Podcast #199 Show Notes: Asset Protection with Jay Adkisson
Attorneys who specialize in asset protection often use a lot of fear in their marketing materials. They want us to feel like we are going to be sued and lose everything. Is this fear appropriate? How much anxiety should a doctor really feel about asset protection? Our guest in this episode is Jay Adkisson, an expert in asset protection. We discuss a basic framework for thinking about asset protection, domestic asset protection trusts, personal liability insurance, malpractice insurance, protecting your home equity, LLCs, the California Private Retirement Plan, bankruptcies, and how many doctors he has known personally who have lost everything in a lawsuit. If worry over protecting your assets has kept you up at night, this is the episode for you.
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This episode is brought to you by 37th Parallel Properties. There is a substantial body of evidence supporting commercial real estate investing. Through the years, as we gained a deeper understanding of the asset class, we added more and more to our portfolio. But, unless you want to manage it yourself, the real trick is to find a trusted investment sponsor. As one of the good guys in the industry, 37th Parallel Properties is a partner we trust. They’ve been around for more than ten years and still maintain a 100% profitable track record with clear reporting, and excellent educational content. Many of our readers have invested with 37th Parallel, and so have we. If you’d like to check them out, go to 37th Parallel Properties.
Quote of the Day
Our quote of the day today comes from Epictetus, who said,
“Wealth consists not in having great possessions, but in having few wants.”
A bit of a stoic.
Milestones to Millionaire Episode
PSLF is real and can be received without major hassles. Dr. Yu is proof! He is a pediatric intensivist who owed $155K when he graduated school and had $182K forgiven ten years later. We discuss why only 2.4% of the people applying are successfully getting PSLF and what you can do to be one of them. Who should go for PSLF? See this post to know if it right for you.
#2 – Pediatric Intensivist gets PSLF with No Hassle
Sponsored by: Larry Keller at Physician Financial Services, lkeller@physicianfinancialservices.com, 800-481-6447
Recommended Reading
20 Things You Need to Know About Asset Protection
Top 16 Asset Protection Moves for Doctors
6 Asset Protection Mistakes
Asset Protection with Jay Adkisson
We did an asset protection episode a few months ago. A lot of the feedback we received was why didn't we just have Jay Adkisson on? So we brought Jay on the podcast this week. He is famous for a lot of things. He created a scam fighting website. He has been an expert witness to the Senate Finance Committee. He speaks to the American Bar Association and physician groups. He is the author of a couple of books on asset protection:
Asset Protection: Concepts and Strategies for Protecting Your Wealth
Captive Insurance Companies
The Charging Orders Practice Guide: Understanding Judgment Creditor Rights Against LLC Members
He started his law career in litigation. He developed a reputation for basically going after debtors. Asset protection planning really didn't exist until after 1987 when Colorado attorney Barry Engel got The Cook Islands Trust statute passed. So in this early period of asset protection planning, clients and attorneys would come to him and say “Hey, Jay, take a look at this. Does this work?” Most of the time he would say, no, it's not going to stop him, at least, but maybe here are some things that you can do to boost this.
It was giving so many recommendations like this that he eventually ended up being an asset protection planner and enjoyed spending a week a month in the Caymans or the Bahamas, sitting with people, opening accounts, and getting trust documents together.
“Now I will say I did have some early fame in the sense that when I was doing the asset protection planning, I would get a lot of calls from people that would ask me about offshore investments or investments that were a little exotic, these high yield interest programs, and people having all sorts of schemes and things offshore. And I would warn people off. I would say, “Hey, look, don't do that. Your money is going to disappear, or that's an obvious scam, or that's a Ponzi scheme”. And I got so tired of that, that eventually I created a website called Quatloos. And I started putting warnings about scams and things on that website. Because of Quatloos and my work with it, I was twice an expert to the U.S. Senate Finance Committee, talking about tax and investment scams. So that's how a poor kid from rural Cushing, Oklahoma ends up testifying before Congress a couple of times.”
The Fear Factor in Asset Protection
Now we see occasionally, an advertisement, often aimed at doctors, by an attorney or a firm that specializes in asset protection. There is always a lot of fear in their marketing materials. You're going to get sued and you're going to lose everything. Does he think that fear is appropriate, and how much anxiety should a doctor really feel about asset protection?
“That is the stick that these guys use to basically drive the rabbits into the wolves is to talk about excess malpractice verdicts. Certainly, asset protection planning has a potential use against those things. The thing about excess malpractice verdicts is they're very rare. Statistically, in the United States, there are about as common as lottery winners. So, it's just not something that you really have to worry about that much.
Now probably most physicians out there are going to know somebody that got zinged by an excess verdict. I will tell you, though, that in 31 years of practice, I have yet to meet personally a physician that got zinged on an excess malpractice verdict. I'm sure they're out there. Again, there's about the same number of those folks as are lottery winners, but I've never met them.”
He feels the fear is used to scare people into doing something that probably they otherwise wouldn't think of. He still thinks you should do some asset protection planning but reminds us that it won't protect us against divorce, which is the place where physicians lose most of their money. It's not going to protect against the second place that doctors lose money, which is bad investments and tax shelters. You beat that by getting a second opinion.
He said the first line of defense is always insurance. For most people, this would be enough.
Basic Framework for Asset Protection
How should people think about an asset protection plan? Jay said to think of it in terms of basic building blocks. Do the simple stuff first.
Insurance. Protection specific to your state. He said in given states, people have statutory exemptions that are classes of assets that are not available to creditors, like homestead in some states. You might have annuity contracts in some states. Disability insurance is always protected at some level. Sometimes the pension plans are protected. Are there things that you can do to recharacterize property to make it a little bit tougher for creditors? Can we change a property held tenancy by the entireties? Or if we're in California or Texas, or a number of other states, can we get rid of the community property? Can we divide up the property so that it's only sole and separate property and exposed to the creditors of only one spouse?
He said those are the things to look at first. They are effective and cheap. Only after you exhaust that stuff, then you start looking at what he calls advanced forms of asset protection planning. Jay did warn that when you talk to most people about asset protection planning, they'll do that in reverse. They'll try to say the big-ticket item is your first line of defense because that's where the money is. That isn't that different from a lot of things in financial services, unfortunately.
Hiding Assets
We aren't talking about fraudulently hiding assets or fraudulent transfers but about making it harder to see what you own. Some people seem to think there is value in hiding how much you have by carefully naming your LLCs and other entities. But it seems like, in a lawsuit, all of that becomes discoverable. How much protection is there, really, in just being discreet?
“The answer is close to none. My law firm uses a service that will in about two minutes print out about a two-and-a-half-inch dossier on somebody that gives all sorts of things like gas bills, telephone bills, cable bills, credit cards, all bank accounts, all banking inquiries, car leases, credit applications, you name it. It prints all that stuff out in about two minutes and the cost per person per debtor, or potential debtor, that I'm looking at is a whopping $3. And so, that information is out there. It's fairly easy to get.”
Jay's experience in practice is that most lawyers don't even look at that stuff before they bring a lawsuit. They don't really look at the collectability of the defendant that much. So, it doesn't keep people from being sued.
“And then, once they're sued, then you start having subpoenas and depositions and all sorts of discovery that will usually flush out to some degree what a person has, even before there is a judgment. Once there's a judgment, then it's just an open book. There are cases out there that basically say a creditor is allowed to leave no stone unturned in the pursuit of assets. And the court should generally mean it. Discovery is very broad. So, I think privacy is one of those things that is maybe good for snooping neighbors, or maybe if you don't want your kids to know how much money you have. Other than that, though, it's a great big placebo. It may make you feel better, but it's a sugar pill and it's not going to do anything.”
Domestic Asset Protection Trusts
DAPTs seem to be becoming more common. Are they reliable? Do they really work? Why don't we all just put all of our assets into one? Should you use the one in your state or use an out of state trust?
“Domestic asset protection trust is just the latest flavor of the day. Now, do they work? The answer is yes and no. If you get thrown into bankruptcy, they don't work very well at all. And keep in mind that most financially distressed people end up in bankruptcy. So, you can imagine those scenarios. But let's say that you only have one creditor, the creditor can force you into an involuntary and so you stay out of bankruptcy. You don't have to worry about the bankruptcy aspect.
