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Asset protection with a Family Limited Partnership (FLP)

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If appropriate for your situation an FLP can...

  • Save thousands of dollars in income taxes every year
  • Save hundreds of thousands in future taxes
  • Protect your assets from our litigious society
  • Retain control over you assets

A limited partnership is simply a legal arrangement where investors are treated like partners for tax purposes, but like corporate stockholders for liability purposes. The limited partner is not subject to any debts of the partnership in excess of the limited partners' capital. Each limited partnership must have one or more general partners who are personally liable for any debts of the partnership. In order to avoid partnership liability, the limited partner gives up any management of the partnership. The general partner(s) have total discretion regarding the management of the partnership.

A "family" limited partnership is a limited partnership where most of the partners are members of the same family group. For this purpose, the "family" label is simply an adjective. The law doesn't really distinguish between a family limited partnership and any other type of limited partnership. In addition, in a FLP, someone in the family is the general partner so that control is retained by one or more family members. When a FLP operates a family business, the parent that manages the business is the general partner. The children, a spouse or other family members are limited partners. When the FLP is used to own family investments, the high risk spouse and children are often the limited partners and a spouse who is not susceptible to lawsuits is usually the general partner.

The asset protection benefits of the limited partnership are based on a general rule of law that limits the claims of a creditor to a "charging order" that gives the creditor of a partner the right to take any amounts that are distributed to that partner. However, the creditor is not usually able to secure access to the assets held by the partnership. This of course does not protect the partnership assets from claims against the partnership as an entity. And, there have been some cases where the courts have granted creditors the right to force some distributions where the partnership is not distributing any funds to the partners.

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Irrovocable Life Insurance Trust (ILIT)

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An irrevocable life insurance trust (ILIT), often called by dynasty trust due to its ability to forever escape estate taxes, is a unique legal document to help keep the proceeds of a life insurance policy outside of the estate and thus potentially free of estate tax and income tax.

What happens is that the trust, the ILIT, is formed and becomes the owner and payor of an individual life insurance policy or a survivorship life insurance policy (sometimes called second to die life insurance or joint and survivor life insurance).

Money is transferred into the trust and the trustee purchases the policy. When the insured dies, the life insurance proceeds go to the trust for the beneficiaries - usually the children.

The purpose of this whole procedure is to have the life insurance proceeds not become part of the estate where they would be taxed.

Gifts of up to $11,000 per year per parent per child are made to the trust using "Crummey" provisions which are named after a tax court case where the petitioner was named Crummey.

"Crummey" provisions allow beneficiaries to have a window where they can remove the $11,000 each year. By doing this the beneficiary changes a future gift to a present gift and qualifies for the annual $11,000 gift tax exemption.

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Irrovocable Trusts

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An irrevocable trust is an arrangement in which the grantor departs with ownership and control of property usually during his lifetime. Usually this involves a gift of the property to the trust. The trust then stands as a separate taxable entity and pays tax on its accumulated income. Irrevocable trusts typically receive a deduction for income that is distributed on a current basis

An irrevocable trust may be considered when the estate owner's primary objective is to obtain federal estate tax savings. When property is placed in an irrevocable trust, the grantor is giving the property away permanently. Since the grantor no longer owns the property, it will not become part of the gross estate and will not be subject to federal estate tax.

Irrevocable trusts can also protect trust assets from potential creditors of the beneficiaries of the trust. The extent to which a beneficiary's creditors can reach trust property depends on how much access the beneficiary has to the trust property. The more access the beneficiary has to the trust property, the more access the beneficiary's creditors will have. Thus, the terms of the trust are critical.

The use of irrevocable trusts in sophisticated tax planning involves a multitude of complex tax rules. You should consult with a tax planning professional to obtain the optimal tax results.

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Medicaid Trusts

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These Trusts were designed to hold assets that were "given away" to impoverish the Trust Grantor, in order to qualify for Medicaid benefits. The purpose is to preserve one's life savings for the children, rather than see that sum quickly disappear, should nursing home care become necessary.

Basically you put your money in a Medicaid Trust so it is no accessible or quantifiable by the government for reasons of Medicaid.

You now have to be very careful doing this type of tax planning. The government now looks back at when you put your money into a Medicaid Trust to see if you where doing it to avoid paying for a nursing home bed. The rules change all the time so be careful.

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Life Estate

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A life estate is the right to use or occupy real property for one's life. Often this is given to a person (such as a family member) by deed or as a gift under a will with the idea that a younger person would then take the property upon the death of the one who receives the life estate.

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Long-Term Care Insurance

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Long-term care insurance is designed to pay for the cost of your care in a variety of settings, such as a nursing home or assisted living facility, if you can no longer care for yourself independently. Long-term care policies vary widely in their coverage, limitations, and exclusions.

A good policy covers the costs of round-the-clock nursing home care, including that given at custodial, intermediate, and skilled levels. The policy may also cover any expenses associated with assisted-living residences provided that the facility is state certified. Adult day-care centers are often covered as well, as is respite care, which is the temporary professional care you'll need if your regular caregiver is on vacation. Policies will also pay for at-home care provided by registered nurses; respiratory therapists; physical, occupational, or speech therapists; registered dietitians; or licensed social workers.

Policies may also cover the cost of caregiver training for a family member or friend. Finally, the insurance may cover the cost of an independent health-care professional, such as a registered nurse, who will act as your personal care consultant. Such a benefit gives you an objective person with whom you can discuss the quality of your care.

Insurance companies will require that you meet certain conditions before they issue the benefits. For example, they usually require that you be unable to perform certain regular daily activities by yourself, such as normal bathroom functions, bathing, dressing, and eating. Companies will also issue benefits because of cognitive loss as a result of Alzheimer's disease, senility, and other forms of dementia. All of these requirements are explained in the policies. It is important you speak with a trusted advisor before you purchase this coverage.

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Spousal Refusal

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Spousal refusal allows the non-institutionalized spouse can keep all of his or her assets by simply refusing to support the institutionalized spouse.. In New York, if a spouse refuses to contribute his or her income or resources toward the cost of care of a Medicaid applicant, the Medicaid agency is required to determine the eligibility of the nursing home spouse based solely on his income and resources, as if the community spouse did not exist.

After awarding Medicaid benefits to the institutionalized spouse, the Medicaid agency then has the option of beginning a legal proceeding to force the community spouse to support the institutionalized spouse. However, this is not always done, and when such cases do go to court, courts in New York generally allow the community spouse to keep enough resources to maintain her former standard of living.

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