Florida Successor Trustee Checklist

By Phillip B. Rarick, Miami Trust Attorney

You are named the successor trustee and the trustmaker has just died. No doubt these are difficult times, but thankfully there are many resources to help. The following is a checklist of initial important tasks to help guide you after the funeral or memorial service.

Note: You are not required to accept the trustee duties. However, if you begin to act as successor trustee you will likely be held responsible for all acts as the trustee to the beneficiaries and the IRS. Therefore, do not begin to take any actions as Trustee before you know what your duties are. Consult a Miami trust attorney and see our 12 Point Summary of Florida Successor Trustee Duties. First Priority Action Items

____ 1. Sign Acceptance of Trustee Duties and Affidavit of Trust

____ 2. Take possession of all legal records including:

• Original trust
• Original will (usually called a pour-over will if decedent had trust)

____ 3. Take possession of all financial records such as:

• Inventory of assets

Note: This may be on paper or on decedent’s computer.

• Passwords to computer, internet media, or social media
• Checkbooks
• Credit cards
• Statements from all banks or financial companies

____ 4. Take possession of all keys or codes to:

• All vehicles or boats
• Safe or bank safe deposit box

Note: Do not allow entry to Safe Deposit Box without a witness and prior discussion of arrangements with a Miami trust attorney. Remember:

• House and other real estate or rental properties
• Storage room

____ 5. Lock and secure all real estate and household contents

____ 6. Engage an experienced Florida trust administration attorney

____ 7. Engage CPA or accountant and determine deadlines for filing tax returns

____ 8. Contact decedent’s Financial Advisor

____ 9. Order minimum of 10 death certificates (these can usually be obtained through the funeral home) and collect documents on Document Checklist.

Click Here for: Document Checklist

_____ 10. Calendar important dates: such as deadline for filing decedent’s final 1040 tax return and 1041 tax return for the trust.

Note: As Trustee, you are liable to the IRS for all trust tax matters.

_____ 11. Buy a notebook and keep track of your time and work on behalf of the trust:

Note: Few beneficiaries will appreciate the time and extensive work of the trustee. To be fully compensated for your time, you likely will need to account for all your time incurred as trustee.

Second Priority Action Items

_____ 12. Complete Master Information List: This is an inventory of all the decedent’s assets and most importantly how they are titled and what, if any, beneficiary designation.

• Contact info@raricklaw.com for List.

____ 13. Open Trust Checking Account with bank

____ 14. Set up Quicken/QuickBooks or similar accounting program

Note: As Trustee you must account for all funds received and all funds paid out. If you are not adept and diligent at accounting, hire a bookkeeper or accountant. Remember as Trustee you will need to provide a detailed accounting to all trust beneficiaries for all trust income and expenses.

____ 15. File Notice of Trust with the Clerk of Court

_____ 16. Determine names and addresses of all qualified beneficiaries with assistance of Trust attorney

_____ 17. Within 60 days of accepting Trustee duties, send Notice of Trust to all qualified beneficiaries; this notice must comply with Florida law

____ 18. Deposit Will with the Clerk of Court

____ 19. Advise Post office to forward mail

____ 20. Cancel utilities, subscriptions

____ 21. Contact homeowner’s insurance and keep insurance current

____ 22. Review insurance for all rental properties and keep payments current

____ 23. If homeowner association, contact and keep payments current

____ 24. Inventory Safe Deposit Box with at least one witness after first consulting with trust attorney

____ 25. Search records for potential creditors

Note: Do not pay creditors until you have ascertained their legal validity and priority. As trustee you have the duty to contest creditor claims that are not valid and pay claims according to their priority. A spouse is typically not liable for the debts of the deceased spouse.

____ 26. Keep current payments to legally valid secured creditors.

____ 27. Determine if any Employee Benefits

____ 28. Contact health care providers, such as doctors, hospitals, clinics and determine if they have accepted Medicare assignment for their services. If they have, then they have agreed to accept Medicare and any other insurance payments for their services. Therefore there should be no reason for them to file a claim in the estate for any unpaid portion of their statement. If we have a list of the Medicare providers, we will prepare objections to any claims they file against the estate.

