Protect Assets Today To Preserve Wealth For Future
By Aaron Dukes
January 10, 2019
Often times, I am asked by family and friends as well as clients throughout North Central Florida to help them construct an effective estate plan to mitigate the financial hardships associated with the loss of a loved one. The advice I tend to give clients is that an effective estate plan to preserve what is yours for future generations has to begin with an effective asset protection strategy to protect what is currently yours first.
In addition to my own experience as an attorney who has represented debtors and creditors in civil litigation, I was fortunate enough to have interned for one of Jacksonville’s most well renown debtor bankruptcy attorneys, I was also fortunate enough to have interned for a bankruptcy judge. Needless to say, I have witnessed some of the most effective strategies to protect assets from creditor collection. Unfortunately, many Floridians do not spend the time or make an effort to effectively plan for rough financial periods in their life.
In most instances, individuals need only to familiarize themselves with available exemptions and protections under Florida law to strategically thwart collection efforts by potential creditors in the near future should hard times set in. Proper planning is especially important for adequate asset protection strategies in light of Florida’s fraudulent transfer laws codified by Chapter 726, Florida Statutes.
Particularly, Section 726.110, F.S. allows for creditors to recover certain assets transferred by the debtor within four years of the fraudulent transfer under certain conditions. For purposes of Chapter 726, a “transfer” made, or an obligation incurred is "fraudulent" with respect to the creditor if
"the debtor made the transfer or incurred the obligation:
(a) With actual intent to hinder, delay, or defraud any creditor of the debtor; or
(b) Without receiving a reasonably equivalent value in exchange for the transfer or obligation, and
1. Was engaged or was about to engage in a business or a transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction; or
2. Intended to incur, or believed or reasonably should have believed that he or she would incur, debts beyond his or her ability to pay as they became due.
See Fla. Stat. s. 726.105.
Florida debtors are often surprised by the fact that the scope of what is defined as a fraudulent transfer requires no nefarious intent. For example, if Joe Smith gives his old 2005 F-150 to his son as a gift for his son’s 16th birthday and transfers the title to the vehicle to the son, and two years later Joe Smith has a judgment entered against him (for whatever reason) by a creditor to whom Joe Smith incurred an obligation to prior to gifting the vehicle, the creditor may be able to retrieve the F-150 for purposes of offsetting it against the outstanding balance owed on the judgment.
Fortunately, there are strategies available to protect what is yours. Call Dukes Legal, P.A. (386-269-2394) today to set up a free consultation to protect your future.
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