Living Trusts Should Plan For Unforeseen Disabilities of Children

Jon Alper Uncategorized

When people create a living trust they usually do not plan for unforeseen change of circumstances. They assume that their family members’ current good health and with stable living situations will continue throughout their lifetimes. I recently consulted with a family that had to deal with unforeseen needs of a disabled child that was not anticipated when the parents drafted …

Medicaid and the Florida Homestead Exemption

Jon Alper Uncategorized

The Florida homestead exemption is Florida’s best known asset protection law. The exemption becomes more complicated, and more limiting, when it interacts with certain provisions of federal law. One example is federal tax law pursuant to which the IRS may place a lien on a taxpayer’s homestead to collect taxes. Another lesser-known change to Florida homestead is the provisions of …

Can Creditor Take My Furniture and Clothing?

Jon Alper Uncategorized

Some debtors are surprised when I tell them that the household furnishings and clothing they used on a daily basis are not exempt from their judgment creditors. Some people think that Florida law permits them to own their basic tools of living such as the clothes they wear, their children’s toys, the beds they and their family sleep in. Some …

Colorado Supreme Court Decision Supports Forming LLCs Outside Florida

Jon Alper Uncategorized

A limited liability company provides asset protection because a creditor’s remedy is limited to a charging lien against the debtors share of profit distributions from the LLC. An interesting issue arises when the debtor owns a membership interest in an LLC that was organized in a state that is different from the debtor’s residence. Does the creditor have to domesticate …

Amendment of Trust May Be A Fraudulent Conveyance

Jon Alper Uncategorized

I received a call from someone who said they had money and stocks in a financial account titled in the name of a revocable living trust created by the caller as part of her estate planning. The caller and her spouse were named as the trust beneficiaries. The caller expected to be sued by a bank for her default on …

LLC Charging Liens Applicability To Withdrawal of Capital Contributions

Jon Alper Uncategorized

LLCs are useful asset protection tools because Florida law limits a creditor’s  remedy to a charging lien on distributions to LLC members. One of my clients was relocating to Ohio and asked if he would get the same LLC asset protection after he became an Ohio resident owning a Florida LLC. I explained that the collection and asset protection laws …

Unreasonably Liberal Loan To Owner May Be A Fraudulent Transfer

Jon Alper Uncategorized

A business owner wants to protect the business’s assets, mostly cash, from a creditor that is suing the business. He wants to transfer the business’s cash to himself, the owner, but is concerned that the transfer may look like a fraudulent conveyance from the business to himself. So, he has the business loan him the cash and he executes a …

Exemptions From Criminal Restitution Orders: An Update

Jon Alper Uncategorized

I want to update a 2015  post on the subject of  federal criminal restitution collection.  I wrote that state law exemptions such as Florida homestead would not stand up against federal collection, but that state property law would apply so that tenants by entireties assets would be exempt from restitution orders against one spouse. I had recently to address the …

Supreme Court: Fraudulent Transfer Debts Not Dischargeable In Bankruptcy

Jon Alper Uncategorized

A bankruptcy debtor cannot discharge debts incurred by false representation or actual fraud. Appellate court decisions split as to whether a debt incurred as part of a fraudulent transfer of assets is included in the category of “actual fraud” that may not be discharged in bankruptcy. Some courts have held that actual fraud in the bankruptcy Code refers to common …

Statute of Limitations After Discovery of A Fraudulent Transfer

Jon Alper Uncategorized

Creditor actions for fraudulent transfers must be brought within four years of the transfer pursuant to Florida Statute 726.110. There is a “savings clause” that gives creditors no less than one year to file an action after they discover the transfer regardless of whether the transfer occurred more than four years ago. There is a difference between discovery of a …