____ 29. Social Security: If the decedent was receiving Social Security, contact (a) the Social Security Administration to inform them of the decedent’s death; (b) the bank where the social security check is being deposited directly into to inform them of the decedent’s death. The Social Security checks are issued at the first of the month and they are in payment for the previous month. The decedent must have lived the entire month to be entitled to the Social Security check. For example, if the decedent died August 15, and the Social Security check was automatically deposited on September 3, the decedent is not entitled to the September 3 check or any checks thereafter. You must contact the bank and request that they return the check to Social Security. Often the bank does this automatically as a service to customers. If the check is not returned, the Social Security Administration will take steps to collect the check(s).

____ 30. Make a claim for Social Security death benefit if (a) decedent has enough hours worked during his or her lifetime; and is (b) survived by a spouse or dependent child. For additional information contact Social Security at 800-772-1213.

____ 31. Determine if any claims for life insurance or veteran death benefits.

This is a short list of initial tasks for a person who accepts the duties as Successor Trustee. It is not a complete list of tasks. The trustee will only be able to determine all tasks after carefully reviewing all trust instructions with a Miami trust attorney. Attorneys at Rarick Trusts & Wills Law, P.A. have helped many family members navigate these tasks as the Trustee, Co-Trustee or Personal Representative of the Estate. We are ready to help you. Contact us at (305) 709-2858 or email to info@raricklaw.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 attorney that is experienced in Florida probate law. Your receipt of information from this website, blog, or Miami trust attorney does not create an attorney-client relationship and the legal privileges inherent therein.

The Covid-19 Pandemic has changed the world as we know it and presented daunting challenges we have not encountered in our life time. It requires a total review of your estate plan and business entities to assure you are taking full advantage of Florida laws designed to protect your family and business.

The hard new reality: What plan was best for you prior to 2020 may not be what is best for you today

Take this three minute survey for a quick assessment:

If single: Special 2020 Asset Protection Checklist for Single Professionals

If married: Special 2020 Asset Protection Checklist for Married Professionals Note to All: Two important legal documents for everyone over age 18:

• An up-to-date Florida specific Durable Power of Attorney
• A comprehensive Florida Health Care Surrogate

Special note to all parents with college students and young adults:

We now know that COVID-19 can attack any age. The last people who consider a DPA and Health Care Surrogate mentioned above are young adults. If you are a parent with adult children over age 18, I urge you to convince your sons or daughters to secure these important legal instruments. For a flat fee, we are available to prepare these documents, review the key legal provisions with your adult children, and email them for signing.

We will get through this together, as we did after Pearl Harbor and 9/11, and will be a stronger, more united country. Stay well and stay safe!

DURABLE POWER OF ATTORNEY FROM DON LEWIS TO CAROLE BASKIN dated November 21, 1996

Here is an updated calculator from Turbotax: Stimulus Check Calculator When Will Checks Arrive?

If you signed up for direct deposit on either your 2018 or 2019 tax return, the IRS reportedly will start issuing electronic deposits on April 9 and they should show up in your bank account by April 14. However, remember, this program is fluid and these target dates are subject to change.

If you receive Social Security Benefits and usually don’t file a tax return, the IRS will use the information from your Social Security benefits statement to calculate the stimulus check amount. They will send the check electronically if that is how you typically receive your Social Security payments.

Note: For persons who don’t file a tax return, the IRS plans to create an on-line portal where you can file a “simple return” to provide your bank account information. This portal should go live within the next few weeks.

If the IRS has to send you a paper check, priority will be given to lower income persons; higher income persons will wait longer to get their checks.

Quick Tip: If you want to try to get your check sooner, then file your 2019 tax return as soon as possible and sign up for direct deposit.

In these challenging times, we are here to help you, your family and small business successfully navigate this massive but temporary storm. We will get through this together! Look for our future alerts.

If you have never checked Florida’s website for lost accounts and abandoned property you should do so – immediately. You may be pleasantly surprised!

You may think that it is not possible that you have any “unclaimed” property held by the State of Florida – and you could be wrong.

The dirty secret is that many banks and life insurance companies will make little effort to find you if you do not notify them of your change of address. They will do the easy thing: transfer your account to the Florida Division of Accounting and Auditing, Bureau of Unclaimed Property. Thousands of such accounts end up in the Florida Unclaimed Property fund each year.

