Montana Asset Inventory and Protection

Missoula, Montana asset inventory and protection estate planning attorneys.

Elder abuse is a general term that refers to a single or repeated act (or lack of appropriate action) that causes harm or distress to an older person. Normally, there is an expectation of trust between the elder and the offender. The elder may rely on the person for care and support, but instead receives neglect. Unfortunately, elder abuse is common, and the number of reported cases are probably only a fraction of the actual number of incidences.

It’s hard to understand why anyone would abuse an elderly person, but cases of elder abuse often involve a financial motivation for the abuser. Sometimes the abuser is an insensitive family member, trying to gain what is “rightfully” theirs or trying to prevent the sick relative from using their inheritance. Other individuals may try to become close to an elderly person by telling them that they love and care for them, with the actual motive of accessing the elderly person’s personal information and money. Business people can also take advantage of the elderly by overcharging or being dishonest with their business practices.
Moreover, the elderly are easier targets for abuse because of their declining health and mental states. They often suffer from ailments such as dementia, that may cause them to lose their memory and subsequently be taken advantage of. They may also feel lonely or unwanted, which may increase the need for attachment, even if it means clinging to an abusive caregiver.

Elder abuse often goes unreported because of mental or physical inabilities as well as embarrassment and shame about the abuse. Whether the abuse is intentional or unintentional, if you suspect elder abuse you may wish to speak to an attorney; it may also be appropriate to report it to Adult Protective Services in your state.

Protecting Montana Property and Beneficiaries

Jones & Cook Asset Protection and Estate Planning

An important goal of Estate Planning is to protect income and assets from creditors’ claims and tax collection. While many people think asset protection involves shady or dishonest techniques, there are many legal ways to protect financial reserves, personal property, real estate and other assets for retirement or for future generations. In addition to federal and state laws that exempt certain types of property from creditors’ claims, taxation, or both, there are numerous estate planning tools that may be able to shield assets from future creditors and reduce or eliminate estate or income taxation. If you are interested in working with estate planning attorney Bradley J. Jones to create a plan to protect your assets, contact Jones & Cook Attorneys at Law in Missoula, Montana today at (406) 543-3800 to schedule a Free Consultation.

Family Limited Partnerships and Asset Protection

A family limited partnership (FLP) can be one of the most valuable asset protection strategies for a family whose members want to preserve their assets while retaining control over them. FLPs are set up much like traditional limited partnerships with “general partners” (frequently parents) and “limited partners” (usually the children). General partners manage the partnership’s assets, make investment decisions, share in the FLP’s income and are responsible for the FLP’s debts. Limited partners have an ownership interest in the FLP and share in income generated by the FLP, but they have little or no control over the FLP’s activities and are responsible for the FLP’s debts only to the extent of their ownership interests.

FLPs are designed to reduce estate and gift taxes by taking advantage of valuation discounts, the annual gift tax exclusion and the unified credit.

Valuation Discounts

Because interests in FLPs are generally not marketable (that is, interests in FLPs cannot be converted easily to cash at a known market price), a discount for lack of marketability (DLOM) is typically appropriate, and a DLOM often significantly reduces an FLP’s value for estate tax purposes. A minority discount may also be available to reduce the valuation of an FLP interest given to a limited partner who has only a non controlling interest in the FLP.

Annual Gift Tax Exclusion and Unified Credit

Under the annual gift tax exclusion, gifts of an individual’s FLP interests up to a certain dollar amount, to different recipients and within the same year are exempt from the federal gift tax. Similarly, under the unified estate-and-gift tax credit (also called the unified credit or applicable exclusion), estates are exempt from the federal transfer tax up to a certain dollar amount.

Because valuation discounts reduce an FLP’s estate and gift tax value, the benefits of the annual gift tax exclusion and the unified credit are greater for assets transferred through the FLP than for assets transferred outside of it.

Shielding Assets from Creditors

A properly structured FLP or other limited liability entity may also provide protection from creditors; however, there are limitations with respect to the extent of asset protection that this type of planning can provide. These limitations vary by state and by type of entity.

For many years, shifting ownership of assets to a spouse whose risk of liability is less than that of the other was a commonly-employed asset protection technique. Subject to the laws against transfers for the purpose of committing fraud, assets owned by a spouse are not usually available to satisfy a judgment or order against the other spouse.

A creditor that wants to sue a person who has placed his or her assets into a trust, a foundation or other entity may find that there are very few assets actually owned by the person they wish to sue. Assets owned by a trust, foundation or similar entity are generally not subject to claims against its beneficiaries. In addition, placing assets into an asset protection entity can remove those assets from a person’s taxable estate.

Homestead Exemptions

Montana offers generous homestead exemptions which may be an excellent way to protect assets. In order to take advantage of this asset protection, simply contribute extra principal to mortgage payments in order to create more equity in your home. However, it is critical to check your state’s laws related to homestead exemptions, or discuss them with an asset protection attorney, to be sure this will protect your home as some states only offer minimal homestead exemptions.

In addition to the homeowner, spouses may legally acquire an interest in a property under Montana law upon marriage. However, this may not apply if there is a signed premarital agreement that states otherwise. A spouse does not have to be listed on the deed or contribute to the property financially to sign the homestead declaration. Marriage alone qualifies a spouse to have a “legal interest” in the property. Both spouses must sign the homestead declaration; otherwise the spouse who fails to sign will not be exempt to have interest in the property.

