Florida Trust & Probate Attorneys Blog

Securing Payment of Child Support with a Children’s Safe Harbor Trust

Published on: August 18, 2015 | by Rarick & Bowden Gold

By: Phillip B. Rarick, Esq.

Most divorce judgments call for one of the parties to obtain a life insurance policy for securing the payment of child support, alimony or some other financial obligation. Let’s assume the obligation is solely child support: a potential mistake is failure to secure payment of the policy premiums by use of an irrevocable Children’s Safe Harbor Trust structured as a spendthrift trust.

For securing the payment of child support, the settlement agreement should have specific language that may read as follows:

Florida Trust Services For Family Law Attorneys

Published on: August 9, 2015 | by Rarick & Bowden Gold

By Phil Rarick, Esq., Miami Trust Attorney

Family law attorneys are increasingly using trusts to secure and safeguard the payment of financial obligations in their marital settlement agreements. Such trusts can provide the following key benefits:

Security that payments will be made in a timely fashion

Consider Non-Family Member as Successor Trustee

Published on: July 13, 2015 | by Rarick & Bowden Gold

One of the most important decisions a baseball manager must make is his batting order – it can mean the difference between a win or loss. (We will not digress to the Marlin’s management decisions – although this is tempting.)

One of the most important decisions you can make for your estate plan is your batting order of successor trustees: who do you want to step up to the plate for you if you cannot? It is important to place in position those persons in whom you have complete trust. Your successor trustee is charged with managing your financial affairs. This person is a fiduciary, and therefore under the law has a high fiduciary duty to follow your trust instructions exactly, pay all taxes on time, keep a good accounting of all monies coming in and going out – these are just a few of the many tasks. For a good summary of successor Trustee duties see our report: 12 Point Summary of Florida Successor Trustee Duties.

Many persons prefer to name a family member as a successor trustee – such as an older child. However, this position can sometimes cause conflict and disharmony in the family – especially when the older child must make discretionary decisions about distributions of trust funds to the other children.

Successor Trustee Duties

Published on: April 27, 2015 | by Rarick & Bowden Gold

12 Point Summary of Florida Successor Trustee Duties

Note: Trust administration requires strict compliance with the trust terms and often analysis of complex tax requirements. A trustee is a fiduciary and is held to a high standard of care under Florida law. If you are a successor trustee, we can help. It is important that you follow the advice of an experienced Trust Administration Attorney to avoid or reduce estate taxes or income taxes and to protect yourself against personal liability. Not only are the expenses of an attorney and CPA typically considered routine trust expenses, but failure to utilize such services can expose the trustee to personal liability.

Show Loyalty To All Trust Beneficiaries. Even if the successor trustee is himself a beneficiary, as trustee he has the duty of loyalty to all the other beneficiaries, including the remaindermen. Remaindermen are beneficiaries who do not have a current interest in the trust income or principal, but have a future interest in the trust.

Asset Protection Checklists For Florida Physicians

Published on: March 16, 2015 | by Rarick & Bowden Gold

By Phillip B. Rarick, Esq., Weston Asset Protection Attorney

The Checklist Manifesto by Atul Gawande is a current, hot selling book written by a physician and advising how to get things right by implementing commonsense systems.

In today’s modern medicine, coupled with our information age, where virtually every procedure can be scrutinized by an “expert” easily found on Google, it should be standard procedure for every doctor to have a comprehensive asset protection plan – one that is up-to-date to meet the challenges of our fast-changing legal system.

Asset Protection Checklist For Florida Physicians With A Solo Practice or Employed By Hospital or Clinic