In the past we have had clients find more than $100,000 in old bank accounts that they had forgotten or failed to notify the bank of a change of address.

Special Note: Beware of scammers. There are a number of so called “private investigators” that may call you and tell you they can find lost money owed to you, but first you have to agree to pay them a percentage of the funds. Do not sign anything! They are simply doing what you can do for free by checking the website below.

The holidays are coming. Now may be a good time to see if Florida has any unclaimed property for you or a family member. The search is easy. Click Here: Florida Treasure Hunt.

Good luck!

Phil Rarick

Rarick Trusts & Wills Law, P.A.

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.

Florida’s 30% elective share law was completely rewritten in 2001 because the old law could be easily circumvented by placing assets in a revocable trust or using non-probate transfers (e.g. life insurance, IRAs etc.) In an effort to curtail such tactics, the legislature overhauled the statute and broadened the share. The result is an expansive elective share that sweeps into the decedent’s “elective estate” many non-probate assets. See F.S. §732.201 —§732.2155.

What Is Included? Florida’s elective share statute retains the 30% share under prior law, but introduces the concept of the “elective estate” (sometimes referred to as “augmented estate”) that consists of the following property interests under F.S. §732.2035:

• Decedent’s probate estate;
• Decedent’s fractional interest in property held by the decedent in joint tenancy with rights of survivorship or tenancy by the entireties;
• Property in a revocable trust or a discretionary trust for the decedent’s benefit;
• Cash surrender value of insurance policies on the decedent’s life;
• Death benefits payable under retirement plans;
• Certain transfers within a year of the decedent’s death;
• Transfers in satisfaction of the elective share;
• “Pay on Death” or “POD”; “Transfer on Death” or “TOD”; and “In Trust For” or “I/T/F”; and co-ownership with rights of survivorship accounts. The decedent’s interest is that portion that the decedent could withdraw immediately before death without an obligation to any person. If Tenancy by the Entireties, one-half is included.

This is not a complete list; see F.S. §732.2035. What is Excluded?

Not much. Here are some of the major exclusions:

• Real property that constitutes the decedent’s homestead;
• Insurance in excess of the cash surrender value is generally excluded;
• Gifts that qualify for the gift tax annual exclusion; and
• Transfers with the written consent of the spouse. (Spousal consent to gift split is not written consent.)

Again, this is not a complete list; see F.S. §732.2045.

Deadline for Making Elective Share Election

The general rule is that the election must be made within the earlier of six months of the date of service of the Notice of Administration or two years from the date of death. F.S. 732.2135.

Rarick Trusts & Wills Law has been trusted by numerous law firms and many families during the past 20 years for probate, estate planning, trust and asset protection cases. To schedule an appointment with Phil Rarick, a Miami probate attorney, call (305) 709-2858 or email info@raricklaw.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 in Miami probate attorney. Your receipt of information from this website or blog does not create an attorney-client relationship and the legal privileges inherent therein.

1. A legally adopted child or adoptive parent of the decedent;
2. Related by lineal consanguinity to the decedent;
3. A spouse, or a brother, sister, uncle, aunt, nephew, or niece of the decedent, or someone related by lineal consanguinity to any such person; or
4. The spouse of a person who otherwise qualified under this section.

A Common Drafting Mistake: We see this mistake made in a few wills every year: the decedent names a non-resident of Florida, such as a close friend, or an out of state attorney as their Personal Representative. These individuals would not qualify to serve as personal representative. What Happens If The Person Named In The Will Cannot Serve? If the will has an order of succession for Personal Representatives and there are other named Personal Representatives that do qualify under the terms of Fla. Stat. § 733.304 then the next in line individual can serve. If there is no order of succession for Personal Representative in the will, or no one named qualifies, then we look to Fla. Stat. §733.301. Preference in appointment of Personal Representative would indicate that if those named in the will can not serve, and there is no surviving spouse, then the next eligible person in a testate estate would be a person selected by a majority in interest of the persons entitled to the estate. If no such majority is reached, then a devisee under the will can serve. If more than one devisee applies, the court may select the one best qualified. Keep in mind that the person selected by the majority or the devisee must be a Florida resident to qualify. Intestate Appointment Preference In intestate estates preference in appointment is as follows:

