Articles Bank

Below are a list of Articles I have drafted on many Asset Protection and Estate Planning Topics. I hope you find them interesting and helpful.

The FLORIDA Asset Protection Trust; Less Expensive, More Protective, No Out of State Trustee Required

Over my almost twenty years as an asset protection and estate planning attorney, I have found that sometimes going back to basics can provide clients with the best results. Using planning techniques where the statutes have been tested and the case law supporting them is rich provides more certainty than planning based on newer, less tested laws. The Florida Asset Protection Trust (“FLAPT”)is an irrevocable trust that is sitused (at least initially), in the state of Florida but which is highly flexible to meet the needs of the trusts’s creator (called the Settlor) over time. The Settlor or the Settlor’s family members and/or trusted friends can serve as the trustee so no expensive out of state corporate trustee is needed. Oddly, the Settlor is not even beneficiary of the FLAPT but can still receive asset back from the it in the future. This not only provides excellent asset protection, but the protection may even be better than Delaware or Nevada type Trusts.

Download the Article in pdf format.

The Florida Wage Exemption; An Overview

Florida is one of the only states that allow a person to protect 100% of their income from garnishment (i.e., protect it from the reach of creditors). But, like most other things in life, there are exceptions to this general rule (some big exceptions) and devil is always in the details. The benefits to having your wages exempt from attachment or garnishment are significant, especially if your income is significant. Below is an article that provides you with a general overview of Florida's wage protection laws. My hope is that this will give you a foundation of knowledge before you start trying to actively protect your income in the real world. I have also written another Memorandum entitled "How to Create and Maintain a Florida "Wage Account (a More Brass Tacks Approach)." After you read this memo, please refer to this second memo for instructions on how to actively set in motion the tools and practices necessary to actually protect your income.

Read the article online.

Download the Article in pdf format.

The Flexible Irrevocable Trust
Far More Powerful Than You May Have Imagined

"Irrevocable” trusts are one of the most powerful tools in your estate planning and asset protection arsenal but many (if not most) people are reluctant to use them due to their "irrevocable" nature. Irrevocable Trusts are widely misunderstood, even by many attorneys, accountants, bankers, and other professionals. In this article I explain what irrevocable trusts are, how trusts protect assets, how they are actually highly flexible and changeable over time, and why you should consider using them as a key part of your planning. To learn more, read the full article by clicking below.

Read the article online.

Download the Article in pdf format.

Temporary Estate Tax Fix Creates Golden
Opportunity to Permanently Protect

Your Assets From Creditors and Estate Taxes

On December 17, 2010, President Obama signed into law H.R. 4853, The Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 (I’ll refer to this as the new “Act”).  These new laws make significant changes to the gift, estate and generation skipping transfer tax (GST) laws, but will only be effective for TWO YEARS.  They are repealed automatically on December 31, 2012, leaving us with the old estate tax laws with their one million dollar estate tax unified credit and top estate tax rate of 55%.  This means that the vast majority of professionals and business owners have been presented with a limited opportunity to permanently shelter their businesses, future business profits, brokerage accounts, real estate, savings, and other assets from estate taxes and permanently protect those assets from the claims of creditors to boot.  It may even offer opportunities to protect your assets if you are already facing a lawsuit.  To learn more, read the full article by clicking below.

Read the article online.

Download the Article in pdf format.

Why The “P.A.” Is The Worst
Legal Entity To House Your Medical Practice

P.A.s (professional associations) and P.L.s (professional limited liability companies) are the single worst form of legal entity to house your medical practice; and perversely, this is business entity that most physicians have been told to use by their advisers. They provide little to no asset protection, make protecting corporate distributions impossible, and can even prevent a sole practitioner from being able to protect their future wages. With the crash of the Florida real estate market, our depressed economy, and the seemingly never ending cuts of physician reimbursements, protecting the source of your income is more important than ever. Unfortunately, huge numbers of physicians have had P.A.s formed for them by their attorneys and accountants simply out of habit, and not because it best meets their needs. Fortunately, recent laws now make it possible for a physician to convert their P.A. to an entity that provides significant advantages without (i) requiring them to get a new tax ID, or (ii) suffering a break in their cash flow from medicare or insurance companies. This article discusses the problems posed by P.A.s, why so many physicians have them, and what Florida physicians can do to protect the source of your livelihood in these uncertain economic times.

Download the Article in pdf format.

