Losing your assets because of lawsuits is certainly an annoying thing to experience, but most people realize this only when it’s too late. Therefore, many individuals turn to the best deterrent against this situation: asset protection. Exploring this topic further with Solomon Ali is Kevin Day, an attorney specializing in asset protection and estate planning. He shares some key secrets surrounding this legal area, from how irrevocable trusts work, the right time to acquire asset protection, to what people can do at a bare minimum to mitigate the risks of lawsuits. Kevin also details a few interesting cases he has handled in the past, focusing on the wins and losses in the industry, as well as some loopholes in the law.
Watch the episode here:
Listen to the podcast here:
What’s Your Lawsuit Profile?
Attorney Kevin Day Shares Asset Protection Secrets
Kevin, it is so exciting to be here with you. I’m glad to have you as a guest on the show. Can you tell the audience a little bit about you, Kevin?
Solomon, I’ve known you for a while. Thank you for having me on. I appreciate it.
The privilege is all mine.
There are many facets of me, but on the business side, I’m a lawyer. My particular expertise is in lawsuit protection and privacy planning. We have lots of actors and ballplayers that want privacy. It is usually the drive, and lawsuit protection is good for them too. We have business owners that come to us and say, “I need lawsuit protection,” and then lowering profile, and other things or concerns of their family. I do offshore trust, domestic trust, and privacy companies. My firm is about 28 people. We’ve got a litigation team. We’ve got three tax attorneys. We do charitable trust, foundations, all the normal wills and trusts, and normal estate planning. There’s my department. Bridget Burns is the Head of the Lawsuit Protection and Privacy Department and I’ve got one partner, Elizabeth Tresp.
Kevin, you’re the number one leading expert attorney and trust law. What does that mean? I know what it means for me.
My firm is in the top two in the country, and that assessment is I came in at the very highest-level right after the Hague Convention was signed by the US where US citizens could establish a trust under other country’s law, and it would be the law of the land and recognized in the US. Essentially, we could do things with international trust that would not have been otherwise legal under US law. Treaties, conventions, Presidential Decrees, they’re higher than Federal Law.
The only thing that’s above that is the US Constitution, then we started having copycat trust. I wrote a bunch of books in the early ‘90s right after Hague Convention was signed. I’d love to say I was particularly brilliant but me and Arnold Goldstein had a book. There were a couple of other experts. They didn’t get the books out before the practice guides are now out there on it. We became the speakers in the continuing ed arena all over the nation.
You state that trust was higher than almost everything except the Constitution.
The Hague Convention on Trust that the US government signed. You’ve got Municipal Law superseded by State Law that superseded by Federal Law. There are these treaties and conventions above that than the US Constitution.
Is that irrevocable trust that we’re talking about?
Not just irrevocable but if you’re going to have a revocable trust, you don’t have privacy because your name Kevin Day Trustee of the Day Family Trust but with irrevocable trusts, you’re under US law removing US Court Jurisdiction. By signing that, all 50 states, the IRS, and everybody recognizes it. It’s not a black box, “Trust me, I’m a lawyer.”
Every entrepreneur, no matter how much stuff they got, should never let the checkbook go.
Let me see if I understand this, if I can somewhat regurgitate what you said. Under US State and Federal Law, an irrevocable trust is removed from the courts.
If it’s settled under a different country’s law. That was the first time. Until 1987, if you wanted the lawsuit proof something and you put it into the Trust, you could not be the trustee or the beneficiary. You had to give up all ownership and control. That’s fine if you’re joining a state and you’re giving it to your heirs and your charities. If you’re saying, “I still might want to spend a bunch of millions. After I retire, I want to spend $1 million a year in Europe and I don’t want to give it all away.” It does not belong to the United States until the Hague Convention. At that time, you could only do it if you did an Isle of Man Trust, Bahamas Trust, Cook Island Trust where their country said, “You have a lawsuit proof trust even though you name yourself as a beneficiary.” Legally, you can say, “I don’t own all that stuff in that trust,” but you get it all.
I have an irrevocable trust. I have one that’s Georgia and then I have one that you guys set up for us. We have a few of them and everything, so I don’t own the trust.
I didn’t say that. No attorney-client privilege was given by me.
If someone had an irrevocable trust that was set up, do they have any ownership with the trust?