1. The surviving spouse.
2. The person selected by a majority in interest of the heirs.
3. The heir nearest in degree. If more than one applies, the court may select the one best qualified. See Fla. Stat. §733.301

In most instances an individual who falls within one of these descriptions can be found and is qualified and willing to serve as Personal Representative. In the rare instance that an individual who falls within these categories can not be found, the court may appoint someone to serve, either in a testate or intestate estate, but the person the court appoints, if a non-resident, must be qualified to serve according to Fla. Stat. §733.304.

Special Note: All Trust companies incorporated under Florida law, and all state banking corporations, savings associations, national banking associations and federal savings and loan associations that are authorized and qualified to exercise fiduciary powers in Florida are qualified to act as personal representative. See Fla. Stat. §733.305. Conclusion: A non-resident of Florida can serve as Personal Representative only if related by lineal blood or legal adoption to the decedent, or married to a lineal blood or legally adopted relation of the decedent. For more information contact attorney Phil Rarick, Miami probate attorney, with Rarick Trusts & Wills Law at (305) 709-2858 or info@raricklaw.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 probate attorney. Your receipt of information from this website or blog does not create an attorney-client relationship and the legal privileges inherent therein.

You are named the personal representative (or executor in other states) and a loved one or family member has just died. No doubt these are difficult times, but thankfully there are many resources for help. The following is a checklist of initial important tasks to help guide you after the funeral or memorial service.

Note: You are not required to accept the Personal Representative duties. Before you can legally act on behalf of the estate you will likely need to secure Letters of Administration issued by a Florida probate court that officially designate you as the legal authority in charge of the estate. Therefore, you should not take action as Personal Representative before you know your duties and what potential claims you may face from estate beneficiaries and creditors. Consult a Miami probate attorney and see our 10 Basic Legal Rights for Beneficiaries Under a Florida Will.

First Priority Action Items

____ 1. Take possession of all legal records including:

__ Original will and all amendments or codicils

Note: If decedent did not leave a will, the beneficiaries will be determined according to Florida intestate law. See Dying Without A Will In Florida.

__ Tangible Personal Property Memorandum or writing indicating instructions for distribution of tangible personal property (such as jewelry, furniture, cars)

____ 2. Take possession of all financial records such as:

__ Inventory of assets if available

__ Passwords to computer, internet media, or social media

__ Checkbooks

__ Credit cards

__ Statements from all banks, financial companies, or financial advisors

Click here for the complete checklist: Florida Personal Representative Checklist

This is a short list of initial action items for a person who accepts the duties as Personal Representative. It is not a complete list of tasks. The Personal Representative will only be able to determine all tasks after carefully reviewing the will, if there is one, with a Miami probate attorney. Attorneys at Rarick Trusts & Wills Law have helped many family members navigate the bureaucratic Florida Probate process as the Personal Representative. We are available to help you. Contact us at (305) 709-2858 or email to info@raricklaw.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 a Miami probate attorney that is experienced in Florida probate law. Your receipt of information from this website, blog, or Miami probate attorney does not create an attorney-client relationship and the legal privileges inherent therein.

____ 2. Original Will and all codicils (or amendments to the Will)

Note: If you have the original, either personally deliver to the attorney’s office or send via Federal Express or certified mail.

____ 3. Originals of all trusts and any amendments or restatements

____ 4. Copy of paid funeral bill

____ 5. Copies of all deeds for real property owned by decedent

Note: If you cannot locate the deeds, we can usually secure if you provide us with the address of the property.

____ 6. Tangible Personal Property Memorandum or writing indicating instructions for distribution of tangible personal property (such as jewelry, furniture, cars)

____ 7. Income tax returns for last 3 years

____ 8. Copies of all bank statements, brokerage account statements, or reports from investment advisors

____ 9. Copies of all life insurance policies

____ 10. All corporate records if decedent owned any corporations, limited liability companies, partnerships or other entities.

Note #1: For a Checklist of Initial Tasks for the Personal Representative (or Executor) tasks click here: Personal Representative Checklist. For a Checklist of Initial Task for the Successor Trustee, click here: Successor Trustee Checklist.