So You're Upside-Down on Your Home,
Condo, or Investment Property.
The Asset Protection / Foreclosure Defense Solution

Most people who have purchased real estate and now find themselves owning more money to the bank than the property is worth, look to short sale or foreclosure defense “experts” for a solution. Most of these people only address a portion of the problem and can even make the problem worse. Click below to download an article that not only explains the myriad problems that someone who is upside-down on a home, condo, or piece of investment real estate will face, but also the best approach to finding a meaningful, long term solution.

Download the Article in pdf format.

How to Create and Maintain
a Florida "Wage Account"
(A More Brass Tacks Approach)

Florida is one of the only states that allow a person to protect 100% of their income from garnishment (i.e., protect it from the reach of creditors). But, like most other things in life, there are exceptions to this general rule (some big exceptions) and devil is always in the details. The benefits to having your wages exempt from attachment or garnishment are significant, especially if your income is significant. Below is an article that provides you with instructions on how to actively set in motion the tools and practices necessary to protect your income by use of a “wage account.” But please bear in mind that not everyone who earns income in Florida can use a wage account to protect their earnings. I have, therefore, also written another memo entitled “The Florida Wage Exemption; An Overview” designed to give you a general overview of Florida's wage protection laws, how they work, and who can benefit from them. My hope is that it will give you a foundation of knowledge before you start trying to actively protect your income in the real world.
Read the article online.

Download the Article in pdf format.

Florida Supreme Court's Unnecessary Destruction of
LLC Asset Protection Legislatively "Reversed"

Last year the Florida Supreme issued issued its opinion in the case of Shaun Olmstead, et. al., v. Federal Trade Commission which destroyed a valuable asset protection feature of Florida limited liability companies (LLCs); both single member LLCs and multi-member LLCs.  The Court's decision was thankfully renderred null and void by HB0253 which modified the Florida LLC statute dealing with the rights of a creditor suing a member/owner of a Florida LLC.  The statute now plainly states that for multiple-member LLCs, "a charging order is the sole and exclusive remedy by which a judgment credit of a [member] may satisfy a judgment from the judgment debtor's interest in a [LLC] or right to distributions from the [LLC]."   A charging order, in effect, places a lien on the member's LLC interest and entitles the creditor to receive any distributions that would otherwise be received by the member/debtor.

Single member LLCs continue to receive little to no protection, however.  If a creditor wants to foreclose (i.e., take) an LLC owned 100% by a single person, the judgment creditor must first establish "to the satisfaction of a court of competent jurisdiction" that distributions under a charging order will not satisfy the judgment "within a reasonable time."  Making matters worse, the creditor may make apply for this remedy at the same time that the judgment creditor applies for the charging order (or later, of course).  This means that the court has the power to order a foreclosure in a very short time frame.   The new bill also clarifies that once the creditor owns the entire LLC interest, they are entitled to all the rights of a member, including all voting control. So, in short, multiple member LLCs formed in Florida now have strong charing order protection, but single member LLCs formed in Florida are basically unprotected.  I have left my previous article on the Olmstead decision available for you to read below to enable you to see how poorly the case was decided.

WARNING TO PHYSICIANS WITH FLORIDA LLCs The Florida Supreme Court Just Took Away Your Asset Protection!

THE KIRWAN LAW FIRM

Stacks Image 322

Protect What's Important

Why Is Asset Protection So Important?

The Florida Asset Protection Trust

The Florida Asset Protection Trust (“FLAPT”)is an irrevocable trust that is sitused (at least initially), in the state of Florida but which is highly flexible to meet the your changing needs. The FLAPT not only provides excellent asset protection, but the protection may even be better than Delaware or Nevada type Trusts. To learn more click here.

Protect Your Income From Creditors.

Protecting your assets is obviously important, but it is also critical to protect your future income. To learn how, click here.

Why The “P.A.” Is The Worst Legal Entity To House Your Medical Practice

P.A.s (professional associations) and P.L.s (professional limited liability companies) are the single worst form of legal entity to house your medical practice; and perversely, this is business entity that most physicians have been told to use by their advisers. This article discusses the problems posed by P.A.s, why so many physicians have them, and what Florida physicians can do to protect the source of your livelihood in these uncertain economic times., click here.

Protect Your Children.

Our children are our most valued asset. To learn how to do customized, intelligent planning to ensure the have the best chance of happiness and success, even if you are not around to guide them yourself, click here.