Of relatively recent origin, the Offshore Asset Protection Trust (OAPT) is the ultimate asset protection tool. With the goal of putting as much distance as possible—both literally and figuratively—between one's assets and future potential creditors, the OAPT can be designed to allow a client to retain control and enjoyment over his assets while locating title to those assets in a trust established in a foreign jurisdiction, out of reach of unknown potential future creditors.
The protection afforded by the OAPT is based, in part, on the fact that certain foreign jurisdictions do not recognize the judgments of United States courts. Thus, if a person wins a lawsuit in the U.S. and seeks to enforce that judgment against the losing party's assets held in a foreign trust, the foreign trustee will not be required to submit to the jurisdiction of the United States court and cannot be compelled to surrender the trust assets. Rather, the creditor will be required to retry the case in the foreign jurisdiction where the trust is located. Faced with such a prospect, the creditor will usually walk away entirely or settle the suit for pennies on the dollar.
A critical point to remember is that an OAPT may not be established to defeat the claims of a client's present creditors, nor may it be used when events have already occurred which may give rise to litigation and liability. For these reasons, it is important to establish an OAPT before any threat of such trouble arises. The OAPT is not designed to offer any tax advantages; its objective is to provide creditor protection for one's property. Therefore, there are no income, estate, or gift tax benefits to be gained by establishing an OAPT. On the other hand, as with the revocable living trust, any property placed in an OAPT will not be subject to probate on the trustor's death.
The OAPT is more costly to form and administer than most other estate planning tools. It requires that at least one trustee be a trust company located in the foreign jurisdiction. With the availability of other asset protection techniques, the OAPT is suggested only for those clients with substantial liquid assets or, in some cases, where there is real estate, which may be easily encumbered. If you are included in this category, you may find the OAPT to be an excellent tool for providing you with some peace of mind. Some of our clients prefer to place "liquid" assets with the offshore trust and maintain their U.S.-based real property in their Nevada Asset Protection Trust. Proper advice in these matters is critical.