January 3, 2018
This year marks the 20th anniversary of the first domestic asset protection trust (DAPT) legislation - in Alaska. Since that time, 17 states have enacted such legislation. Notwithstanding these tailwinds, we haven't had any favorable case law to provide the much sought-after certainty that clients seek. Not to be lost in all this is the ever-increasing emphasis that asset protection has garnered in the last decade—both positive and negative. Some critics believe that asset protection is either morally or legally a “race to the bottom.” At the other end of the spectrum, many states that haven’t enacted self-settled trust legislation have seen fit to enact other laws that provide enhanced protection from creditors. These include tenancy-by-entirety trusts, inter vivos qualified terminable interest property protections and statutes protecting inherited individual retirement accounts. Recently, New Hampshire became the first state to provide for non-charitable foundations, which are similar to those vehicles in use in civil law jurisdictions to provide confidentiality and protection from creditors.
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