Asset Protection Planning Attorney in New York

Asset protection planning means arranging what you own ahead of time, and in the open, so that more of it stays with you and your family if something goes wrong. That could be a lawsuit, a failed business, a nursing-home stay or a long illness. Schwartsman Law Group helps New York families and business owners plan with ordinary tools. These include irrevocable trusts, business entities that are run properly, careful titling, and attention to how different assets are treated. We do not sell offshore schemes or secrecy. If a transfer is too late to help, we will tell you so.

To talk through your situation, call (212) 518-3868 or request a free consultation. We are licensed in New York and work with clients in Manhattan, Brooklyn, Queens, the Bronx, Staten Island and Long Island.

Timing Decides Everything: New York's Fraudulent-Transfer Rules

The key point about asset protection is that it has to happen before there is a problem. New York's Debtor and Creditor Law, as amended effective April 4, 2020, lets a creditor undo certain transfers. Two kinds of claims matter most:

• Actual intent (DCL 273). A court can set aside a transfer made with actual intent to hinder, delay or defraud a creditor. The statute lists “badges” of that intent, which are circumstances courts weigh when deciding what the person who made the transfer was really trying to do.
• Constructive fraud (DCL 273 and 274). A creditor can also challenge some transfers without proving bad intent. These claims depend on the circumstances of the transfer and your financial condition at the time.

A creditor generally has to prove these claims by a preponderance of the evidence. Under DCL 278, the general deadline is four years after the transfer. For actual-intent claims, the creditor may instead have one year from discovery if that ends later. Certain insider transfers covered by DCL 274(b) have a shorter one-year period.

In practice, putting your house into a trust the week after a car accident, or the month after a business partner sues you, invites a challenge. The same transfer made years earlier, while you are solvent and see no claim coming, stands on much firmer ground. So we ask the uncomfortable questions up front: pending claims, personal guarantees you signed, tax issues and business debts. That way we build a plan we can stand behind.

What We Will Not Do

Some asset protection marketing promises more than the law gives. We keep our advice to what we can support:

• No offshore trusts or plans to hide money. Moving assets out of reach to defeat a known creditor is exactly the kind of transfer the rules above are designed to reverse.
• No promise that a self-settled trust protects a New York resident. A “domestic asset protection trust” is a trust you create for your own benefit in a state that advertises creditor protection for that structure. For clients who live in New York, we do not build plans that depend on such a trust holding up against a New York creditor, and we do not present it as a dependable shield.
• No transfers to beat a claim that already exists. If a lawsuit, judgment or collection effort is already underway, we will go over the options that remain. We will not dress up a transfer that a court is likely to undo.

The Tools New York Families Actually Use

Irrevocable Trusts

With an irrevocable trust, you transfer assets to a trustee under terms you generally cannot take back later. Once the transfer is complete and properly timed, the assets may be out of reach of some future creditors. For Medicaid purposes, they are reviewed as transfers under the institutional 60-month look-back once you apply for nursing-home Medicaid.

Two New York rules decide whether the trust actually works:

• Formalities (EPTL 7-1.17). A lifetime trust must be in writing. It must be signed and acknowledged by the creator and at least one trustee (unless the creator is the only trustee), or signed in front of two witnesses. Amendments follow the same rules.
• Funding (EPTL 7-1.18). A trust is valid only to the extent assets are actually transferred into it. Listing an asset in the document does not transfer it. If the deed, account or ownership interest is never retitled, the trust does not hold it.

We often see trusts that were signed but never fully funded. A trust agreement with nothing in it protects nothing. For more on the types of irrevocable trusts and how they are administered, see our guide to irrevocable trusts in New York.

Business Entities

If you own a business or rental property, a basic step is to hold it in a limited liability company or corporation. That means having a written operating agreement or bylaws and keeping the company's money and records separate from your own. When a company is not run as a separate entity, with shared bank accounts or missing records, a creditor has more to argue about. We coordinate the entity with your estate plan so that ownership interests pass the way you intend, and so that a trust can hold them where that makes sense.

Titling, Beneficiary Designations and Insurance

Much of asset protection is routine work: how accounts are titled, who is named as beneficiary, and whether your liability and umbrella insurance is adequate. Insurance is often the first protection against a lawsuit, and a trust does not replace it.

Planning for Incapacity

A plan that shields assets from creditors but names no one to manage them if you become ill can push your family into court. When a court considers a guardianship under the Mental Hygiene Law, it must consider the person's “available resources,” and those expressly include powers of attorney, health care proxies and trusts (MHL 81.03(e)). Having these documents in place can help a family avoid a guardianship case. New York's statutory power of attorney rules, under GOL 5-1501B as effective October 25, 2023, have these requirements:

• The document is signed, dated and acknowledged before a notary.
• Two witnesses sign, and the notary may be one of them.
• Each agent also signs and acknowledges the document.

