miami trust lawyer

Standby Florida Elective Share Trusts

Published on: October 6, 2012 | by Rarick & Bowden Gold

By Miami Probate Attorney Phillip B. Rarick, Esq.

Florida’s elective share statute allows attorneys to draft standby Florida elective share trusts. (For a summary of Florida’s elective share see our post: Florida’s Sweeping Elective Share.) As of April 23, 2002, trusts that create property interests contingent upon an election being made are now qualified to fund the spouse’s elective share interests. The requirements for such a trust are set forth at F.S. §732.2025(2) and include: (1) surviving spouse must be entitled to use of the property for life or have all of the income payable as least annually; (2) the surviving spouse has the right to make the trust productive of income or convert it within a reasonable time; and no person other than the spouse has the power to distribute income or principal to anyone other than the spouse.

Rarick, Beskin & Garcia Vega has been trusted by numerous law firms and many families during the past 18 years for probate, estate planning, trust and asset protection cases. To schedule an appointment, call (305) 556-5209 or email info@raricklaw.com.

Asset Protection in Florida: Five Common Mistakes – Five Tested Solutions

Published on: September 16, 2012 | by Rarick & Bowden Gold

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

In our litigious society anyone can become a target of a plaintiff seeking to get a money judgment against you personally. In today’s real estate market, where it is usually impossible to negotiate with the lender, deficiency judgments are a major concern. You may have excellent car or property insurance, but a good personal injury attorney will typically seek to go beyond the insurance limits and name you as a defendant if the damages are substantial. Owning assets that are exposed is an invitation to a lawsuit.

Thanks to the Internet, it is now easy for a creditor to find every piece of real estate that you own. In fact, if you own real estate for commercial or investment purposes, you might as well publish your property holdings on the front page of the Miami Herald because it now takes minutes to find what property you own on the Internet.

Federal Gift Tax Update: The Window May Close Soon

Published on: September 2, 2012 | by Rarick & Bowden Gold

By Miami Trust Attorneys Phillip B. Rarick, Esq. and Jay R. Beskin, Esq.

I. The Opportunity – And The Problem.

The Opportunity: Gifts to family members and others are free of the U.S. gift tax if under the exemption. Specifically, U.S. Citizens in 2012 can give away assets worth $5,120,000 ($10,240,000 per couple) without having to pay any federal estate tax or gift tax.

Moving to Florida: Tips On How To Avoid The Tax Traps

Published on: October 8, 2011 | by Rarick & Bowden Gold

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:

Transfer of governing law or place of administration

New Florida Durable Power of Attorney Law Makes Sweeping Changes

Published on: September 21, 2011 | by Rarick & Bowden Gold

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.

FLORIDA GUARDIANSHIP QUICK REFERENCE GUIDE

Published on: June 25, 2011 | by Rarick & Bowden Gold

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.

FAST TRACK FLORIDA PROBATE

Published on: June 25, 2011 | by Rarick & Bowden Gold

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.

Olmstead Patch Bill Signed by Governor: Multi-Member Florida LLC’s Improved As Asset Protection Entity

Published on: June 11, 2011 | by Rarick & Bowden Gold

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.

MOVING TO FLORIDA: MANY ADVANTAGES – BUT BEWARE OF THREE TRAPS

Published on: December 2, 2010 | by Rarick & Bowden Gold

By Phillip B. Rarick, Miami Trust Attorney

Executive Summary

In addition to our sunshine, Florida has one of the best tax and asset protection climates of any state in the country. Florida has no state income tax, no fiduciary tax, no intangible tax, no estate tax, and arguably the most generous homestead laws anywhere in the U.S.A: you can have a multi-million dollar home and this residence will be virtually untouchable by creditors. However, moving to Florida without proper planning does have risks. This Report discusses the risks and explains how to clearly establish Florida domicile.

A Life Estate the Spouse Can’t Afford: Florida Homestead Trap Cured by New Law

Published on: October 18, 2010 | by Rarick & Bowden Gold

By Phillip B. Rarick, Miami Trust Attorney

Who is Impacted by This Legislation, F.S. § 732.401?

The surviving spouse of a decedent when the decedent owned homestead property which was not properly devised or cannot be devised is impacted by this legislation. However, all Florida probate attorneys need to know the implications of the legislation as the new law requires an analysis of whether the surviving spouse should file an “Election of Surviving Spouse to Take a One-Half Interest of Decedent’s Interest in Homestead Property.” F.S. §732.401(2)(e). Such an election must be filed within 6 months of the decedent’s death. All Florida estate planning attorneys are impacted as such homestead election powers should be standard language in most durable powers of attorney and inter vivos trusts.