Protect your assets — with Rocco Beatrice Jr.

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Zack: Welcome to Tradestreaming Radio. I’m you host Zack Miller and this is the place where investors go to learn from experts. Thanks for joining us today, we’ve got a great program. Today we’re going to be talking about asset protection. Today’s guest is Rocco Beatrice. He is the founder of EstateStreet Partners and also the coauthor of a very good e-book called “Being Sued? The Insider’s Secrets of Asset Protection.” We’re going to be talking about strategies and legal structures that investors of all sizes can use to help protect their assets from lose. It’s going to be an interesting conversation.

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I’m Zack Miller your host and this is Tradestreaming Radio.

Go ahead.

Rocco: Hi, Zack. My name is Rocco Beatrice Jr. I’m the director for EstateStreet Partners. My father started the company about 31 years ago and we do asset protection and estate planning for a wide variety of people, from basic wealth all the way up to hundreds of millions of dollars.

My father actually started the company out of necessity. He was running another company that was doing commercial property abatements. The way the contracts read because the lawyer was negligent on one of our clients we stood to lose a couple of million dollars so he instantly went out and became an expert, in fact he spent probably about $150,000 traveling the country speaking with experts. He came across something that finally worked and the basic premise of it is you don’t want to own anything; you just want to be able to control everything pulling strings.

Zack: Do you feel that in general this topic is under discussed in sort of wealthy investing circles?

Rocco: Absolutely.

Zack: Why do you thing that is?

Rocco: The super wealthy have always been doing this. I mean, the Rockefellers, etc, they all have these types of trusts in place where they don’t actually own anything and the generations that come and go all can tap into the wealth, but they never actually hold anything.

Zack: So do you think what holds people back is that sort of letting go process, sort of the need to control their assets? They feel that somehow this acts as a buffer between them and their assets, that control issue?

Rocco: Absolutely, especially the wealthy. Wealthy individuals typically have an aspect of controlling things, they want to control everything. They’re leaders in their field, they’ve gotten to where they are because they directly control things and they are successful so they figure they don’t like the idea of giving that control over to anybody.

That’s why we actually had put in place some aspects of our trusts that you’re not going to find in any irrevocable trust. We put in place what you call a trust protector and that derived from an offshore asset protection trust, but it works very well. It’s oversight of the trustee who is independent. The reason why you want the independence, Zack, is want to create a fiduciarial relationship between the trustee, the grantor, and the beneficiaries; that’s what gives you the asset protection. The trustee’s role is to manage the assets for the benefit of the beneficiaries. He has to protect that money, it’s his fiduciary duty.

Zack: Wait, so is the protector a third party?

Rocco: It’s another party, typically that’s not directly related by blood or marriage, but it’s usually someone that understands the family dynamic and is typically someone the family knows.

Zack: So almost like an internal lobbyist for the benefit of the-I guess, why insert that third party? Are most trustees if they are close enough to the family, too close to the family to make objective decisions?

Rocco: Well, it has a lot to do with the fact that any time you have a lot of money and you’re the grantor putting up the money that’s going to be managed it’s always nice to know that if things don’t go right that you have a backup plan. This occurs a lot. We get phone calls from people that but in place a trustee and they’re not cooperating, for whatever reason, and there’s no way to get rid of them.

Let me give you an example. A lot of people put in place a bank as the trustee. Now just think about this logically; what are the incentives of the bank? They’re worried about maintaining the assets on their balance sheet and not making any mistakes, avoiding liability. So if you ask them to do something they’re going to tell you, “Well, we have to evaluate that internally, we’ll get back to you.” The decision could take a month, two months. It’s not in their best interest. So how do you get rid of them?

Zack: So what about other alternates, like offshore? So as a financial advisor I see a lot of times, say like the mass affluent come in, somebody with a million bucks, and they’ve got this really complicated offshore trust. Nobody can make sense of it and they’re paying all these lawyer fees, accounting fees. I’ve done some back of the envelope calculations. A lot of times whatever they’re saving they’re paying out to lawyers in general, there’s really no net there to them. The complication of it becomes a hassle, particularly as they age.

Rocco: Oh, absolutely. It’s even gotten worse just in the last two to five years because the Obama administration, with the Patriot Act, and the subsequent banking acts have really tried to push people away from going offshore. About five years ago we used to advise anyone with over a million dollars to go put something offshore and now we’ve actually pushed that back to about five million just because of the reporting requirements, etc. It’s very costly so it doesn’t make a lot of sense unless you’ve got extreme wealth to go offshore. In fact it’s difficult, offshore banks don’t even want to deal with US citizens anymore. They will refuse a new client.