Medicaid Planning Is Different From Creditor Protection

Families often use “asset protection” to mean protecting savings and a home from the cost of long-term care. That is a separate problem with its own rules, and confusing the two leads to mistakes.

Question	Creditor protection	Medicaid long-term care planning
What are you protecting against?	A future plaintiff, lender or other creditor	Medicaid's resource and transfer rules
What controls timing?	Fraudulent-transfer rules (DCL 273, 274, 278): generally four years, with discovery and insider variations	For nursing-home (institutional) Medicaid, a 60-month look-back on transfers
Typical tools	Insurance, business entities, irrevocable trusts, careful titling	Medicaid asset protection trusts, spousal planning, exception trusts for people with disabilities
Main risk	A court setting aside a transfer made after a claim arose	A transfer within the 60-month look-back can affect eligibility timing.

The Look-Back: What Applies Today

For nursing-home Medicaid, New York reviews transfers made in the 60 months before the application (Social Services Law 366(5)(e), consistent with federal law at 42 U.S.C. 1396p(c)). New York has proposed a 30-month look-back for community-based (home care) Medicaid, but it has not been implemented and is not in effect. We plan around the rules that actually apply today and watch for changes.

The Medicaid Asset Protection Trust

A Medicaid asset protection trust is an irrevocable trust designed so that transfers into the trust are reviewed under the institutional 60-month look-back. Details are in our MAPT guide. Set up early, while you are healthy, it can preserve a home or savings for your children. Set up late, it may not help with a nursing-home stay that is about to begin. Our guide to Medicaid asset protection trusts in New York explains how these trusts are set up and what you give up in exchange.

Protections for a Spouse at Home

When one spouse needs nursing-home care, New York lets the spouse who stays at home keep part of the couple's resources and a minimum monthly income. For 2026, the community spouse resource allowance ranges from a minimum of $74,820 to a maximum of $162,660. The minimum monthly maintenance needs allowance is $4,066.50 (NYS Department of Health, GIS 26 MA/03). These figures are adjusted periodically.

Trusts for a Family Member With a Disability

New York law recognizes certain exception trusts for people with disabilities (Social Services Law 366(2)(b)(2)(iii)). One is a first-party trust for a person under 65 that repays Medicaid when the beneficiary dies. Another is a pooled trust managed by a nonprofit association. These trusts can protect benefit eligibility while improving quality of life, but only if they are drafted and administered correctly.

Gifts, Taxes and Asset Protection

Moving assets out of your name has tax consequences that belong in the same conversation:

• Federal gift and estate tax. For 2026, the federal basic exclusion amount is $15,000,000, and the annual gift exclusion is $19,000 per recipient.
• New York estate tax. For deaths in 2026, the New York basic exclusion amount is $7,350,000. The New York exclusion phases out quickly above that amount. An estate between 100% and 105% of the exclusion loses part of the benefit, and an estate above 105% gets no credit at all (Tax Law 952). Under Tax Law 954(a)(3), certain gifts made within three years before death are added back to the New York estate. That rule is currently scheduled to end for deaths on or after January 1, 2032.

A transfer that makes sense for Medicaid or creditor reasons may have gift tax consequences to review and can change how an estate is taxed. We look at all of these effects together rather than one goal at a time.

How We Work With You

• A frank first meeting. We review your assets, debts, business interests, insurance, family situation, and any existing or threatened claims. Honest answers now protect you later.
• A written plan. We explain which tools fit, how much control and flexibility each one costs you, and what timing applies.
• Proper signing and funding. We prepare your trust documents and supervise the signing with the formalities New York requires. We also help retitle deeds, accounts and business interests so the trust actually holds them.
• Periodic review. Laws, dollar figures and family circumstances change, and we update plans as needed.

Who Asset Protection Planning Is For

• Physicians, contractors, landlords, and other professionals or business owners exposed to lawsuits
• Owners of rental property or a closely held business
• Adults in their 60s and 70s who want to protect a home and savings from future long-term care costs
• Parents of a child with a disability
• Couples who want to protect the spouse who stays at home

Talk to a New York Asset Protection Attorney

Planning works most reliably when it starts early, before a claim or a health crisis forces your hand. Schwartsman Law Group helps clients across New York City and Long Island build plans based on New York law rather than promises. Call (212) 518-3868 or schedule your free consultation to get started.