The question then becomes, do you live in a state that has self-settle trust legislation, that has this DAPT legislation? If you live in one of those states and you set up a trust according to the laws of that state, and there's really no sense in going out of state, if you set up a trust according to the laws in that state, there's absolutely no reason to suspect that the courts are not going to respect that trust. The legislature has said, “Hey, look, you may not like it, but this is what we're going to allow’. So, if you live in one of those states, and there's about 20 states now that allow those trusts, then yes. But if you live in a state that doesn't allow those trusts the answer is no, they don't work at all. The creditors will be able to blow right through them as if it were a great big nothing.
Now, the trust companies and the attorneys and financial planners will swear up and down and recite all sorts of theory on why it should work. It hasn't worked so far and it isn’t going to work in the future. It's just a bad idea for people that do not live in a DAPT state.”
So bottom line, if you live in a DAPT state and you can stay out of bankruptcy, it will probably work. The cost is about $2000/year.
Bankruptcy
What happens in bankruptcy, exactly? Does the judge force you to pull the assets out? Jay said it has changed a bit since he came out of law school. Back then he described it as a nice warm bath that washed your debt away and left you feeling clean and refreshed. But in 2005 Congress passed the bankruptcy abuse prevention and consumer protection act, BAPCPA. It turned bankruptcy into a cold asset bath that basically strips you down to your bones.
“The entire purpose of bankruptcy is to marshal assets for the benefit of creditors. Now, the courts give some lip service to saying that the purpose of bankruptcy is to have what amounts to a fresh start for the debtor. And sometimes they even mean that. But know that, even in cases where the debtor is denied a discharge, the marshalling of assets still goes on. So, the whole point of bankruptcy is to have a bankruptcy trustee appointed that goes out and grabs all the non-exempt assets of the debtor and applies them to the debts. And the courts have all sorts of equitable powers, legal powers that they can cut through stuff.”
For the DAPT, the biggest issue is the fraudulent transfer laws. Congress has given bankruptcy trustees a 10-year statute of limitations to go and attack transfers to self-settled trusts, and similar vehicles. Even if you live in a DAPT state, if you've made a transfer to one of these trusts for the purpose of asset protection, that's all that's necessary to prove intent, and the trustee is going to blow through it.
Physicians usually want to go into bankruptcy because their biggest asset is their future income stream, and creditors are going to otherwise garnish their future income stream. So, a lot of times when physicians in particular get into trouble, they want to go into bankruptcy so that they can wash out their present debts and, at least going forward, they can have that income stream.
Insurance
How much should a typical doctor carry in personal liability and malpractice coverage? He said he would max out your malpractice coverage if you can reasonably afford it. Liability insurance depends on what people are doing with their assets. He has $3 million. For judgments above policy limits that are not reduced on appeal, the case usually settles without the physician going into bankruptcy, at least those he has seen.
“The plaintiff bar works by having attorneys that are good at zinging insurance companies. Their whole deal is to follow the lawsuit, work it for a while, go to settlement conference, get a settlement and get a check from the insurance company. What plaintiff lawyers do not do is go out and collect judgments. Not a lot of collections go on, even on these excess malpractice cases. The reason that most of them get settled is because the plaintiff attorneys don't want to have somebody do it and they don't know how to do it themselves.”
California Private Retirement Plan
We discussed California Private Retirement Plans. Jay wrote a post for us years ago about these plans. Read it here. Every state has its exemptions. Texas and Florida have unlimited homestead. Texas, Oklahoma, and Kansas have so many head of cattle. In some states, you can have a family Bible exempt. The exemptions are there, and you can use them. California almost uniquely has this provision in its law that's known as a private retirement plan. If you're an employee of a public utility or local government, the city can set one up for you, and it's completely protected from creditors.
California assembly decided that wasn't fair to people in the private sector so they modified the code to allow for private retirement plans.
“They're basically a trust that's created by the business for the benefit of the employee. You put money into the trust or, rather, the business does, the business contributes. It's held in the trust and it's exempt. And as long as it stays in the trust, it's exempt. And then when it comes out of the trust, it's exempt so long as it is kept in a separate account, that you can trace back to the exempt source. So, it becomes a very powerful thing.”
In California, you can have a qualified private retirement plan and a non-qualified private retirement plan. There's no prohibition on doing that. The money in that non-qualified plan still qualifies for dividend rates, long-term capital gains rates, and will be taxed. It simply flows onto the balance sheet of the participant, and they will file taxes on that money every year, same as a taxable brokerage account.
The downside is if you abuse it.
“In my world, pigs get fat, hogs get slaughtered. And if it is being abused, if somebody is being a hog and they've got a lot more money in there than they'll ever need in retirement, and I've seen people in excess of $15 – $20 million, you got to remember the guys that are looking at this are judges that are making quarter of a million dollars a year and are going to retire on $125,000 a year. There's been decisions where the courts have said that folks have been such hogs, that it really wasn't a retirement plan, and they've lost their protection. As long as you do it reasonably, you're a pig, not a hog. It works fabulously.”
The state has its quirks. California tends to be very creditor friendly. I think you start looking at more Texas, Florida when you start looking for the quirks. In California, frankly, there's not a lot to do. Now California did just raise the homestead exemption up to a minimum of $300,000, but possibly as high as $600,000, depending on median home price in a given county. But, still, if you have a house in Laguna, California, I mean, show me a mailbox that is worth $600,000. That's still not great.
Homestead Law
Is it worth trying to do something special to protect your home equity in a state that doesn't offer much homestead protection?
“If a person lives in a state that doesn't have substantial homestead protection, there're basically three things they can do. One is they equity strip the property. Equity strip means you take a second mortgage or you keep your first mortgage to interest only, and you do things that try to keep the property at least close to the exemption amount. And that's tough to do. And it's usually inefficient, based on the fees.
The second thing that people do is they can do a deal called a QPRT – Qualified Personal Residence Trust. And a QPRT is kind of a funky estate planning tool that actually has an asset protection benefit, which is that you put the house into a trust for the kids, but you retain a right to live in it over some period of years, say 15 or 20 years. If you get past that period, then the house passes to your kids outside your estate.
QPRTs are used frequently for very, very wealthy real estate. We're talking estates that are $20 million, just very, very wealthy, because it allows a huge chunk to pass outside the estate. Now, the downside is when you hit that age, if you're still living, you've got to start paying rent back to the trust. And the rent back to the trust may be sky high. So, you have to kind of be careful with how QPRTs work. But QPRTs are very, very effective for asset protection.
The third thing that people can do is pretty complicated, but it tends to work, and that is you have somebody create a third-party trust. That is, you have one of your parents, if they're still alive, create a trust for your benefit. And then what you do is you take your house and you sell your house into the trust and you take back a note.
So, on day one, you have a house, it's available for creditors, they can get it. On day two, you have a promissory note from the trust that may only pay out 10 years or something, or 20 years, it's not as attractive to creditors. It may be the creditors could align that on a fraudulent transfer theory, but it's not as easy as maybe it sounds. The court may rule that the creditor's remedy is to sit there and collect on the note, depending on how the note is structured. But that gets a house outside the person's name.
That's something else that was also designed for estate planning purposes because it gets the house outside the estate for estate and gift tax purposes. The idea being that if you put the house in there, the house may appreciate much more quickly than if you took a note, particularly at today's interest rates where long-term AFR may be 2.5% or something.”
Multiple LLCs
Direct real estate investors with multiple properties question whether to put them each in their own individual LLC or use a series LLC. If something happens, it is sort of isolated from the other assets. But in some states an LLC is really expensive. What is Jay's recommendation for someone with multiple properties?
He warns that if you are managing the property and something bad happens, you are still responsible for your own personal negligence. If you have a property management company managing the home and something bad happens, you won't get sued because your liability is now encapsulated within the LLC.
“So that's the first thing – are you managing the property or not? And you really don't want to be managing the property if you don't want that liability. And if you are managing the property, you want to have a ton of insurance against negligence and property management.
Now the next question then is, how do you figure out which properties or how many properties go into each LLC? Well, we can start out with the ideal, which is one property for one LLC. So that's pretty easy. So, if something bad happens to a particular house, then the liability is encapsulated within that LLC. And if you have eight different houses and they are all in their own separate LLCs, there's not going to be a contagion of liability that spreads to those other LLCs. It's just going to stop and you would have only lost your investment in one LLC. But the problem, as you say, is that depending on what state you're in, California has $800 minimum franchise tax for LLCs, and that can get real expensive, real quick.”
You may end up doing some intelligent grouping of assets into different LLCs. Putting an expensive home in one by itself but group less expensive homes into LLCs together or something similar.
Eight or nine states have series LLCs. In those states, it's kind of like these domestic asset protection trust. It probably will work if you live in those states and you stay outside of bankruptcy, but it's not going to work if you don't live in a state that has protected series legislation.
