According to information provided by http://www.plan-my-estate.com an estate planning and asset protection resource web site, a Fraudulent Transfer aka Fraudulent Conveyance is a transfer which a debtor makes for the purpose of defeating a creditor’s collection efforts against the debtor. This typically happens when, say, a debtor attempts to “sell” everything to his wife, cousin or business partner for $5 to keep his stuff out of the hands of his creditors. If the court figures out that the transaction is a sham to defeat the creditor, the court will set aside the transaction and make the person holding the assets give them to the creditor. Basically, Fraudulent Transfer Law is this: You can’t do anything which would impair the rights of your unsecured creditors, if you do then the courts will simply ignore what you have done.
There are thousands of individuals and companies that, through e:mails or via internet web sites, offer to help you protect your assets from creditors, ex spouses and or taxing authorities. Many of these individuals and businesses help you protect your assets by having you take actions that can or will put you in violation of the Uniform Fraudulent Transfer Act. This could, in the long run, not only end up causing you to lose the assets that you were trying to protect but also cost you additional money in court costs, attorney’s fees or collection costs. Additionally, if you had a family member or friend help you, he or she could end up in court or having his or her credit harmed by having a judgment entered against him or her.
Many of these asset protection schemes involve transfering assets to someone you trust, a spouse, other family member, friend or a business that you form. As far as I can determin, if the creditor can prove that the transfer was done in order to avoid creditors, then under the Uniform Fraudulent Transfer Act the creditor has several remedies depending on the circumstances. These remedies can include causing a judgment to be entered against both you and the transferee, causing the property transfered to be attached or levied upon or causing a lein to be placed against the property. There are other remedies set by statute. The one thing that all of these remedies have in common is that you, the transferee or both of you could be held liable for the costs of obtaining and enforcing the remedy.
Note: Another thing to think about. Over the years I have been involved in numerous asset search and recovery matters where the person
that the bank account, collectibles, stocks, bonds, real estate or other assets were transfered to ended up closing out, selling or otherwise transfering or encumbering the assets, leaving the original owner with nothing. No matter how much you trust someone today you never know what the future will bring.
Other services offer to set up a revocable living trust. They state that the assets then will belong to the trust and be protected from your creditors. As any competent attorney will advise you, this theory is completely false. Since the assets placed in the trust are yours and since you control the trust then you and the trust are the same thing and a creditor can go after any assets placed in the trust. While a revocable living trust may not be a fraudulent transfer, neither is it a way to protect your assets from creditors.
I am not saying that all asset protection companies are worthless or might get you into trouble. I assume that there are some excellent and knowledgeable asset protection companies out there. I just would feel safer getting advice directly from an attorney.
The best way to find out if your assets can be protected and if protecting them is worth the cost is to seek the advice of an attorney who specializes is asset protection, debt collection, estate planning or, in certain cases, bankruptcy law. In some cases the attorney will provide a free or low cost consultation.
Note: I am not an attorney and none of the foregoing should be construed as legal advice. This article is written strictly as my opinion based on life experiences through both my personal life and my work as a private investigator dealing with attorneys in asset search and recovery matters. As in all matters of law you should always consult an attorney before taking on any legal endeavor.