Note #2: If any documents are located in a safe deposit box, you should not enter the safe deposit box without first clearing that with a Miami Probate or Trust attorney.

This is a short list of initial documents usually needed for a Florida probate or trust administration. After your initial consultation with a Miami probate or trust attorney, you will likely be requested to secure other documents.

Questions? If you have any questions contact a Miami probate attorney at Rarick Trusts & Wills Law, P.A. at (305) 709-2858 or info@raricklaw.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 probate attorney. Your receipt of information from this website or blog does not create an attorney-client relationship and the legal privileges inherent therein.

In our office we have numerous checklists, but one of the most important is the following checklist of nine critical deadlines for Florida probate actions:

1. Deposit Original Will with court: Within 10 days of notice of death by whomever has custody of the Will. F.S. 732.901.
2. Challenging Validity of Will or Personal Representative: Beneficiary has 90 days from receipt of Notice of Administration. F.S. 733.212(3).
3. Filing Probate Inventory: 60 days after issuance of Letters of Administration. Fla. Prob. R. 5.340.
4. Creditor Deadline For Filing Claim Against Estate: On or before the later of the date of three months after the first date of publication or thirty days after service of Notice Of Creditors for known creditors. F.S. 733.702(1). If the date of death is more than 2 years, no publication or service of the Notice Of Creditors is required and all claims are barred.
5. Personal Representative Deadline for Objecting to a Claim: Within the later of four months from first publication of the notice of creditors or 30 days from the timely filing of a claim or amendment of a claim. F.S. 733.705(2). If the PR fails to object within this time period, the claim is deemed allowed.
6. Statute Of Limitations For Claims Against Estates: Two years from date of death, with some exceptions. F.S. 733.710.
7. Surviving Spouse Homestead Election: 6 months from decedent’s death to opt out of life estate in homestead and take 50% interest.
8. Elective Share of Decedent Spouse: As early as 6 months from the date of service of a Notice of Administration on the surviving spouse, or 2 years after decedent’s death if no notice provided. F.S. 732.201-732.2155.
9. Determination of Exempt Property: 4 months after the date of service of a Notice of Administration or 40 days after the date of termination of any proceeding involving the construction, admission to probate, or validity of the will or involving any other matter affecting any part of exempt property. F.S. 732.402(6).

For more information contact Phil Rarick, Miramar probate attorney, with Rarick Trusts & Wills Law, P.A. at (305) 709-2858 or info@raricklaw.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 Miramar probate attorney. Your receipt of information from this website or blog does not create an attorney-client relationship and the legal privileges inherent therein.

The person in charge of making sure the property distributions in the Will are satisfied according to the instructions of the decedent is called a “Personal Representative” (referred to in other states as an “Executor”). The Personal Representative (or “PR”) has numerous fiduciary duties that run like a laser beam to the beneficiary. Here are some of the most important:

1. You have a right to secure a true copy of the Will. The original will must be deposited with the court within 10 days of notice of death by whomever has custody of it. F.S. 732.901

If you receive a Notice of Administration from the Personal Representative, it is strongly advisable to immediately request a copy of the Will from the PR.

Note: If the decedent did not have a will, your rights are determined – and protected – according to Florida intestate law. See a Miami probate attorney to help determine your rights and visit our previous article Dying Without a Will in Florida: Who Gets What? for more information.

2. You have a right to receive a Notice of Administration from the Personal Representative that will provide valuable information but will also establish a deadline as to when you can object to the Will. See #3 below. F.S. 733.212

3. If you believe the Will is not the true last will of the decedent, was executed when the decedent lacked capacity to understand what he or she was signing, or was secured as a result of undue influence, you have a right to contest the validity of the Will offered to probate.

Note: If you receive a Notice of Administration, your deadline for challenging the Will is 90 days after receiving said Notice. F.S. 733.212(3)

4. You have a right to see the inventory of the estate. The inventory must be filed within 60 days after the Personal Representative is appointed by the court and receives his or her Letters of Administration. F.S. 733.604??

