Michigan’s New Law to Allow Domestic Asset Protection Trusts

Asset protection has been has been a driving force in wealth generation and estate planning for as long as there has been a division between the “haves” and the “have-nots.” From fortified treasuries with armed guards in ancient times to secretive offshore banks and trust companies in Switzerland and the Caribbean, individuals and families have gone to great lengths to protect their monetary fortunes from discovery and recovery by creditors, criminals and even governments.

Although hiding money offshore provides the greatest protection for assets, there are many disadvantages: Cost, difficulty in retrieving and repatriating assets, and jurisdiction over the owner. Going to such great lengths to hide money is only cost-effective for very large sums.

Trustees in asset havens charge high fees. They have a favored position with regard to their local governments and can limit competition. Once an offshore trustee is in control of a hoard, the owner may be a captive client. It may be impractical or impossible to move the assets to a different repository.

The flip side to making assets hard for others to reach is that they may become hard for the owner to recover. Also, the assets are subject to a set of foreign laws that may become less favorable over time. Finally, ensuring that the owner’s intended beneficiaries will have access to the funds after the death of the present owner is problematic.

Placing assets outside the jurisdiction of domestic courts is not failsafe as long as the owner remains subject to the jurisdiction of those courts. One who refuses to provide information about offshore assets may be held in contempt of court. He or she may have to choose between keeping the assets or keeping his or her freedom.

In 1997, the Revised Alaska Trust Company Act, Alaska Stat. Ann. § 06.26.010, et seq. (West), was signed into law. It was developed to create a more accessible and less expensive alternative to foreign trust companies and to provide a business opportunity for trust companies. The Alaska statute was copied by similar laws in Delaware, Rhode Island, Nevada and 12 other states. Michigan is the 17th state to legalize domestic asset protection trusts when it enacted the Qualified Dispositions in Trust Act (QDTA), 2016 Pub. Act 330; MCLA 700.1041, et seq.

A domestic asset protection trust (DAPT) allows the settlor to fund an irrevocable trust with a completed gift that is removed from the settlor’s estate, despite the independent trustee’s power to make discretionary distributions of income and principal to the settlor. The trust also insulates the assets from the claims of most creditors. To receive this protection, the transfer into the trust must be a “qualified disposition” to a “qualified trustee.”

An individual, other than the settlor, who is a Michigan resident would be a qualified trustee. A nonresident or institutional trustee must be subject to supervision by the Department of Insurance and Financial Services, the Federal Deposit Insurance Corporation, the Comptroller of the Currency, or the Office of Thrift Supervision. Furthermore, at least some of the trust estate must be sited in Michigan and the nonresident trustee must have a place of business and maintain at least some of the records in Michigan. MCLA 700.1042(r).

A disposition is not qualified unless the trust is irrevocable and the settlor’s authority over the trust is limited to a list of permissible powers. The permissible powers include various items of administrative control, the right to receive income and annuity distributions and distributions to cover taxes on trust income, the right to receive up to 5% of the trust principal annually, the right to use real property in a qualified personal residence trust, and the right to direct post-mortem distributions to cover the settlor’s debts, expenses of estate administration and estate or inheritance taxes. A disposition is also not qualified if the settlor owes more than 30 days of child support or if an advisor who is related to the settlor is granted authority that the settlor may not exercise. MCLA 700.1042(p).

The settlor must sign a qualified affidavit affirming that the settlor has full title to the property, that the transfer will not make the settlor insolvent and the settlor does not intend to file for bankruptcy nor defraud a creditor, that if the settlor is involved in any pending court or administrative proceeding it is identified in an attachment to the affidavit, that the settlor is not 30 days in arrears on child support, and that the property is not the proceeds of illegal activity. MCLA 700.1046(1).

A creditor has two years from the date of the qualified disposition to file suit to void the disposition, or one year from when the creditor discovered or should have discovered a qualified disposition that was concealed. MCLA 700.1045(3). If the claim arose after the qualified disposition, the creditor must show “actual intent to defraud the creditor.” MCLA 700.1045(2)(b). The QDTA was accompanied by a revision of the Michigan Uniform Voidable Transactions Act, MCLA 566.31, et seq., to make it compatible with the new restrictions on the ability of creditors to attack asset protection trusts. 2016 Publ. Act 552.

A creditor who sues to cancel a qualified disposition is waging an uphill battle. Even if the creditor succeeds in voiding some or all of the disposition, unless the trustee was acting in bad faith, the recovery is diminished by the trustee’s costs in defending the disposition and the beneficiary may retain any distribution received before the creditor filed its action. MCLA 700.1047(2)(c). Furthermore, except for a distribution to a beneficiary who is also the settlor, the creditor must prove bad faith by clear and convincing evidence. MCLA 700.1047(3).

