Asset Protection – protection of assets from access by creditors

Asset Protection – protection of assets from access by creditors

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The risk of personal liability has increased significantly for board members and managing directors in recent years. Legislators and case law keep tightening the thumbscrews. Currently, the extension of the limitation periods is discussed.

Whether it is possible to hedge against all eventualities or to fully shift the risk by taking out a financial loss liability insurance (OO policy) -Police remains questionable. The & OO policies become more expensive, do not cover everything and the insurers become more argumentative.

This increases the desire of the management to withdraw personal assets from creditors’ access. In Anglo-Saxon law, therefore, the so-called asset protection trust has prevailed. There is nothing comparable in this country. In Germany, the transfer of property to spouses, other family members or foundations is considered in the first place. The disadvantage is obvious: in all cases, the assets are “away” from the transferor’s point of view. Also, the use is only very limited reserve, because creditors or insolvency administratorscan access it. An exception are the very personal rights of use, eg the right to live in the house transferred to the children. It is therefore important to hedge against personal risks by means of suitable recovery rights. The squaring of the circle succeeds only to a limited extent.

One can also think of the creation of seizure-free assets, which, however, has only a limited reach. Under certain conditions, the conclusion of a Liechtenstein life insurance policy can provide enforcement protection.

In all cases, long-term wealth planning is required. Asset shifts in the crisis can be punishable. In addition, liquidators and creditors may be able to challenge capital transfers. In practice, the deadline for dispensing donations is four years. Not to be forgotten are the tax effects of the capital transfer.

Conclusion: There is no such thing as miracle products, but there are design approaches that can provide a useful building block for the protection of property in individual cases.

Theodore Elias

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