Offshore Trusts Provide Strong Asset Protection

An offshore asset protection trust is considered by many experts to be the strongest asset protection vehicle on the planet when established in the proper jurisdiction. Assets are conveyed to the offshore trusts. You designate the trustees, settlors and beneficiaries. Only a few jurisdictions have laws that strongly favor the offshore asset protection trusts. These jurisdictions are the Cook Islands, the Isle of Man, and the island of Nevis. All three jurisdictions have laws that provide very strong asset protection and are politically stable. Legal experts agree that the Cook Islands has the strongest of asset protection case law history. Please click here for an illustration.      

If you would like, you can name yourself as the only beneficiary to the trust. Alternatively, you can have several beneficiaries. Any trustee that is appointed must be licensed to provide trustee services in the jurisdiction. The offshore government thoroughly screens and regularly audits trustees. Any unsuitable trustee can be replaced by you. You can remain in control of the investments or you can legally require the trustee to take your direction on investments.

Advantages of an Offshore Trust

The major advantage of an offshore trust is asset protection. Assets are kept out of the reach of creditors. US Judges and those in other locations do not have jurisdiction over foreign citizens. Local judges cannot legally compel the foreign trustee to release funds to your judgment creditor. The Cook Islands, Nevis, and Isle of Man do not recognize judgments that originate in a foreign country, such as the United States. Any litigation must be initiated in the offshore jurisdiction to reach the assets. Some offshore jurisdictions place many obstacles for those who attempt to bring any litigation to the trust. In Nevis, for example, a creditor must post a $25,000 cash deposit to bring the suit against a Nevis trust. In the Cook Islands, the suit must prove beyond any reasonable doubt that assets were transferred into the trust in order to defraud the creditor in question.

With a Cook Islands Trust, the statute of limitations state that the time limit for your opponent to claim fraudulent transfer is one year or two years after the underlying cause of action. Therefore, when the lawsuit is completed in the U.S., the statute of limitations in the offshore jurisdiction will usually have expired. The lawsuit, therefore, could no longer be successfully pursued in the Cook Islands after that time. As a result, there are exceedingly few trust lawsuits pursued in the Cook Islands. Moreover even if the lawsuit is brought before the clock runs out, the opponent must prove that your sole intent for creating the trust was to defraud that particular creditor. To top it off, the proof must be beyond the shadow of a reasonable doubt, a very high legal hurdle. So, whereas it is best to place funds inside before legal challenges, this legal tool has consistently displayed its asset protection effectiveness after the fact.

Keeping it Secure

One of the best asset protection strategies combines the Nevis LLC and a foreign trust such as one in the Cook Islands. Assets, such as offshore bank accounts, can be held by the Nevis LLC. All of the membership interest (ownership of the LLC) is given to the foreign trust. A U.S. resident, such as the one having the legal tools created, can be the manager of the Nevis LLC. The manager has all legal control over the LLC and signature authority over the bank accounts. When properly structured and properly operated, assets are protected from seizure by judgment creditors. It is possible, in this case, for a U.S. resident to control all of the assets, have full access to them, and yet own none of them.

When the “bad thing” happens, you temporarily have the licensed, bonded trustee step in as manager of the LLC and manage your accounts. Now the trustee will do for you for which you have paid: protect your assets. This way, the only time the trustee steps in on your behalf is when you assets would be taken by the court. When the “bad thing” goes away you are restored as manager of the LLC.

Occasionally clients ask if they can be held in contempt of court they do no bring back the funds that have been placed offshore.  If the trust is drafted properly the law protects those who have placed funds therein. The protection from creditors arises from the Duress Clause. If the Trustee determines that your request for funds arises from court-ordered duress, the Trustee is duty-bound, under the terms of the trust, to step in and protect your assets.  Let’s say a judge orders you to bring back the funds. You write a letter to the Trustee letting them know that the court has ordered you to repatriate the funds and make them available to your judgment creditor. The Trustee responds that he senses that your letter was written under duress and that it will not release the money.

So, you go back to the judge on your appointed day and let him know what transpired. The judge puffs up and states his intent to detain you. You reply, “Hold on a minute your Honor. In order to hold me in contempt there are three prima facie essentials. First, there must be a lawful order. Certainly there was one. Second, it must be known to the contemptor. Certainly it was, as I was standing right here when you made it. Finally, it must have been willfully violated. I did not violate your order. I demanded that the trustees return the funds. But they did not. So, I did not willfully violate your order, it is simply impossible for me to comply.” The same steps are used If the judge attempts to make you revoke the trust. Thus, domestic law protects you and Cook Islands law protects your money.  

The offshore trust is best suited for offshore bank and brokerage accounts. U.S. courts have jurisdiction over U.S. real estate. The domestic courts can demand seizure of such assets. Titles for domestic real estate can be held in the Nevis LLC that is owned by the trust, but should be liquidated and funds moved offshore in the event of legal duress. Thus, it is best to keep the assets out of reach of the domestic courts.

The trustee is licensed, meaning they went through intensive background checks before a license was granted. The trustee is bonded, meaning funds managed by the trustee are insured. Moreover, the trustee company we utilize is over 30 years old. Again, with most asset protection trusts, the only event in which the trustee steps in on your behalf is when your funds are threatened by the courts. So the main two alternatives in such an event are as follows: 100% chance of funds being seized by the courts vs. accounts being protected by a licensed, bonded trustee that has faithfully protected client funds for over 30 years.

Comparison of Offshore Trusts Jurisdictions Wealth Protection: Specific Provisions Bahamas Belize Bermuda Cayman Islands Cooks Islands Gibraltar Jersey Turk & Caicos PROTECTION OF SETTLOR: Settlor can be a Beneficiary yes yes yes yes yes Retention of control by Settlor yes yes Protection from subsequent bankruptcy yes yes yes PROTECTION OF BENEFICIARY: Spendthrift beneficiaries provisions yes yes yes Avoidance of forced heirship yes yes yes yes yes PROTECTION FROM FOREIGN JUDGEMENTS: Specific non-recognition provisions yes Is the Hague Convention applicable? no no no PROTECTION FROM CREDITORS: Exclusion of Statute of Elizabeth laws yes yes yes yes Trust invalid if transfer fraudulent no no Creditor must prove fraudulent transfer yes yes yes yes Clear definition of fraudulent transfer yes Separation of creditor claims yes yes yes yes yes Statutory limitation on fraudulent transfer yes (2 yrs) yes (6 yrs) yes (6 yrs) yes (1 yr) OTHER ISSUES: Retroactive protection for immigrant trusts yes Community property provisions yes Specific exclusion of foreign law yes yes yes yes Choice of law is binding yes yes yes yes yes yes yes Custodian trustee permitted yes

Call us for more information or to establish a Cook Islands Trust, Nevis LLC and offshore account.

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