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Can Your Assets Survive a Lawsuit?

Agony of DefeatThe way you hold title to your property is often the determining factor to whether you will lose everything in a lawsuit. You can be sued more and more today because of your “legal status,” not because of your “actions.” The trend is away from finding fault. This is due to the  significant expansion of both “vicarious liability” which allows you to be sued for something someone else did, and “strict liability” which means you are automatically liable by statute and there is no defense.

Here are some distressing examples:

In environmental law, you do not have to be the person who made the mess. If you were ever in the chain of title, you can be sued after discovery of the environmental situation. For example, lead paint damage is a “strict liability” offense. And you will almost certainly find that your insurance excludes coverage for lead poisoning. This can destroy retired people.

If you have put all of your assets into a trust and one of the assets in the trust is sued (example: lead paint liability) then you could lose everything in the entire trust. (Remember, the purpose of a trust is to avoid probate. A trust cannot shield your assets from legal attack.)

If you are an employer you can be sued for the actions of your employees committed while acting within the scope of employment. “Negligent hiring” is the latest hot winning theory to confer liability onto an employer for actions taken by an employee outside the scope of employment. This occurs when an employee commits a wrong or violence against someone following an employer’s failure to research the background and character of the employee before hiring the person.

On June 26, 1985, the Supreme Court said that you could lose an asset due to joint ownership. As an example, if Mom and Dad put their home into a joint tenancy with their kids to avoid probate (often referred to as a “poor man’s will”), and any of the joint owners (the kids) is involved in a divorce, loses a lawsuit, or gets in trouble with the IRS – Mom and Dad could find themselves homeless.  More…