Good Asset Protection Professionals
Jay points out that a lot of the asset protection that is sold to physicians is stuff that may sound good at first glance, but probably doesn't work and is really a subterfuge to sell something else. 95% of the time that is life insurance. Jay did have advice on recognizing the good guys in asset protection.
“You can usually tell them because they'll have long conversations with you about what kind of insurance do you have. And they'll spend a lot of time looking at your office procedures, making sure you're doing arbitration and trying to do as much as possible to make sure you don't get sued in the first place. And then they kind of have some backup plans, in case the world falls apart, a lot of it tends to be off shore and, who knows, you may have to leave the country for a while until things are sorted out. And that's kind of the way they look at it. But at least they're going to be trying to do things up front to mitigate the liability in the first place, because the best asset protection plan is not getting sued, quite frankly. The next line of defense is insurance. And again, asset protection is only that last ditch, when everything hits the fan, what are you going to do?”
Ending
The best part about Jay is that he has been on both sides of it. He's both litigated against people trying to do asset protection and he set up asset protection plans himself. You really get a unique perspective from him. He isn't doing asset protection plans anymore but you can hear more from him at the upcoming WCI Conference March 4th-6th. He will be one of the keynote speakers. You can still register here for the conference.
Full Transcription Transcription – WCI – 199
Intro:
This is the White Coat Investor podcast where we help those who wear the white coat get a fair shake on Wall Street. We've been helping doctors and other high-income professionals stop doing dumb things with their money since 2011. Here's your host, Dr. Jim Dahle.
Dr. Jim Dahle:
This is White Coat Investor podcast number 199 – Asset protection with Jay Adkisson.
Dr. Jim Dahle:
Welcome back to the podcast. I hope you're as excited about this pandemic waning as I am. Every week I'm looking at the cases dropping like crazy. I think in just about a month, we're recording this now on the 9th of February, over the last month I think we've dropped off in our case numbers by two thirds. If this trend keeps up it's going to be dramatically better a month from now. So, I'm really excited about that.
Dr. Jim Dahle:
Thanks to all of you who are working hard to do that. And not only in your professional work, but in your homework. All of us are taking steps and making sacrifices and staying away from other people and canceling activities. And that has an effect. There's a certain amount of stress on all of us, just from living in a pandemic. So, thanks for doing the right thing and keeping people around you safe.
Dr. Jim Dahle:
This episode is brought to you by 37th Parallel Properties. There are a substantial body of evidence supporting commercial real estate investing and is one of the good guys in the industry. 37th Parallel Properties is a partner I trust. They've been around for more than 10 years and still maintain a 100% profitable track record with clear reporting and excellent educational content. Many of my readers have invested with 37th Parallel and so have I. And I've been happy with that investment. Check them out and hop on over to whitecoatinvestor.com/37parallel.
Dr. Jim Dahle:
Our quote of the day today comes from Epictetus, who said, “Wealth consists not in having great possessions, but in having few wants”. A bit of a stoic.
Dr. Jim Dahle:
Next week, March 4th through 6th is WCI con 21. It's a virtual event this year, despite the pandemic waning a bit, it's still a little too early to have a big live event with a bunch of doctors. Although I think a large percentage of my readers are now immunized. It was just too early to do it in person. We are doing it live, however. There will be a number of events at this conference that are live, some were prerecorded, but there are live events every day of the conference and you can still register for it. Go to whitecoatinvestor.com/conference.
Dr. Jim Dahle:
All right. We have a special guest today on the podcast. We had an asset protection episode a few months ago and people enjoyed it. However, a lot of the feedback I got is why didn't you just have Jay Adkisson on? So, I said, “Well, I know Jay, I can just get Jay Adkisson on if you guys want to hear from Jay”. So, we'll do that. If you don't know Jay, he's an attorney and a writer. He lives in Southern California.
Dr. Jim Dahle:
He's famous for a lot of things. He created a scam fighting website. He has been an expert witness to the Senate Finance Committee. He is known for a personal fight against eye cancer. He lost an eye from that and supports others who have had the same issue in the past. He's actually a private pilot. One of the few that has been able to obtain a pilot's license with one eye.
Dr. Jim Dahle:
He speaks to the American Bar Association. He has also spoken to the physician groups, such as the American Society of Plastic Surgeons. He's the author of a couple of books on asset protection, as a protection concepts and strategies for protecting your wealth and the charging orders practice guide. He’s got a few other books that he's also published, including “Lost Eye” as you might imagine.
Dr. Jim Dahle:
But he is going to be a speaker at WCI con 21. So, if you were interested in hearing more from Jay, that is one great way that you can do it is to attend the conference. And we'll be talking a little bit about that during the interview and let's get them on the phone and get this started.
Dr. Jim Dahle:
Welcome to the White Coat Investor podcast.
Jay Adkisson:
Hey, good morning.
Dr. Jim Dahle:
Mr. Adkisson, tell us a little bit about your upbringing and how it affected your views on money.
Jay Adkisson:
Well, I grew up as a kid in rural Oklahoma, which wasn't exactly affluent. So, I tend to follow the Will Roger's mantra of, “I'm not so concerned about the return on my money as I am for the return of my money”. So, when it comes to investing, I'm pretty conservative. Typically, my clients are too. I have some very wealthy clients and I got to tell you, their investments are very conservative. Some of them stick to bonds, TIPS, treasury, and inflation protected securities, things like that.
Jay Adkisson:
My views tend to be very conservative based on my rural upbringing. Now having said that there was a time when I held a registered option principal, a series 4 from FINRA, and I've been involved in some pretty interesting transactions, so I'm not averse to them. it's just that again, I think it's more important to protect principal than to chase returns.
Dr. Jim Dahle:
It doesn't sound like you hang out very often on the Wall Street bets subreddit chasing the Game Stop and AMC stocks, huh?
Jay Adkisson:
No, I don't. I mean, if I did, I would probably sit there bide my time. And then if available, go out and buy a bunch of puts when they got at their high. I tend to be one of those skeptical people. There are people that are always positive. There are people that are always a little bit negative. I’m probably in the latter category. I would be a natural short, let's put it that way.
Dr. Jim Dahle:
Well, tell us a little bit about your education and career. In particular, I want to hear why law and why asset protection.
Jay Adkisson:
Well, I was, again, a kid who grew up in rural Oklahoma, but I was one of those kids that was a champion high school debater. When I went to college, I was initially going to study engineering and then go on to law school, that got sidetracked a little bit. I still ended up in law school and I really enjoyed it. I did very well, graduated near the top of my class. I had always wanted to be a litigator. So, I actually ended up in litigation. And in litigation, I ended up pursuing some very high-profile cases. I had some big cases at a very early age. I had a lot of success at an early age. I was in the million-dollar club by the time I was 31, which at that time was a big deal. That's back when that was real money.
Jay Adkisson:
And what happened is, is I got a reputation for basically going after debtors. I was the guy that people would come to if they wanted to squeeze some blood out of the turnip, and at a very high level. And what happened is, is that in the early 90s, there was the first push of asset protection planning. So, the asset protection planning really didn't exist until after 1987 when Colorado attorney Barry Engel got The Cook Islands Trust statute passed.
Jay Adkisson:
So, this was at the early period, the nascent period of asset protection planning. And what would happen is, is that clients and attorneys would come to me and they would say “Hey, Jay, take a look at this. Does this work?” And most of the time I would say, no it's not going to stop me at least, but maybe here's some things that you can do to boost this.
Jay Adkisson:
And what happened is, is that eventually I got around to where I was giving so many recommendations that I ended up being an asset protection planner. And it was fun. Back in the mid-90s, I would say that I made the conversion to the asset protection side at 1995. It was all off shore, and it was a lot of fun. A week in a month, I was leaving my office in Oklahoma City and I was going down to the Caymans or The Bahamas or wherever else I needed to go. And sitting with people and opening accounts and getting trust documents together and everything else. And it was really a hoot.
Jay Adkisson:
What happened though, is that we had a series of court cases that came up and in 1999, they started undercutting a lot of the offshore planning and that's when things started to turn a little bit. But that gives you a background of how I got into it.
Jay Adkisson:
Now I will say I did have some early fame in the sense that when I was doing the asset protection planning, I would get a lot of calls from people that would ask me about off shore investments or investments that were a little exotic. This high yield interest programs, and people having all sorts of schemes and things off shore. And I would warn people off up. I would say, “Hey, look, don't do that. Your money is going to disappear, or that's an obvious scam, or that's a Ponzi scheme”. And I got so tired of that, that eventually I created a website and the website was called Quatloos. It's still around. And I started putting warnings about scams and things on that website. And what happened is that took off and took a life of its own.
