ASSET PROTECTION

You may be at risk in your business or occupation of being sued. This is a common risk in many areas including the professions, contractors, builders, trade based businesses, product suppliers and event organisers. Further, businesses that rely on the solvency of their customers for payment are themselves at risk of creditor claims if the customer faces bankruptcy.

The first principle of asset protection is:

Do not conduct an at risk trading business in your own name, or in the name of an entity that holds your capital assets.

If you set up your legal structure appropriately and your trading entity is sued then, in most circumstances you will not be personally liable (except to the extent to which you have given personal guarantees or breached certain statutory provisions) and no claim can be made against other asset holding entities that you have.

Family trusts or discretionary trusts are very effective asset protection vehicles as the beneficiary of such a trust has no equity or share in the trust that can be attached by a claimant creditor or trustee in bankruptcy.

Assets held in superannuation funds are protected from claims by creditors and the trustee in bankruptcy provided that the contributions were not made with the intention to defeat creditor.

Here is a tip about personal guarantees.  Landlords, suppliers, and lenders to incorporated business will usually ask for personal guarantees from the director or directors.  Where a couple are both directors both will be required to give personal guarantees. It may be wise to have only one of the couple as a director so that the other does not have to give a personal guarantee.