They have beneficial ownership. The trust is lawsuit proof because in the Isle of Man, Cook Islands, or Montserrat, the irrevocability still allows you. Before, in the US, you had to give up both types of ownership, the legal title ownership and the beneficial use of all the assets. These other countries have evolved. Business owners have a right to lawsuit protect their assets so they can still name themselves as the beneficiary and have all the use of it but they need to put it into this trust. It’s still your estate, it’s still all yours to use, but if you get sued and somebody says, “You haven’t written me a check yet.” They say, “Under penalty of perjury, you need to list everything that you own.” You say, “This is what I own,” because the law says an irrevocable trust is an ultimate owner. Having a beneficial interest isn’t enough ownership for you to say that you own this company and that company and that bank account.
I would not have that ownership.
No. You do have the ownership to go, let’s say, to a bank for financing.
Kevin, I want to know a little bit about minimizing the risk for companies and families. What is the true benefit and how do you minimize that risk for companies?
It’s the whole process of lawsuit protection. You think of minimizing risk is do you have a good policy and procedure you fall on. That’s all the normal stuff but that can’t control a lawsuit or the outcome if you do get a lawsuit. That’s the arena that we work in. The basics that people have to understand about lawsuit protection boils down to if you own it, it can be taken, even if it’s a deferred right. Somebody owes you some money, it doesn’t start for five years. That judge is still going to go to that person. Instead of making it to Kevin Day, you make it to Mr. or Ms. Plaintiff here. They can do judicial foreclosures and all the rest of it. This is logical and it’s good.
They didn’t have all the good strategies and structures available to them. They go, “My wife and I own these different businesses. We own this real estate and we’re going to be the lightning rods. Let’s put the cash, portfolio, and something else that’s high value in our children’s name.” They have a lower lawsuit profile. What happens if they get in a freak car accident or they get a divorce? What the parents thought was part of their estate is now being taken. They did the best that they could do. You go into a corporate lawyer, real estate lawyer, or a trust lawyer and you say, “I want lawsuit protection.” What do they do? You’ve heard it a million times, “You have this many items. You need eight LLCs. That way, if this boiler blows up, they can’t take your home or the other investments.”
If you get sued personally, they’re coming down and taking all of it. Even if the boiler blows up here and it doesn’t get out of that box, you’re still losing that apartment building or that rental. Our strategies of creating a separate legal owner recognized as a third party owner under the Law of Trust, give back the control to the client with an underlying privacy company in Nevada or Wyoming and then put senior liens on the equity. You can’t get a lawsuit because there was a horrible fire and you will still have that home.
When you say senior liens, Kevin, are you talking about UCC-1? What are we talking about?
There are two instruments to put senior liens on and one is a mortgage or deed for real property and UCC-1s for everything else. Computers, freight trucks, warehouse stuff, and cash, it was UCC-1s. The first in time to the public record, not the contract. If I’m carrying back a note from you and then you get sued or you go to the bank and get financing, and then I go, “We signed a contract a year before but I didn’t tell the world that I had that right.” Whoever puts the lien in the public record first will get every dime. They have a security interest. This is a friendly lien. You don’t want to throw a lien on, you can, it’s a smokescreen but we have to presume that the other side knows everything we know.
I need to presume that I have to tell a judge everything I’ve done and still work. We create and work with the client to create the proper consideration, which is a legal term, to make sure that it is a proper deal that this company and this company, even though both are part of your estate, they have enough legal independence that they are entitled. The law, the IRS code, and the corporation code says, “They have to have as formal a relationship as me and Bank of America. I’m not going to get any money from Bank of America unless they get a lien.” Your little privacy piggy bank company or intellectual property company said, “I’m not going to give you this contact list or whatever it is. This is worth $3 million. I’m not going to give it to you unless you give me $3 million of collateral.” You take something that you already have. You put it in your left pocket and the law requires you and gives you all these rights.
Does the trustee have to disclose that I’m the beneficiary?
They could under extreme circumstances but what we found in real life where our clients were under duress that 80% of the time, the other side doesn’t even ask the right questions. They take it at face value that you went to the bank, you went to this bank, you went to this hard money lender or private lender, and they don’t even think to ask. They don’t even bark up that tree. Some have barked up that tree because they have been in a few places. Of course, if you have good money and interest from a particular finance source, why aren’t you going again to that same trough? They might ask, “Do you own this company?” You can say it’s tactical. We should be able to say, “This is what we did. We did it five years ago and you can’t touch it.”
