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Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

Michigan Law Firm - Warner Norcross + Judd LLP

For many families, the allure of a foreign asset protection trust (FAPT) is the promise of distance: laws far away, courts hard to reach and creditors deterred. But for U.S.-based, legacy-focused families, domestic asset protection trusts (DAPTs) are usually stronger, simpler and safer.

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What are these trusts? A DAPT is a self-settled, irrevocable trust authorized by certain U.S. states that allows the person creating the trust to be a discretionary beneficiary while shielding assets from most future creditor’s claims (for example, claims relating to malpractice, car accidents, divorce or otherwise) after a statutory “seasoning period." A FAPT is the offshore version: similar in concept but governed by a foreign jurisdiction and administered by a foreign trustee. For high-net-worth families with U.S.-situs assets, a DAPT is typically the better fit: it avoids foreign-trust reporting headaches, reduces court-imposed repatriation and contempt risks, is easier for U.S. banks and custodians to service, and integrates cleanly with estate, tax and governance planning at lower cost.

This is especially true because in practice, we’re seeing offshore plans often crack under pressure. U.S. judges have forced assets back onshore or punished noncompliance in cases tied to fraudulent transfers, divorces and IRS actions. By comparison, DAPTs tend to have a cleaner track record in court. On paper, foreign trusts look tough; in U.S. courtrooms, DAPTs often hold up better.

Compliance is another big divider between FAPTs and DAPTs. FAPTs come with heavy reporting, foreign-trust rules and audit headaches, not to mention political risk and reputational baggage. DAPTs run under U.S. law with U.S. trustees, which keeps costs down and aligns with U.S. institutional standards.

Location matters, too. If your assets are in the U.S., a foreign wrapper rarely adds real protection. A well-built DAPT can shield U.S. assets without daring a court to order repatriation or other punishments.

Many states, including Michigan, now offer DAPT statutes inspired by proven offshore features but built into U.S. law. That means predictable rules, professional trustees, and easy coordination with dynasty trusts, Spousal Lifetime Access Trusts (SLATs), operating companies and philanthropy. When set up early and cleanly, a DAPT can fit right into broader wealth and governance plans.

DAPTs provide opportunities to protect assets that have been inherited outside of trusts, as an alternative or addition to the more traditional prenuptial agreement, and for individuals with high levels of professional risk, including physicians, attorneys, investment advisors and officers/directors of large businesses.

Strict compliance with several statutory requirements under state DAPT laws is critical, and the creator of the trust is limited as to access and control over the assets transferred to the irrevocable trust.&nbsp; Because of the special rules and requirements, DAPTs may not be a good fit for some assets and under some circumstances.&nbsp; Also, the degree of creditor protection afforded to a DAPT may vary by jurisdiction.&nbsp;

Bottom line: DAPTs can provide durable protection without the legal brinkmanship or compliance drag of going offshore. To explore how a DAPT might be appropriate to support your family’s legacy and goals, please contact Laura Jeltema, Molly Nicol or a member of the Warner’s Private Client and Family Office Industry Group.

Legacy Matters

Private Client and Family Office

Partner

Laura A. Jeltema

Associate

Molly W. Nicol

The Case for Keeping Asset Protection Trusts Onshore

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The Case for Keeping Asset Protection Trusts Onshore

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