Under the homestead declaration, death of a married homeowner entitles their living spouse to a homestead allowance of $20,000.

Asset Risks

Asset Protection continues to be very important and the risk and potential liability that you may face is not going to decline at any time. Assets can be at risk due to a number of vulnerabilities, including:

Lawsuits by former business partners
Liability arising from misconduct
Liability as guarantor for the debts of another
Personal injury resulting from a motor vehicle accident
Personal injury suffered on your premises
Personal liability of corporate officers and directors
Professional malpractice liability

At Jones & Cook Attorneys at Law our Missoula, Montana family lawyers work with clients to implement proven, legally-sound strategies that will help preserve their wealth and safeguard their assets. We represent professionals, small business owners, property owners, and other clients throughout Montana with the goal of protecting their assets against potential litigation, judgments and liens.

asset protection service

It is important to start planning early on for the best asset protection. We can help you navigate the legal system to ensure that all of the necessary legal details are handled competently and within the proper time frames. Our asset protection services include:

Asset protection during divorce
Conservatorships and guardianships
Litigation scam artists
Prenuptial agreements and postnuptial agreementspremises
Preserving assets to pass on to future generations
Protecting assets during a second marriage
Protecting assets from creditors
Protecting assets in a troubled marriage or divorce
Protection of VA benefits
Social security disability
Trusts

CONTACT OUR MISSOULA, MONTANA ASSET PROTECTION LAWYERS FOR A FREE LEGAL CONSULTATION

Getting started on an asset protection plan can be a daunting process. Fortunately, you don’t have to go through it alone. The legal professionals at Jones & Cook Attorneys at Law can help you create your plan. The Missoula Asset Inventory and Protection attorneys at Jones & Cook have years of Estate Planning experience. Our lawyers have a sophisticated knowledge of Montana law, Business Planning and wealth preservation strategies that will help put you on solid legal ground. The exact strategies employed by Our Firm may vary depending on the client, the nature of the assets, the country of origin, and the tax regulations that apply to those assets. The ultimate goal is to protect the status of current assets in a manner that is effective, legal and ethical.

Our legal experts can help you understand what an asset protection plan is and how you can utilize one to help you make the most out of your strategy. Taking action on what you learn will help you to protect yourself, your family, and your business. If you are looking for ways to keep your assets safe, contact asset protection attorney at Bradley J. Jones at (406) 543-3800 for your Free Consultation.

Frequently Asked Questions

Asset protection is a field of law dealing with shielding assets from claims of creditors. Asset protection does not deal with estate planning or tax planning, but simply protecting assets from financial predators.

Asset protection is based on the basic principle that virtually any and every asset that you own can be seized by a creditor. Any asset that you do not own cannot be seized from you. Consequently, asset protection aims to remove you from the legal title to your assets, but allows you to continue controlling your assets and enjoying the economic benefits of your assets.

Yes. Plaintiffs will come after you if they think there are assets they can seize. If they cannot seize your assets, or if you make it sufficiently expensive to seize your assets there is less incentive to pursue a claim.

Claims are legal actions by creditors who are seeking satisfaction of the amounts owed. Claims can be judgments from medical malpractice lawsuits, automobile accidents, personal guarantees on loan documents, and any other type of final judgment.

In general all assets (home, bank accounts, investments, real estate) are at risk unless they are protected specifically by a state law or held in a protected form like a limited partnership, limited liability company, or irrevocable trust.

Maybe. There is a common law doctrine that states that assets held by husband and wife as joint tenants by the entireties are not subject to the Claims of either individual spouse. However, this is only a common law doctrine not a statute and courts are free to ignore the doctrine if they think it is not applicable for any reason. In addition, the doctrine has limitations. Many cases have held that the account titles must state the magic words “Joint Tenants By The Entireties” for the exemption to hold. In addition, any joint Claims such as personal guarantees signed by both spouses will be able to get at the jointly held assets. The doctrine is attacked vigorously in the courts and should not be relied upon as a sole means of protection.

Asset protection planning is absolutely legal; however, planning to defraud creditors is not. There is a sharp dividing line between the two. For this reason, it is important to work with experienced advisors and discuss the timing of your planning prior to taking any action.

If you have any business activities that may give rise to liability or losses, you should consider conducting those activities through an entity such as a corporation or limited liability company. While the entity will be responsible for the liability created, you personally will be insulated from such liability unless you are personally negligent. If you conduct more than one business, you may want to consider a separate entity for each business so that claims arising from one activity will not jeopardize the other activities. To get the full liability protection, each entity should be appropriately capitalized and carry a reasonable amount of liability insurance.

All assets held by the business should have a business purpose, such as the operation of a store, the renting of a multi-unit apartment complex, or a simple investment purpose. You should not place personal assets into the business unless you intend to have the business treat you as it would treat a third party. For instance, if you place your house into a business, you will need to rent this house for fair market value and the entity may need to pay income tax on the rental income received. If you use the business assets for personal gain, a court may allow the entity shield to be pierced and your liability protection will be lost.

Almost everything, a partial list of the assets that can be protected would include:

  • Investments like cash stocks, bonds and etc.
  • Residences
  • Investment Real Estate
  • Interests in Businesses
  • Valuable personal property like Art, Jewelry, Collections
  • Business Equipment
  • Future Income
  • Cash Value of Life Insurance Policies