August 11, 2023
A series of blogs on Asset Protection….
Blog #6
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Previously, we mentioned the idea of “fraudulent transfer” or avoidable transfer. First, we need to cover some of the basics. When thinking about asset protection, it is helpful to think about the possibility of a creditor or trustee avoiding (or reversing) the transfers that you made to execute your asset protection plan. The two most discussed avoidance actions are “preferential transfers” and “fraudulent transfers.” We have some articles on both on our website (see: https://bernsteinlaw.com/practice-areas/bankruptcy-restructuring/preference-actions/ and https://bernsteinlaw.com/publications/short-series-disappearing-debtor/a-short-series-on-the-disappearing-debtor-fraudulent-transfers/).
In both cases, the transfer needs to meet specific tests in order to be avoidable (reversible). There are also a number of available defenses. These are things that you should review with your planning counsel as you go through the process of identifying your assets that are at risk and the steps that might be taken to protect those assets. If you are already in debt or already being chased, it is likely that any transfer will be avoidable if it becomes “attackable” within the statute of limitations. In the case of preferences, not only does the attack have to be brought within a limitations period, but it does not even qualify as a preference to be attacked unless a bankruptcy occurs within the required statutory period. So, as mentioned a few posts ago with the construction company that was failing, our strategy kept it out of bankruptcy for the required period so that the creation of the lien (transfer) for the existing debt did not even qualify as a preference.
We have more to say about Asset Protection Planning in our next post or podcast. Stay tuned…
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Previous Blogs:
Asset Armor: Protecting Your Wealth with Bernstein-Burkley’s Asset Protection Insights Blog #1
Asset Armor: Protecting Your Wealth with Bernstein-Burkley’s Asset Protection Insights Blog #2
Asset Armor: Protecting Your Wealth with Bernstein-Burkley’s Asset Protection Insights Blog #3
Asset Armor: Protecting Your Wealth with Bernstein-Burkley’s Asset Protection Insights Blog #4
Asset Armor: Protecting Your Wealth with Bernstein-Burkley’s Asset Protection Insights Blog #5
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