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By The Wyoming LLC Attorney Team

May 28, 2022
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  1. States That Allow Asset Protection Trusts

States That Allow Asset Protection Trusts

Asset Protection Trust

Summary

DAPT is a potent estate planning tool, offering protection from creditors, divorces, and legal disputes. However, it's essential to note that DAPTs are only recognized in some states. These trusts allow the grantor to safeguard assets while retaining access. Common assets include cash, stocks, real estate, and intellectual property. Where you live doesn't necessarily matter; it's where your assets are located that counts. Setting up a DAPT requires careful planning and asset evaluation.

Considered one of the most effective estate planning tools, a domestic asset protection trust is not legally recognized in most states. Because of this anomaly, you must be careful when establishing this type of trust.

A domestic asset protection trust shields your assets from creditors, a divorce settlement, and most forms of litigation. This type of trust was developed to protect homes from creditors, especially the homes of business owners who suffer substantial financial losses.

What Is a Domestic Asset Protection Trust?

As a self-settled trust, a domestic asset protection trust allows the grantor of the trust to receive protection from creditors and gain access to the assets placed in the trust. For example, if your business has closed because of financial insolvency, you can put your home in a domestic asset protection trust and still get to use your home. In states that allow the formation of this type of trust, you can create one at an affordable cost that gives you plenty of financial flexibility.

What Types of Assets Can I Protect?

Establishing a domestic asset protection trust generates benefits for you only when you fund the trust with assets.

Here are the most common types of assets that find their way into a domestic asset protection trust:

  • Cash
  • Stocks
  • Bonds
  • Real estate
  • Business equipment
  • Boats
  • Intellectual property
  • Aircraft

One of our estate planning lawyers analyzes each of your assets based on factors such as taxation, legal protection, the potential for growth, and most importantly, the distributions you want to make to named beneficiaries. The planning process is the most important step in establishing a domestic asset protection trust.

Which States Allow the Formation of a Domestic Asset Protection Trust?

As of late 2021, the following states allow the formation of a domestic asset protection trust:

  • Alaska
  • Delaware
  • Hawaii
  • Michigan
  • Mississippi
  • Missouri
  • Nevada
  • New Hampshire
  • Ohio
  • Oklahoma
  • Rhode Island
  • South Dakota
  • Tennessee
  • Utah
  • Virginia
  • West Virginia
  • Wyoming

The states that have enacted the most favorable statutes regarding the formation of a domestic asset protection trust are Alaska, Delaware, Nevada, South Dakota, and Wyoming. One of our estate planning attorneys will review your financial goals to determine which state works best for your unique situation.

What if I Do Not Live in a State That Allows Domestic Asset Protection Trusts?

The question you must answer is not where you live but where your assets are located. When establishing this type of trust, your primary goal is to protect your assets, not to protect you. For example, if you live in Montana and own a cabin in Wyoming, the cabin is covered by Wyoming’s domestic asset protection statutes.

How Do I Set Up a Domestic Asset Protection Trust?

A domestic asset protection trust that is well-structured can protect your assets from creditors, litigation, and a divorce decree. An estate planning lawyer can recommend the proper structure, as well as the best state for you to protect your assets.

As a self-settled trust, a domestic asset protection trust allows the grantor to assume the role of trustee. This means the grantor must pay taxes on the income generated by the trust. However, the trust’s assets do not come into play when calculating the estate’s value.

After you establish the trust’s jurisdiction and the type of structure you want, speak with an estate planning attorney to analyze your assets and suggest which ones you should transfer into the trust. We advise reaching out to an experienced estate planning attorney to explore the process of establishing a domestic asset protection trust.