estate Planning Blog New Platform

Posted on: June 17th, 2015
Our attorneys in Chapel Hill with TrustCounsel recently switched blog platforms for the North Carolina Estate Planning Blog....

3 Reasons to Choose a Non-Family Trustee

Posted on: May 25th, 2015
Creating a trust generally involves the intention of preserving assets for loved ones. Benefiting from a trust’s preservation might not be possible if the trust is not maintained properly. ...

5 Tips for Millennials’ Estate Plans

Posted on: January 30th, 2015
Every adult can benefit from an estate plan, regardless of marital status, age, income, or assets. Our Chapel Hill estate planning attorneys have even reviewed estate planning tips for college students. ...

Timeshares in Estate Planning

Posted on: December 19th, 2014
Many of the clients our estate planning attorneys in Chapel Hill serve own property in multiple states, and some of the properties are timeshares. Timeshares are generally considered real property, with a deed as evidence of ownership. ...

Top 5 States for Dynasty Trusts

Posted on: November 4th, 2014
Dynasty trusts offer asset protection and estate and generation-tax skipping tax avoidance over many generations. Three years ago attorney Steve Oshins started a ranking system of dynasty trusts. ...

Access to One’s Digital Estate

Posted on: October 25th, 2014
More states are starting to address a growing area of an individual’s estate: Digital assets. Last year North Carolina was slated to amend the durable power of attorney and estate administration laws to include power to manage digital assets, but the provisions did not pass. ...

Protecting IRA Assets for Beneficiaries: IRA Beneficiary Trusts

Posted on: October 23rd, 2014
Earlier this year the Supreme Court ruled in Clark v. Rameker that inherited retirement accounts are subject to bankruptcy claims. As a result of this ruling, IRA owners are taking steps to ensure assets accumulated over a lifetime are protected for loved ones. ...

Estate Plan Update: New Life Insurance Option life insurance trust

Posted on: August 22nd, 2014
Life insurance can be a great estate planning tool. Payments generally do not go through probate, loved ones may not need to struggle financially after one’s death, and proceeds can be protected from creditors. ...

Increasing Trust Income Distributions

Posted on: August 19th, 2014
Many trusts provide for lifetime income, but no principal, to the first generation of beneficiaries. In these days of low interest rates, income payments have suffered. However, income distributions from trusts do not have to be permanently affected by low interest rates. ...

Consequences of No Digital Asset Protection

Posted on: July 22nd, 2014
Digital asset protection is more than leaving behind one’s passwords. In an increasingly paperless world, failing to create instructions for accessing digital accounts could create problems for surviving family members....

Incentive Trusts

Posted on: June 24th, 2014
Trusts may be customized to suit the grantor’s wishes, which may include their determination of what’s best for their beneficiaries....

Tennessee is #3 for Domestic Asset Protection Trusts in 2014

Posted on: May 27th, 2014
A year ago Tennessee tied for the fourth spot in Steve Oshins’ AnnualDomestic Asset Protection Trust State Rankings. Last summer Oshinsupdated the rankings after pending legislation failed to pass, and Tennessee jumped a spot—tied for third with Ohio....

New NC Court Ruling Affects LLCs

Posted on: May 1st, 2014
North Carolina Limited Liability Company (LLC) owners may be interested in a new court ruling that illustrates the protection these asset preservation tools offer. ...

How to Change an Irrevocable Trust

Posted on: April 30th, 2014
Irrevocable trusts have historically been viewed as just that: Irrevocable. However, with advances in state law and drafting techniques, there are now a few ways to amend the terms of an irrevocable trust....

Non-Tax Benefits of Family Limited Liability Companies

Posted on: April 28th, 2014
Family Limited Liability Companies (FLLC) are one of several asset protection tools used to preserve assets of family businesses. These assets may include real estate and investments....

Reverse Mortgages and Inheritances

Posted on: April 24th, 2014
Should beneficiaries of a potential inheritance be concerned if their elderly relative decides to get a reverse mortgage? Reverse mortgages are not the right choice for everyone. The New York Times recently reported how adult children are often against the idea of their parents using a reverse mortgage as this would deplete the asset the children would ultimately expect to inherit. ...

Tax Scams to Avoid This Tax Season

Posted on: March 18th, 2014
Throughout the year our tax planning attorneys in Chapel Hill offer news about back tax scams, charity frauds, andelder financial abuse affecting North Carolina taxpayers. ...

Cost to Consider When Funding Pet Trusts: Pet Hospice

Posted on: January 4th, 2014
Pet trusts offer animal owners a way to preserve assets for their pets’ benefit once the owners themselves pass away. In addition to designating a care provider, these estate planning tools help cover the costs for pet healthcare, food, living expenses, and basic enjoyment of life. A new trend is developing that pet owners should consider when deciding how much money to leave for their non-human family members: Pet hospice....

