Private Banking Guide
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A major goal of asset protection planning is to substantially diminish and reduce your financial profile. If you can restructure your assets in such a way so as to place them beyond the reach of future potential creditors, while at the same time maintaining a beneficial interest in those assets, you have succeeded in substantially reducing your financial profile. Accordingly, you are a far less attractive target for litigation because of issues of doubt of collectability, thusly reducing the likelihood that you will be sued; or if you are sued, increasing the likelihood of a favorable settlement.
A trust can be an effective foundation for your asset protection planning. Trusts have been utilized for centuries as a means of conserving and protecting property for the beneficiaries of the trust. However, most domestic trusts do not provide protection from creditors. The typical revocable living trust, wherein the trustors are the lifetime beneficiaries and retain the power to revoke, amend and invade the principal of the trust, provides no protection whatsoever against the creditors of the trustors. Accordingly, absent specific legislation to the contrary, self created or self settled trusts are ineffective for asset protection planning purposes.
As was stated previously, most self settled trusts are not protected from creditors. However, recently, several states have provided various degrees of asset protection legislation for a self settled trust. The trust legislation in Alaska, Delaware, Missouri, Oklahoma, Nevada, Utah and Rhode Island is similar in many respects to the asset protection trust legislation found in several offshore jurisdictions. It should be noted, however, that the courts have not had an opportunity to pass muster on this type of legislation because of its recent enactment and because the statute of limitations in most cases has not expired. Depending on the timeline involved with respect to when the claim has arisen, these trusts can be and should be considered in appropriate circumstances, but only by an attorney who understands all of the ramifications.
Offshore asset protection planning normally involves the utilization of offshore trusts and other entities. Offshore planning generally raises justifiable concerns with respect to asset security and tax issues. The most efficacious manner to address these concerns is to make certain that you are receiving the best advice and counsel from a qualified expert in the area. You must be sure that the attorney with whom you are dealing has expertise in the field and is recognized in this regard by his peers.
A FAPT is a trust that is set up in an offshore jurisdiction which has enabling trust legislation providing for substantial protection against creditors of the trustor. One of the greatest advantages of the FAPT is the fact that by its very nature any legal attacks against its assets are transferred abroad to a different legal system. The FAPT is generally much more expensive to set up and create than a domestic trust and requires a certain willingness on the part of the Trustor to deal with offshore jurisdictions and trust entities. The FAPTs’ greatest value is for asset protection planning well in advance of any potential creditor problem. Moreover, many times FAPTs are only used when the client already has some international connections and networking. Recent cases have emphasized the need for careful planning in the structuring of the FAPT if it is to be legally efficacious and successful in meeting the purposes and objectives of the trustor.
Most foreign jurisdictions do not recognize US judgments. This may force a trial de novo on the merits under the laws of foreign situs in order for the creditor to impose liability on the trustor and reach the assets of the FAPT. Obviously, the fees and expenses of this trial de novo and the burden of having to select offshore counsel can be substantial. Moreover, the FAPT jurisdiction, generally, requires plaintiffs to employ attorneys who are licensed in that jurisdiction.
Most foreign situs jurisdictions require that the burden of proof in challenging asset transfers to a FAPT is on the creditor and does not shift to the trustor. Moreover, many foreign jurisdictions impose a higher standard of proof upon civil litigation plaintiffs such as the “beyond the reasonable doubt” standard. This is in sharp contrast to the “preponderance of the evidence” principle utilized in US domestic civil cases.
The FAPT legislation of many jurisdictions establishes a statute of limitations for challenging asset transfers to a FAPT that begins to run on the date of transfer. This is contrary to US law where the statute may begin to run the date the transfer is “discovered” by someone with a claim against the trustor. Additionally, the statute of limitations of many FAPT jurisdictions is much shorter than the typical four year statute found under US law.
Manifestly, it is going to be much more expensive and inconvenient to prosecute a claim offshore. Think of the inconvenience of having to pursue a claim out of state and then multiply that by two to three times the cost to pursue the matter in a foreign jurisdiction. Many foreign jurisdictions prohibit contingency fee arrangements forcing the claimant to finance a litigation process entirely on his/her own. Creditors may think twice about having to deal with a completely different legal system out of the country. This unfamiliarity, plus the additional expenses and costs, and the entire uncertainty with respect to the process, adds a substantial element of protection to the FAPT.
The FAPT may assist the trustor in achieving several other objectives and planning goals independent of asset protection planning. Traditional estate planning issues such as the orderly transfer of property at death, the avoidance of probate, the strengthening of spendthrift provisions, greater privacy w, the management of offshore assets and businesses and premarital planning can all be addressed by the FAPT.