Zack: That’s happening all over the world, right?

Rocco: Yes.

Zack: I mean, even Switzerland. Given the current regulatory atmosphere I feel like a lot of banks are pushing back. They’ll take extremely large accounts, but they don’t really want to be troubled by some of the midsized accounts.

Rocco: Absolutely, they don’t want to deal with the IRS or the US government. So we can do pretty much the same thing onshore as you can do offshore because you have that independent trustee. Now, the biggest key is if something ever happens where you find yourself in a fix, and most attorneys will tell you this, is that fraudulent conveyance.

Zack: Can you define that term?

Rocco: Sure. Let me just go back one second and explain fraudulent conveyance, but there’s a four year to five year statute of limitations on asset transfers, which basically means that if you transfer an asset within four or five years of the event occurring a judge can actually undo what you did or claw back the assets.

Zack: Because it looks like you’re maneuvering to prevent something?

Rocco: Well, not necessarily. Fraudulent conveyance, all it means is giving up an asset and not receiving equal market value in return. It’s what the IRS would consider a gift. A gift is a fraudulent conveyance. So if you have $100,000 and you give it to your brother and he doesn’t give you anything in return, that’s a fraudulent conveyance. If he gives you something of less than $100,000 value, that’s also a fraudulent conveyance. Now, if he gives you an automobile, let’s say a Porsche 911 Turbo, that’s worth $100,000, that’s not a fraudulent conveyance because you received $100,000 worth of an asset in exchange for the $100,000 in cash, right?

Zack: Got it.

Rocco: So that’s really the trick in dealing with high-profile cases like we do. How do you exchange the assets into the trust avoiding fraudulent conveyance, gift taxes, capital gains, and all those nasty things?

Zack: So that’s specifically within this one to five year window or that’s just in general?

Rocco: Well, there are two issues. If you’re just doing estate planning ahead of time, that’s the best way to do it and that’s the way I advocate everybody to do it. If you have assets over half a million dollars, you need to do something. If you have an event that you see on the horizon you have to take extremely delicate care of how you move assets because if you just do it quickly in deed or you just gift it into the trust, don’t waste your time, it’s going to get undone.

That’s what most attorneys are taught. If you go to an attorney with a real problem coming, even if it’s a year or two down the line, they’re going to tell you 90% of the time, “You can’t do anything.” Because they don’t understand how to get it done, they don’t teach this in law school, what we do.

So basically, what we do is we exchange the asset for another asset that’s not really of much value to a creditor. It’s held up in court so far in the last 31 years that we’ve been in business.

Zack: Can you give an example of that or is that too much of the secret sauce?

Rocco: Well, that’s a lot of the secret sauce; it’s somewhat proprietary.

Zack: Okay. But it’s something that’s close to value, but is of less value to the person who’s trying to get at the assets.

Rocco: Well, let’s say you have a house and you have half a million dollars of equity in the house, how do you get it to a third party? Number one, you can sell it. A third party can give you half a million dollars, you can sign over the deed, right?

Zack: Yep.

Rocco: Now, that third party can be another person or a trust. But that won’t work because now you’ve got $500,000 in cash so you’re actually worse off. So what else can you do? Well, the trust could potentially give you a promissory note, a mortgage, saying, “I promise to pay you in the future.” But a promissory note, that can be bought and sold. I don’t know if you have ever heard of J.T. Wentworth, or whatever it is, they buy and sell those all the time, so that’s a value to a creditor. So we don’t use those either.

What we use is a little bit more sophisticated that doesn’t allow a creditor to get the asset.

Zack: Okay. It’s a financial instrument?

Rocco: Yes and it’s a legitimate one, so much so that any particular trust can only issue three of these before they have to register as an insurance company. It’s based on mortality tables, etc, but that’s really all I can go into regarding the secret sauce.

Zack: So in your marketing efforts, which obviously include a lot of education because there are some misconceptions here and I think a lack of transparency in this whole sort of phase of the industry, are you also doing a lot of education and marketing towards other professionals? The same lawyers you say are not familiar with this or other wealth managers, things like that?

Rocco: There are quite a few people of that nature that come to our website to educate themselves. There’s about 200 or so articles, etc. on our website. About 50% of them are other professionals, even other attorneys. Then the other 50% are people who have problem, usually, or want to do estate planning, or Medicaid planning, so it’s about 50/50.

Zack: You used a number like $500,000 so that’s sort of smack dab in the middle of the mass affluent, is it your contention that basically everybody who’s in that wealth range should have some type of trust?