5. You have the right to receive a detailed accounting filed by the Personal Representative pursuant to F.P.R. 5.345. If the PR has not filed an accounting, you have a right to compel the PR to do so. F.P. R. 5.150 Lastly, you can object to an inventory or accounting filed by the PR.

6. You have the right to Petition for the removal of the Personal Representative. F.S. 733.506.

7. You have the right to petition for an interim distribution. F.P.R. 5.380; F.S. 733.612(26)

8. You have the right to receive an inventory of safe deposit box F.P.R. 5.342

9. You have the right to petition for determination of homestead status of real property. F.P.R. 5.045. Such a petition is often advisable to shield the decedent’s primary residence from claims of creditors.

10. You have the right to petition for a decrease in the Personal Representative’s compensation. F.S. 733.617

This Report is only a summary of the key rights a beneficiary possesses under a Florida Will. It is not a complete list of rights. For more information, contact Phil Rarick, Miami probate attorney, at (305) 709-2858 or info@raricklaw.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 probate attorney. Your receipt of information from this website or blog does not create an attorney-client relationship and the legal privileges inherent therein.

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:

Larry shall establish an Irrevocable Children’s Safe Harbor Trust (“Trust”) to secure the payment of his child support and other financial obligations set forth herein. Within 10 days of execution of this Agreement, Larry shall transfer sufficient funds to the trustee of the Trust to purchase a term life insurance policy with a face value of $750,000 for a term of 10 years. The Trust shall be the owner and sole beneficiary of the insurance policy. The initial trustee of the Trust shall be [CPA, attorney, or independent third party]. The sole beneficiaries of the Trust shall be the children named herein. Said Trust shall be structured to (a) provide for the education, health, maintenance, support, and best interests of the children; (b) to protect the proceeds from creditor claims of Larry, the wife, or the children; and (c) comply with all of Larry’s financial obligations to the children as set forth in this Agreement. [Said Trust is attached hereto and fully incorporated herein.]

The Safe Harbor Children’s Trust could help insure that the policy does not lapse if Larry does not have sufficient funds to purchase the policy outright, but rather needs to pay on a monthly schedule. If a premium payment schedule is needed, it would be wise to have Larry prepay at least 3 months of premium in advance to the Trustee. The trustee would be required to notify the wife if funds for payment of the premium fall below a required minimum balance.

Such monies would be held by the Trustee to ver non-payment and give the wife time to compel the Husband to make payments. An alternative would be to purchase a life policy with the premiums guaranteed.

Note: Larry would want the trust structured to maximize his annual gift tax exclusion of $18000 per beneficiary in 2024. This is accomplished in the trust terms by use of what is known as “Crummey Powers”. Using such powers and assuming Larry has three children, he could annually transfer tax free $42,000 and not be required to file a Form 709 gift tax return.

How We Can Help

The primary focus of Rarick Trusts & Wills Law is trusts of all kinds and estate tax planning. As Miami trust attorneys, we have many years of experience in working with family law attorneys. We are available to consult with you and welcome any questions or comments. For more information, contact Phil Rarick at (305) 709-2858 or info@raricklaw.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 trust attorney. Your receipt of information from this website or blog does not create an attorney-client relationship and the legal privileges inherent therein.

1. 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.
2. Deal Impartially With Beneficiaries. The successor trustee cannot favor the income beneficiaries over the interests of the remainder beneficiaries unless the trust specifically directs otherwise. Typically, the trustee must walk a fine line that balances the interests of the income beneficiaries against the interests of the remaindermen.
3. Make Trust Property Productive Of Income. The trust portfolio of assets is expected to achieve conservative growth. Therefore, this duty may be violated if the successor trustee keeps large amounts in a checking account that does not pay interest and does not grow in value. This duty can also be violated if the trustee keeps trust assets in land that does not produce income, such as vacant land or commercial land that does not produce rental income in excess of maintenance costs.

Remember: The sole reason for the trust to exist is to serve the beneficiaries. It is not an employment program for the trustee. If you are administering a trust that has or acquires unproductive assets, consult with us and we can advise you as to your options.

