Nevada Asset Protection Trust

An asset protection trust (APT) protects the grantor’s real or personal property by shielding trust assets from the grantor’s creditors or claims against the estate. In an APT, the grantor is a permissible beneficiary who has access to trust funds, but with some limitations.

An APT is an irrevocable trust, so unlike with a revocable living trust, any assets you transfer to an APT receive a degree of protection from lawsuits. APTs in Nevada count as domestic asset protection trusts (DAPTs) since they operate within the U.S.

A DAPT is a spendthrift trust. Nevada’s spendthrift provision clause prevents the grantor’s creditors from accessing trust funds directly. Any asset distribution must be made by an independent trustee. The independent trustee controls fund withdrawals, sales of trust assets, and so forth.

A grantor can transfer many types of assets to a DAPT, including cash, stocks, real estate, and business assets. Grantors may even place a limited liability company in a trust to avoid probate or plan for incapacity.

While the trust creator gives up a significant level of control over their property when they transfer assets to a DAPT, they can still request distributions to beneficiaries and direct trust investments.

In 1999, Nevada passed the Spendthrift Trust Act that allowed individuals to establish a self-settled spendthrift trust. In this type of trust, the grantor can also be the beneficiary. Other beneficiaries may include the grantor’s spouse, children, grandchildren, or any persons the grantor names.

In Nevada, distributions from an asset protection trust can only take place through an independent trustee. This trustee should be a Nevada trust company.

Nevada’s self-settled spendthrift trust laws help protect the beneficiary’s interest better than similar laws in many other states. Here’s why.

• Unlike most states, Nevada doesn’t tax trust income. However, federal income tax would still apply.
• In most states, DAPTs start protecting your assets after three or four years, compared to only two years after asset transfer in Nevada.
• Once property passes to an asset protection trust in Nevada, no exception creditors can claim it—not even an ex-spouse. Almost all other states recognize ex-spouses as exception creditors.
• Nevada allows directed trusts, so the trustee can appoint a fiduciary such as a financial advisor to handle some aspects of trust management.
• Nevada has some of the most flexible regulations on modifying, or decanting, an irrevocable trust.

Nevada law keeps evolving to make asset protection trusts easier to manage. A 2009 legislature recognized the role of trust protectors, who protect the beneficiary’s interest by supervising trustees and making sure the trust complies with its terms.

Nevada also protects attorneys and investment advisors involved in setting up DAPTs from third-party legal claims, unless the claimant can prove the attorney or advisor acted in bad faith and directly caused any damages suffered.

When you transfer property to a Nevada Asset Protection Trust, you legally relinquish these assets. Once the statute of limitations runs out, the trust property is safe from any creditor.

Let’s say that Sam, a real estate developer, embarks on a high-risk business venture, keeping most funds himself but transferring some valuable stocks to a DAPT. When Sam’s project fails and he faces debt two years later, his creditor will have difficulty making a claim against the stocks because they now belong to the trust and the statute of limitations has expired.

A Nevada DAPT usually works in conjunction with an LLC for charging order protection. In Nevada, a charging order is the judgment creditor’s exclusive remedy, so the creditor cannot force an LLC to distribute funds.

Keep in mind that a Nevada court may reverse asset transfers to an irrevocable trust if it rules the grantor set up the trust with fraudulent intentions. A DAPT often won’t protect assets from an existing or likely future creditor.

To be safe, work with a trusted asset protection firm like our team at Estate Planning of Nevada if you are considering setting up an asset protection trust.

You can set up a Nevada Asset Protection Trust even if you aren’t a Nevada resident. Even foreign nationals and international businesses can set up asset protection trusts in Nevada. However, at least one trustee must be either a Nevada resident or a Nevada trust company with trust powers within the state.

The option of creating Nevada Asset Protection Trusts is a major advantage for people who need to protect their assets but would prefer to avoid the cost of setting up and maintaining an offshore trust.

Domestic asset protection trusts in Nevada must comply with the following requirements:

• An NAPT must be an irrevocable trust, however, the trust can still have a lot of flexibility.
• An APT must not require that the trust’s income or principal pass to the grantor. The grantor will receive distributions from trust funds at the discretion of a distribution trustee (whom, the grantor may choose). The grantor can also make requests for distributions.
• At least one co-trustee must be a Nevada resident or a Nevada Trust company with proper authority within the state.
• The grantor must not set up the asset protection trust with fraudulent intentions.

What happens if you transfer assets to a Nevada asset protection trust, and then your creditor, who resides outside Nevada, makes a claim against you?

Even if the creditor operates through another state’s court, Nevada Asset Protection Trusts should still safeguard the grantor’s property, provided that the claimant cannot prove fraudulent intentions.

If the trust assets include real property outside Nevada, it can complicate court rulings. Our team at Estate Planning Centers of Nevada can help you choose the optimal strategies for protecting each property type.

When you consider setting up a Nevada Asset Protection Trust, you may ask how much it will cost you. The good news is that setting up a domestic trust costs less than what you would pay for an offshore trust.

Please keep in mind the costs of setting up a trust can vary depending on your plan’s legal complexity and other factors, like the value of the trust property. Contact us at Estate Planning Center of Nevada for more specific information on how much you can expect to pay for an asset protection trust.

Thanks to their comparatively reasonable costs, DAPTs are a solid option for moderately high-value estates starting from about $500,000. These trusts can protect assets that belong to people in high-risk professions, like surgeons, lawyers, and real estate professionals, who face a high chance of a malpractice lawsuit throughout their careers.