Published on: March 9, 2015 | by Rarick & Bowden Gold

By Phillip B. Rarick, Esq.*

Action Item	Done
1. No weak links. Each physician in group has personal creditor protection plan. The goal is to have no exposed assets for plaintiff malpractice attorney to attack forcing plaintiff to settle within insurance policy limits. See points 2-5 below.
2. Each physician has domestic or off-shore asset protection trust to protect non-qualified equities and other liquid investments. If domestic trust, consider top tier state jurisdiction such as Nevada. If off-shore, consider clean jurisdiction with sophisticated, modern laws designed to provide maximum protection against creditor attack, such as Nevis or the Cook Islands. Note: Consider multiple layers, such as Nevis LLC owned by Cook Island Trust.
3. Each physician has Delaware LLC or other entity to protect wages. A Florida wage account is limited to 6 months and therefore often not the best solution.
4. Each physician has homestead fully protected. If homestead in municipality exceeds ½ acres it is not protected by Florida homestead law. Consider deeding exposed property to corporate entity with 99 year lease to preserve homestead tax benefits. If homestead is not in municipality then 160 acres are protected. Consider leaving mortgage on property – even if not necessary – as good asset protection option. The mortgage can be paid down to avoid creditor attack.
5. Confirm investment rental properties and non-homestead real estate are protected by having title in multi-member LLC with operating agreement updated to take advantage of new Florida LLC law. Note: Do not have LLC without asset protection Operating Agreement drafted by an attorney who concentrates in corporate or asset protection law.
6. Office Space: If group practice owns condo office space or other real estate this property should likely be owned by a separate LLC or LP and leased back to the Group. Exposed real estate is low hanging fruit for creditors. Remember if the practice is to be judgment proof there should be no exposed assets.
7. Confirm IRA’s, pensions and similar plans are properly managed. Private pension plans must strictly follow complex regulations. You likely need a CPA or investment advisor experienced in pension plan administration. See Item #21.
8. Have a Plan B in event of death, disability or disagreement with partners. This requires a Shareholder Agreement or you may find you have your partner’s spouse as a partner. Do you have a shareholder agreement? Is it up to date? Is it adequately funded with life insurance? Mark Done only if you can answer yes to all questions.9. Conduct annual independent review of patient charts and billing, coding, and collection processes to insure compliance with Medicare/Medicaid/private insurance carriers
10. Conduct annual review of group corporate records to make sure basic corporate formalities are followed so that corporate veil cannot be pierced using alter ago theory. If professional association check if: (a) annual corporate minutes up to date; (b) separate corporate bank account; (c) stock certificates clearly show each partner’s interest; (d) tax records sync with corporate record.
11. Make sure individual medical malpractice policy and possible corporate malpractice policy in place. Conduct annual review of policy limits with medical malpractice broker who specializes in med-mal insurance.
12. Individual checking account you use for monthly expenses: If married, title as Tenants by Entirety (TBE); if single consider placing title in Delaware LLC.
13. Umbrella policy. This is a good, cost effective insurance product but make sure you check for gaps in policy. All insurance policies have limits and exceptions; make sure the “Umbrella Policy” does not contain gaps.
14. Insurance coverage to avoid business interruption or threats to profitability of practice: (a) Disability insurance; (b) Overhead insurance to cover practice expenses during period of disability; (c) Workers compensation insurance; (d) general liability insurance to cover slip and falls in office or parking lot; (e) adequate auto insurance.
15. Theft proof practice monies and accounts receivable. Have strict system for logging in all checks in master log and ensure properly deposited. No one person should control check logging system. In larger practices, have someone from CPA firm periodically review check logging system without notice.
16. Ensure trust systems in place for children and loved ones. Note: Make sure your estate plan is integrated with your asset protection plan.
17. Protect vacation home: Consider to title in LLC, Limited Partnership, or Tenancy by Entireties.
18. Auto and motor vehicles: If married, title in name of person who drives vehicle the most; not in joint name. Make sure all vehicles are adequately insured.
19. Boats or jet skis: Title in name of LLC with asset protection operating agreement.
20. Schedule target completion date for your asset protection plan. Write the date down on your office and smart phone calendars. Plan when the waters are quiet – prior to any lawsuit. Waiting too long may limit planning options and enable attack via the Florida Uniform Fraudulent Transfer Act, F.S. 726.
21. The most important item: Have team of experienced, caring professional advisors consisting of: (a) CPA; (b) estate and asset protection attorney; (c) qualified financial and pension plan advisor; (d) medical malpractice insurance broker; and (e) general liability insurance advisor.

Note: We welcome your questions. Contact Phil Rarick, Miami asset protection attorney, Rarick & Bowden Gold, P.A., at (305) 556-5209 or prarick@raricklaw.com.

* With special thanks for ideas from Alan Gassman, Esq., estate & asset protection

planning attorney, guru, and friend. Alan is the author of Creditor Protection For Florida Physicians, an excellent and insightful book for physicians, attorneys, and CPA’s; it is available on Amazon.com.

Special Note

The information on this blog is of a general nature and is not intended to answer any individual’s legal questions. Do not rely on information presented herein to address your individual legal concerns. If you have a legal question about your individual facts and circumstances, you should consult an experienced Miami asset protection attorney. Your receipt of information from this website or blog does not create an attorney-client relationship and the legal privileges inherent therein.

What is a Durable Power of Attorney- And Why Is It So Important?

