Virtually all states are looking to increase tax revenues and Florida is no exception. One area in which the state is becoming more aggressive is the collection of documentary stamp taxes.
As outlined in Florida Statue §201.02, this stealth tax must be considered in virtually all transfers of interests between or within Florida corporate entities, and all transfers of real estate, including real property gifts between family members. Evaluating this tax can be tricky!
Here are some examples:
Florida probate attorney fees depend on whether the proceeding is Summary Administration – usually the quickest and least expensive – or Formal Administration. Many factors will enter into the fees, including whether the probate is contested, is subject to estate and other taxes, involves the sale of real estate, and requires advice regarding homestead.
It is now common for the decedent to have both a will and revocable living trust. Such cases may require probate of the will and administration of the trust.
The scheduled rates and exemptions are as follows
| Year | Top Gift & Estate Tax Rate | Gift Tax Exemption Amount | Estate Tax Exemption Amount | GST Tax Rate | GST Exemption Amount |
| 2009 | 45% | $1 million | $3.5 million | 45% | $3.5 million |
| 2010 | 0 estate tax / 35% gift tax | $1 million | N/A | 0 | N/A |
| 2011 | 35% | $5 million | $5 million | 35% | $5 million |
| 2012 | 35% | $5 million | $5 million | 35% | $5 million |
| 2013 and beyond | 55% | $1 million | $1 million | 55% | $1 million (inflation adjusted) |
A common over-sight of persons moving to Florida is failing to take their trust. They may have packed their trust and taken it with them, but the trust situs remains in their original state. This is usually a mistake.
The fact that a client has moved to Florida will not generally mean that the law governing the trust has moved here as well even if the client is the settlor, beneficiary, or trustee of the original trust. Clients moving to Florida are well advised to have all their trusts reviewed by a Florida attorney regarding such issues as:
Introduction
The Florida legislature recently enacted the “Florida Power of Attorney Act” (“FPOA”, Fla. Stat. §§709.2101-.2402), fundamentally overhauling existing law, and making sweeping new changes. Even though the new law recognizes durable power of attorneys (“DPA’s) executed under the prior law, we are advising clients to update their DPA, if more than a year old, because the changes are so comprehensive. For Florida licensed attorneys who receive our Alert, we are making available at cost our new “Super DPA’s” drafted to take advantage of the new law.
Effective Date: The effective date of the FPOA is October 1, 2011. “Legacy” POA’s, or those signed before October 1, 2011, are not invalid, but the action of the agents or attorneys-in-fact under Legacy POA’s must be interpreted under the new law.
By Phillip B. Rarick, Esq. and Gene C. Sulzberger, CFP®, J.D.
In the United States there are multiple estate and gift tax traps if you are not a U.S. citizen or your spouse is not. If you are a non-resident, or a resident with a Green Card and own property in Florida or other parts of the United States, you need to know about these tax traps. U.S. estate and gift taxes are very harsh for the non-resident who has not done the proper planning.
Scenario: A non-resident, non-U.S. Citizen with no Green Card who purchases a $1.5 million house would trigger upon death in 2011 an estate tax of $495,000 and likely probate fees in Florida of at least $15,000.
By Phillip B. Rarick, Esq., Miami Probate Attorney
Introduction
The commencement of a Florida guardianship is typically used in two situations – either when a person may be incapacitated or when a minor receives assets in excess of $15,000. If a guardianship is sought because someone may be incapacitated, then typically the court sets two hearings. At the first hearing the court determines whether the person is incapacitated; at the second, the court appoints a guardian if the person is determined to be incapacitated. Often, these hearings are combined. The court has the option of appointing a limited or a plenary guardian.
By Phillip B. Rarick, Miami Probate Attorney
Introduction
Most states have streamlined probate procedures for smaller estates. Florida’s procedure is called Summary Administration and can be used to expedite administration of estates not exceeding $75,000 or when the decedent has been dead for more than two years. F.S. 735.201(2). It avoids the appointment of a Personal Representative (or “Executor” in other states). Summary Administration should always be considered for small estates; however, as discussed below, it may not always be the most practical option.
By Phillip B. Rarick, Esq., Miami Asset Protection Attorney
Executive Summary:
Last summer in the case of Olmstead V. F.T.C the Florida Supreme Court held that a charging order is not the exclusive remedy against a single member LLC and indicated that it may not be the exclusive remedy against a multi-member LLC. 2010 WL 2518106 (Fla. June 24, 2010.) This case revealed a major flaw in Florida law for LLC’s: it showed that a Florida LLC could be attacked more easily since the creditor of a single member LLC was not limited to a charging order against a LLC member, but rather could step into the shoes of the member. The new legislation, HB 253, signed by the Governor on May 31, makes clear that a charging order is the exclusive remedy against a multi-member and single member LLC. However, for a single member LLC, the new law provides a significant exception that creditors may be able to utilize to penetrate the LLC, rendering single member LLC’s still vulnerable.
By Phillip B. Rarick, Miami Trust Attorney
Time for a Spring Check-Up for your Florida corporate entities. This note is our annual reminder to review your Florida corporations, LLC’s (limited liability companies), or partnerships. Here is our 7 Point Checklist:
1. Annual Minutes Up-to-date?
Florida Trust & Probate Attorneys Blog