I’ve not met a litigator that says, “I’ve seen this 100 times. I can bust through this.” You haven’t seen this once buddy or gal. They can but their client spends $50,000 and trying to dig it out. You have to spend $50,000 explaining to the court and the other lawyer what the law is on these trusts. These guys were never trust lawyers or litigators. They didn’t come from this field. They don’t know it, but because it’s a separate legal owner under the law, nobody owns a trust like nobody owns a human. Nobody owns you or me. This trust is stand alone.
What you’re saying is if I’m the beneficiary, I don’t own the assets in the trust. Do I control them?
You can’t control it at the trust level because then you became a trustee and you also have beneficial ownership, so you’ve merged the two that make it lawsuit proof but you can manage the underlying company. Ninety-nine percent of the time, we’re creating irrevocable trusts that are dormant trust. Inactive trust is like a Carnation grandchild or Kennedy grandchild. It has to go to the Bank of New York Trust Department and say, “I need a business ticket for me and two of my close friends, please pay for it. I want a new house in Portland,” or whatever it is. That’s an active trust.
President Trump had several different types of trusts. The State of New York broke or pierced their veil. What happened there? Why wasn’t he protected?
That was already out in the public world. He flouted it or locally known so people knew about it. Some very high-profile things that were related to him also had the trust on it so they presumed they were related. We’re not going to name it the Kevin Day Trust. It’s going to be the Pine Tree Trust or the Golden Mountain Trust. Going back to that question of control, every entrepreneur, no matter how much stuff they got, how much management that they may release to competent employees, they should never let the checkbook go, in my opinion. That’s why 99% are these dormant trusts where the piece of paper of ownership is into the trust but no bank accounts. Nothing’s up there. It’s down in underlying privacy company like Delaware, Nevada, and Wyoming.
Being a nice guy or gal doesn’t mean anything in a lawsuit.
Nevada has adopted Delaware Law but Delaware is focused on the public company, and public companies have their uses. For a personal piggy bank, you want it in Nevada, in my opinion. You have privacy so your name isn’t in the public record. You are the manager, you can buy and sell like you normally would but it’s going to be in Northridge Enterprises or Golden Mountain Financial. The law is very clear. I’ve had attorneys that were not partners, they had no ownership that was signatories on my account. They had no ownership even though they had access. Being a manager, having the checkbook imputes no ownership so it does not make you a trustee. You can control it. The trustees have a piece of paper so if you get sued, you have a perfect position that it’s going to be lawsuit protected but you still can buy and sell.
You have been in business as long as you have been practicing law. I know you have many horror stories. Can you share 1 or 2 with us?
I’m not naming names, but a real estate owner bought an existing apartment complex. It was eighteen doors. He came on the scenes and the tenant said, “We want some lights in the back because our kids can’t play because of the change. It’s dark when they get home at night.” He granted them that but he went beyond that and had the office manager make a little basketball court. Not a whole court but half-court, a hoop, and some cement. He was great, a good guy. A nice guy, nice gal doesn’t mean anything in a lawsuit. Unfortunately, the manager hired unlicensed normal handyman around the place and a twelve-year-old kid grabbed hold of the chain-link fence and got electrocuted to death. He was a good guy, being a good landlord going out of his way to be better for his tenants, big lawsuit, and a lot of equity loss. It didn’t have to happen.
He didn’t have the irrevocable trust.
He had been talking to us about it and he never got off the dime or like some people, they got some of the structure but they didn’t connect all the dots.
It reminds me of years ago when I lost my nursing home businesses. I kept saying over and over, “I’ve got to finish this. I’ve got to tie it and transfer the ownership.” I kept procrastinating and I never did it.
I found a new building. I needed to pay attention to that and buy another one.
All of a sudden, I had regulatory problems and everything. I remember being told that if I had done everything I was supposed to do and finished that process, the buildings would have been transferred over to the trust, the trust could have continued to collect rents on the buildings. It was tragic because I was at a point in my life, I lost $118 million. We had over 500 employees and everything. We had 13 nursing homes, 8 assisted living facilities, and it was crazy. I was like, “I was going to kill myself and do all kinds of things.”