Published on: March 3, 2015 | by Rarick & Bowden Gold

By: Jacqueline R. Bowden and Phillip B. Rarick, Miami Estate Planning Attorneys

A power of attorney is a legal instrument you may give to a trusted family member or friend (commonly called your attorney-in-fact or agent) to manage your financial affairs and act on your behalf. The person creating the document is referred to as the principal. A Durable Power of Attorney (DPA) differs as it remains effective after the principal becomes incapacitated. In order for a DPA to remain effective it must include language stating that subsequent incapacity will not affect the powers of your agent.

Note: Florida’s Durable Power of Attorney law was completely rewritten effective October 1, 2011. See New Florida Durable Power of Attorney Law Makes Sweeping Changes. If you have a DPA dated prior to October, 2011, we strongly recommend that you update your DPA.

Florida’s Documentary Stamp Tax: A Quick Overview and How To Reduce the Tax

Published on: March 2, 2015 | by Rarick & Bowden Gold

By Jefferson H. Weaver, Esq.

Documentary Stamps Due On Sale

Buyers and sellers of real estate in Florida have some familiarity with the documentary stamp tax as it invariably shows up on their settlement statements as a closing cost. Whether the seller alone or both the seller and buyer pay documentary stamp taxes depends on the type of transaction. If there is no financing involved, then the documentary stamp tax will be calculated based upon the sales price of the property itself at a rate of $0.70 per $100 of value. The only county in Florida with a different schedule is free-thinking Miami Dade County where the rate is $0.60 per $100 of value when the property is a single family residence. Other types of properties in Miami Dade County are charged slightly different rates of documentary stamp tax.

Asset Protection Checklist For Florida Physicians In A Group Practice

Published on: February 28, 2015 | by Rarick & Bowden Gold

By Phillip B. Rarick, Esq.*

Action Item	Done
1. No weak links. Each physician in group has personal creditor protection plan. The goal is to have no exposed assets for plaintiff malpractice attorney to attack forcing plaintiff to settle within insurance policy limits. See points 2-5 below.
2. Each physician has domestic or off-shore asset protection trust to protect non-qualified equities and other liquid investments. If domestic trust, consider top tier state jurisdiction such as Nevada. If off-shore, consider clean jurisdiction with sophisticated, modern laws designed to provide maximum protection against creditor attack, such as Nevis or the Cook Islands. Note: Consider multiple layers, such as Nevis LLC owned by Cook Island Trust.
3. Each physician has Delaware LLC or other entity to protect wages. A Florida wage account is limited to 6 months and therefore often not the best solution.
4. Each physician has homestead fully protected. If homestead in municipality exceeds ½ acres it is not protected by Florida homestead law. Consider deeding exposed property to corporate entity with 99 year lease to preserve homestead tax benefits. If homestead is not in municipality then 160 acres are protected. Consider leaving mortgage on property – even if not necessary – as good asset protection option. The mortgage can be paid down to avoid creditor attack.
5. Confirm investment rental properties and non-homestead real estate are protected by having title in multi-member LLC with operating agreement updated to take advantage of new Florida LLC law. Note: Do not have LLC without asset protection Operating Agreement drafted by an attorney who concentrates in corporate or asset protection law.
6. Office Space: If group practice owns condo office space or other real estate this property should likely be owned by a separate LLC or LP and leased back to the Group. Exposed real estate is low hanging fruit for creditors. Remember if the practice is to be judgment proof there should be no exposed assets.
7. Confirm IRA’s, pensions and similar plans are properly managed. Private pension plans must strictly follow complex regulations. You likely need a CPA or investment advisor experienced in pension plan administration. See Item #21.
8. Have a Plan B in event of death, disability or disagreement with partners. This requires a Shareholder Agreement or you may find you have your partner’s spouse as a partner. Do you have a shareholder agreement? Is it up to date? Is it adequately funded with life insurance? Mark Done only if you can answer yes to all questions.9. Conduct annual independent review of patient charts and billing, coding, and collection processes to insure compliance with Medicare/Medicaid/private insurance carriers
10. Conduct annual review of group corporate records to make sure basic corporate formalities are followed so that corporate veil cannot be pierced using alter ago theory. If professional association check if: (a) annual corporate minutes up to date; (b) separate corporate bank account; (c) stock certificates clearly show each partner’s interest; (d) tax records sync with corporate record.
11. Make sure individual medical malpractice policy and possible corporate malpractice policy in place. Conduct annual review of policy limits with medical malpractice broker who specializes in med-mal insurance.
12. Individual checking account you use for monthly expenses: If married, title as Tenants by Entirety (TBE); if single consider placing title in Delaware LLC.
13. Umbrella policy. This is a good, cost effective insurance product but make sure you check for gaps in policy. All insurance policies have limits and exceptions; make sure the “Umbrella Policy” does not contain gaps.
14. Insurance coverage to avoid business interruption or threats to profitability of practice: (a) Disability insurance; (b) Overhead insurance to cover practice expenses during period of disability; (c) Workers compensation insurance; (d) general liability insurance to cover slip and falls in office or parking lot; (e) adequate auto insurance.
15. Theft proof practice monies and accounts receivable. Have strict system for logging in all checks in master log and ensure properly deposited. No one person should control check logging system. In larger practices, have someone from CPA firm periodically review check logging system without notice.
16. Ensure trust systems in place for children and loved ones. Note: Make sure your estate plan is integrated with your asset protection plan.
17. Protect vacation home: Consider to title in LLC, Limited Partnership, or Tenancy by Entireties.
18. Auto and motor vehicles: If married, title in name of person who drives vehicle the most; not in joint name. Make sure all vehicles are adequately insured.
19. Boats or jet skis: Title in name of LLC with asset protection operating agreement.
20. Schedule target completion date for your asset protection plan. Write the date down on your office and smart phone calendars. Plan when the waters are quiet – prior to any lawsuit. Waiting too long may limit planning options and enable attack via the Florida Uniform Fraudulent Transfer Act, F.S. 726.
21. The most important item: Have team of experienced, caring professional advisors consisting of: (a) CPA; (b) estate and asset protection attorney; (c) qualified financial and pension plan advisor; (d) medical malpractice insurance broker; and (e) general liability insurance advisor.

