Alienation of Assets
In commercial terms, the world revolves around insolvency. Insolvency is the process whereby one’s entire patrimony (i.e. the totality of one’s assets) is liquidated in order to satisfy his total debts that have grown beyond his means. Insolvency procedures are problematic in that they mean liquidation of personal assets such as one’s home and one’s car. Unfortunately there are few ways to avoid insolvency, which most normally occurs through poor judgement or ‘bad luck’. Fortunately, there are numerous ways in which the potential implications of insolvency procedures can be minimised to prevent loss of assets. For the lay-man, this can involve certain minor legal procedures which could ultimately save a fortune. For creditors, this can be particularly bad news. In this article we will look at entirely legal ways in which you can potentially avoid losing assets in insolvency procedures.
If you are running a small business, or likely to do so in the next decade, you must act on the following immediately to protect your assets. Alternatively, if you foresee yourself amassing significant unsecured debt in the coming years, you should also act similarly. Allowing a ten year margin, which might seem a lot, will prevent any challenges on sequestration and ensure that the assets you have ‘alienated’ no longer form part of your estate. The alienation ensures that the assets from which you will still benefit cannot be received by your creditors in consideration for any debts you accrue.
The first thing to consider is incorporating a limited liability company, or indeed several, within which to house your business operations. Conducting your business through a company may mean more paperwork, but it also removes you personally from any liability. Of course, your company can still be liquidated, but we will look at ways to avoid losing your business assets shortly. If you choose not to run through a corporate body, there are still ways in which you can minimise the potential for losing your assets.
The biggest and most valuable asset most of us will own is our home. It shouldn’t come as any surprise that this is the number one target for many creditors. If you are married or living with a partner, there is no way you should ever lose your house in insolvency proceedings. Provided you allow sufficient time (i.e. 10 years), you can transfer ownership to your partner, thus the asset no longer belongs to you. You can then by agreement negotiate with your partner to continue living in the house, which for most will be a mere formality. At the end of the day, you no longer legally own the house, but functionally nothing has changed. Alternatively, you could assign your property by creating a trust in which you and your partner are the beneficiaries. All you need is to involve a third party (potentially even your partner) as trustee, before you will have alienated the asset. Again, functionally, you still live in the house, and it is still your home. The only difference is creditors can’t touch it should the worst happen.
If you choose to run a through a limited company, your first step should be to establish at least one other company, which will act as a holding company. The holding company should then be made owner of all business assets, before effectively leasing back to the other company. The effect of this is theoretical. You own both companies, you own the assets, but should creditors attempt to attack your primary trading company, there will be no chance of losing your business assets. The leasing agreement between the two companies will also be theoretical, and will only require minor accounting procedures to grant legal validity. Provided you ensure your holding company avoids debt, there should be no problem in alienating your entire business patrimony.
There are a number of ways in which you can avoid potentially losing your assets in insolvency. Why not consult a specialist legal adviser for further information specific to your jurisdiction to help ensure total protection of your entire means.