$180 million is tough to swallow.
It’s a lot. I think of a guy like me coming from where I came from that I would never make that laid back. I knew it was my fault. I couldn’t blame anyone else because I knew that I should have finished it, not procrastinated, and placed everything in that trust. If I’ve done that, I would have still had income and everything of that nature.
You wouldn’t have to start all over again and brought yourself back up.
How many people do what I did out of either procrastination or ignorance?
Out of 100 people, I hate to say it, there are about 20 of them out of 100. That’s a lot I think. When they’ve spent good money, they’ve done little parts but didn’t get one last piece that we needed back to do a document. We hound. We pester entrepreneurs. They’re entrepreneurs because they like the next thing and they’re balancing.
They’re so focused on these millions of dollars coming in. It was like, “I’ll get to that.”
Even in MBA, I’ve got an MBA, they never teach you about structuring. They presume you’re going to have one company and it’s going to do everything. You’re going to have employees and going to own a building. They don’t even talk about having to learn hard knocks and other mentors. “You have the building over here and you lease it to where the employees, end-users, consumer, or the product users. You never put that building in there.” This can blow up too easily and your own tenant so you’re not going to sue yourself but when you have apartments or you have rentals, the tenants never know what you went through and what you sacrificed to build that.
When I started my firm, I literally started with $500 in my bank account and a Fugett Suite Office. Within a year, I was still eating law school student steamed rice, collect a couple of dollars so I could eat at McDonald’s. Within six months, I had four attorneys that had offices and employees coming to me to pick up and work. They started working for me. I had a vision and it worked out. Going back, it’s all about how to make money, reach more people, make a better widget, and come up with a formula that’s going to make you and other people satisfied. Nobody talks about, “Let’s pay attention to keep in what you worked how many years to build.”
What I’ve found with everybody, if you get up to about $3 million to $3.5 million, most of your creature comforts are taken care of and now, you have disposable income. Many people who’ve come to me and said, “Wow.” I’ve benched that out where people have come to me, below that, during that, or after that and there’s enough money that starts making the money. They’re not pushing the ball so hard for every single dollar. They’ve made enough. Once they feel that money can make money for them instead of them pushing the ball, they go, “I never want to start over again.”
When is the best time for an entrepreneur to start this? Is it after the business is gone or before? When is the actual best time?
The best time to do it is before you get sued. We don’t have a mystic crystal ball that we can figure that stuff out. The academic answer is you do it simultaneously when you start your business. The only way to attack an irrevocable structure is to allege and prove fraudulent conveyance that you had known in existing creditors already and you were setting this up to not have to pay them or whatever. If you enter into a contract with somebody three months later, that’s impossible to be a fraudulent conveyance.
For my audience, I want to go back and recap that. The best time to establish the trust and to protect their assets is at the time that they start their business. That’s when they need to call you.
It’s hard and we understand that because entrepreneurs usually scrape all this money together for this new project and they need that money. They need to buy new business cards, new logo website, and all that stuff. “What’s lawsuit protection? I can’t afford it.” What we can do is we call it Road Mapping. It’s to try to see what is the perfect structure that if money was no object, what would we put in place? Let’s get economically real. What should we start to do first? Instead of being an entrepreneur and say, “I need a new company here and there.” You form four more companies and you need it. You should have created this one first. All of our friends and you have said, “Know where you’re going, you’ll get there straighter, easier and faster.”
You want to know where you’re going and then you can start budgeting for it. Unfortunately, the trust, which is the most solid lawsuit protection aspect that you can have in this country or Europe, is not entrepreneurial friendly. You have to have an underlying company. If somebody is road mapping, nobody wants to go ask trustee for stuff. Nobody is going to put the checkbook in their name. We start with the privacy company. When we can budget for it, we want to make sure a company that doesn’t have the people’s name on it, it can start licensing intellectual property or loaning back.
The best time to establish the trust and protect assets is the moment you start your business.
It’s money from your left pocket but if you’re using legal constructs, that’s what you need to do. There are separate legal people. The defect in that, which is tactical is if somebody barks up that tree, you’re in that 20%, and they say, “Do you own Golden Mountain Funding that has liens against all of this and has a prior right on income on this sales contract?” You’re able to say no because it’s in the trust. If we did the stepping stone fashion, they asked the right question for the wrong reason.