Note: We welcome your questions. Contact Phil Rarick, Miami asset protection attorney, Rarick & Bowden Gold, P.A., at (305) 556-5209 or prarick@raricklaw.com.

* With special thanks for ideas from Alan Gassman, Esq., estate & asset protection

planning attorney, guru, and friend. Alan is the author of Creditor Protection For Florida Physicians, an excellent and insightful book for physicians, attorneys, and CPA’s; it is available on Amazon.com.

Special Note

The information on this blog is of a general nature and is not intended to answer any individual’s legal questions. Do not rely on information presented herein to address your individual legal concerns. If you have a legal question about your individual facts and circumstances, you should consult an experienced Miami asset protection attorney. Your receipt of information from this website or blog does not create an attorney-client relationship and the legal privileges inherent therein.

ASSET PROTECTION CHECKLIST FOR FLORIDA SMALL BUSINESS OWNER

Published on: February 27, 2015 | by Rarick & Bowden Gold

By Phillip B. Rarick, Miami Asset Protection Attorney*

Action Item	Done
Homestead is under ½ acre if in municipality; if not in municipality then under 160 acres Note: Consider leaving mortgage on property – even if not necessary – as excellent asset protection option. The mortgage can be paid down to avoid creditor attack.
Trust systems in place for children and loved ones and integrated withcreditor protection structures
Vacation home is titled in LLC, Limited Partnership, or Tenancy by Entireties
Rental properties are titled in Florida LLC or Limited Partnership. If single, consider Delaware LLC
All Florida LLC’s have (1) Operating Agreement with charging order protection; (2) separate bank account; (3) multi-member
All corporate records have been annually reviewed by corporate attorney
Exposed equity investments protected by asset protection structure Note: Exposed investments are those not protected by Florida law. Protected investments are IRA’s, 401k’s, annuities, pension plans, life insurance, Florida pre-paid tuition plans, and 529 plans.
If married, checking/savings account owned as Tenancy By Entireties (TBE) Note: Confirm by going to bank and checking the bank signature card.
Auto and motor vehicles : If married, title in name of person who drives vehicle the most; not in joint name
Boats or jet skies: Title in name of LLC
Adequate property and casualty insurance
Adequate auto, vehicle, and boat insurance
Umbrella liability insurance Note: Confirm with agent that there are no gaps
If professional: adequate malpractice insurance and experienced malpractice agent who specializes in such coverage
Team of caring and qualified advisors, including CPA, attorney, investment advisor, and insurance agent

For more information, contact Phil Rarick, a Miami asset protection attorney, at (305) 556-5209 or info@raricklaw.com.

* With special thanks for ideas from Alan Gassman, Esq., estate & asset protection planning attorney and guru.

Special Note

The information on this blog is of a general nature and is not intended to answer any individual’s legal questions. Do not rely on information presented herein to address your individual legal concerns. If you have a legal question about your individual facts and circumstances, you should consult an experienced Miami asset protection attorney. Your receipt of information from this website or blog does not create an attorney-client relationship and the legal privileges inherent therein.