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Monday, September 30, 2019

Old and Cold Offshore Asset Protection Trust Assets Not Reachable by U.S. Creditors

In re Rensin involved an “old and cold” offshore asset protection trust arrangement which a trustee in bankruptcy sought to pierce. The case provided some interesting facts and conclusions that should be of interest for those contemplating offshore APTs.

The trust was established and funded well before the beneficiary had issues with the Federal Trade Commission, a holder of a judgment of over $13.4 million arising in 2018. The debtor could withdraw assets from the trust, but the trustee could veto those distributions. The debtor could not remove the trustee and could only fill vacancies if the protector did not fill them. The trust was initially established in the Cook Islands and was later moved to Belize.

In 2015, the debtor transferred $350,000 to the trustee. The trustee purchased a deferred variable annuity, of which the debtor would be the lifetime annuitant and the trust would be the owner. Also in 2015, the trustee purchased a fixed annuity with similar payment and ownership using $1.7 million of trust assets.

In trying to gain control over the annuity payments and the trust interests in the annuities, the court ruled on various issues:

  1. The debtor argued that the bankruptcy estate was barred by the spendthrift clause of the trust from treating the trust assets as subject to bankruptcy administration, per the respect for such clause given under Belize law. The Florida court rejected the application of Belize law, under the principal that choice of law under a contract is binding in Florida unless it offends Florida public policy. Since Florida courts will not enforce a spendthrift clause in favor of a settlor in a self-settled trust, the Belize law violates Florida public policy and thus Florida law instead applies and the assets of the trust are subject to bankruptcy estate administration.
  2. Under Fla.Stats. § 736.0505(1)(b), in a discretionary trust, creditors can reach the maximum amount that can be distributed to the settlor. Thus, the entire amount of the trust is reachable by the bankruptcy trustee.
  3. Notwithstanding the above inclusion in the bankruptcy estate, the annuity protections of Fla.Stats. §222.14 may apply.
  4. A Florida debtor can use the annuity exception as annuitant, even though the owner of the contract is not a Florida person. There is mixed law on this question, but the majority view is this.
  5. The purchase of the annuities paid by the trustee of the trust with trust assets was not a fraudulent asset conversion that would void the annuity exception. Fla.Stats. §222.30(2), which voids a fraudultent asset conversion, applies to conversion to an exempt asset by the debtor. The debtor here was not the trust and did not purchase the annuity, so Fla.Stats. §222.30(2) did not apply. The same result would apply, even if the debtor had requested the trustee to make such purchases – so long as the debtor did not have the power to comple the trustee to do so.
  6. Similarly, the transfer of the $350,000 into the trust by the settlor was not a fraudulent conversion, since Fla.Stats. §222.3)(2) requires the debtor have made a transfer that results in the transferred assets becoming “exempt by law from the claims of a creditor. Since there was no provision in Florida law that exempts the trust assets from claims of the debtor’s creditor, that transfer alone did not result in the assets becoming so exempt by law. Thus, Fla.Stats. §222.30(2) did not apply. Thus, from a planning perspective, if a settlor directly acquires exempt assets, then the fraudulent transfer statute can apply – but it won’t (at least under the facts and analysis of this case) when the assets are transferred first to an APT, and the APT then purchases an exempt annuity interest for the settlor.
  7. Therefore, while the trust assets are subject to bankruptcy administration, the debtor’s annuity interest was an exempt annuity interest. The bankruptcy trustee nonetheless argued that it can obtain ownership of the trust’s annuity ownership rights, including the power to withdraw from and/or surrender the annuities and the remainder rights. However, the court declined to provide that relief since the trustee of the trust was not joined as an indispensable party.
  8. The Court indicated it could not use the precedent of In re Lawrence to order the beneficiary to have the property be delivered from a discretionary trust without joinder of the trustee. In that case, a key fact was that the settlor/debtor had the power to replace the trustee, so that it effectively had the power to replace the trustee until one complies with the wishes of the beneficiary to distribute the subject assets. Here, the debtor did not have such a power. This suggests that the power to replace the trustee may not be advisable in APTs, even though it is commonly used for protective purposes.
  9. Even if the trustee had been a party to the litigation, it is questionable whether Belize would order the trustee to comply with a U.S. bankruptcy court order. Failing that, perhaps the bankruptcy court could proceed to enforce the court’s order against the insurance companies that issued the annuities in their home jurisdictions, if allowable under the law of such jurisdictions.

The case is a Bankruptcy Court decision, so its precedential authority is limited.

In Re Rensin, 600 B.R. 870 (S.D. Florida 2019)

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