They don’t know about this stuff. They think that you sold it to your sister for $10 before the deposition and you’re going to buy it back for $10 after the deposition. They asked you, “Do you own it?” You say, “No.” “Have you ever owned it?” You can’t perjure yourself. That’s a felony. It’s against the court, not your adversary. If you’re able to financially do both at the same time when they say, “Do you own it?” “No.” “Have you ever owned it?” “No.” “Can you prove that?” “Go talk to that company.” We’ll have lawyers representing that company and CPAs that come forward and say, “We’re the CPA for this company. We’re the lawyer for that company. We know who the owner is. It’s attorney-client privilege, we can’t tell you who it is but we can tell you that is not Sally Jones.”
I know the answer to this but I’m going to ask this question. If I’m the settlor of the trust, is that ownership?
No. A settlor means you settled it, you pushed it all into motion. You might be creating an irrevocable trust for your children and grandchildren, a dynasty trust, that will go on for generations where you’re not the trustee or the beneficiary. You’re a settlor. You can set up a trust where you’re naming yourself as a beneficiary and you’re still the settlor. Being a settlor is the giving away process and the formation process, no ownership.
The Trust Law is so specialized. You were at the top of the field. You’re the man to see in the United States about Trust Law. Why no attorneys know or understand irrevocable trust if you go to an attorney? What I’m trying to get at, Kevin, is they can’t go to an attorney or someone that does wills or they say they do a living trust and get a trust. They need to come to a specialist like yourself.
For this purpose, and I don’t mean it in a derogatory way, there are a lot of estate planners and all they do is wills and trusts. It’s important because they do a lot, they drive down the costs, and you can avoid probate which saved your family $50,000. It was going to go to some lawyer when instead you could have spent $2,000, $2,500 to have a trust that doesn’t need a lawyer to go run the probate. It’s a no brainer. We’re talking and losing 4% to 6% of your estate by going through probate. That’s why a lot of lawyers is a loss leader. “We’ll do your will for $900.” It takes more hours than that to interview, do the drafting, do all the notarization and everything. They put their name all over it so when you die, your heirs go to you, “He has a will. We’re going to do a probate now,” and then they get bank.
Kevin, I had a friend, she was telling me about a trust that she had but it wasn’t an irrevocable trust out of Charlotte. I said, “That doesn’t sound quite right. That doesn’t sound like what I have.” She was like, “It’s a trust. I have my house and there and things like that.” The attorney told her, “In North Carolina, you don’t have to worry about anyone ever taking your home because they can’t.” I said, “That doesn’t sound like that’s right.”
Everybody has heard of this thing called homestead. If my house is homesteaded, I get to keep it. In the old days, that’s what a homestead was. You wouldn’t lose your property. Every state has eroded that except for Texas and Florida. OJ Simpson had a trust in Isle of Man, that wasn’t even touched. He had his pensions that were Arista protected and he tried to sell as much as possible. He bought the biggest value that was in the confined space that was fully homesteaded in Florida. Texas had such big ranches there.
It’s a home of homestead. You think of the ranches, that’s the homestead. You don’t use it back in Palmer or South Carolina. It was so strong. You had 100% homestead and a guy that had a skyscraper. I figured sixteen stories, he owned the penthouse and everything else was rentals. The homestead covered that because his home was on that property. They changed statutorily. They said, “This is not what the law was intended.” In California, what they do is they still judicially foreclose on your home and the homestead if you have filed it with the court. You get $67,000 or $100,000 so you’re not a ward of the state and you can go pay rent at an apartment. They’re still taking your home. That’s what most of all the other states, except for Texas and Florida. You get a chunk of money so you don’t have to be a ward of the state and you have some rental money. You’re losing house.
I don’t want to bash anyone but this attorney said that she didn’t need the trust. If somebody slips and fell on a property, they couldn’t sue and take her property. That’s incorrect because that’s what I told her. I was like, “I never heard of that. That’s crazy.”
Even if they’ve never seen a movie with it, everybody knows the term slip and fall. If it’s on your property, your property damaged them. If you have a trench up on your property and you have no soliciting, no trespassing, if somebody comes in, he doesn’t see the trench, they’re dark, they put in break and get some weird infection that goes into their marrow, you are losing that house if you haven’t done other lawsuit protection. I’ve got many horror stories. A burglar admitted that they were there to burglarize this home. He fell in through the skylight that he had undone and was coming down to. He slipped and fell on a glass coffee table. He sued and won a couple of million dollars. The law said that they had a legal obligation to somebody slipping there.
