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  • charliefaddoul
    Participant
    @charliefaddoul
    Join Date: 2022
    Post Count: 0

    Hey everyone,

    I am receiving conflicting views from my lawyers and accountants and it is making it very difficult for me to understand things.

    One of the things I have been told by my lawyer is that holding property in a trust won’t protect your assets from creditors if I ‘benefit from’ the property.

    Therefore, I have been told that it does not matter what legal entity the property is owned by, as if creditors are chasing any money, my assets would be exposed, regardless of what structures they are in.

    My accountant gave the opposite advice, stating that the assets would be protected.

    Can anyone confirm this or provide an alternative view as it is becoming increasingly frustrating when the advice from accountants and lawyers do not match up?

     

    Thanks,

    Charlie.

    Profile photo of Steve McKnightSteve McKnight
    Keymaster
    @stevemcknight
    Join Date: 2001
    Post Count: 1,763

    Hi Charlie,

    Perhaps your lawyer has a view I haven’t heard before, but my understanding of trusts, companies and corporate law is that trusts separate ownership and control. Can your accountant contact your lawyer to confirm their opinion and perhaps provide you with a summary?

    All the best,

    – Steve

     

    Steve McKnight | PropertyInvesting.com Pty Ltd | CEO
    https://www.propertyinvesting.com

    Success comes from doing things differently

    charliefaddoul
    Participant
    @charliefaddoul
    Join Date: 2022
    Post Count: 0

    Thanks for the reply Steve,

    I have sought external advice again and the assets are actually protected in a trust. I am unsure of what the lawyer’s view of trusts is, but I am going to take it that it is wrong, especially since so many people buy properties in trusts specifically for that purpose.

     

    Charlie.

    Chris
    Participant
    @dcb73
    Join Date: 2019
    Post Count: 0

    Let me guess… that advice came from Dominique Grubisa…. the lawyer NOT entitled to engage in legal practice  but who continues to do webinars selling asset protection nonsense that has been exposed in scores of media stories?

     

     

    Profile photo of BennyBenny
    Moderator
    @benny
    Join Date: 2002
    Post Count: 1,416

    Hi Charlie,

    Can anyone confirm this or provide an alternative view as it is becoming increasingly frustrating when the advice from accountants and lawyers do not match up?

    That should “an accountant and a lawyer” shouldn’t it?   Sounds to me like a second opinion from both professions might be a good move.

    I am unsure of what the lawyer’s view of trusts is, but I am going to take it that it is wrong…..

    Gee, Charlie, alarm bells are going off in my head as I read those last words.  To me, it would be more likely for a lawyer to know the laws than an accountant, but then there are some really knowledgeable accountants, and I guess there could also be lawyers who may be still learning….  Has to be second and third opinions surely??   Oh, and a wee reminder – when an accountant does your books at year end, they have you sign that YOU are responsible for THEIR calculations don’t they?   Couldn’t that also apply to any advice they have given you?

    Tread carefully my friend – those questions you’ve asked are very good ones, so don’t resort to guesses as to the correct answers.

    Benny

     

    charliefaddoul
    Participant
    @charliefaddoul
    Join Date: 2022
    Post Count: 0

    Thanks Benny,

    I received further advice and a second opinion from another lawyer, which did confirm that trusts split asset/control and provide protection from being sued.

    I will be more careful in the future when asking these questions, taking chances is not worth it, especially since it could lead to ruin.

     

    Charlie.

     

     

     

     

     

    Profile photo of BennyBenny
    Moderator
    @benny
    Join Date: 2002
    Post Count: 1,416

    Hi Charlie,

    That’s good to hear.  Oh, and check out my answer to you in the other thread you started.  I think you will appreciate what you find there.  ;)

    Benny

    Profile photo of TerrywTerryw
    Participant
    @terryw
    Join Date: 2001
    Post Count: 16,213

    I am receiving conflicting views from my lawyers and accountants and it is making it very difficult for me to understand things.

    It doesn’t matter what an accountant says as this would require legal advice.

     

    One of the things I have been told by my lawyer is that holding property in a trust won’t protect your assets from creditors if I ‘benefit from’ the property.

    This might be taken out of context or is a bit vague. First what are you trying to protection the property from? Creditors on bankruptcy? A trustee of a discretionary trust can still hold a property and let a beneficiary use it, perhaps rent free, if they have the power to do this. the property could still be safe from creditors on bankruptcy of that individual beneficiary. but there are still many potential ways the property and the trust could be attacked. So it largely depends on how the acquisition and funding of that property was structured within the trust.

     

    Therefore, I have been told that it does not matter what legal entity the property is owned by, as if creditors are chasing any money, my assets would be exposed, regardless of what structures they are in.

    You say ‘my assets’ but seem to be talking about a different entity holding the assets. If they are yours then they are available to creditors. If they are held and owned by a company, for example, then at first brush they are not your assets – but who ownes the company, how did the company acquire the property, how did it get the deposit. All this determines the strength of the protection

     

    My accountant gave the opposite advice, stating that the assets would be protected.

    They would not be qualified or knowledgeable to give this advice – or covered by insurance.

     

    Can anyone confirm this or provide an alternative view as it is becoming increasingly frustrating when the advice from accountants and lawyers do not match up?

    I am a tax advisor and a solicitor (and lawyer) and your understanding seems to be defective so you might be asking the wrong questions and getting answers to these instead of learning how a trust or a company could help reduce the likelyhood of assets falling into the hands of creditors.

     

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
    http://www.Structuring.com.au
    Email Me

    Lawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au

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