The short answer is MAYBE.
In most personal injury cases (i.e. – car accident cases), the person at fault often is insured, and any settlement or judgment in the case gets paid by the insurance company. But sometimes there is no insurance to pay a judgment or settlement, and other times the insurance policy has a maximum pay-out that doesn’t cover the entire amount owed. In those instances, it’s good to know what your options are for getting the money you’re entitled to.
Many people think getting a judgment or agreeing to a settlement is the same thing as getting money when that’s not the case. Both a judgment and an agreed settlement order in personal injury lawsuits (or most lawsuits) are enforceable court orders that often mandate that the Defendant pay a certain sum of money to the plaintiff, but Defendants aren’t always quick to pay the money they owe. In those cases, it’s important to understand what you can do to make sure you get the money you’re owed.
If you’re the victim of a personal injury and you find yourself with a settlement or judgment, collecting on that judgment or settlement can be tricky and it would be best if you consulted with a Chicago collection attorney for specific advice. An entire separate blog post (or several) can be written on the various methods of collecting on a judgment, but the most relevant ones for our purposes are as follows:
1) Citation to Discover Assets
This is a post-judgment proceeding in which the judgment debtor is ordered to appear in court, get sworn under oath, and answer very probing and personal questions about his/her finances, assets, and anything else that can lead to information on sources to pay the outstanding personal injury judgment. Ordinarily, judgment debtors are also required to bring in hard copies of requested documents to Citations to Discover Assets hearings as well – things such as tax returns, pay stubs, etc. It’s through this judgment collection method that you are likely to discover that the Defendant has a Trust that could potentially be used to satisfy the judgment.
2) Citation to Discover Assets to a Third Party
This is a proceeding you can use to discover whether a third party is in possession of property or money belonging to the judgment debtor, and then request the court to order that it be turned over to you. This is most commonly used against banks where the debtor is believed to have accounts.
Assuming that you learn that the Defendant from your personal injury lawsuit has a Trust with funds in it that can satisfy your outstanding judgment or settlement – can you get a court to order that such funds be turned over to you? ANSWER: It depends on the type of trust.
Revocable Living Trusts are one of the most common types of trusts due to their ability to save families the expense and hassle of probate after a person’s death, but they are also a trust that creditors (such as people with personal injury judgments) can get to. The reason is that although revocable living trusts are considered legal entities, the person who owns the trust often names him/herself as the trustee, keeping complete control over the trust assets, and the trust is revocable – which means he/she can revoke it at any time (once again putting the trust’s assets in his/her name). In other words, the money or property in a revocable trust is always in the control of the trustee, so creditors are able to get to it.
In contrast, money that’s in irrevocable trusts, those that are not controlled by the judgment debtor and cannot be revoked, is generally unavailable to judgment creditors. Some people even go as far as to create complex trusts with a trustee located overseas or offshore, or set up limited liability companies for the purpose of protecting their trust assets.