Jay Adkisson:
And because of Quatloos and my work with it, I was twice an expert to the U.S. Senate Finance Committee, talking about tax and investment scams. So that's how a poor kid from rural Cushing, Oklahoma ends up testifying before Congress a couple of times.
Dr. Jim Dahle:
Awesome. Now I see occasionally, an advertisement, often aimed at doctors, by an asset protection attorney or a firm that kind of specializes in asset protection. There's always a lot of fear in their marketing materials. You're going to get sued and you're going to lose everything. Do you think that fear is appropriate and how much anxiety should a doctor really feel about asset protection?
Jay Adkisson:
Well, physicians lose money is not so much the excess malpractice. And that's the stick that these guys use to basically drive the rabbits into the wolves is to talk about excess malpractice verdicts. Certainly, asset protection planning has a potential use against those things. The thing about excess malpractice verdicts, is they're very rare. Statistically, in the United States, there are about as common as lottery winners. So, it's just not something that you really have to worry about that much.
Jay Adkisson:
Now probably most physicians out there are going to know somebody that got zing by an excess verdict. I will tell you though, that in 31 years of practice, I have yet to meet personally a physician that got zinged on an excess malpractice verdict. I just never have met them. I'm sure they're out there. Again, there's about the same number of those folks as are our lottery winners, but I've never met them.
Jay Adkisson:
So, what happens is, the excess is used to basically drum up fear to scare people into doing something that probably they otherwise wouldn't think of it. Now, should people do asset protection planning? At some level, the answer's probably yes, but keep in mind it won't protect against divorce. That's the place where physicians lose most of their money. The remedy for divorce is either a prenup or a postnup. It's not going to protect against the second place that doctors lose money, which is bad investments and tax shelters. You beat that by getting a second opinion.
Jay Adkisson:
Then after that your first line of defense is always insurance. The more insurance you have, the best thing in the world is if you get sued, you call up your agent and say, “Hey, there's a check in the mail for $2,000 to you, which covers my deductible. It's now your problem. It's not my problem anymore”. Asset protection is way, way down the line. Do people need it? Some people need it depending on what they're doing. If you're a neurosurgeon it's probably worth thinking about because you're going to get sued a number of times. Obstetricians, same way. If you're a general practitioner, I'm pretty doubtful.
Jay Adkisson:
Again, it just kind of depends on what's your real chance of being hit with an excess verdict. And I would say for most physicians is pretty low, but it is used as a hook. No doubt about it. The fear is used as a hook to get people to do planning that they probably would just buy insurance and call it a day and they would probably be correct to do that.
Dr. Jim Dahle:
Can you describe your basic framework for thinking about asset protection? How should people think about an asset protection plan for instance?
Jay Adkisson:
Well, when people think about an asset protection plan, they need to think about it in sort of basic building block terms or think of it maybe as lines of defense. And they need to do the simple stuff first. So, for instance when somebody comes to me, I'll do an evaluation to see what their risk are, what assets they have. We'll look at insurance because insurance, again, is the first line. We want to make sure people are insured. I'm not an insurance agent, but I frequently tell people I need to have a heart to heart with their insurance broker.
Jay Adkisson:
But some of the things people are going to look at are things that are specific to their state. In given states, people have statutory exemptions that are classes of assets that are not available to creditors. And so, what you have is, you have things like homestead in some states. You might have annuity contracts in some states. Disability insurance is always protected at some level. Sometimes the pension plans are protected.
Jay Adkisson:
You want to do those things first because that's stuff that the legislature has said, “Hey, you can do that. Those assets are protected. We want them to be protected because we don't want people living on the street. That's a burden to taxpayers”. So, you can do that. And the other thing is that's free. So, you do that.
Jay Adkisson:
Then the next thing you look at is, in a given state, are there things that we can do to recharacterize property to make it a little bit tougher for creditors? Can we change a property held on a joint tenancy and a property that's held tenancy by the entireties? Or if we're in California or Texas, or a number of other states, can we get rid of the community property? Can we divide up the property so that it's only sole and separate property? And that way it's only exposed to the creditors of one spouse.
Jay Adkisson:
Those are the kinds of things you look at doing first. That stuff it works. It's entirely effective and it's pretty cheap. Only after you exhaust that stuff, then you start looking at what I'll call advanced forms of asset protection planning.
Jay Adkisson:
Now, let me give this warning though. If you go and you talk to most people about asset protection planning, they'll do that in reverse. They'll try to say the big-ticket item as your first line of defense, because that's where the money is. There's a joke that goes around asset protection. There's no money in homestead. It means, if you tell somebody to put money into their house. Okay, great. That takes about two minutes and I'll bill you $8. And so, you don't get that advice. People want to sell big ticket stuff. And so, the process many times, I would say, ordinarily gets flipped on its head.
Dr. Jim Dahle:
That’s kind of the impression I've gotten over the years, looking at what a lot of people in asset protection are doing. I think it's unfortunate, but it's not that different from a lot of things in financial services really. Let's talk a little bit about hiding assets. I'm not talking about fraudulently hiding assets or fraudulent transfers. I'm talking about making it harder to see what you own. And some people seem to think there's some value in hiding how much you have by carefully naming your LLCs and other entities. But it seems like in a lawsuit, all of that becomes discoverable. And I understand it's relatively easy for a background sleuth to figure it out anyway. How much protection is there really in just being discreet?
Jay Adkisson:
The answer is close to none. I mean, what you've described is exactly right. If a person is wanting to find information on somebody, they can go hire a private investigator or there's a number of services out there that they can use. And I use, my law firm uses that will in about two minutes print out about a two-and-a-half-inch dossier on somebody that gives all sorts of things like gas bills, telephone bills, cable bills, credit cards, all bank accounts, all banking inquiries, car leases, credit applications, you name it. It prints all that stuff out in about two minutes and the cost per person per debtor, or potential debtor than I'm looking at is a whopping $3. And so, that information is out there. It's fairly easy to get.
Jay Adkisson:
And I will tell you from practice that most lawyers don't even look at that stuff before they bring a lawsuit. They don't really look at the collectability of the defendant that much. Maybe in some cases they do, certainly, in some cases they do, but most of the time they don't. Most lawyers have a “sue first and see what's there later” mentality. So, it doesn't keep people from being sued. And then once they're sued, then you start having subpoenas and depositions and all sorts of discovery that will usually lash out to some degree what a person has even before there is a judgment. Once there's a judgment, then it's just an open book.
Jay Adkisson:
There are cases out there that basically say a creditor is allowed to leave no stone unturned in the pursuit of assets. And the court should generally mean it. Discovery is very broad. So, I think privacy is one of those things that is maybe good for snipping neighbors, or maybe if you don't want your kids to know how much money you have. Other than that, though, it's a great big placebo. It may make you feel better, but it's a sugar pill and it's not going to do anything.
Dr. Jim Dahle:
Can we talk for a few minutes about domestic self-settled asset protection trusts? They seem to be becoming more common. Are they reliable? And if so, why do they really work? And why don't we all just put all of our assets into one? And also, if you think they're reasonable for people to use, how should one decide whether to use the one in their state or to use an out of state trust?
Jay Adkisson:
Well, the answer to that is pretty simple in a sense. And that is, the domestic asset protection trust is simply the flavor of the day. Just as financial products go through flavors of the day. Once upon a time mutual funds were everything. Then hedge funds were everything, then quant funds were everything, and yada yada yada.
Jay Adkisson:
Domestic asset protection trust is just the latest flavor of the day. Now, do they work? The answer is yes and no. If you get thrown into bankruptcy, they don't work very well at all. And keep in mind that most financially distressed people end up in bankruptcy. So, you can imagine those scenarios. But let's say that you only have one creditor, the creditor can force you into an involuntary and so your stay out of bankruptcy. You don't have to worry about the bankruptcy aspect.
Jay Adkisson:
The question then becomes is, do you live in a state that has self-settle trust legislation, that has this DAPT legislation? If you live in one of those states and you set up a trust according to the laws of that state, and there's really no sense in going out of state, if you set up a trust according to the laws in that state, there's absolutely no reason to suspect that the courts are not going to respect that trust. The legislature has said, “Hey, look, you may not like it, but this is what we're going to allow’. So, if you live in one of those states and there's about 20 states now that allow those trusts. But if you live in a state that doesn't allow those trust states, and it's usually the larger, more populous states. California, Texas, New York don't allow self-settled trust.