Rocco: Without a question. Our litigious society really forces that upon everyone, California being the perfect example. There are more lawsuits in California than any other state, per capita, it’s not because it’s the biggest state. There’s actually about 30 million lawsuits that happen every year and there’s plenty of attorneys that work on a contingency that are just willing to shake somebody down to see what they can get, whether it be a frivolous lawsuit or what have you.

So probably the biggest misconceptions about irrevocable trusts is that once you put your assets in nothing can ever be changed, you give it up, it’s gone forever. It doesn’t necessarily have to be true. The way we do things, we have checks and balances in place. You can almost think of it as your private bank, like the Rockefellers would do. You would potentially be a beneficiary of the trust. What that means specifically – people take that word for granted – it means that you get the benefit of the assets without owning the assets.

It’s kind of like leasing a car. When you go to Mercedes you say, “I don’t want to buy the car, I just want to drive it for 36 months because I’m going to want another car in 36 months.” So they say, “Here are the keys.” So you drive the car. You can drive it anytime you want. When the gas get’s low you have to fill it up. When it gets damaged you have to fix it, but you never own the car, you just get the benefits of the car.

So as the beneficiary you can get to use the assets without actually owning them. So it can be considered like your personal bank, if you’d like. You can take loans from there, if you’d like, or you can just leave the assets in there to be managed for your benefit. So the trust can purchase anything that you can purchase, whether it be a house, a car, an insurance policy, stocks and bonds. So it really doesn’t make any sense for somebody to be holding over a half a million dollars worth of assets in their name.

Zack: Got it. Rocco, talk to me about business legal entities. A lot of people think that you can get an LLC going or an S Corp. Do those work?

Rocco: Well, the inherent problem with those is who owns the shares. If you own, let’s say you set up an LLC and your trading stocks in your LLC, but you’re the single member. It’s no different than owning 100 shares of IBM so when you go in front of a judge and you have an issue, he says, “Give me the shares of your LLC, or IBM-because they’re really not that different-or sell the shares and give me the money to satisfy a creditor. Do you see how that works?

Zack: Mm-hmm.

Rocco: Now, how do you solve that problem? You solve that problem, Zack, by having the shares of the LLC, or IBM, owned by the trust. You don’t want to own anything. You want to just be able to use or have the benefits of that LLC. That doesn’t mean, necessarily, that you can’t make day-to-day decisions. You can still be an officer of that LLC, you can still enter into or be the signatory on a bank account, you can still be the signatory on a third party agreement. You’re still managing the company. You’re maximizing shareholder value. Now, the shareholder is not you anymore it’s now the trust of which you are a beneficiary.

Zack: I got it.

Rocco: But it’s a lot different. So you have to really understand the mindset of a contingency lawyer; I think that’s pretty important.

Zack: This is probably where most people, unless you’ve gone up against one you can’t even fathom this, right?

Rocco: Yeah. It’s very simple though. Contingency lawyers, someone comes to a contingency attorney and they say, “We have a great case. Zack has injured me in such a way that I desire a restitution of, let’s say, $100,000.” The attorney looks at the facts of the case, then he does a background check on Zack to see what he owns in his name, which is very easy to do, everything is online now. For $25, you can get background checks on anybody. Then he decides, “Well, what is the probability of me winning this case? What is the probability of me being able to collect? And how many hours is this going to take?”

So by putting assets into a trust, when he does a background check on you anything associated with your Social Security number, there’s not going to be anything there. You’re going to have $2,500 in your personal checking account and in the trust checking account, which you do not own, you maybe have $3 million, but that’s not going to show up in any research that this attorney does. So what is he going to do? He’s going to say, “I can take this case, I think you have a great shot of winning, but I can’t do it on contingency. I’m going to need $10,000 or $20,000 retainer and I can’t guarantee you I’m going to win. I think you have a great shot, but I can’t guarantee it.”

So that person who’s going to sue Zack, are they really going to be pursue it? Probably not because there’s no guarantee and they don’t really want to put down $20,000 to see if they’ll win so you just avoided a lawsuit, which you don’t even know you did because you didn’t know that were having this conversation with a lawyer. It’s a wonderful tool.

Zack: That’s interesting. So it’s so much a defensive tool, right? The assumption is that at some point in your business life or your life in general someone’s going to attack you and this is like the most defensive stance you could take.

Rocco: It is, but there are other benefits to it, Zack. The biggest being you avoid probate because if you die the way it will work is any asset inside you estate has to get probated so if there is no estate there’s nothing to probate. But in addition to that, especially for the wealthier people, they don’t necessarily want it to be a public display. This has happened with a lot stars, even Michael Jackson, where there’s a will that gets probated and everybody knows all the details of what went on.

