Protection of assets – From who and what
In a broad sense, each of us must protect our assets, but when we talk about protection, the first thing we must do is understand what we want to protect ourselves from.
Protecting your assets means to protect your money from all the potential risks that you run directly or indirectly.
Protecting an entrepreneur’s assets is clearly different from having to protect a person’s assets from a family crisis or a generational shift.
Every family, business or personal situation has particular implications that make it unique, and therefore also the analysis of the risks to which the assets are subjected is different.
It goes without saying that the solutions and therefore the “weapons” to be used will be different.
Very often our lives are articulated, an entrepreneur or freelancer is at the same time a father, a husband sometimes with more than one family (official or not).
Often the assets to be protected are precisely the company, which must be guaranteed continuity and integrity of management
It is therefore clear that protecting assets implies the adoption of solutions articulated on several instruments that will allow the protection, management and transfer of assets, satisfying the specific needs of each individual case.
Only careful analysis of the threat will make it clear which weapons to choose from your arsenal to neutralize it.
So let’s take a brief overview of the main asset protection tools we have available.
These lines I want to be a starting point to let you know the main tools at our disposal without pretending to be exhaustive.
Once you have identified the tools that most can be useful in your case, these should be studied, studied and designed with the direction of one or more trained consultants.
Protecting assets – The mandate trust
Before bothering you to death with the definition of trust mandate I am interested in explaining what it is for, so that you can immediately understand if it is a useful weapon to protect the assets … yours.
The main function of the fiduciary mandate is to allow you not to appear as a third party owner of the portion of the assets subject to the mandate.
Beware that not appearing does not mean not being a holder of that part, with the pros and cons that this means.
Some client once proposed this solution asked me “is this stuff legal?”
We are sure that it is legal, so we can see what it is and how it works.
Attention, I reiterate an express concept before perhaps the definition does not appear clearly.
The ownership of the conferred goods remains in any case with the principal who must provide the fiduciary with all the information and instructions in writing required for the administration and management of the assets .
In practice, it means that the goods conferred are not segregated from the patrimony of the client with all that which is positive and negative involves this aspect.
It remains understood and specified the possibility, for the lender, to change or revoke at any time the powers conferred on the fiduciary on part or all the assets.
The fiduciary mandate is usually used by those who want a certain confidentiality regarding, for example, the ownership of certain goods or commercial activities, but at the same time want the security of a direct and professional administration of its assets.
Protecting assets – The balance sheet
In this case too, before bothering you with the definitions, I want to transfer the most important concept, that is how the assets can contribute to protecting the assets.
The patrimonial fund is a particular legal instrument through which some assets can be destined in an official and defined way to meet the needs of the family.
The equity fund therefore defines the perimeter of assets whose assets are destined for a specific purpose, the satisfaction of family needs
They can be inserted into the asset fund:
- Real estate
- Mobile assets registered
- Credit Securities
Attention: conferring assets in an estate fund means affixing a destination link to the needs of the family on the assets themselves, without the need for a transfer of ownership.
The assets conferred may be owned by both spouses, or remain in the name of only one of them.
The establishment of the patrimonial fund can take place:
- by the spouses
- by a third party
In the latter case, the establishment of the patrimonial fund is perfected only through the acceptance of both spouses.
The equity fund must be established through a public deed drawn up by a notary in the presence of two witnesses.
The existence of the same will be highlighted in the margin of the marriage act and transcribed in the real estate registers of the properties involved.
In order to sell or manage the assets transferred to the fund it is necessary to:
- The consent of both spouses if there are no minor children
- The authorization of the judge and the consent of both spouses if minor children are present
The asset fund is an excellent tool to protect assets from creditors.
The same can attack the assets conferred in the fund if, and only if, the debt derives from the satisfaction of the needs of the family.
This means that a person who has a claim deriving from the professional activity of one or both spouses has no way of attacking the assets that make up the fund.
It should be noted that the termination of the equity fund occurs for the cancellation, dissolution or termination of the civil effects of the marriage.
Attention, however, that if there are minor children, even in the cases mentioned above, the patrimonial fund remains in force until the eighteenth year of the youngest child is completed.
Protecting assets – The destination act
In this case, before going into how the destination act can protect the assets, it is necessary to start from the civil code and the definition of the instrument.
” Article 2645-ter of the Civil Code provides for the unavailability to third parties of the destination restriction concerning real estate or mobile assets registered in public registers destined, for a set period, to the realization of interests worthy of protection related to people with disabilities, to public administrations, or to other bodies or natural persons pursuant to article 1322 of the Civil Code, second paragraph “.
Did you understand anything?
Quiet now let’s unravel.
Article. 2645 of the CC establishes that some goods may be destined to particular functions or purposes as long as they are deserving and therefore not attacked by third parties.
The bond can not last more than ninety years or the life of the beneficiary.
It must be constituted by a public deed and must be transcribed for the purpose of being opposable to third parties.
The assets on which the destination restriction is established are in fact separated from the remaining assets of the destination author.
In doing so only qualified creditors can attack the intended assets when the claim arose in relation to the purpose of the intended deed.
The focus is on defining which are these worthy purposes on which the validity of the act of destination itself is based.
According to some legal interpretations ” the purpose of the act must be an interest of public utility or of ethical-solidarity” (Court of Vicenza, March 31, 2011).
The most common and accredited interpretations indicate that the merit of the goals depends simply on the lawfulness of the act.
That is ” must not be contrary to mandatory rules, public order and morality “, as is commonly interpreted in Article 1322 of the Civil Code on the subject of negotiating autonomy for the legal recognition of atypical contracts.
A further indication comes from the Court of Appeal Trieste, (December 19, 2013) and the Court of Reggio Emilia (May 12, 2014), which indicate that ” the judgment of merit should not only be related to lawfulness, but the condition must be further verified. that the interest pursued is pre-eminent with respect to that of creditors and claimants, who may be injured by the act ” .
That is, it is necessary that the purpose for which the act of destination is constituted, in addition to being real, must also necessarily be a more important interest than the satisfaction of any creditors.
Protecting assets – Reflections
With this short article we have seen how to know these tools can help you protect your assets from aggression, but as doctors often say “every case is a case”.
That is, each situation must be analyzed and studied in its peculiarities in order to establish which solution, or better still, which combinations of solutions are best suited to the situation.
The requirements, methods and costs of the individual solutions must necessarily be investigated.
There are other tools that make it possible to protect assets efficiently:
- Life insurance policies.