Jay Adkisson:
Do they work in those states when people try to set them up and say, “My adoptive home state in Nevada or South Dakota or Delaware or Alaska or somewhere?” And the answer is no, they don't work at all. The creditors got to be able to blow right through them as if it were a great big nothing. I mean, it's not quite like that. It's going to be a little bit of work for a creditor. But a creditor has got to be able to get through it with some level of ease and that's not going to protect the assets.
Jay Adkisson:
So, what you're left with is, if you live in a so-called DAPT state and you can stay outside of bankruptcy, it's probably going to work. If those conditions do not prevail, it's probably not going to work. And you have to look at it again for people that just sell it as the flavor of the day, because they frankly know not what they do now.
Dr. Jim Dahle:
Now, what happens in bankruptcy exactly? Does the judge force you to pull the assets out? Is that what happens?
Jay Adkisson:
Well, the bankruptcy has changed. Bankruptcy, when I came out of law school was this nice warm bath that you went into and it washed your debts away and left you feeling clean and refreshed. Then in 2005, Congress passed the bankruptcy abuse prevention and consumer protection act, what's called BAPCPA. And it turned bankruptcy into this cold asset bath that basically strips you down to your bones.
Jay Adkisson:
So, the entire purpose of bankruptcy is to marshal assets for the benefit of creditors. Now, the courts give some lip service to saying that the purpose of bankruptcy is to have what amounts to a fresh start for the debtor. And sometimes they even mean that. But I'll know that even in cases where the debtor is denied a discharge, the marshaling of assets still goes on.
Jay Adkisson:
So, the whole point of bankruptcy is to have a bankruptcy trustee appointed that goes out and grabs all the non-exempt assets of the debtor and applies them to the debts. And the courts have all sorts of equitable powers, legal powers that they can cut through stuff.
Jay Adkisson:
With domestic asset protection trust the biggest bomb in their arsenal are the fraudulent transfer laws. And that's in section 548 of the bankruptcy code. And Congress has given bankruptcy trustees a 10-year statute of limitations to go and attack transfers to self-settled trusts, and similar vehicles. Now, we're still not sure what similar vehicles means exactly. The courts are still sorting that out. But self-settled trust is pretty easy to figure out. That's one of these domestic asset protection trust.
Jay Adkisson:
And so, a trustee can go back 10 years. What that means is, is it even if you live in a DAPT state, if you've made a transfer to one of these trust for the purpose of asset protection, that's all that's necessary to prove intent, then the trustee is going to blow through it. If you don't live in a DAPT state, that it wasn't protected under what's known as applicable state law then the trustee is going to blow through it. So, in bankruptcy, it's one of those things that don't stand up.
Jay Adkisson:
Now, interesting, and I see this all the time, a lot of attorneys in their engagement letters, when they're setting up a domestic asset protection trust will disclaim that it works in bankruptcy. They will tell you right up front, this probably doesn't work in bankruptcy, which should cause anybody a lot of pause, because sometimes it's not always your decision as to whether or not to go into bankruptcy. Sometimes a creditor can either maneuver you into bankruptcy by making your life miserable.
Jay Adkisson:
Or in the case of physicians, physicians usually want to go into bankruptcy because their biggest asset is their future income stream and creditors going to otherwise garnish their future income stream. So, a lot of times when physicians, in particular, get into trouble, they want to go into bankruptcy so that they can wash out their present debts and at least going forward, they can have that income stream. But if they have an asset protection trust and they go bankrupt, the trustee is going to cut right through it and get at the asset. So, they accomplished pretty much nothing.
Dr. Jim Dahle:
It doesn't sound terribly useful then.
Jay Adkisson:
Well, it’s like anything else. A scalpel has utility for some things as a scalpel can make very precise cuts, but you don't want to saw through a bone with it. A domestic asset protection trust is kind of the same way. Let's say that I'm a doctor, living here in Las Vegas where a lot of people are retired too. I don't really think I have any problems, but who knows, maybe I left a sponge in somebody a year ago and I just haven't discovered it yet. I'm getting ready to retire, but if I do retire and something happens, I'm just going to have that one creditor. In that case, Nevada being an asset protection trust state, I might set up an asset protection trust just to give a little bit more comfort for my retirement.
Jay Adkisson:
But outside of that, I wouldn't get too far away from those sorts of scenarios, because again, it becomes awfully dangerous. And if you live in a state that doesn't have domestic asset protection trust laws, I'm just telling you, it is not going to work. Now, the trust companies and the attorneys and financial planners and whoever else will talk to you, will swear up and down and recite all sorts of theory on why it should work. It hasn't worked so far and it isn’t going to work in the future. It's just a bad idea for people that do not live in a DAPT state.
Dr. Jim Dahle:
I live in Utah. Utah is a DAPT state. Our homestead exemption is only $40,000 for a married couple here. What's the downside of me putting my home and my taxable investing account inside an asset protection trust? Do I lose the ability to do something with my home that I'd like to do? Do I lose the ability to tax loss harvest my investments? Aside from the cost of setting up and maintaining the trust, what are the downsides?
Jay Adkisson:
Again, if you live in a DAPT state, you're in a different scenario. As long as you're not worried about bankruptcy, it probably is going to afford you some level of protection. It's sort of the same thing. The cost of a trust is typically not that expensive. I usually put my clients in a word known as fixed fee trustee services that charge maybe $2,000 a year, just flat fee as long as they don't have to do anything. So that's not much. I mean, if you're concerned about spending $2,000 a year, quite frankly, maybe you don't have enough to really worry about it too much.
Jay Adkisson:
Again, if you live in a DAPT state, that's not such a bad deal. All these trusts are structured as grant or trust to somebody, whether or not it's you as a settlor or the kids as beneficiary. So, in terms of tax and investing, from an IRS standpoint, it's as if the trust doesn't exist, it's not going to affect that. However, these trusts have to be irrevocable. So, there are, however, some federal gift and estate tax considerations, that you have to keep an eye on.
Jay Adkisson:
Now, the federal state tax exclusion this year, as I recall, it's going to be $11.7 million for a couple. That's a lot. So, if you're below that mark, maybe you don't have to worry about it. But if you start getting above that mark then you also have to kind of keep an eye on the gift and estate tax ramifications. But generally, it's not going to affect your investing. It's going to be okay.
Jay Adkisson:
Now what you got to look out for is this. Despite the fact that Utah has its statutes as do all the other states, you always had to be careful of arguments of alter ego. There's a growing body of case law out there that says that if the trust and the debtor are basically one and the same, they represent a single enterprise. The court can basically disregard the trust instrument, disregard the trust, and allow the creditor to invade the assets. And where that comes up, it comes up because somebody has too much control. And the control that you see is, is it once upon a time people set up trust and they got a good trustee and the trustee went out and invested, did everything for the trust.
Jay Adkisson:
These days what you're starting to see are things like investment trustees or distribution trustees, people are making up roles for trustees and doing things. And they're inserting the people that set up the trust into those roles. And the problem is, is that there's a chance that a creditor can come along and say, “Look, on one day, the money was in their left pocket. They controlled it, they wrote the checks. The next day, the money is in their right pocket. They control it, they write the checks. It's still their money, even though you have the artifice of this trust”.
Jay Adkisson:
And so, what happens is, there's a sliding scale. There's a continuum. The more control that you have, the more likely that something is going to be set aside as alter ego. The less control, the less likely it will be set aside as alter ego. So even if you live in a DAPT state and you got the most wonderful attorney in the world to draft your trust, you had to be very careful of those control issues, because that's probably where a creditor is going to try to get around the trust.
Dr. Jim Dahle:
Now that money, even if I were the beneficiary of the trust, the estate tax and gift tax exemptions still apply.
Jay Adkisson:
That's correct. That's the way it works. Now, keep in mind, the trust is outside the estate. If it's an irrevocable trust, which it is, if it's a DAPT. The trustee and you are separate for gift and estate purposes. So, if you make a gift of a million dollars to the trust, you have to report that as a gift to the trust as opposed to income tax, which is treated differently. The income tax simply flows onto your balance sheet.
Jay Adkisson:
So, if you make a trade in your account or you make a trade in the trust, it's all going to flow onto your own tax return. And so, there's a difference there, and that's how these trusts work. These trusts were actually not created for asset protection purposes, initially. Initially, they were actually created for estate tax purposes to allow people to get money outside their estate, but to have the trust tax as a grant or a trust so that they avoid what's known as a compressed trust tax rate.