Protecting Tangible Assets

Posted on: December 27th, 2013
Asset protection in North Carolina is not limited to preservation of investments and financial accounts. Art, antiques, classic cars, and other collectible items require asset protection tools and careful tax planning. ...

Forming an LLC in North Carolina

Posted on: December 12th, 2013
As North Carolina continues to top “Best for Business” lists year after year, how are entrepreneurs and business owners across the state protecting their professional and personal assets?...

Life Estate Insurance Blunder

Posted on: November 11th, 2013
Forgetting to simply add one name to a homeowner’s insurance policy could compromise an heir’s property inheritance. For individuals who take advantage of the added protection, reduced taxes, and ability to avoid probate that a life estate offers when holding title to property, one mistake with insurance may create more problems than their careful planning had intended to prevent. ...

3 Concerns for Minors Inheriting IRAs

Posted on: November 7th, 2013
Beneficiary designations for Individual Retirement Accounts (IRAs) allow account holders to designate a trust, charity, or any individual, regardless of their age, as a beneficiary. ...

Equitable Distribution Process in North Carolina

Posted on: October 25th, 2013
Claims for equitable distribution in North Carolina are only valid if they are made after the date of separation and before the date of divorce. When filed timely, the process starts with identifying marital and separate property....

Retirement Accounts Vulnerable to Back Taxes

Posted on: October 24th, 2013
Tax shelter for long-term savings is one of the features that attract people to Individual Retirement Accounts (IRAs). Once certain age requirements are met, distributions from IRAs are penalty-free, and Roth IRA distributions are tax-free—as opposed to taxable Traditional IRA distributions, since contributions to these retirement accounts are made with pre-tax dollars. ...

Dissolving a Trust in North Carolina

Posted on: October 23rd, 2013
A year ago the nation waited for the government’s announcement about the estate tax exemption for 2013. A large number of American taxpayers established and funded irrevocable trusts just in case the federal estate tax exemption dropped to $1 million. ...

Exempt Assets: Retain Medicaid Eligibility

Posted on: October 15th, 2013
Families need every resource available to cover the costs of nursing homes in North Carolina. A senior’s unwise spending or gifting prior to moving into a nursing home could come with a significant price tag....

Swiss Accounts: New Tax Terms for Offshore Accounts

Posted on: October 12th, 2013
Offshore trusts offer many benefits, which our attorneys explain in this foreign trust protection post. Offshore trusts or accounts are not exempt from domestic taxes, however some taxpayers have illegally used offshore accounts as a means of tax evasion....

Lost Life Insurance Policies

Posted on: October 11th, 2013
Were you told by a loved one that you were a beneficiary of their life insurance policy? If they passed away and didn’t leave behind policy details, how do you find the policy number and value of the benefits?...

Creditor Protection for Inherited IRAs

Posted on: September 29th, 2013
In June 2013, North Carolina’s Governor signed Senate Bill 279 into law, which made changes to statutes related to estates, trusts, and guardianships. One change provides additional creditor protection on retirement accounts in North Carolina....

Trust Modifications if you Move Out-of-State

Posted on: August 27th, 2013
If you are moving to North Carolina and already established a living trust in another state, or if you established a living trust in North Carolina and are now moving out-of-state, are you compromising the terms of your trust with your relocation?...

3 Things to Include in a North Carolina Prenuptial Agreement

Posted on: August 25th, 2013
Creating a North Carolina prenuptial (premarital) agreement for engaged couples empowers both partners with the ability to decide what happens to their respective property in the event of divorce, a spouse’s death or incapacitation....

Updated: Top States for Domestic Asset Protection Trusts 2013

Posted on: August 2nd, 2013
Our asset protection lawyers in Chapel Hill shared Steve Oshins’ Annual Domestic Asset Protection Trust State Rankings earlier this year, and now there is a mid-year update:...

3 Tips to Avoid Family Conflicts in Estate Planning

Posted on: July 31st, 2013
Whether you are creating an estate plan for the first time or making changes to one, be aware that how you plan to leave your assets may create tension in your family. ...

Trust Trend: Make Heirs Wait

Posted on: July 15th, 2013
How long will it take you to receive your inheritance in North Carolina? If our state follows a national trend, the time may be growing longer. ...

3 Estate Planning Mistakes You Can Fix

Posted on: June 3rd, 2013
Choosing to make an estate plan is smart, but some individuals happen to make mistakes at the same time. Estate planning should not be intimidating. ...

Should an Estate Plan be Revised Before or After a Divorce?