4. Follow the Prudent Investor Rule, F.S. §518.11. This rule generally means that the trust portfolio should be broadly diversified and invested in conservative investments designed to stay ahead of inflation but not in aggressive growth. As a Trustee, you are not expected to be Warren Buffet, but you better not lose money or you will need to account to the beneficiaries. Often, it is best to retain the services of a Certified Financial Planner (CFP) experienced in helping manage conservative portfolios. Note: The successor trustee is obligated to exercise reasonable care, judgment and caution in selecting an investment agent.
5. Account To Beneficiaries And Keep Beneficiaries Informed. Upon commencement of the trust administration, the successor trustee must inform all income and remainder beneficiaries of his or her acceptance of the trustee duties. If a beneficiary requests it, the successor trustee is required to provide that beneficiary with a complete copy of the trust document, including any amendments as well as relevant information about the assets of the trust and the particulars relating to administration. In addition, even without request, all beneficiaries must be provided with an annual statement of the accounts of the trust pursuant to F.S. 736.0813.
6. Keep Trust Assets Separate. The successor trustee must keep the assets of each trust separate and keep his personal assets separate from the trust assets. This requires separate bank accounts, brokerage accounts, and safe deposit boxes for trust assets. It is particularly important that you keep the assets of the Credit Shelter Trust (also known as the AB Trust, Marital and Family Trust, or Bypass Trust) separate from all other assets, since these assets will pass tax-free at the death of the income beneficiary. If the successor trustee comingles any other assets in with these assets (or even simply takes the assets out of the trust and mixes them with her personal assets), in addition to breaching fiduciary obligations, the successor trustee will have subjected these assets to taxation when she dies, whereas they would not have been subjected to tax otherwise.
7. Avoid Conflicts Of Interest And Self-Dealing. The successor trustee cannot buy assets from the trust or sell his personal assets to the trust. He cannot favor himself as a beneficiary at the expense of any other remainder or potential remainder beneficiary. He cannot make any distribution to anyone or any withdrawals from the trust unless specifically authorized by the trust to do so. The trustee is entitled to a reasonable compensation for trust services or compensation as otherwise set forth in the trust. However, the successor trustee cannot otherwise profit or benefit from the trust unless also a beneficiary. Conflicts of interest and self-dealing is a broad area with many traps. If you are a trustee and have any concern as to any specific action or situation, consult with a Miami trust attorney.
8. Preserve The Trust Assets And Uphold The Trust. The successor trustee is liable if trust assets are lost, misplaced or destroyed because of inattention or negligence. If the trust assets are equities, the trustee needs to monitor their performance. If the trust assets are commercial real estate, the trustee must monitor that the properties maintain a high occupancy level, rents are collected in a timely fashion, and of course deposited in a trust account. This may require hiring a property manager. The successor trustee should be certain that all trust assets are appropriately insured. For example, if the trust owns a house in south Florida, it is imperative that the home be insured for property and wind damage that may be caused by hurricanes, heavy rains, and the weather related events we experience here. If the house is vacant, there should be a security system for obvious reasons.
9. File Tax Returns And Pay Any Tax Due. Each trust has a tax year, which like the personal tax year, ends annually on December 31. The trust must have a taxpayer identification number and file a tax return no later than April 15 of the year following. The income tax return for the trust is Form 1041, the Fiduciary Income Tax Return. The best advice here is to use a professional CPA who routinely prepares 1041’s. As mentioned above, such an expense is a typical cost paid by the trust.
10. Minimize Income Taxes. Income generally includes interest earned on bank accounts, CDs, bonds or mortgages, and dividends on stocks and mutual funds as well as all rental income. The trust has a high tax environment: income not distributed may be taxed at 39.6%. Therefore to minimize income taxes, the trustee may need to distribute income out to the income beneficiaries if the trust terms so allow.
11. Pay Trust Expenses. The administration of the trust necessarily requires certain expenditures. Example of expenses include insurance, real estate taxes, CPA fees, and legal services.
12. Good Record Keeping. The trustee needs to keep accurate records of every dime that comes into the trust and every dime that goes out. For small trusts, we recommend using Quickbooks or Quicken. If the successor trustee does not know these programs, it is highly advisable to hire a professional bookkeeper. If the successor trustee becomes disabled or dies, another person must be able to seamlessly step into her shoes and understand the current status of trust matters.