Jay Adkisson:
So, if a trust is taxed as a trust, then you have tax rates where the highest brackets began about $7,500. And so that becomes very, very onerous for people. So, planners started devising these trusts, sometimes they're called incomplete gift trust, sometimes they go by the name defective grant or trust because they intentionally violate certain IRS rules. It causes them to be grant or a trust. They're designed so that the income tax consequences stay with the grant or maybe one of the kids, but it's an individual and not a trust, but the estate gift tax is outside the estate and that stays with the trust. So, there's a disconnect there.
Jay Adkisson:
Now, Congress has been looking at fixing that disconnect for the last 20 some years, and every year they threatened to fix it. And this year they're threatening to fix it again. We'll see, don't hold your breath so far. But we'll see.
Dr. Jim Dahle:
Yeah, they sound pretty serious about having the estate tax exemption. I haven't heard about this particular change though.
Jay Adkisson:
Well, what they're thinking about doing is, they're thinking about basically requiring a consistent treatment for income and estate tax. That is, if you're going to treat it as outside the estate, you got to treat it as not your income either or vice versa. That's probably where they're going to go. They're probably going to get closer this time than any time in the last 20 years since they've been trying to do it.
Dr. Jim Dahle:
Yeah. It's a little easier when one party is controlling both the legislative and the executive branch.
Jay Adkisson:
It is.
Dr. Jim Dahle:
All right. Let's turn the page a little bit and talk about insurance briefly. How much do you think a typical doctor ought to carry in personal liability, umbrella coverage, malpractice coverage, et cetera?
Jay Adkisson:
Malpractice coverage, I would max that out if you can reasonably afford it. If it becomes onerously expensive, then maybe think about it. But when it comes to malpractice insurance, it's much better to be a pound wise than the penny foolish. When it comes to things like liability insurance and umbrella insurance, it's hard to say. It's going to depend on what people are doing with their assets. I've got $3 million through State Farm. It cost me about $700 a year. And I felt comfortable with that for the reason that as a lawyer, I don't believe that the plaintiff lawyer has been born. He won't take a $3 million check and walk away with a smile on his face. I just don't think that plaintiff lawyers are out there. I don't think they've been born yet.
Jay Adkisson:
But if it doesn't cost you much to get more, get more. At the end of the day, you really don't care what the plaintiff gets paid, as long as you don't have to pay. And the only thing you're really paying is, is your deductible. And I don't think it makes you a bigger target for lawsuits either, contrary to what goes on. Liability is what liability is. You either have it, or you don't. When you get time for settlement discussions, that is what's going to go around. And I don't think it really changes the members nearly as much as somebody thinks.
Dr. Jim Dahle:
So, in a true asset protection situation, let's say there's a judgment above policy limits. It's not reduced on appeal. What percentage of the time does the client actually declare bankruptcy? And what percentage of the time is the threat of the client going into bankruptcy used to force a settlement?
Jay Adkisson:
It's hard to say because nobody really keeps saying statistics on that. Anecdotally, I will tell you that even in those excess malpractice situations, the case usually settles without the physician going into bankruptcy, at least those are the ones that I've seen. And to know why, you have to understand how the plaintiff bar works.
Jay Adkisson:
The plaintiff bar works by having attorneys that are good at zinging insurance companies. Their whole deal is to follow the lawsuit, work it for a while, go to settlement conference, get a settlement and get a check from the insurance company. What plaintiff lawyers do not do is they don't go out and collect judgments. Frankly, they don't know how. Every now and then I get calls from plaintiff lawyers that have judgments. And as a last resort, they've called me because for whatever reason, they couldn't get the case settled.
Jay Adkisson:
But most of the time they'll settle and the reason is that if they go out and they hire me, and my practice is about 60% on the creditor's side, 40% on the debtor side, but I'll take judgments contingency fee. If they have to come to me to collect it, or somebody like me, we're going to want 40% off the top. And so, 40% off the top is a pretty hefty figure. And a lot of plaintiff attorneys would rather write down their claim 30% and settle it and then they're that much ahead.
Jay Adkisson:
And so, the bottom line is, is that not a lot of collections go on, even on these excess malpractice cases. For the reasons that most of them get settled because the plaintiff attorneys either don't want to have somebody do it and they don't know how to do it themselves. And because of that, I don't know that I've ever seen an excess case going to bankruptcy, although I'm sure it happens.
Dr. Jim Dahle:
Well back in 2013, you did a post on the White Coat Investor about the California private retirement plan. And there were both a qualified and a non-qualified version of that. And I found the non-qualified version of the plans to be particularly interesting. Can you tell us a little bit more about what you call the California private retirement plan?
Jay Adkisson:
Sure. So again, every state has their exemption. Texas, Florida have unlimited homestead. And in Texas, Oklahoma, Kansas, you can have so many head of cattle. In some states, you can have a family Bible, it's exempt, and then you start saying, well, what if I go out and get a Gutenberg? Is that going to be exempt?
Jay Adkisson:
And people kind of play games with some of the exemptions, but the exemptions are there. And you can use them. California almost uniquely has this provision in its law that's known as a private retirement plan. It's about five words in the code of civil procedure that basically tracks their language for public retirement plans. So, in California, if you're an employee of a public utility or local government or something, you can set up a retirement plan or the city can set one up for you, and it's completely protected from creditors. So not only is it protected from creditors, but it's protected as the money comes out.
Jay Adkisson:
And what happened is, at some point, the California assembly said, “Well golly, it's probably not fair that we do that for municipal employees and government employees, but we don't let private people do it”. So, they modify the code to allow for private retirement plans. Perhaps not realizing and maybe at that time they didn’t, but now of course, it's entirely possible for folks in the private sector to make a lot more money than folks in government.
Jay Adkisson:
And so, these plans exist. They're basically a trust that's created by the business for the benefit of the employee. You put money into the trust or the rather the business does, the business contributes. It's held in the trust and it's exempt. And as long as it stays in the trust, it's exempt. And then when it comes out of the trust, it exempts so long as it is kept in a separate account, that is you can trace it back to the exempt source. So, it becomes a very powerful thing.
Jay Adkisson:
Now, qualified plans are a form of private retirement plan and they're exempt. IRAs are not. They're not considered private retirement plans. So, in California, the exemption for an IRA is subject to what's known as the means test, how much money do you need to live on in retirement. That's not measured by somebody at La Hoja or Brentwood. It's measured basically by somebody living in a box outside LAX. It's a very low amount.
Jay Adkisson:
But qualified plans are protected and non-qualified plans are protected. And so, there's the potential that if you don't want to include the rest of your employees in the business, you can set up a private retirement plan. You can have the business make contributions to the plan. You're going to have to pay the taxes yourself because it's non-qualified and the money can sit in their retirement plan and it can grow. And it is going to be protected from creditors. And I've litigated those probably a half dozen times now. And creditors simply cannot bounce those private retirement plans unless somebody has seriously messed them up somehow.
Dr. Jim Dahle:
So, should a doc in California even have a taxable investment account if they have the ability to set up one of these non-qualified private retirement plans?
Jay Adkisson:
The answer to that depends on other financial planning. What are they going to need to live on in retirement? The whole deal with qualified plans as you know is you put the money in now, you take a deduction and you're going to take the money out at a time when presumably you're in a lower tax bracket. So that's a financial and tax planning equation.
Jay Adkisson:
In California, you can either be qualified or non-qualified. I mean, you go set up a 401(k), it's going to be considered a private retirement plan. Whether it makes sense to do it as qualified or non-qualified, is something that's going to be determined by other factors, but you can have them both. They can run side by side. You can have a qualified private retirement plan and a non-qualified private retirement plan. There's no prohibition on doing that.
Dr. Jim Dahle:
And the money in that non-qualified plan, does it still qualify for dividend rates, long-term capital gains rates, or is it all taxed as ordinary income?
Jay Adkisson:
Well, it's non-qualified so it's going to be taxed. It's almost like a grant or trust. It's simply flows onto the balance sheet of the participant. So, whoever the participant is, is going to file taxes on that money every year.
Dr. Jim Dahle:
So, it's the same as if it was in a taxable brokerage account.
Jay Adkisson:
Correct.
Dr. Jim Dahle:
That doesn't sound like there's a lot of downside to using that if you're in California and can set it up.
Jay Adkisson:
Well, the downside is like anything else. And in my world, pigs get fat, hogs get slaughtered. And if it is being abused, if somebody is being a hog and they've got a lot more money in there than they'll ever need in retirement, and I've seen people in excess of $15 – $20 millions. You got to remember the guys that are looking at this are judges that are making quarter of a million dollars a year and are going to retire on $125,000 a year. There's been decisions where the courts have said that folks have been such hogs, that it really wasn't a retirement plan and they've lost their protection.
