As businesses and business owners struggle the impact of COVID-19 on operations going forward, I thought it would be useful to revisit the issue of asset protection for wealthy families. Liability is around every corner and the best laid plans can be wrecked with a car accident, an employee suit, or the discovery of asbestos in an investment property.
Joining me is IKE DEVJI to discuss some of the ways to address this issue. He is a prominent attorney in Scottsdale, Arizona who focusses on asset protection for executives, business owners, athletes, entertainers, and other high visibility people that can be the object of creditors. Ike has personally practiced from Phoenix and Scottsdale, Arizona for over 17 years as an Asset Protection-only lawyer and helps protect a national client base of thousands of clients representing nearly $6 Billion in personal assets.
He can be found at
A) What is there to worry about?
Here are some real examples of the â€œimpossibleâ€ that actually happened and resulted in large claims:
- Parents away for the weekend return to find that a teenager died at their home during a party their child had from the drugs he brought with him;
- Chiropractor adjusts a patientâ€™s hip and the woman dies on table from cardiac arrest-he is sued for wrongful death;
- Long time, most trusted employee of medical practice molests a minor female patient during treatment;
- Employees of moving company get drunk and severely beat another employee and lock him in company truck in company yard over weekend;
- LLC for real estate development is pierced and a passive member is held jointly and severally liable for the actions of the other members;
- Dentist works on elderly patient who goes home and dies of unrelated heart attack hours later, dentist sued for wrongful death.
B) What are Ike’s three layers to good Asset Protection planning?
- Clean Living
- Identifying the risks that are part of your daily life (and business)
- Being a good citizen and acting responsibly where at all possible
- Avoiding behavior that would cause harm and get you sued
- Putting in processes and procedures around riskier behavior
- Insure against the risks you can reasonably identify (and afford)
- Put structures around and compartmentalize your wealth
C) What are the big tactical missteps people make that Ike sees?
1. FAILING TO ACT (Timing)
- (AKA – waiting for the tort to happen)
- The importance of the term: Fraudulent Conveyance
2. THINKING YOUâ€™RE NOT RICH ENOUGH
- Many larger high net worth families can absorb a large hit to their net worth and not suffer a reduction in lifestyle
- For those people with net worths in the 500K-5mm range, a $1mm settlement can have catastrophic consequences on lifestyle
3. RELYING ON YOUR TRADITIONAL ESTATE PLANNING
4. TOO MANY EGGS IN ONE BASKET
- What happens if an accident happens on one investment property but you own 8 others?
5. SQUARE PEG ROUND HOLE â€“ USING THE WRONG TOOL
6. DRAGGING LIABILITY INTO YOUR PLAN
- Ike brings up a terrific example where having your business own your vehicles may be great tax planning in allowing you to deduct those expenses, but it can be terrible asset protection planning if they are used personally and cause a lawsuit. The assets of the business will have been exposed to the action.
7. RELYING ON GIFTING TO RELATIVES (SEE ALSO FAILING TO ACT)
8. USING UNPROVEN, POORLY STRUCTURED TOOLS OR SCAMS LIKE â€œFRIENDLY LIENSâ€
9. RELYING ON INSURANCE ALONE OR FAILING TO ADEQUATELY INSURE. WHY CANâ€™T WE SIMPLY INSURE OUR WAY TO SAFETY?
- Premiums are expensive
- The “Business of Insurance” to collect premiums and try to pay out claims as little as possible)
- If you look hard enough you can find liability everywhere – there isn’t enough any to insure away EVERY risk.
- Having a good P&C Insurance expert is important to makes sure that you have enough insurance to cover high probability (and high damage) events AND to make sure that you aren’t overinsured for things you don’t have to worry about.
D) The use of trusts in the asset protection world
1. Concept (erecting speed bumps for creditors); natural tension between protection and access
2. Using a jurisdiction with good law and good trustees
3. Reducing Nexus Issues and using good assets (real estate being a less desirable one)
[FRAZER’S NOTE: We don’t get too much into the weeds on the trust topic (I’ll use another podcast for that), but it is important to note that trusts can be a flexible tool in an asset protection plan. It is also important to make sure that tax planning, estate planning, and asset protection planning are integrated.