The easiest way to understand how a FAPT protects cash and securities is to focus on the process by which a claimant would try to reach trust assets. A claimant must either bring his case in a court that has jurisdiction over the trustee so that the court can order the trustee to give up the assets or initiate litigation in the court that has jurisdiction over the assets themselves so that the court can attach or seize the assets. However, if the client’s offshore planning strategy is properly structured and implemented, no domestic court can successfully attack the plan because it would not have the ability to force the offshore trustee to expatriate or return the assets nor would it have the ability to levy on assets properly held outside of the United States.
Protecting non liquid assets like real estate, accounts receivable and business equipment involves the process of equity stripping. Although some of these assets can be put in charging order protected entities that may provide some limited protection, the most effective strategy available to protect a domestic illiquid asset is to strip that asset of its value by encumbering it as collateral for a loan and protecting the loan proceeds with your other liquid assets in the FAPT. Creditors are going to be very discouraged attempting to levy on an asset that may have substantial value, but has very little equity because of a loan encumbrance or lien.
Generally speaking, the establishment of the offshore asset protection plan will be tax neutral. The FAPT will either be a US grantor trust or a foreign grantor trust with a US grantor for US income tax purposes. It will be necessary to file various forms with the Internal Revenue Service in either case, but these forms will only demonstrate that the taxpayer is a responsible and law abiding citizen.
One very typical arrangement with respect to a possible offshore strategy would be for the client to establish the offshore asset protection trust utilizing an offshore trustee. The trust would then set up an offshore limited liability company which would be entirely owned by the offshore trust. You could be the manager of the LLC with direct signature control over bankaccounts and securities accounts. In the event of a crisis, you would obviously resign as a manager and appoint a trusted friend, relative or a management company. There are modular variations to this strategy that can be worked out with your professional advisors.
The proliferation of plaintiff lawsuits and the expanding concept of liability that has become second nature in our court system have engendered much concern and anxiety about the preservation of wealth in the United States. Many professionals like doctors and lawyers as well as business owners, corporate executives, real estate developers and investors, contractors and others operate in an environment of high risk. Many such people lack confidence that they will be treated fairly by the US legal system and are desirous of reducing their financial profile and eliminating their liability potential. For these individuals, the offshore planning alternative may very well be the best planning device available for maximum comfort and piece of mind.
Wealth management can be referred to as an advanced discipline relating to advice in terms of investment which incorporates specialist monetary services and financial planning. The main objectives are providing families dealing with services in retail banking, legal resources, investment management, and taxation advice goals to sustain and grow long-term wealth. Monetary planning can help the individuals who are accumulating wealth or have already done so.
Wealth management can be exemplified through self-governing advisors or huge corporate entities such as Citigold of Citibank and the other extensions regarding services relating to retail banking designed for focusing on customers dealing with retail worthy of high nets. Customers of such type are likely to be categorized as ‘upper retail’ or ‘mass affluent’ clients owing to net worth of theirs, potential products owned by them from bank, assets of their under management, and many other segmentation methods.
Banks create exclusive services, branches, and other advantages for retaining or attracting the customers who can earn more profits in comparison with the customers detailing with retail banking. It should, however, be noted that clients of wealth management cannot be termed as ‘Private Banking’ clients as they do not justify the criteria of services of banking provided by private banks.
The term ‘Wealth Management’ traces its origin in the 90s in the United States through Insurance Companies, banks, and Broker Dealers. The evolution of wealth management traces to high-net worth monetary consulting for people who happen to be topmost clients of any of the firms, to high level private banking which makes provisions for different kinds of investment, bank products, and insurance. With the passing of Glass-Steagall Act in the year 1999, monetary firms have been able to make arrangements for all the 3 services from a single office.
With emergence of wealth management in the form of professional service, along with career opportunity, educational programs like AAFM, i.e. American academy of Financial Management certified by CWM and Chartered Wealth Manager plan are arranging for modified wealth management training to individuals and corporations alike. Wealth Management is used to serve the affluent community, along with Chartered Monetary analysts, certified managers of wealth, Public Accountants, government-licensed lawyers, insurance professionals, etc.
Criteria for various countries
In the US, only CPAs and lawyers possess the license provided by government for providing advice related to tax or legal matters on complicated wealth management, tax law, estate planning, retirement, or even other legal matters like divorce or business management.
In Australia, the rules regarding wealth management are such that only those advisers who qualify under PS 146, i.e. Policy Statement no.146, outlined under Financial Services Reform Act of the year 2001, administered and governed by ASIC, i.e. Australian Securities Investments Commission are entitled to provide advice regarding financial products to the retail clients.
People engaged in the wealth management generally work for brokerage firms, investment banks, accounting firms, law firms, trust departments, consumer banks, or portfolio management and investment firms. Smaller ones like registered advisors might also provide broad array regarding services pertaining to family and office.
Products dealt with in wealth management include stock trading and stocks, investments linked with equity, derivatives and products relating to structured investment, foreign exchange, unit trusts and mutual funds, investments and management of property, etc. Alternative investments with respect to wealth management include art, wine, precious metals, etc.