CA out of state investors, what asset protection strategy do you use?

[Nikhil Mascarenhas]

I have about 4 properties out of state and I live in California. I'm interested in learning what others in a similar situation use for asset protection from potential lawsuits. Here are some strategies I've come across:
- separate LLCs for each property (or a series LLC). This has a lot of administrative overhead, the LLCs being disregarded entities may pierce the corporate veil. But most importantly, you'd have to pay the $800 foreign LLC fee in CA.
- one single LLC - easy for administration, but defeats the goal of asset protection.
- trusts - deeding each property to a separate land trust each and then the land trusts in turn grant beneficiary to an operating LLC. Still wrapping my head around this - but it is complex and not sure how banks deal with this when you try to refinance. 
- do nothing, hold in personal name but ensure you have sufficient Umbrella coverage.

Do you use one of the above? Or something else entirely? Would love to hear from other pros.

[Katie Balatbat]

@Nikhil Mascarenhas

Different people go different routes depending on their risk tolerance, their amount of equity and compared to other assets owned, how patient they are with a complicated set-up and high legal fees, whether they view the $800 as game-changing or just a cost of doing business, etc. CA doesn't recognize series LLCs, so yes, you would need to be careful with costs for any structure that you put in place. I've seen people create a new LLC per property, or per $X of equity, or after $Y of income since the $800 increases once you have higher amounts of income in the LLC, or any number of other arrangements (i.e., put all your best properties in 1 LLC and worst ones in another, or conversely, only put 1 good property in each LLC with 1 bad property). Remember that the more complexity increases not just legal set-up and ongoing fees, but tax prep and advising fees as well.

There are several considerations that can go into the analysis of whether you need an LLC or whether a large insurance policy will suffice. Will depend on several factors like the type of property, type of tenants, your risk tolerance, other assets you own, your estate planning, laws where the property is located, etc. Same goes for number of LLCs and what to fund them with, since bear in mind that CA tends to be more cumbersome and expensive to have LLCs than other states.

California is generally more cumbersome than other states when it comes to taxes and filings. Even if you create a non-CA LLC, if you are managing the business from California, you will likely be deemed to be "doing business" in California and therefore likely subject to CA taxes. California charges a minimum tax of $800 a year per LLC, and more if you have gross receipts in excess of $250k. So, if you create an LLC in another state, you will likely need to register it as a foreign LLC in California. Though, this process will be the same for the other state (if you created a CA LLC you may need to register it as a foreign LLC in the state in which you are doing business/holding property). This means that you will probably need to pay registration and filing fees in at least 2 states if you don't buy CA property as a CA resident.

Any lawsuits should be limited to the assets of the LLC and not your personal assets (assuming you run the LLC appropriately and the corporate veil is not pierced, some debate as to SMLLC). But, an LLC will not limit you from liability in total. You can still lose your investment in the LLC. Or, a charging order may be granted. If you have a loan, you may wish to look into due-on-transfer clauses.

If you're going the umbrella insurance route, perhaps see if it will cover you for several things including just the routine slip and fall (like mold or earthquake). You'll also want to ensure you have a good property manager to look after the upkeep of the property if you are not there to notice anything deteriorating or which may need attention.

Creating an LLC in California could cost you a minimum tax of $800 every year. You would have ongoing filing requirements with the State and would need to keep business records and documentation. California does not recognize series LLCs.

These are all things you will want to discuss with your attorney and CPA. If you need references for either of them in San Diego, let me know.

*This post does not create an attorney-client or CPA-Client relationship. The information contained in this post is not to be relied upon. Readers should seek professional advice.