When should estate planners advise clients about asset protection issues?
A. Although there is no legal duty established in the case law requiring that estate planners advise clients about asset protection techniques, it is advisable that asset protection issues be raised and discussed in appropriate circumstances as a part of the planning process. If a person faces a large liability due to his or her negligence or malpractice, the way that his or her property is arranged can have a significant impact on the family’s financial well being. These planning issues are also significant in the context of Medicaid and planning for long term care. While state fraudulent transfer laws may render certain transactions voidable, this type of planning will probably not be deemed to be “fraudulent” if the client is solvent at the time that the planning is implemented and if the planning is not done with the actual intent to defraud a particular creditor. Planning for asset protection may involve nothing more than dividing assets between spouses so as to minimize exposure
