Asset Protection: How do you protect your company assets and your private assets permanently, e.g. against access by third parties?
Protect your assets before they are threatened!
Assets are often in focus and arouse desires, especially in critical situations. As an entrepreneur, the danger of being liable with your personal assets has increased. Your assets can be diminished by taxes or inflation, for example. Likewise, the risk of insolvency has increased and the legal framework has tightened. Activities as an entrepreneur, financing, divorces, inheritance cases, etc. can also lead to liability access by third parties such as banks, the tax office, ex-partners or children entitled to a compulsory portion. The liability risk in entrepreneurial activities has increased drastically. Entrepreneurs with high liability risks must take measures to protect their private assets from third-party liability.
Partners in a partnership, supervisory board members of stock corporations, wealthy private individuals, managing directors, freelancers such as doctors, lawyers and tax consultants, or heirs - are all affected by the risk of being held liable with their personal assets. There are no minimum sums for asset protection. It doesn't matter if you own one or several million or a condominium for 120,000 euros. There are various strategies for asset protection - they are grouped together under the technical term "asset protection." They involve transferring assets to third parties - for example, to members of the family or to a foundation. Which option is best for the individual also always requires a thorough consideration of tax law.
We always offer asset protection as advice on legal precautionary measures to protect assets from liability and access by third parties. Serious asset protection advice does not include any arrangements to falsify facts, to conceal assets or to otherwise cover up facts.
A thorough legal and fiscal analysis is a prerequisite for determining which asset protection measure is best for each individual case. For the best possible protection of your assets, we work with you to develop individual solutions and measures that ensure the most comprehensive asset protection for your assets. For your individual asset protection concept, we also keep an eye on future asset development, even beyond death.
The assets saved and built up in private assets or the business assets created by the entrepreneur are often the focus of attention and arouse covetousness. The term "asset protection" refers to the protection of assets against liability and the resulting access of creditors. The goal of asset protection is to protect assets from loss due to third-party access.
Overview of risks
Sources of danger for private and business assets are for example
• Insolvency risk
• Tightening of legal framework conditions
• Inheritance cases
Dangers can arise for you as
• private person
• Shareholder of a partnership or corporation
• Managing director, board of directors, supervisory board
• Freelancer (doctor, lawyer, tax consultant)
Potential creditors are for example
• Tax office
• Social security funds
• Banks, credit institutions
• Customers, suppliers
• Family members (beneficiaries of compulsory portions), ex-partners
The liability risk in entrepreneurial activities has increased considerably. Entrepreneurs with high liability risks have to take measures to protect their business assets as well as their private assets from the liability of third parties. The risk of being liable as an entrepreneur with his private assets has increased.
In a company (including foundations and associations), liability risks exist in particular for the entrepreneur himself, but also for managing directors, board members and supervisory board members, and in special cases even for the shareholders of a GmbH or GmbH & Co. KG. Legal framework conditions have become more stringent, for example in the areas of compliance, data protection or due to environmental protection requirements. Tax legislation increasingly regulates so-called tax avoidance. In view of the corona situation, the risk of insolvency has increased.
In the private sector, parts of the assets are often to be protected against loss. Private assets are to be preserved as far as possible across generations for the family and its provision. The family assets are to be secured in whole or in part in such a way that the maintenance of the family members can still be met from this reserve. Liability risks can arise in the private sphere, for example
- in the event of inheritance for the heir, if family members entitled to a compulsory portion, who have not been provided for or who were supposedly provided for too little, claim their compulsory portion
- in the case of a gift for the donee, if challenges or insolvency challenges are later asserted
- in the case of divorce because of maintenance claims
- in the case of the drafting of a will, if the drafting does not make optimal use of existing allowances, beneficiary assets or beneficiaries of the compulsory portion
- in the case of investment of assets for the taxpayer.
There are numerous ways to protect your assets. The starting point is the existing asset structure and the potential threats.
Examples of successful asset protection are:
- Tax-optimized structuring of assets to avoid tax risks, both for private assets and business assets, e.g., through the optimal choice of legal form.
- Testamentary arrangements, e.g. permanent execution of wills
- Prenuptial agreements for tax optimization or reduction of personal risks (e.g. in business marriages cancellation of the matrimonial property regime of the community of accrued gains, matrimonial property regime swing)
- Anticipated succession or early transfer of assets to spouse or descendants (taking advantage of inheritance and gift tax allowances or tax benefits [e.g., family home]); if necessary, in combination with business succession planning
- Creation or reallocation of assets that cannot be seized
- Transfer of assets to the scope of such foreign jurisdictions that grant increased protection against attachment
- Transfer of assets to a family foundation, thus permanently excluding third-party access and achieving complete independence of the assets from personal risks
- Optimal drafting of articles of association, partnership agreements, shareholder agreements and agreements with third parties
- Contribution of assets to companies whose articles of association grant a lower settlement in the event of seizure or insolvency (or other withdrawal), so that the difference is beyond the reach of creditors.
The marriage contract: If the legal matrimonial property regime of the community of accrued gains still exists in an entrepreneurial marriage, this can be cancelled with a marriage contract and a difference amount that results from a fictitious equalization of gains calculation can be transferred tax-free (so-called matrimonial property regime swing).
The transfer of assets or anticipated succession: The timely transfer of important assets to the spouse or to the children - Use the tax options of anticipated succession! If necessary, combine this with the structuring of business succession.
A spousal partnership: The entrepreneur sets up an asset management company with his wife. The wife becomes the sole owner of the shares in the company and it is owned 95 percent by the wife, for example. The entrepreneur holds only 5 percent. He thus has voting rights as a shareholder. At the same time, he is appointed managing director. The partnership agreement can stipulate that unanimity is required for all decisions. This "veto right model" can be structured in such a way that as soon as a creditor seizes the 5 percent share, the personal veto rights of the managing director expire.
A family foundation: The family foundation secures assets permanently. It is a legally independent legal entity that is endowed by the founder with basic assets, and the income accrues to the family. The foundation's assets are protected from access by the founder's creditors. Since the foundation has its own legal personality and is a corporation without shareholders or members, there can also be no pass-through liability.
Decisive is the structure of your assets and possible risks
- Avoid tax risks through tax-optimized structuring
- Design your will (e.g., permanent executorship)
- Reduce personal risks through prenuptial agreements
- Restructure your assets so that they cannot be seized
- Transfer agreements with which you transfer your assets to your spouse or your children
- With the property swing you transfer parts of your assets without gift tax to your spouse
- Grant an unseizable housing right
- Transfer your assets to a domestic family foundation - this way you exclude foreign access to your assets and protect your assets from personal risks
- Restructure into corporate forms with a more favorable liability structure
- Transfer your assets to your descendants in time
- Protect your family home as an entrepreneur
- It is also possible to grant an unseizable housing right
These are some possibilities and it always requires an individual consultation for the best possible protection of your assets!
- Tax structuring to protect your assets - as an entrepreneur and privately
- Asset transfers - gifts in favor of family members
- Optimization under inheritance law
- Tax optimization of your business form
- Examination of your asset development and financial effects on it
- Examination of your individual asset circumstances and values
- Post-optimization of your contracts, statutes, agreements - as an entrepreneur and privately
- Notarial support and assistance
- Tax and legal advice on limited liability companies
- Foundation consulting - civil law and tax consulting for foundations of all kinds
- Due diligence for new asset investments