Jay Adkisson:
So, it's like anything else. As long as you do it reasonably, you're a pig, not a hog. It works fabulously. But if you start to be a hog, or if you try to do it at a time when you're in financial distress, it may be, and it's kind of an open question the way California law is shaking out. The creditors may have some other challenge to those sorts of plans. And certainly, there has been cases where the plans have from time to time set aside for various reasons. But usually, those were extraordinary circumstances for people who were doing some awful screwy things. And if you use the plan conservatively, again, be a pig, not a hog. They do it for folks in California, it works just fantastically well.
Dr. Jim Dahle:
Any other interesting quirks of California asset protection law while we're on the subject?
Jay Adkisson:
The state has its quirks. California tends to be very creditor friendly. I think you start looking at more Texas, Florida when you start looking for the quirks. In California, frankly, there's not a lot to do. Now California did just raise the homestead exemption up to a minimum of $300,000, but possibly as high as $600,000, depending on median home price in a given county. But we still have a house in Laguna, California. I mean, show me a mailbox that is worth $600,000. That's still not great.
Jay Adkisson:
California is a tough place. And a lot of times in California, when people get into trouble, they will migrate elsewhere. They'll migrate to Texas or Florida, and become what's known, in Florida they have snowbirds that go there in the winter and they also have what they call debt birds that go there in tough economic times. In California, there is just not a lot you could do against a very creditor friendly state.
Dr. Jim Dahle:
Speaking of homestead law, do you think it's worth trying to do something special to protect your home equity in a state that doesn't offer much homestead protection? And if so, what?
Jay Adkisson:
That's a good question. There are typically two ways. If folks live in a state that doesn't have much in the way of homestead protection. And by the way, that may be fixed this year. It may be fixed in the early part of this year, under new bankruptcy legislation that Senator Warren has come out with, which is going to substantially raise the federal homestead limit in bankruptcy. Very substantially. Basically, it takes it up to the allowable limits of a conforming loan.
Jay Adkisson:
But if a person lives in a state that doesn't have substantial homestead protection, there's basically three things they can do. One is they equity strip the property. Equity strip means you take a second mortgage or you keep your first mortgage to interest only, and you do things that try to keep the property at least close to the exemption amount. And that's tough to do. And it's usually inefficient based on the fees.
Jay Adkisson:
The second thing that people do is they can do a deal called a QPRT – Qualified Personal Residence Trust. And a QPRT is kind of a funky estate planning tool that actually has an asset protection benefit, which is that you give the trust or you give the house into a trust for the kids, but you retain a right to live in it over some period of years, say 15 or 20 years. If you get past that period, then the house passes to your kids outside your estate.
Jay Adkisson:
QPRTs are used frequently for very, very wealthy real estate. We're talking estates that are $20 million in that very, very wealthy because it allows a huge chunk to pass outside the estate. Now, the downside is when you hit that age, if you're still living, you got to start paying rent back to the trust. And the rent back to the trust may be sky high. So, you have to kind of be careful with how QPRTs works. But QPRTs are very, very effective for asset protection. We've only had one case that broke them. That was the case that broke a QPRT in Newport Beach. And that was a trust that was terribly messed up.
Jay Adkisson:
The third thing that people can do is pretty complicated, but it tends to work and that is you have somebody create a third-party trust. That is, you have one of your parents if they're still alive, create a trust for your benefit. And then what you do is you take your house and you sell your house into the trust and you take back a note.
Jay Adkisson:
So, on day one, you have a house, it's available for creditors, they can get it. On day two, you have a promissory note from the trust that may only pay out 10 years or something, or 20 years, it's not as attractive to creditors. It may be the creditors could align that on a fraudulent transfer theory, but it's not as easy as maybe it sounds. The court may rule that the creditors' remedies are to sit there and collect on the note, depending on how the note is structured. But that gets a house outside the person's name.
Jay Adkisson:
That's something else that was also designed for estate planning purposes because it gets the house outside the estate for estate and gift tax purposes. The idea being that if you put the house in there, the house may appreciate much more quickly than if you took a note, particularly at today's interest rates where long-term AFR may be 2.5% or something.
Dr. Jim Dahle:
I get a question frequently from direct real estate investors. They've got multiple properties and they're trying to decide whether to put them in LLCs, whether to put them each in their own individual LLC, whether you use a series LLC. In some states, an LLC is really expensive. I think in California it's like $800 a year to set up an LLC. So, what's your recommendation for somebody with multiple properties? Should they all be in their own LLC or what's the best setup?
Jay Adkisson:
Well, I only get this question about three times a week. And the reason is that a lot of people, not just physicians, like to invest in property, single family homes. There's a lot of people that take their excess earnings. And when it gets to a certain amount, they go out and buy a house, or what do you do with it. And most people would like to stick the house into an LLC. And that way, if something happens, it's sort of isolated from the other assets. And that makes sense. And that's why people do it.
Jay Adkisson:
Now, here's what you should be careful of. Here's the flaw in that thinking. So, let's say that I go out and I buy a single-family residence and I rent it out. I put it into an LLC, but I'm still the one that goes out and manages the property.
Jay Adkisson:
So, one day the tenant calls me, and I go out to the property and the tenant points out “Hey, the water heater's leaking”. And I look at the water heater. Yeah, it's leaking. But that's probably going to last another six months. So, I'll wait till it gets a little closer to failure, then I'll replace it. So, I don't replace it. A month goes by, the water heater explodes, skulls a little girl. There's $8 million in damages.
Jay Adkisson:
Now, for disfigurement, everything else. Is the LLC going to protect me from that lawsuit? And the answer is no, because I am responsible for my own negligence, for my personal negligence. So even if I was acting on behalf of the LLC, I was the one that was negligent and not replacing the water heater when it should have been replaced. And so, even if the LLC is there, I am personally going to be held responsible.
Jay Adkisson:
Now let's change the facts a little bit and say that instead of me going out to the property personally, I hire a management company. I heard some local property management company and they send somebody out and they look at the water heater and it's the same deal. They don't think it needs to be replaced. It explodes. There's a big judgment. Do I get sued? The answer is no. And the reason is, because my liability or the liability is now encapsulated within the LLC. So, the plaintiff's going to get a judgment against the LLC, and they're going to clean up whatever assets are in the LLC, but the liability is going to stop there. It's not going to come upstream to Jay.
Jay Adkisson:
Now, the property management company is going to get sued because it is now their personal negligence that is at fault. And hopefully they have a lot of insurance or maybe done their own asset protection plan. But I really don't care as long as I'm not the guy getting sued. So that's the first thing – Are you managing the property or not? And you really don't want to be managing the property if you don't want that liability. And if you are managing the property, you want to have a ton of insurance against negligence and property management, all sorts of stuff. I talk about that all day.
Jay Adkisson:
Now the next question then is, how do you figure out which properties or how many properties go into each LLC? Well, we can start out with the ideal, which is one property for one LLC. So that's pretty easy. So, if something bad happens to a particular house, then the liability is encapsulated within that LLC. And if you have eight different houses and they are all in their own separate LLCs, there's not going to be a contagion of liability that spreads to those other LLCs. It's just going to stop and you would have only lost your investment in one LLC. But the problem is, as you say, is that depending on what state you're in, California has an $800 minimum franchise tax for LLCs, that can get real expensive, real quick.
Jay Adkisson:
Now, again don't be penny wise and pound foolish. That's one. The second is, what you may end up doing is you may have to do some intelligent grouping of assets into a different LLC. So, if you have eight different properties, which you may decide is, maybe it's too expensive to do one for each, maybe we put two properties at each and maybe we kind of spread this out a little bit, or maybe we have two LLCs, maybe we have four LLCs. We don't have eight LLCs, but we're still kind of dividing our property.
Jay Adkisson:
It's more of a matter of how much risk do you want to take. And to some degree, it may also depend on your insurance and the rates that you get on your insurance and how they're going to treat these entities together. Hopefully, you can get some sort of a master policy. That's about the only advice I give, because it really does become very fact specific as to how you do it. If you have a real valuable piece of property, if you have eight rental houses out there that are $75,000 each, but then you got this one big property over here, it's worth $2.5 million, it's probably going to go on its own LLC and you're going to keep those other separate.