Posted on: May 20th, 2013
We’ve written about the importance of updating your beneficiaries, but when you’re going through a divorce, should you update your estate plan while navigating separation or after the divorce is finalized? ...

Google’s Digital Asset Management Tool

Posted on: April 25th, 2013
2013 seems to be the year of digital afterlife planning. Last month the North Carolina Senate approved Bill 279, a bill for the state’s first-ever laws addressing digital assets. This month Google took their first step forward in post-death account management of their applications....

Obama’s 2013 Budget Proposal to Push Estate Tax Back to 2009 Terms

Posted on: April 16th, 2013
Although Obama’s American Taxpayer Relief Act was said to make permanent changes, lawmakers had also advised that it was just the first step in a series of changes. ...

5 Tax Scams of 2013

Posted on: April 11th, 2013
Every year many innocent people fall victim to tax scams. Taxpayers may be taken advantage of by scammers, dishonest tax preparers, or may have their identity stolen by other means. ...

Ways to Protect Your Finances: Financial Literacy Month

Posted on: April 9th, 2013
April is Autism Awareness Month, Parkinson’s Awareness Month, and it is also Financial Literacy Month. These three campaigns may at first appear unrelated to each other, but they are interconnected....

North Carolina Bill Affecting Digital Assets

Posted on: March 30th, 2013
Recently we reviewed the challenges of digital estate planning—the ways surviving family members’ access to a decedent’s online accounts are affected—and how accessibility is determined by individual account policies....

3 Asset Protection Tips for 2013

Posted on: January 27th, 2013
As North Carolina business owners and other taxpayers adjust to the effects of the 2012 American Tax Payer Relief Act, they are starting to focus on asset protection strategies at the same time as minimizing taxes to the fullest extent possible....

Trust Protectors in North Carolina Trusts

Posted on: October 29th, 2012
North Carolina recently expanded its law regarding trust "power holders," persons named in a trust, other than trustee, who are given certain powers over the trust and/or trustee. ...

Ranking Domestic Asset Protection Trust States

Posted on: March 14th, 2012
Las Vegas asset protection guru Steve Oshins has updated his Domestic Asset Protection Trust (DAPT) State Ranking Chart. ...

Drafting an IRA Trust – What You Need to Know

Posted on: January 27th, 2012
I have previously blogged about IRA Trusts, which are one of my favorite estate planning tools. This afternoon I presented a 90 minute national continuing legal education teleconference and webinar on the topic. I...

AK Bankruptcy Court Avoids Transfer to AK DAPT

Posted on: October 19th, 2011
In the May 26, 2011 Alaska Bankruptcy Court decision of In re Mortensen, the court avoided a transfer of real property of the debtor to an Alaska Domestic Asset Protection Trust (DAPT). The judge held that under Section 548(3) of the Bankruptcy Code, any transfer to a DAPT for less than full and adequate consideration is,...

Nevada Asset Protection Trust Laws Improved

Posted on: October 3rd, 2011
Nevada’s new Domestic Asset Protection Trust (DAPT) laws became effective October 1, 2011. One new feature is the ability to move a DAPT that was established in another state to Nevada without having to start the statute of limitations period over....

NC Homestead Exemption to Increase

Posted on: September 8th, 2011
House Bill 1058 – Effective December 1, 2009, an individual resident of North Carolina who is a debtor can retain, free from the enforcement of the claims of creditors, the debtor’s aggregate interest, not to exceed $35,000 in value, ...

Bankruptcy Courts Agree – Inherited IRAs Exempt

Posted on: August 30th, 2011
With the Texas case of In re Chilton reversed in U.S. District Court, which held that the debtor’s inherited IRA was exempt from the claims of creditors, all bankruptcy courts that have ruled on the issue have determined that inherited IRAs are exempt in bankruptcy. ...

How to Avoid Investment Fraud

Posted on: June 24th, 2011
As an estate planning attorney and Certified Financial Planner, much of what I do is help people protect and grow their assets. Unfortunately, there are those who seek to do the opposite – con artists who try to take others’ hard earned money by committing investment fraud. ...

Why You Might Not Want a Simple Estate Plan

Posted on: April 25th, 2011
Many people come in to see me with the notion that all that they need and want is a "simple" estate plan. Generally that means no living trust, and a will with no trust provisions for surviving family members. ...

Texas Court Rules Inherited IRA Protected in Bankruptcy

Posted on: April 1st, 2011
In a ruling entered on March 16, 2011, the U.S. District Court for the Eastern District of Texas, in Chilton v. Moser (2011, DC TX) 2011 WL 938310, reversed the bankruptcy court and held that a debtor’s inherited IRA met the requirements for a bankruptcy exemption under Bankruptcy Code §522(d)(12)....

