and Your Family
New York Fraudulent Transfers
Estate planning brings up many thorny issues. In an effort to protect their assets, some people inadvertently create problems for themselves. An example of this is referred to as a fraudulent transfers or fraudulent conveyances. One way in which a fraudulent transfer can occur is if you transfer assets from your estate to a trust with the intention of keeping those assets from creditors. While in making such a transfer you may not intend to skirt the law, a court may still conclude that when the transfer was made there was a fraudulent intent. As a consequence, the court may order that the transfer be reversed and that the assets be used to satisfy the debt to the creditor. If this happens, you may end up in a tenuous financial position. The best way to avoid this type of situation is to be sure you are working closely with a qualified New York fraudulent transfers lawyer to ensure that your estate planning meets your financial goals and that it is free of any costly complications.When a transfer is fraudulent
Fraudulent transfers often occur when a person is experiencing financial difficulties and is on the brink of filing for bankruptcy. During a bankruptcy, the bankruptcy trustee has the right to seize certain assets, sell them and use the proceeds to pay creditors. Some people attempt to avoid this by selling or transferring ownership of property prior to filing for bankruptcy. As a part of the bankruptcy process, the trustee will review recent sales and transfers of property that occurred to determine if they were fraudulent. To learn more about the process of reviewing sales and transfers as part of a bankruptcy proceeding, discuss your situation with an experienced New York fraudulent transfers lawyer.
A transfer might be considered questionable if it was made to a relative or colleague. Fraudulent intent will also be presumed if you transferred the property, did not receive reasonable compensation for it, and you also were experiencing serious financial problems. Of course, if it is clear that you transferred the property in an effort to avoid using it to pay creditors, the transfer would be considered fraudulent.
A fraudulent conveyance can be either actual fraud or constructive fraud. If you transfer property with a year of a bankruptcy filing and it can be shown that your intent was to avoid paying creditors, then it is likely that the bankruptcy court will find that you committed actual fraud. On the other hand, if you transferred property for less than its reasonable value, and you could not pay your debts at the time of the transfer, then a court may determine that you committed constructive fraud. For a finding of constructive fraud intent is irrelevant.Consequence of fraudulent transfers
In many cases the person who receives the property at issue in a fraudulent transfer is aware of the fraud. Thus, the consequence of a finding that a transfer was fraudulent is that the bankruptcy trustee can actually recover the property from its new owner and use it to pay your creditors. However, as an experienced New York fraudulent transfers lawyer will explain, if the new owner of the property was unaware that you had creditors who had claims against your property, then the purchaser will be permitted to keep the property.Estate planning to avoid fraudulent transfers
A sound asset protection plan that is a part of your overall estate plan can be an effective way to both protect assets from creditors and avoid facing fraudulent transfer liability. While the law does not allow you to create an asset protection plan to evade current creditors, it is acceptable to create an assets protection plan to protect assets from future creditors.
An effective way to protect assets is by transferring assets to an irrevocable living trust. A trust agreement is an estate planning vehicle that holds property for the benefit of another person. To create a trust you as the grantor would transfer property into the trust. The trust then becomes the legal owner of the property. A living trust can be revocable or irrevocable. When you create an irrevocable trust you name someone else as the trustee. You cannot change the terms of the trust. It is permanent. Thus, you give up control over the assets. Because you give up ownership and control over the assets, your creditors cannot reach them. However, you are still able to enjoy the benefits of the assets. For example, you can name a family member as the beneficiary of the trust. This would enable you and your family to continue to benefit from the property without the property being legally owned by you.
A revocable trust, on the other hand, is not an effective estate planning to protect assets and avoid fraudulent transfers. With a revocable trust you are the trustee and have the authority to change or revoke the trust at any time. If you decide that the trust is no longer necessary, then you are free to dissolve it. With a revocable trust even though you transfer your assets to the trust, you still maintain a significant amount of control over the trust and the assets.Other benefits of an irrevocable trust
In addition to protecting assets from creditors and avoiding the pitfalls of a fraudulent transfer, other benefits of transferring property to an irrevocable trust include estate tax savings and probate avoidance. If you give away assets during your lifetime, those assets will not be included in your taxable estate at your death. This is important as the value of the property that your beneficiaries will receive from your estate will be reduced by the amount of estate taxes that must be paid. Taxes and other debts owed by your estate must be paid before property is distributed to beneficiaries. If your estate does not include enough cash to cover estate taxes owed, other estate property such as real estate may have to be sold to satisfy the debt owed for estate taxes.
Property that you placed in an irrevocable living trust will not have to go through the probate process. Probate is the legal process during which the New York Surrogate's Court determines the validity of a will and authorizes the distribution of assets. There are several steps in probate. First the executor who you name in your will submit your will to the Surrogates' Court. The judge will review you will and determine whether or not it is valid. If the judge determines that is valid, the court will allow the executor to being the process of administering your estate. The executor will have to first locate, inventory and determine the value of your estate. Then estate debts will have to be paid. The final step is for the assets to be distributed to the beneficiaries names in your will.
Probate takes time- often months and in some cases more than a year. During this time your beneficiaries will not have access to the property that you left for them in you will. If there are any problems during probate such as probate litigation or a will contest, then probate will take even longer. Assets that are in a trust that you made during your lifetime will not have to go through probate. Instead, beneficiaries will receive the property fairly quickly after your death.Setting up an irrevocable trust to avoid fraudulent transfers
In order for you and your estate to reap the benefits of an irrevocable living trust, it must be set up properly and at the right time. It is advisable to work with a skilled fraudulent transfers attorney in New York. For example, in order to avoid fraudulent transfer liability, timing is important. If you have financial problems and are unable to pay your debts to your creditors, transfers made to a living trust within a year of a bankruptcy filing will be considered suspicious. It is likely that a court will determine that the transfer was made with the intent to avoid paying creditors.
In addition, the language in the trust must be such that the trust is indeed an irrevocable trust over which you have no control. There are many types of irrevocable trusts that you can establish to protect assets and avoid fraudulent transfers as well as to meet other goals. For example, the trust can be an education trust to provide for the education expenses for your children. If you have a disabled relative, you can set up a special needs trust to provide for that relative's long term expenses.Contact the Law Offices of Stephen Bilkis & Associates
To ensure that your assets are adequately protected and that you do not risk suffering the consequences of making a fraudulent transfer, it is important to contact a skilled fraudulent transfers attorney serving New York. The staff at the Law Offices of Stephen Bilkis & Associates has extensive experiencing setting up comprehensive estate plans that include asset protection strategies. We will help you develop an overall estate plan that reflects your individual goals. Contact us at our office at 800-696-9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Nassau County, Suffolk County, Queens, Bronx, Brooklyn, Long Island, Manhattan, Staten Island, and Westchester County.