Jay Adkisson:
Now series LLCs. I know a lot about series LLC because I was on the drafting committee as an American BAR Association advisor for what became the uniform protected series act. The problem with protected series is this. There are only about eight or nine states out there that have series LLC. And in those states, it's kind of like these domestic asset protection trust. It probably will work if you live in those states and you stay outside of bankruptcy, but it's not going to work if you don't live in a state that has protected series legislation.
Jay Adkisson:
Because what'll happen is, let's say you come into California and you try to set up a series LLC, and you have a hundred different series. The most likely outcome is that the California court will simply treat that as a single LLC. The California court will say, “We don't respect protected series. That's all we care. It's just one LLC”. And that you've tried to divide up what amounts to tranches of equity in an LLC, because that's all a series is. It’s really tranches of equity that has some liability protection. We're just not going to respect that.
Jay Adkisson:
Now what you have to be careful though, in California, is that somewhere back around 2005, there was an attorney who actually heard me speak on protected series. And I was kind of talking about him. I say, look, 10, 20 years in the future this is going to be something we're going to be looking at more and more. He got the idea of going out and take in real estate developers and putting them into series LLCs. And so, he formed several of these deals and these series had literally hundreds, hundreds of series under them. So, there's all these series floating.
Jay Adkisson:
Well, the California franchise tax board came in and said, “Well, as far as we're concerned that may be one LLC for purposes of liability. We're not going to opine on that either way. But as far as we're concerned, each one of those series LLCs is an LLC for franchise tax purposes, pay us the $800”. And so, then the guy would have a protected series organization that had 200 of these series in it, and is now paying 200 times $800 and suffice it to say all those got wound up very, very quickly. And folks in California have stewed that particular planning technique ever since.
Dr. Jim Dahle:
Now, what in your experience is with the big misconceptions? What did doctors get wrong about asset protection? What do they all think that's not right?
Jay Adkisson:
The most important thing is, a lot of the asset protection that is sold to physicians, that is hocked to physicians, is stuff that may sound good at first glance, but probably doesn't work and is really a subterfuge to sell something else. And that something else, 95% of the time is you guessed it, life insurance. And what you have to realize is that for physicians, a substantial part of the asset protection that is sold to a physician is simply junk that was sold to them to try to get them to invest in some life insurance product and all the money was made on the life insurance side.
Jay Adkisson:
So, let me give you an example. To do a junky asset protection plan, the typical cost is somewhere between, let's say $20,000 and $30,000. So, whoever the planner is may make $20,000 or $30,000. The commission on a whole life policy by way of example is usually somewhere around 80% of the first year's premium. So, if you design this asset protection plan, and then they say, “Look because of tax reasons, it's just ideal that you put life insurance into it. So, we're going to sell you a million-dollar whole life policy. You're going to fund it $200,000 a year over five years”. Somebody just made $160,000 commission. So, what's more important? The $160,000 commission for the life insurance or the $30,000 to do the asset protection planning? And you see that's very, very lopsided.
Jay Adkisson:
And so, asset protection, unfortunately for physicians is usually a hook to sell them something else, something that's not too hot. Now there's a few good asset protection planners out there that work with physicians. And you can usually tell them because they'll have long conversations with you about what kind of insurance do you have. And they'll spend a lot of time looking at your office procedures, making sure you're doing arbitration and trying to do as much as possible to make sure you don't get sued in the first place.
Jay Adkisson:
And then they kind of have some backup plans, in case the world falls apart, a lot of it tends to be off shore and who knows, you may have to leave the country for a while until things are sorted out. And that's kind of the way they look at it. But at least they're going to be trying to do things up front to mitigate the liability in the first place, because the best asset protection plan is not getting sued, quite frankly. The next line of defense is insurance. And again, asset protection is only that last ditch, when everything hits the fan, what are you going to do? And that's just a much longer discussion.
Dr. Jim Dahle:
Now you'll be speaking in the upcoming White Coat Investor conference. What can the attendees expect to hear from you there?
Jay Adkisson:
Well, what they're going to hear is some of the same stuff that we've talked about. I try to give some structure in order to how people should approach asset protection planning, the steps physicians go through, and some of the things to be on the lookout for. I've had hundreds of physician clients over my career. And so, I know what they're thinking. My little brother is a surgeon and so I see all sorts of stuff pitched to him. There's a process of one sort of education of the bad and education of the good that people have to go through. And also, how to approach asset protection planning on a very common sensical basis. If you don't understand it, probably doesn't work.
Dr. Jim Dahle:
All right. How can people who want to learn more about you or potentially hire you, how can they find out more about and contact you?
Jay Adkisson:
Well, I'm easy to get ahold of jayadkisson.com – jay@jayad.com. I'm a contributor to forbes.com. I do the wealth preservation column and write an article on there. The truth is I'm just not doing asset protection planning these days. If somebody wants to call and chat with me, I’m always happy to talk to folks. Maybe I can make a referral, maybe not, who knows. I've gone back in the litigation. That was always my first love. And I really enjoy it, sitting around drafting trust documents, and LLCs, and that's for the birds. It's a lot more fun to be in the cafeteria at the courthouse, doing a debtor's exam while there's lots of people around you, which is kind of my operating theory really is. It's a cafeteria in the courthouse.
Jay Adkisson:
But if folks want to get ahold of me, I'm pretty easy to find. And again, if folks just want to chat, feel free to call me up. But keep in mind that I don't do this planning and I don't accept engagements to do asset protection planning anymore. I did that for a number of years and I've moved on. I’m happy that way.
Dr. Jim Dahle:
Jay Adkisson is an asset protection expert, author, Forbes columnist, speaker at the White Coat Investor conference, thank you so much for your time today on the podcast.
Jay Adkisson:
Yeah. Thanks, Jim.
Dr. Jim Dahle:
All right. I thought that was awesome. The best part about Jay is that he's been on both sides of it. He's both litigated against people trying to do asset protection and he set up asset protection plans himself. And so, you really get a unique perspective from him. And I think he really comes across as an expert because of that.
Dr. Jim Dahle:
Do you want to hear more from him? You can register for that at the White Coat Investor conference. That's March 4th through 6th. That is whitecoatinvestor.com/conference.
Dr. Jim Dahle:
This episode was brought to you by 37th Parallel Properties. There are a substantial body of evidence supporting commercial real estate investing. Through the years as I gained a deeper understanding of the asset class, I added more and more to my portfolio, but unless you want to manage it yourself, the real trick is to find a trusted investment sponsor. It’s one of the good guys in the industry. 37th Parallel Properties is a partner I trust. To check them out go over to whitecoatinvestor.com/37parallel.
Dr. Jim Dahle:
All right. I don't know if you've heard the Milestones podcast yet. But these are podcasts that are short. We basically bring one guest on, usually a regular listener or regular reader or a member of the White Coat Investor Facebook group or forum. And we celebrate with them, their accomplishment. Maybe that's getting back to broke. Maybe it's paying off a mortgage, paying off their student loans, becoming a millionaire, becoming financially independent, becoming a decamillionaire, whatever. If it's a big accomplishment to you, it's a big accomplishment to us and we want to celebrate it with you.
Dr. Jim Dahle:
If you want to be a guest on that, whitecoatinvestor.com/milestones. If you just want to hear the other episodes, it's whitecoatinvestor.com/milestonestomillionaire.
Dr. Jim Dahle:
All right. What else can I tell you about? The White Coat Investor forum has got an asset protection sub forum. It's not the busiest part of the forum but if you want to talk more about asset protection, that's a good place to do it. We try to list attorneys that can assist you on the whitecoatinvestor.com/contract-negotiation-and-review website. We have primarily contract review attorneys there, but also some estate planning and asset protection attorneys there if you are interested in hiring someone. As Jay mentioned in his interview, he's not doing this now. So, don't call him up trying to get him to set up an asset protection plan for you.
Dr. Jim Dahle:
Thanks to those of you who've been telling your friends about the podcast and leaving us five-star reviews. Our most recent one came in from KriedelOD who said, “I’m not an MD, but I am an optometrist and my wife is a pharmacist, and so much of this podcast and also his blog/website are so helpful. Learning the step by step process to do a backdoor Roth IRA is alone worth listening to every other episode. I learn something new every time I listen”. Thanks for that review.
Dr. Jim Dahle:
Keep your head up, your shoulders back. You've got this and we can help. We'll see you next time on the White Coat Investor podcast.
Disclaimer:
My dad, your host, Dr. Dahle, is a practicing emergency physician, blogger, author, and podcaster. He’s not a licensed accountant, attorney or financial advisor. So, this podcast is for your entertainment and information only and should not be considered official personalized financial advice.
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