Asset Protection Planning
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A land trust is a real estate title-holding vehicle and a flexible legal entity with a number of helpful features. There are several pros and cons of a land trust. On the plus side are the following: privacy of ownership, avoidance of probate, protection against judgments and liens, ease of transfer of beneficial interest, use of beneficial interest as collateral, prevention of property partition, and agricultural land-use protection. We discuss some some of these in further detail below.
On the down side, many professionals are unfamiliar with land trusts. They are legal in all 50 states but only written into the statutes of eight states at this time. All instruments we utilize do not need to be the legal code in order for them to be legal. After all, no known laws exist dictating the color of shoes you must wear. Yet you still wear shoes. It is simply that finding a professional to help you maneuver the intricacies of the land trust terrain can be challenging. This organization has established land trusts for decades and has been in business starting in 1906.
Additionally, a land trust does have strong privacy features but does not have strong asset protection features. If this is your main goal for establishing a land trust, you will be well served to take these two steps. First, put you property into a land trust. Second, you assign the trust beneficial interest to another legal entity, such as an LLC. This way, you enjoy both the privacy of the trust and asset protection and lawsuit shield that the LLC offers.
A land trust is a private legal contract whereby a property title is transferred from the owner to a trustee. The transfer of title notwithstanding, a land trust allows for the grantor to retain all rights to the property. This means the grantor can continue to derive benefits from the property. Such benefits may include the right to build, sell, rent, or transfer the property to their heirs.
A land trust is also sometimes referred to as an Illinois Land Trust. This is because the first such contracts can be traced to the city of Chicago during the early 19th century. When the validity of land trusts was challenged later in the century, the Illinois Supreme Court ruled in favor of its legitimacy. The ruling stipulated that a land trust was valid for as long as the trustee was given a legitimate task in the administration of the trust.
As stated above, land trusts are legal in all 50 U.S. states. At the current time, there are only eight states that have laws addressing land trusts. These are the following: Florida, Georgia, Hawaii, Illinois, Indiana, Montana, South Dakota and Virginia. These states acknowledge the land trust through statutes contained in their state law books. Other states allow the use of land trusts via common law. Common law is based on custom and judicial precedent rather than written statutes.
Under a land trust, it is the beneficiary who holds and wields the real power. This is why grantors are also often the beneficiaries of trusts that hold the title to their property. It’s true that the trustee holds the title to the trust property. However, their involvement in the trust is limited to the terms contained in the trust agreement. Any subsequent or further duties the trustee takes on will always be subject to the consent of the beneficiaries.
For example, if the property in a land trust was a rental property, a trustee typically deals with day-to-day matters. This would include making repairs, dealing with tenant concerns, and other such issues. They don’t normally handle matters concerning the sale of the property. Neither do they take the lead in negotiating for a loan on behalf of the trust. These activities require the approval and involvement of trust beneficiaries.
The trustee to a land trust is often a corporation or LLC. This serves a practical purpose as a corporate fiduciary does not die, retire or move away.
One of the main benefits of a land trust is the tremendous measure of privacy that beneficiaries enjoy under its protection. As stated above, a land trust is a private contract. The deed conveying the property to the trust does not name the parties involved in the transfer. For this reason, conglomerates and other large buyers use land trusts to privately procure vast tracks of property. This is done when public knowledge of the purchase could send land prices skyrocketing and potentially wipe out any benefits the buyers could derive from their purchase.
A land trust can also help the heirs of a deceased beneficiary avoid a probate. Since it is regarded as a revocable grantor trust, a land trust’s property is considered outside the probate process. This means the property passes directly to the legal heirs of the deceased beneficiary.
A land trust can be especially beneficial when there are several beneficiaries and a judgment is issued against only one of them. The trust can protect the other beneficiaries against judgments and liens against one beneficiary alone. A judgment will not constitute a lien on the trust property itself. Rather, it is only a judgment on the interest of that specific beneficiary. The trust can continue with its normal operations without suffering any legal fallout from the judgment. Similarly, a land trust protects unaffected beneficiaries against the legal incapacity or personal bankruptcy of one beneficiary.
Another advantage of a land trust is that it can protect a property against a partition proceeding. Sometimes a beneficiary may wish to liquidate his or her interest by forcing a division or sale of the property. However, the property in a land trust is owned by the trustee, not the beneficiaries. Thus, without the trustee’s explicit approval, no sale or division of a land trust’s property can take place.
The main drawback of land trusts is its relative obscurity. Since it’s not legally recognized in majority of the states, some lending professionals may be unfamiliar with them. Some title companies raise questions before they issue a policy when a property is held in a trust. Even if you reside in a homestead state, there may be extra steps to get full homestead exemption for properties held in a land trust. Government personnel in states without land trust legislation may not be equipped to handle the issues that come with land trust properties. Because of this, professionals practicing in these states tend to be unfamiliar with properties held in land trusts.
A land trust’s asset protection features are not particularly strong. This is because a land trust is a type of a revocable grantor trust. As seen above, a land trust beneficiary continues to exercise extensive control over the trust assets. Should a judgment be issued against a lone beneficiary, the courts may force him or her to use that control to alter the terms of the trust to benefit or satisfy a creditor’s claim. (If there are other beneficiaries, their interests will be protected by the land trust.) The same action may not happen if the property was held in an irrevocable trust. This is because the terms of such an irrevocable trust cannot be altered after it has been properly set up. This restricts the court from giving orders to the grantor to make changes to the trust against his or her wishes.
To address this, land trust grantors can assign the benefits to a limited liability company (LLC), rather than to themselves directly. They can be members of the LLC and receive the benefits from the LLC, and not directly from the trust. When a judgment is issued against an LLC member, the member cannot be forced to alter the terms of the land trust agreement. This is because the LLC, not the member, is technically the beneficiary of the trust. Assigning beneficial interest in a land trust over to an LLC is very common.
Do not assume that the privacy afforded by a land trust is absolute. It is certainly potent and effective in most cases. In can help prevent lawsuits. That is, if a contingent fee attorney is looking for a deep-pocket to sue, holding real estate in land trusts may make you look poorer than you really are. However, mounting criminal and civil complaints can compel a court to order the full disclosure of a land trust’s ownership.
A land trust is a type of revocable grantor trust designed as a title-holding instrument. The beneficiary is the power behind a land trust. A trustee’s duties and responsibilities are limited to and strictly defined by the terms of the trust agreement. A land trust offers many advantages. Privacy of ownership and the possible avoidance of a probate are its two main advantages. In addition, a land trust can help protect against judgments and liens, prevent land partition, facilitate estate planning, and ease real estate title transfer.
A land trust’s main limitation is that few professionals in the field are aware of its true potential. You may need to look far and wide to find a professional with extensive land trust experience to help you establish one. If your main goal is asset protection, you will need to take additional steps to shore up a land trust’s weak asset protection quality. Although you can enjoy anonymity by using a land trust, this protection is not absolute. Know that with compelling reasons, a court order can force the full disclosure of your involvement.
In the final analysis, the question you should ask yourself is not why you should hold a property under a land trust. With its many advantages and easy ways to get around its drawbacks, the real question is why you should ever purchase property without using a land trust.