NC Supreme Court Decision Kinlaw V. Harris IRA Exemption Case

Posted on: April 1st, 2011
I previously blogged about the ruling by the North Carolina Court of Appeals that in addition to IRA accounts being exempt from creditors, distributions from IRAs were also exempt. On appeal, the North Carolina Supreme Court held that “there may be some circumstances under which withdrawn funds are no longer exempt from execution.” ...

Domestic Asset Protection Trusts – What State is Best?

Posted on: January 11th, 2011
A dozen states now offer what are called Domestic Asset Protection Trusts (DAPTs), which allow a trust grantor to shelter trust assets from creditors while retaining the right to distributions from the trust. ...

Is Your 403(b) Account Safe from Creditors?

Posted on: October 29th, 2010
403(b) plans are employee-funded retirement savings plans offered by educational institutions and 501(c)(3) charitable organization. While the plans of private schools are automatically covered by the Employer Retirement Income Security Act 0f 1974 (ERISA), public schools and universities are exempt. ...

NC Court of Appeals Holds IRA Withdrawals Exempt from Creditors

Posted on: September 16th, 2010
The North Carolina Court of Appeals, in Kinlaw v. Johnson, confirmed statutory law protecting IRAs from creditors, and extended the protection to the account owner’s legal use of IRA funds from collection on a creditor’s judgment. The court stated:...

What is Medicaid Planning?

Posted on: August 5th, 2010
This post is by elder law attorney Kristin L. Burrows, who recently joined my firm. Look for more entries from her in the future, focusing on elder law....

North Carolina vs. Florida: Creditor Protection & Taxes

Posted on: March 29th, 2010
Many North Carolinians have winter homes in Florida, and even more Floridians have summer homes in the North Carolina mountains....

Inherited IRAs – the continuing saga in bankruptcy

Posted on: March 11th, 2010
I previously blogged about inherited IRAs being subject to the claims of creditors, both in (In Re: Jarboe) and outside of (Robertson v. Deeb) bankruptcy, and one case (In Re: Nessa) where an inherited IRA was determined to be protected under federal law....

Planning with the Wyoming Close LLC

Posted on: December 21st, 2009
What is an LLC? In 1977 Wyoming was the first state to enact laws permitting the creation of a Limited Liability Company. ...

Inherited IRAs are Not Creditor Protected – #2

Posted on: September 4th, 2009
I previously blogged about a Bankruptcy Court in Texas holding that an inherited IRA was not exempt from claims of the new owner’s creditors. In re Jarboe, 2007 WL 987314 (Bkrtcy S.D. Tex. 2007)....

The Time for Asset Protection Planning is Now

Posted on: August 29th, 2009
Many people come to see me for asset protection advice only after some type of actual or probable liability has arisen. At that time, it is normally too late to do any meaningful asset protection, as most contemplated transfers of property could be undone as a fraudulent conveyance....

Your IRA may be at Risk

Posted on: July 28th, 2009
In North Carolina standard IRAs are exempt from creditors’ claims, under state law and federal bankruptcy law. Also, qualified retirement plans, such as 401(k)s and 403(b)s, are protected under the federal ERISA law....

Offshore Trust Cases – Trading Jail for Protection?

Posted on: May 29th, 2009
Offshore trusts continue to be an effective asset protection tool, including in bankruptcy, tax litigation, and divorce situations, even when the facts are not favorable to the trust grantor. ...

A Short Story on Asset Protection

Posted on: May 21st, 2009
I had a new client come in yesterday, and we were discussing including asset protection in his estate plan. He mentioned he had recently been sued for lead paint related issues by the tenant of an older rental home he owned in another state....

Beyond the Basics – a Trio of Considerations for Succession Planning

Posted on: May 16th, 2008
When doing estate planning, one needs to consider to whom to leave one’s property, which is usually not much of a problem....

Good News for Family LLCs

Posted on: May 11th, 2008
As a proponent of Family Limited Liability Companies (LLCs) for asset management, creditor protection, and ease of gifting, I was pleased to read about the U.S. Tax Court’s decision in Mirowski v. Commissioner, T.C. Memo 2008-74. ...

Protect Your Ancestors’ Legacy with an Inheritor’s Trust

Posted on: February 16th, 2008
If you’re like many folks, you may be deeply concerned about how litigious our society has become and fear that your assets may one day be taken by creditors. ...

Inherited IRA Not Creditor Protected

Posted on: July 20th, 2007
The IRA you inherited from your parents, or that your kids might inherit from you, may not be safe from lawsuits. Jim Roberts, of Glast, Phillips & Murray, P.C. in Dallas, reports on a U.S. Bankruptcy case interpreting Texas law on this issue:...