Note: Before the trust is terminated or before the trustee can be released, the trustee will need to provide a detailed accounting to all beneficiaries for all expenses, income and distributions during the time the trustee served.

EXPERIENCE MATTERS

Miami trust attorneys at Rarick Trusts & Wills Law, P.A., have assisted families and business persons for over 20 years. Our firm has worked with over 400 similar law firms located in states outside of Florida to represent their clients in legal matters concerning trust administration and probate. To schedule a meeting with a Miami trust attorney call (305) 709-2858, or e-mail info@raricklaw.com. We look forward to meeting you!

• The completed application for the certificate of title;
  • This can be found on the Florida Department of Highway Safety and Motor Vehicles (FLHSMV) website
• The certificate of title or other satisfactory proof of ownership or possession;
• An affidavit that the estate is not indebted; and
• An affidavit that the surviving spouse, if any, and the heirs, if any, have agreed on how the estate assets will be divided

D. Testate If the deceased person died testate, (with a Last Will), the application should be made by the personal representative of the estate and must include:

• The completed application for the certificate of title
  • As mentioned above, the form can be found on the FLHSMV website
  • The certificate of title or other satisfactory proof of ownership or possession;
  • If the will is being probated, a certified copy of the will and an affidavit that the estate is not indebted; or
  • If the will is not being probated, a sworn copy of the will and an affidavit that the estate is not indebted.

E. Important Note Probate may only be avoided if the estate is not indebted. If the deceased person had any debts, the creditor claims must first be resolved either by the formal administration of the estate or by the payment of the claims outside the probate proceeding. Conclusion

Assets such as motor vehicles should be transferred to the appropriate recipients as soon as possible after a person passes away according to Florida law. These items generally depreciate in value as time goes on and may be a source of potential liability to the estate.

For more information contact Rarick Trusts & Wills Law at (305) 709-2858 or email to info@raricklaw.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 probate attorney. Your receipt of information from this website or blog does not create an attorney-client relationship and the legal privileges inherent therein.

Nota Especial

La información en este blog es de carácter general y no esta supuesto contestar preguntas jurídicas para un individual. No confía en la información presentada en este documento para sus problemas individuales legales. Si usted tiene una pregunta legal sobre los hechos y circunstancias individuales, debe consultar a un abogado experto en fideicomiso. La recepción de la información de este sitio web o en este blog no crea una relación de abogado con el cliente y los privilegios inherentes en ellos.

For more information, contact Phil Rarick, Miami trust attorney, with Rarick Trusts & Wills Law at (305) 709-2858 or info@raricklaw.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 trust attorney. Your receipt of information from this website or blog does not create an attorney-client relationship and the legal privileges inherent therein. Nota Especial La información en este blog es de carácter general y no esta supuesto contestar preguntas jurídicas para un individual. No confía en la información presentada en este documento para sus problemas individuales legales. Si usted tiene una pregunta legal sobre los hechos y circunstancias individuales, debe consultar a un abogado experto en fideicomiso. La recepción de la información de este sitio web o en este blog no crea una relación de abogado con el cliente y los privilegios inherentes en ellos.

Note: Florida law on pet trusts was changed in 2007. As of July 1, 2007 Florida Statute 736.0408 replaced the previous statute 737.116. If you established a pet trust prior to July 1, 2007, it likely needs to be updated. 5 Points For Your Pet Trust Here are five points to remember in establishing a pet trust:

1. Select the right Pet Caretaker. You are the best person to know who will take good care of your pets. Identify and name that person for your trustee.
2. Set aside a reasonable sum of money to care for the pet for its life.
3. Set aside a reasonable sum of money to compensate the Pet Caretaker.
4. If you have more than two pets, more than likely you want them to stay together. Clearly state this.
5. Ask your attorney to make sure that you can easily add a new pet to the trust that you may acquire after you sign your trust.

We will be happy to help you set up a Pet Trust or modify your existing living trust to take care of your pets. Contact Rarick Trusts & Wills Law, Miami Trust attorneys, at (305) 709-2858 or email us at info@raricklaw.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 trust attorney. Your receipt of information from this website or blog does not create an attorney-client relationship and the legal privileges inherent therein.