Asset Protection: Is Your Real Estate Safe?

Posted October 2019

When it comes to protecting your assets, real estate presents a significant challenge. Unlike other types of assets — such as stocks, bonds, and bank accounts — real estate cannot be moved to another jurisdiction. If you are concerned about your real estate’s vulnerability to creditors’ claims, here are several strategies to consider.

As you review these techniques, be mindful of fraudulent conveyance laws, under which a court can undo transfers made with the intent to hinder, delay, or defraud existing or reasonably foreseeable creditors. In light of these laws, the earlier you implement asset protection strategies, the better.

Give it away. If you do not mind parting with the title to property, transferring it to your children or other family members is a simple, but effective way to place it beyond your creditors’ reach.

Establish a QPRT. A qualified personal residence trust (QPRT) is an irrevocable trust designed to hold your principal residence or a vacation home for the benefit of your children or other beneficiaries. You retain the right to use the home during the trust term, and once you transfer property to the trust, it is protected against creditors’ claims (subject to fraudulent conveyance laws). In addition, so long as you outlive the trust term, a properly structured QPRT can be used to reduce or even eliminate gift and estate taxes attributable to the home.

Take advantage of state law. Many states permit married couples to own their principal residence (and, in some cases, other types of real estate) as “tenants by the entirety.” This form of ownership shields the property from claims by either spouse’s creditors, but not from joint creditors. A few states offer unlimited homestead exemptions, which protect one’s principal residence from creditors regardless of marital status.

Set up an LLC. One of the best ways to protect business or investment real estate is to transfer it to a properly structured and operated limited liability company (LLC). So long as the property is held in the LLC, it’s protected against claims by your personal creditors. In addition, this structure protects your other assets against claims by the LLC’s creditors (a negligence claim by a tenant, for example).

Keep in mind that the level of asset protection available varies from state to state and there may be exceptions for certain types of claims, such as taxes or child support.