Asset Protection tends to be an elusive and ill understood area of the law. For the most part, this is because (1) this area of the law is incredibly niche and (2) most people are focused on growing their wealth rather than protecting it. Entrepreneurs, for example, are an optimistic bunch, taking business risks like they take their morning coffee; their mindset, and understandably so, is one of growth, opportunity, and confidence. Others may think that the number and value of their assets do not warrant a comprehensive Asset Protection plan; still others may think their current, more common arrangements will suffice to protect their wealth in the event they attract a predatory creditor.
Forgoing the creation of an Asset Protection plan for these reasons is shortsighted, dangerous, and, frankly, financially irresponsible. But another, more sinister reason many people choose to forgo Asset Protection planning is this: they are under the false impression that Asset Protection is immoral, shady, or downright evil. After all, mitigating or denying a plaintiff their rightful recovery all because of some creative structuring of assets is nothing less than an obstruction of justice, right? Wrong. Here’s why:
AMERICA’S LITIGIOUS SOCIETY
The United States is more litigious (i.e., prone to filing lawsuits) than any other nation in the world. Hundreds of billions of dollars are spent every year in the U.S. on tort litigation alone. The phrase “I’m going to sue” is as American as apple pie. While it is certainly a blessing that we are afforded such a broad leeway in seeking compensation for our injuries, as with all good things, this privilege is very frequently abused. For some, litigation is a vehicle for justice; for others, litigation is simply a financial vehicle for opportunists seeking to empty deep pockets.
In fact, there are disinterested investors who fund litigation to reap a percentage of the reward. This ancient common law practice is known as ‘champerty,’ and it serves as a great example of how opportunistic litigation in the U.S. has transformed the court and its procedures into something akin to Wall Street. With so many frivolous lawsuits being filed every day, Asset Protection provides a strong defense against predatory plaintiffs and ruthless creditors. Americans who pour their blood, sweat, and tears into building their wealth for their families and businesses can rest assured knowing that with a comprehensive and well-calculated Asset Protection plan, their life’s work won’t be vulnerable to ambulance chasers or other litigious opportunists. Asset Protection thus brings a critical balance to the American legal landscape.
RISK AND THE ECONOMY
When it comes to business, the idea that risk and reward share a correlative relationship is clear. After all, one must “risk it to get the biscuit.” The risks inherent in starting a business in the first place are enough to induce existential dread. Imagine you’ve done everything right for your business. You’ve taken the requisite risks and you’ve built a profitable enterprise from the ground up. Now imagine your entire business is at risk of dissolution, all because of a single, questionable, non-business-related claim made by a profit-hungry plaintiff seeking a windfall.
This scenario is enough to deter even the most ambitious and brilliant from creating the enterprises this nation needs to survive and thrive. Asset Protection offsets the risk of such a scenario becoming a reality, allowing the pioneers of today and the business leaders of tomorrow to entertain only those risks which are necessary for the success and longevity of their enterprises. Consequently, the personal benefits which inure from Asset Protection plans trickle upwards to benefit the economy as a whole.
IT’S LEGAL!
Another reason many people tend to distance themselves from Asset Protection planning is because they entertain the common misconception that it’s illegal. Asset Protection is LEGAL. How could limiting your personal liability for, or firewalling your assets from, a plaintiff’s rightful recovery be sanctioned by the law? Just look at the corporation, or the LLC for that matter. These staples of the law do exactly that: they limit your personal liability. Asset Protection is simply the strategic utilization of these business entities, and others like them, for more robust protection. Fraudulent transfer and fraudulent conversion laws act as a necessary bulwark against the more malicious plans which seek nothing else but to dodge liabilities or judgments having arisen prior to the establishment of one’s Asset Protection plan. When it comes to Asset Protection, the early bird gets the worm; vigilantibus non dormientibus subvenit lex (“the law supports the waking, not the sleeping”).
CONCLUSION
- Asset Protection is necessary, given the hyper-litigious nature of the American legal landscape.
- Asset Protection is beneficial, both for the individual business owner and the wider economy.
- Asset Protection is legal, as it operates within the confines of the law using standard legal instruments and doctrines.