would appreciate help on following situation:
California provides asset protection for private retirement plans that is broader than ERISA. If someone sells me a real estate backed note, for example, it would be very difficult to collect an award by attaching the beneficiary's pension assets.
What if the defendant, however, is the trust itself? would Cal Code of Civil Procedure sec 704.115 render the trust exempt from execution should i obtain a judgment against the trust? in this case the trust is an actual party to the sale (the sellers) as opposed to my seeking to enforce a judgment against a plan beneficiary by executing upon plan assets.
i realize this is a very specific question, but if there is anyone that could shed some light on this situation it would be very much appreciated.
I don't know anything about USA law. But in Australia if a trust is not a legal entity so someone would need to sue the trustee of the trust. Trust law enables the trustee to be indemnified out of the trust assets so the creditors could get at the trust assets if the trustee was sued.
If you were trustee of a trust and got sued for something separate, nothing to do with the trust, then the trust assets would generally be safe. You may have a judgment against you and this would enable a creditor to get your personal assets, but not your trust assets (generally, there are many exceptions such as if you had transferred assets to the trust).
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
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