Mark Pierce, Esq.
The answer to this question is yes. Many business owners under-appreciate the importance of estate planning to protect their business. Nevertheless, after years spent building your business, protecting what you have created should go without saying, but it is often overlooked.
One of the most effective ways to protect your business is with a living trust or asset protection trust that will, among other things, provide the ability to legally transfer your membership interest when it is time to turn the reins over to someone else.
The Benefits of a Trust Owning Your LLC
Probate Avoidance: When your membership interest in a limited liability company (LLC) is transferred to a trust that you have created, it will not be subject to probate and this will allow for a much smoother transition after you pass away. The time and money your loved ones will save avoiding probate is an additional benefit of your LLC being owned by a trust.
Privacy: The probate process is entirely public. During these proceedings, confidential business information can be made public, as well as, information that can damage your business's reputation.
Incapacity Planning: Equally important to note is that holding your LLC in trust can not only be a benefit when you pass away, but also when you become incapacitated due to injury or illness. With your wishes for the management of your LLC spelled out in the trust, you can be confident that operations will continue if you become temporarily unable to run the company for any reason.
Should Your LLC be Owned by Revocable or Irrevocable Trust?
A revocable living trust is one that can be changed or modified after it has been established and while you are alive. Consequently, an irrevocable trust is one that cannot be changed or modified after it has been established.
With your LLC owned by a revocable living trust, you will enjoy probate avoidance, retain access and control over the LLC, a can receive income from it during your lifetime. However, because you still have access to the LLC, so will your creditors.
This means a successful judgment or lawsuit can allow your creditors to reach into the revocable living trust and seize your membership in the LLC to satisfy a debt. For this reason, an LLC or any other asset that you wish to protect from lawsuits and creditor’s claims is better served by being transferred to an irrevocable trust that cannot be accessed to satisfy a lawsuit or judgment.
What is an Irrevocable Asset Protection Trust?
Having an asset, such as membership interest in an LLC, owned by an irrevocable trust will provide you with asset protection. However, you will lose access and control over that asset, as well as, the ability to enjoy discretionary beneficiary interest from the asset i.e. income.
In response to this problem, an even better solution, the asset protection trust, was developed. An asset protection trust, also referred to as a self-settled trust, is an irrevocable trust designed to provide the settlor (the person creating the trust) with asset protection, even though he or she remains a beneficiary of the trust.
Historically, self-settled trusts (trusts that allow the settlor asset protection and beneficial interest in the trust) have been disallowed. Currently, however, 17 states have passed laws supporting asset protection trusts, most notably, South Dakota, Nevada, and Delaware.
The Benefits of an Irrevocable Asset Protection Trust Owning Your LLC
An asset protection trust essentially allows you to enjoy the benefits of a revocable trust with the asset protection of an irrevocable trust, specifically:
- Probate Avoidance: An asset protection trust will allow your LLC to avoid probate.
- Privacy: An asset protection trust can benefit those who want anonymity in order to make it more difficult for a creditor to locate their LLC and other personal asset holdings, which can serve as a significant lawsuit deterrent in and of itself.
- Access and Control: The trust document allows you to stay in control of your LLC, receive distributions from it, and specify to whom your membership interest in the LLC should be transferred to when you die.
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Asset Protection: An asset protection trust severely
limits a creditor's ability to bring a claim to get to the
assets in the trust. For example, if you establish an asset
protection trust and fund it with your membership interests in
an LLC, and are later sued by a third party, that third party’s
access to your membership interest in the LLC that is held by
the trust will be barred.
The only exception to this rule is if the third party can prove that 1) the original transfer of your membership interest to the trust was fraudulent as to the specific claim at the time of the transfer, or 2) that the transfer violated a contractual obligation you owed to the claimant or a valid court order.
An asset protection trust is a great tool for business owners and real estate investors, but can also be extremely beneficial for those engaged in professional practices such a doctor, dentist, lawyers, accountants, chiropractors, engineers, etc. that have a risk of personal malpractice liability.
Consult with an Experienced Wyoming Business Law Attorney
The bottom line is that you have worked really hard to create a successful business and it makes sense to protect your LLC. Working with an experienced Wyoming trust attorney to set up a trust that will own your LLC is an excellent way to begin safeguarding your livelihood and most important asset.
In response to this problem, an even better solution, the asset protection trust, was developed. An asset protection trust, also referred to as a self-settled trust, is an irrevocable trust designed to provide the settlor (the person creating the trust) with asset protection, even though he or she remains a beneficiary of the trust.
Frequently Asked Questions
Yes, an irrevocable trust can own an LLC. We generally advise this for clients as part of their estate planning process when they have active business interests to protect or want to pass onto their heirs.
An irrevocable trust can own a company and often will as part of a comprehensive estate plan. Many clients have active business interests which they desire to protect and do so via an irrevocable trust
Unless the trust agreement explicitly prevents LLC ownership, then there is no law preventing an LLC from being owned by a trust. Most clients prefer their trust own the LLC for privacy, asset protection, avoiding probate and other reasons.
If you have a revocable trust, then in almost all circumstances we recommend you make it the member of your LLC. This applies whether you have partners or if it's just you. The trust helps avoid probate and provides privacy. Many of these benefits apply to irrevocable trusts owning limited liability companies as well.
There are many advantages to having an LLC be owned by a trust, including increased asset protection, privacy, potential tax benefits and the avoidance of probate - a good trust attorney can provide additional details.
An LLC owned by a trust can be taxed as a sole-proprietorship, partnership, S-Corp, Corporation or have the earnings paid by the Grantor or Beneficiaries. In short, you may determine what is best with a CPA and act accordingly.
A trust benefits business owners via additional privacy, asset protection and the avoidance of probate if drafted correctly. A trust can own an active business as part of your estate plan.
Generally a trust is better for asset protection, but just an LLC is simpler for daily operations. If possible, we advise clients to form an LLC formed by a trust for the best of both worlds.