A Michigan DAPT provides protection equal to those established in other states, with two main advanteges: If the settlor has a trusted family member or friend who is a Michigan resident, it is not necessary to use an institutional trustee, saving substantial trustee fees. The settlor may choose an institutional trustee whose office is around the corner, instead of an unknown trust officer the settlor has never met in person.

Relatively few clients will find it cost-effective to establish a DAPT, but this type of planning could develope into a lucrative trust and estate sub-specialty. However, the practitioner must apply the statute meticulously, particularly in the early stages when many aspects of the law have not been interpreted and explained by the courts. The explanation above is only a starting point for drafting this specialized trust.

John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
law-business.com

©2017 John B. Payne, Attorney

Do Not Call Your Insurance Company!

Insurance is such a comforting thing. The word is delicious. It slips off the tongue like a mouthful of creme caramel. Being insured feels like wearing armor – or at least a generous application of Scotchguard.

What if a pipe bursts on the second floor and floods the bathroom and the living room under it? No matter, you’re insured. What if a tree limb falls on your garage and damages the roof? Never mind, you’re insured. Or are you?

If you call J.K. Simmons, of Farmers Insurance fame, beware of the one-strike rule. Two claims in two years, or even one claim, could result in non-renewal of your insurance. The avuncular J.K. is not so reassuring when he says your insurance is cancelled; often with little notice. Claim too often and you are dumb da-dumb dumb dumb dumb dumb.

One homeowner was recently informed that her insurance was not being renewed because she filed two claims in less than two years, despite the fact that the two claims totaled less than $6,000. Loss of homeowner’s insurance can lead to mortgage foreclosure. To make a bad situation worse, claim history applies to both the real estate and the owner. The Comprehensive Loss Underwriting Exchange (CLUE) and A-Plus track insurance claims nationwide and are reviewed every time a person applies for insurance. Too many claims will make it difficult sell the home to a new buyer and difficult for the person to buy and insure another home.

The homeowner was able to find a second-tier insurance company to insure her home, after being denied by all the big home insurers – Farmers, Allstate, Hartford, Nationwide, MetLife and Chubb. However, her equity was threatened because she could have difficulty selling her current home or purchasing another for at least the next year. Talk about a triple-whammy!

What is a homeowner to do? Here are five tips to stay out of trouble:

1) Raise your deductible and drop coverage for hazards that are unlikely to result in large losses. For example, mold remediaton is unlikely to cost more than $5,000 and probably would be much less. Filing a claim for mold remediation would cost you one strike and a second, much larger, claim within two years could cost much more. Set aside the money you save by raising the deductible and dropping coverage so you can self-pay relatively minor damage items. Raising your deductible to $5,000 will help you avoid the temptation to call the insurance company every time there is minor damage or loss.

2) Request and review CLUE and A-Plus reports annually by calling these numbers:
CLUE – 866 312 8076
A-Plus – 800 627 3487

3) Do not call your insurance company until you know how much repairs will cost and you have determined that you cannot cover the loss yourself. Calling to enquire about whether to file a claim may be recorded as a claim that will be reflected on your CLUE and A-Plus reports.

4) Inspect your home and surroundings for conditions that may give rise to damage or loss. Call a tree expert to evaluate the health of trees around your home and remove branches that may fall on your property. Have a plumber check your water supply and drain lines for potential problems. Make sure the electrical and HVAC systems are in good shape. Consider paying for home security monitoring; the cost is low compared to the risk of burglary or having your home go up in smoke. You cannot afford to be blasé about these hazards because your insured. Your insurance company will not inspect your home. You need to take that responsibility, yourself.

5) Annually review your property coverage with a trusted insurance agent. Although you may not have a local agent, your insurer will have advisers available to answer questions and give advice about coverage.

The odds are heavily weighted against customers in the insurance game. Television commercials by insurance companies stress the infinite variety of risks covered by their policies. They want you to think that their policies are available to give the customer aid and comfort at the drop of a piano or tree limb. Do not be fooled into thinking the company’s first priority is the customer’s well-being. Beware of getting too chummy with your insurance company’s claims department.

John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
law-business.com

©2017 John B. Payne, Attorney

Second Case of Measles in Michigan This Year

This week, the second case of measles in Michigan this year was big news.  For someone who remembers when nearly everyone contracted measles at some time in his or her life, this is almost as amazing as cellphones with apps that start your car in the morning and close the garage door or adjust the thermostat from half a world away.