But just recently you had Steve Jobs who did it correctly. Everyone knows him as being a meticulous individual, and he was meticulous with his estate planning as well. He put in, from everything that we can gather, pretty much all of his assets into a series of irrevocable trusts. You’re never going to know exactly the details of his estate plan or even his exact assets because of how he did it. You don’t have to be a billionaire to do it the way Steve did. I think anybody that has worked their whole life to create a nest egg should do something similar, and it doesn’t necessarily have to cost you an arm and a leg.

The other benefit is you avoid the estate tax. Most people will tell you, “Oh, there’s a $5 million exemption.” That’s true for this year and next, but are we going to really die in the next two years? Because if we really want to think about it we need think about 2013 and beyond. Beyond 2012 the exemption is only $1 million and anything above $1 million gets taxed at 55% federal and some states even have estate tax so it can be pretty painful. I mean, we’ve had perspective clients that didn’t do business with us and it came back to us and they had to do fire sales. Their children had to sell the business.

One in particular that comes to mind in a gentleman in Florida and his family. He came to us and he wanted to work with somebody local that wasn’t necessarily an expert in asset protection and estate planning. He was a general attorney and he gave them the wrong trust. It cost his family about $6 million. They had to sell the business, sell the properties just to pay the tax. It was a very painful experience for them. They called us back to ask us if we could help them, but it was too late, the gentleman had already died.

Zack: You mentioned children, I guess this multi-generational thing. Some people have kids who are bums or sort of troubled, how does your trust help them?

Rocco: Oh, absolutely. If you have that type of situation where you have minor children, or just children that haven’t fully, in your opinion fully matured, or you don’t think that they can handle that kind of wealth all at one time, we can actually create incentives. Let me give you an example that’s pretty popular, “Joe, if you go and get a job, we’ll match your salary.” So it incentivizes them to go and get a good job and get a good salary because we’ll match it. Or, “Joe, if you need to go to college, we’ll pay for the college. If you need a wedding, we’ll pay for the wedding, but you never actually get the assets until you’re about 40.”

But that doesn’t mean that you’re not the beneficiary of the assets. So you can put the clauses in there so that the trustee can make a decision on whether or not a particular item is necessary. So let’s say Joey wants to go into business and upon presenting a business plan to the trustee – and this is post death of course – that the trust can be a private partner, he can invest in Joey. So it doesn’t have to be so rigid. The trustee is really what comes in play, in picking the right trustee because you can control your wealth from your grave, if you like.

Zack: It’s such a funny image.

Rocco: Typically our trust last 21 years beyond the youngest heir so it can last 100 years.

Zack: There’s some type of expiration or you’re just saying typically that’s how they’re set up?

Rocco: Well, it’s 21 years beyond the death of the youngest or the living issue. So that basically means it can last multiple generations. The great thing is, is that if you worked so hard to create this wealth, if your son or daughter gets married, they never have to worry about a prenup because the assets remain in the trust, those are not part of the marital estate so you don’t have to worry about your estranged son or daughter in law getting your hard work.

Zack: What are some of the downsides of an irrevocable trust? We talked about some of the ways that it can be used both from a defensive as well as just, like, an estate planning way. What are some of the downsides that you can’t get around?

Rocco: Well, the downsides are that you really have to divorce yourself from your money and be comfortable with that. Even though you’re the beneficiary you no longer own them and some people have real trouble with that. The other downside is probably you have to do an extra tax return every year. But, I mean, that’s such a small challenge that it doesn’t really hinder the process.

I think the biggest problem is people just don’t know what these things can do or cannot do. They can do anything you want, basically, when properly drafted.

Zack: Well I guess that’s another one of the downsides, is being able to determine the service provider that hire, whether he’s capable of creating an effective trust or not.

Rocco: Absolutely, I think there are some really critical questions that you can ask somebody. Then you can know really quickly whether or not they provide something that’s of high quality. Because the reality is that you don’t know and they’re not going to give an example to you because it’s intellectual property.

Zack: What are some of those questions that you could ask?

Rocco: Sure. Some of the questions are just, number one: How long is your irrevocable trust? How many pages? Literally, because most of them out there that I’ve seen are between 10 to 15 pages and something that short isn’t long enough to take into consideration all of the things that it needs to. Ours are typically around 40 to 45 pages and they’re developed for our client’s specific needs. We do use a template; most attorneys do. That’s why you can find some that are extremely cheap. You might be able to find one for $5,000 or $6,000.

But that’s one question. The other question is, “How many of these things do you do? Is this something you focus totally on or is this something that is just one aspect of your business?” Then the other question is . . .