The law protected the burglar.
Yes, because he got all lacerated up and all that. Another one was this guy, it was Friday and he’s coming home from work and he’s realizing the brakes aren’t working. He goes up and parks it in his driveway. He calls his mechanic and he said, “We’re closing up right now. We’re not open on the weekend. Bring it on Monday or we’ll come and pick it up on Monday.” Somebody stole it on Saturday night. It wasn’t on the public street. It was up in his driveway. They get to a light, they put on the brakes. Who do you get to sue? The driver and the owner.
They stole the car, they got in the accident so they went after the deepest pockets, the owner of the car. I’m going to read another question. What can people do at a bare minimum to protect themselves?
Certainly, the regular strategy separating different assets in different companies but you’re still going lose that apartment building if it catches on fire because that’s the thing that harmed them. You don’t have to hit a school bus full of children to get into multimillion dollars. You can hit a family of four and get way outside of insurance limits. There was a case that my partner found up in Orange County or Los Angeles that one single motorcycle rider got $27 million for his damages. That’s just one person. It’s not necessarily the simplest but getting privacy in Nevada or Wyoming company where your name isn’t on it even if you don’t have a trust to put liens. That’s what’s great about these privacy companies that has either IP or other things for proper consideration.
It’s the only instrument that can lawsuit proof your business assets, accounts receivable, and your home assets. Most of the other things are either protecting your home, protecting your business, or shielding parts of the business from other parts. This third party outside interaction, an asset is an asset if there isn’t any equity in it. If I get a judgment against you and I see Bank of America has 50% or 80% and I go, “Take your lien off. I have a judgment.” They say, “That’s why I’m there. I get every cent.” If there’s no equity there, there’s nothing to take.
Kevin, I have a lot of clients that I consult now that I get to buy stocks to the various companies that I invest in and taking public. I always tell them, “You need to go see Kevin’s law firm. He’s the best at what he does.” There’s no attorney that can compete with you and the structures and the things that you’ve shared with me. Some people say, “It’s too expensive.” I said, “No, but try losing everything you have and then you’ll find out how inexpensive he truly is.” They do stocks, bonds, promissory notes and things like that. They said, “Does that work? I thought trust was only for real estate.” I said, “No, he was working for me.” Can you speak to that, the stocks, the bonds, and convertible notes that people owe?
As a lawsuit protection attorney, our main thing when we start working with a client is an oversimplification but we say, “Is this high liability but not very valuable? Is this zero or near zero liability like cash, portfolio and notes? There’s not much viability there or is this high value and high risk? It makes the main cashflow into the family but it’s higher risk. What do we put in the lawsuit protection side? What do we put on the standard normal living trust side?” If a client’s going to get sued anyway, they’re the lightning rod, we’re not going to put something high liability with the cash and portfolio or notes, anything like that.
We have people that have gold and silver. We have somebody here that has an incredible real art collection like in a museum. We make sure, and we do all the documentation, so we can show that it’s owned by this legally third party part of their estate plan but there’s a contract back that they are the one to be the custodians of it, not put it in a closet and get black mold on it, and stuff. It’s on their walls but they’re getting paid to take care of them. If a creditor comes in, they can take furniture and everything else out, not foreclose on the home.
I see everyone at Magnify Your Wealth is starting to come out. I want to thank you for coming in, sitting and sharing your knowledge and your expertise. How can everyone reach you?
My phone number is (858) 755-6672 or Kevin@TrespDay.com. Either one will reach me.
Kevin, thank you. I appreciate it. Thank you for all that you have done for me.
Thank you. It’s always been good with you.
About Kevin Day
Kevin L. Day is one of the leading estate planning and international asset protection planning attorneys in the United States. Mr. Day’s Bachelor Degree is in Chinese Studies, and he holds both a Masters of Business Administration in International Management and Doctor of Jurisprudence degree. He was a university academic administrator for eight years, a law professor at the doctorate level and a law school Dean of Students, before going into private practice. In addition to his legal expertise, Mr. Day brings his extensive business knowledge as an MBA in International Business to his law practice.