Measles, like mumps, is much less serious when contracted by a young child than by an adult.  Since the disease was so prevalent before the vaccination was developed in 1963, parents would send their children to visit friends who had the disease to avoid the possibility of an adult case later in life.  The relatively few adults who had never
had measles or mumps were very careful to avoid contact with anyone who might be contagious. The eradication of measles, mumps, polio and other diseases that plagued our species is due to widespread vaccination.  The rarity of measles is reflected in this table:

Now, foolish people who did not live in a time when these diseases were widespread refuse to vaccinate their children. One could almost wish that such airheads would contract one or more of the diseases that their children will risk. However, it is unlikely because they were vaccinated as children by their more responsible parents.

Please also read “Michigan in the Vaccination Toilet.”

John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
law-business.com

©2017 John B. Payne, Attorney

Autism Acceptance Day Wish List

Every day should be Autism Acceptance Day!

Anonymously Autistic

This year for Autism Acceptance Day I have five wishes. Some day they may come true – then my work blogging will be complete.

  1. I wish everyone would be aware of Autism, what it really is, and what it really isn’t. Too many misconceptions about Autism are out there, what causes Autism, what Autistic people need. Someday I hope the rest of the world can accept the truth.
  2. I wish Autistic people could be accepted for who they are. In my dreams People would not ask us to change or be more “normal”. Sitting a chair, rocking back and forth while humming would not be thought of as strange. Eye contact would not be forced and passing would be a thing of the past.
  3. I wish Autistic women and adults would stop being overlooked. The media, Autism organizations, and Autism service providers are often focused only on children. People seem…

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NSA Snoops in Bank Safe-Deposit Boxes

Estate-planning clients often have safe-deposit boxes, as do decedents. On the occasions when I have been involved in an estate where there is a safe-deposit box, the box has always turned out to be empty or containing items of little or no value. One recent decedent had had two safe-deposit boxes with lost keys. It took weeks to arrange to have the boxes opened, only to find them as empty as a womanizer’s vow of fidelity.

I advise my clients that safe-deposit boxes are for illicit arms or drug dealers, or aggressive tax evaders. Honest people do not need them. Deeds and estate-planning documents are better kept in a file cabinet at home. They can be easily replaced. Stock certificates should be surrendered and the stock held in an account with a stock broker. About the only real reason to have a safe-deposit box is to store a large stash of gold or platinum. Silver is not precious enough to require that level of security. A person with enough precious metals to need a safe-deposit box is either a jewelry maker or a survivalist on the ragged edge of sanity.  Assuming that civilization has deteriorated to the degree that the survivalist needs that gold, does he really think that the banks would still be operating?

I have always suspected that few safe-deposit renters put anything worthwhile in them. Now there is proof.

Roland Hedley reported on foxnews.com, on April 1, 2017, in “NSA Snoops in Bank Safe Deposit Boxes” on a leaked study of actively-rented safe deposit boxes by the NSA. According to the article, the NSA regularly sweeps bank vaults using a high-tech electromagnetic device similar to ground-penetrating radar to detect explosives, banned substances like weaponized bacteria and viruses, and stolen classified documents in safe-deposit boxes.

Having conducted these sweeps, the NSA compiled and analyzed the data it collected. The studies revealed that 63% of boxes rented by private individuals are totally empty; 26% contain only miscellaneous replaceable documents like deeds, birth certificates and original Social Security cards; 8% additionally contain silver coins from before 1965 or indian-head pennies; 2% also contain stock certificates; and less than 1% contain items that are actually valuable. It appears that money spent renting most safe deposit boxes is as wasteful as putting premium gas in a car that only needs regular – or so the NSA would have us believe.

John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
law-business.com

©2017 John B. Payne, Attorney

PS — Mr. Hedley’s article has been subsequently removed from foxnews.com, presumably by the NSA.

Michigan in the Vaccination Toilet

This is a follow-up to a prior post on the anti-vaccination movement.  Recent surveys show that Michigan is now 46th in the nation in vaccinating our children and teenagers.  This is appalling.  Vaccination protects and benefits the child who is vaccinated.  It also protects and benefits the children around them — so-called herd immunity.

As a socially-conscious individual, it is your responsibility to remind parents around you to vaccinate their children.  For more information, visit visit ivaccinate.org.

John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
law-business.com

©2017 John B. Payne, Attorney

Sad End for Penn Treaty Insurance — Reblog

Jeff Marshall, a highly-respected colleague in Williamsport, Pennsylvania, documented the failure of Penn Treaty Insurance’s long-term care insurance products in “Sad End for Penn Treaty Insurance.”  The column is interesting and informative in describing the problems of the LTCI industry as the costs of long-term care steeply increased, while interest rates plunged and customers held on to their policies at much higher rates than expected.  Jeff’s column is also an excellent backgrounder to my post, “Long-Term Care Insurance — Smart Buy or Not?

John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
law-business.com

©2017 John B. Payne, Attorney