Debt: April 2011 Archives

April 21, 2011

Does a Living Trust protect against creditors?

safe.jpgDear Liza: My wife is in the middle of her medical residency.  With the risk of future lawsuits, do Living Trusts or other vehicles help protect family assets from Malpractice or other law suits? Nope. Sorry. A revocable living trust does not protect assets from creditors. A revocable trust's purpose is to provide tax planning at the death of the first spouse, and probate avoidance at the death of the second. Both are worthy goals and I do not in any way feel that I spend my working life selling snake oil. But during your lifetimes, those assets are fully reachable by creditors. Asset protection trusts are different beasts entirely. There's a large industry of lawyers out there, figuring out clever ways to protect doctors from law suits, but they are not estate planners, as a rule.
April 13, 2011

Your Husband's Debts--the Gift that Keeps on Giving

blankcheck.jpgDear Liza: My brother died recently. He owned community property with his Wife. Is she now responsible for his debts? Most likely, yes. In community property states, debts incurred during the marriage are the responsibility of the community. So, after the death of a spouse, the surviving spouse is liable for those debts. I can't tell from the question whether or not your brother lived in a community property state, or in a state with common law rules, and signed an agreement making their property community. If so, it depends on what that Agreement actually says--sometimes Agreements specifically keep debt separate.

The community property states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. (In Alaska, spouses can sign an agreement making their assets community property, but few people choose to do this.) The common law states are everywhere else. Nolo has a great article on this: "Debt and Marriage." Here's a helpful excerpt :

In states that follow "common law" property rules, debts incurred by one spouse are usually that spouse's debts alone, unless the debt was for a family necessity, such as food or shelter for the family or tuition for the kids. (These are general rules; some states have subtle variations in how they treat joint and separate debts.)