Zack: There’s quality in specialization is what you’re saying?

Rocco: Absolutely. I mean, you don’t do to a heart surgeon if you have a brain tumor.

The other question you can ask is, “Have you ever been challenged?” Most people haven’t. So if they haven’t, how do you know what they’re going to do or you really works? You don’t.

Zack: Great point, yeah.

Rocco: The other question you have to ask is: What type of trust they’re trying to sell you. Because if they’re trying to sell you and A/B trust or a QPRT just walk the other way; they don’t know what they’re talking about. The read it in some book somewhere and they’re going to try to implement it. There are much better ways of doing is. Or if they’re trying to say all you need is an ILIT, an irrevocable life insurance trust. That can only hold life insurance, which is great for life insurance, but it avoids the bigger issue.

A lot of people what they do, or advisors explain to their clients, “Buy life insurance, put it in a ILIT, a irrevocable life insurance trust, and that will help you pay your estate taxes.” Again, that’s one way to handle it, but that’s not the best way. The best way is to put your assets into the trust all together so you avoid the estate tax.

Then there’s the A/B trust, which is above ground/below ground. So basically it’s for spouses. When one of the spouses dies it requires the living spouse to go back to the attorney that set it up and redo everything. It doesn’t make any sense and attorneys like those because they create another fee sometime in the future. You can do it all in one shot, you don’t need to go back and forth. That’s a little bit about the things you should worry about.

The QPRT, that has to do with a parent giving their home to their children. There are huge restrictions within that don’t really help most people and it’s so rigid that it just doesn’t make any sense. If somebody says, “All you need to do is do a QPRT,” just walk the other way. They don’t really fully understand how to do asset protection or estate planning.

Zack: That’s great advice. One question I have, obviously when you’re looking at a financial advisor you have to understand the incentives in the system, so if the guy’s registered as a Series 7 he’s a broker and his revenue structure is based off of selling you things and there’s that incentive that he may over transact with you. Do lawyers receive kickbacks from some of the trusts that they set up, either from a provider or some of the countries that may act as tax havens?

Rocco: If there’s an attorney that you go to and they refer you to somebody else, another attorney, they’re most likely getting a kickback. It’s hard to say because it all has to do with each specific relationship, but in all likelihood . . .

Zack: A fee sharing agreement?

Rocco: Yeah, typically it’s about a third.

Zack: Okay. That’s important to know, it doesn’t mean there’s necessarily anything wrong with that type of relationship is just interesting to know that that person’s going to get money from that referral.

Rocco: It’s interesting, but the reality is every attorney isn’t an expert in every aspect of law. They may be doing someone a favor by passing them along to somebody that’s an expert in that niche.

Zack: So one question I ask everybody on the program, we sort of end with this question, is where do you go for more information? Can you give your website so that people can go to your website? Are there also other resources beyond that where people can also get educated that you find useful in your own practice?

Rocco: Well, there’s a lot of misinformation out there. Our website is ultratrust.com and we have about 200 to 300 articles and videos covering all aspects of asset protection, estate planning, pension planning, and retirement planning. That’s a great place to start. Then, of course, we have our book that we published in 2011 that really walks people through in black and white – within one sitting you can read the book – why we do what we do and how we do it.

Zack: And that’s available in e-book and paperback, you mentioned?

Rocco: That’s right. It’s available on Amazon as well as our website.

Zack: What’s that book called?

Rocco: It’s called “The Insider’s Secrets of Asset Protection.”

Zack: Okay. So I guess, if you say that there’s a lot of information out there that’s misinformation or disinformation, how does somebody know what to trust?

Rocco: That’s the big challenge.

Zack: That’s the billion dollar question.

Rocco: It is. If somebody’s trying to sell you something that is too cheap, you get what you pay for. So the average for a trust of this quality will run you between $11,000 and $20,000.

Zack: Okay, that was going to be my next question.

Rocco: Some of the bigger firms will charge you $30,000.

Zack: And what about the carrying costs every year in terms of just keeping that up?

Rocco: Well, that’s the great part, once this is set up there’s almost nothing. You just have to file an extra tax return. Let me just touch on that part a little bit. This structure should be tax neutral. It’s a pass through entity. It’s intentionally defective for tax purposes. So the IRS came out with a ruling that says, “This particular type of trust, as long as the grantor or the trust itself pays the taxes, they’re happy, they’re satisfied.”

Zack: That’s a great point. Rocco, thanks for joining us on the show. This was very informative to me.

Rocco: No problem, Zack. Thank you very much for letting me share my story.

Zack: All the best.

Rocco: Bye-bye.