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How (and When) Do Trusts Provide Asset Protection?

Posted on 12/19/14 Articles

If Mr. Smith has a judgment entered against him, and he decides you create an irrevocable trust, the greater will be your chances of success.
In California, Probate Code §15304 (the “self-settled trust rule”) provides that an irrevocable trust in which the settlor is also a beneficiary is invalid against the settlor’s creditors, at least to the extent that the settlor might have received a distribution. If the trustee could have distributed all of the trust’s income and/or principal to Mr. or Mrs. Smith — even if the trustee had made no distributions to them — the creditors could nonetheless reach all of the assets of the trust.

the following week
to create
an irrevocable trust
and then
transfers
his assets
into the
trust, the
trust might
avoid the
probate of
his estate upon his death, but it will likely not shield the assets from his creditors. As- set protection is contingent upon creating and funding the trust early enough so that a creditor cannot argue that the transfer to the trust was a fraudulent conveyance, i.e. a transfer designed to “delay, defeat or defraud” creditor. The earlier you create an irrevocable trust, the greater will be your chances of success.
In California, Probate Code §15304 (the “self-settled trust rule”) provides that an irrevocable trust in which the settlor is also a beneficiary is invalid

against the settlor’s creditors, at least to the extent that the settlor might have received a distribution. If the trustee could have distributed all of the trust’s income and/or principal to Mr. or Mrs. Smith — even if the trustee had made no distributions to them — the creditors could nonetheless reach all of the assets of the trust.

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