Effectively combining Asset and Estate Planning Protection using Domestic Asset Protection Trusts (DAPT'S).

1. Using a Domestic Asset Protection
Trust for Estate Planning
Authored by Ward J. Wilsey, JD, LLM
Provided and utilized by WFB Legal
Consulting, Inc. with thanks and
acknowledgement

2. The Domestic Asset Protection Trust
 Self-Settled Spendthrift Trust
 Grantor sets a trust up for his or her own benefit, and has
the assets immune from creditors
 Traditionally, one cannot set up a trust for their own
benefit and have it protected from their creditors
 California Probate Code Section 15304(a)
 Some states have done away with this restriction on
“Self-Settled Spendthrift Trusts”.
 Alaska, Nevada, Delaware, Wyoming, South
Dakota, Oklahoma

3. Requirements for DAPT
 Formed in DAPT State
 Irrevocable
 Independent Trustee
 Trust company
 Individual Resident of DAPT state
 Discretionary Trust
 Trustee has the full discretion on how and when
to make distributions

4. DAPT
 Grantor/Beneficiary may make requests to the
Trustee for distributions
 Distributions are fully in the Trustee’s discretion
 Lack of control is what creates asset protection
 Fear of Trustees run amuck
 Trust Protector assures Trustee compliance with
Grantor’s intentions
 Trustee only given control over Ownership in a
FLLC or FLP (discussed further later)

5. Creditor Protection Problems of DAPTs
 Full Faith and Credit Clause of the
Constitution
 Is one state forced to accept the law of another?
 So far no real case law
 Opinion of Presenter
 No real case law is a good sign that DAPTs are
excellent asset protection devices

6. Question
Can an individual or married couple make
completed gifts to a Domestic Asset
Protection Trust and have those assets outside
of their estate for estate tax purposes, while
having the ability to receive those assets from
the trustee if needed?

7. Problems
IRC 2036
1. Decedent’s gross estate includes assets which he/she has
transferred but has retained
a. The possession or right to enjoy the assets
b. The right to determine who will enjoy the assets
IRC 2038
1. Decedent’s gross estate includes any transfer by which
such transfer was subject to a power where the
decedent, along or in conjunction with another
person, had the right to alter, amend or revoke
 Within 3 years of death

8. Basic Rule of DAPT’s for Estate Tax
Inclusion
 If the Grantor’s creditors cannot reach the
assets, then the assets are out of the Grantor’s
estate.
 Ltr. Rul. 9837007;
 Ltr. Rul. 9332006;
 Estate of German, 7 Cl. Ct. 641, 55 AFTR2d 85-1577 (Ct.
Cl., 1985);
 Estate of Uhl, 241 F.2d 867, 50 AFTR 1746 (CA-
7, 1957).
 Estate of Wells, TCM 1981-574.

9. Estate of German, 7 Cl. Ct. 641, 55
AFTR2d 85-1577 (Ct. Cl., 1985)
 Self Settled Discretionary Trust
 Grantor was a beneficiary
 Court ruled that the assets were not in the
Grantor’s estate
 because the IRS could not prove that they were
within the reach of the Grantor’s creditors.

10. Ltr. Rul. 9332006
 Partnership interests transferred to Offshore
Asset Protection Trust
 Partnership assets not includible in the
Grantor’s estate
 Grantor had no right to compel distributions
 Distributions were at the discretion of the
trustee.
 IRC 2036 and 2038

11. Priv. Ltr. Rul. 9837007
 Alaska Asset Protection Trust
 IRS ruled that gift to such a trust was
completed for gift tax purposes
 Because assets are out of reach of the
creditors
 How can this possibly mean assets are includible
in estate?
 Not answered in PLR

12. Conclusion
 Assets transferred to a DAPT should not be subject
to estate taxes
 No authority to the contrary
 IRS acquiescence
 Case law support
 If you make a completed gift of assets to a
DAPT, those assets are outside of your estate for
estate tax purposes, despite your ability to access
those assets if necessary
 Forget about the creditor protection, this is the real benefit

13. DAPT in Estate Planning
 Making gifts while retaining benefit of assets
if needed.
 Example
 Husband and Wife gift $1,000,000 of $5,000,000
estate to DAPT
 Husband and Wife primary beneficiaries, kids
secondary
 Husband and Wife now have creditor protected
slush fund that’s out of their estate

14. Using a Family LLC with a DAPT
 Client creates FLLC
 Gifts membership interest into DAPT
 33% discount
 $1,500,000 in underlying assets using $1,000,000 gift tax
exemption
 Client is primary beneficiary
 Client retains ultimate control as manger of LLC
 Client can hire any advisors
 Client can keep accounts at current location
 Trustee has control of only Ownership Certificates

15. Gifting using DAPT
1. Client has
assets worth
$1,500,000
2. Client forms Family
Limited Liability Company
with $1,500,000, runs
FLLC as manager
3. Client gifts
membership interests
into DAPT, gets 33%
discount, uses
$1,000,000 exemption
4. Client is beneficiary of
DAPT, can receive
distributions at Trustee’s
discretion
Family
LLC DAPT

16. Other Planning Ideas
 Sale to IDGT
 GRAT
 SCIN
 ILIT
 Dynasty Trusts

17. Compare to SLAT
 Spousal Limited Access Trust
 H creates trust for W, with W as trustee and primary
beneficiary
 Vice versa for wife
 Pros
 Simpler
 No Trustee fees
 Cons
 Reciprocal Trust Doctrine
 Less Asset Protection
 Cannot use for Survivor Policy

18. Client Profile
 Net Worth of $7,500,000 or more
 Concerns about estate taxes
 Wants to retain control and possible use of
assets

19. Questions???
Please direct all questions via email to
bill@wfblegalconsulting.com