By Phil Rarick, Weston Trust Attorney, and Jasmine Benitez, Legal Assistant

Estate planning is essential for ensuring your wishes are carried out after you are gone. Today, the preferred choice for estate planning is a living revocable trust. But what happens if a qualified beneficiary disagrees with the terms of the trust? Can a Florida trust be contested? The short answer is yes. However, contesting a trust in Florida is not easy; there are specific legal grounds and procedures to follow.

Why Would a Florida Trust Be Contested?

The five most common reasons for challenging a Florida trust are as follows:

1. Lack of Mental Capacity The person who created the trust (the settlor or grantor) must have been of sound mind when executing it. If the settlor was mentally incapacitated due to illness, age, or other factors, the trust could be contested.
2. Undue Influence If someone can prove that the settlor was pressured or manipulated into creating or altering the trust, it may be invalidated. This could include family members or caregivers influencing the settlor’s decisions.
3. Fraud If the trust was created under fraudulent circumstances, such as misrepresentation or deceit, it can be contested in court.
4. Improper Execution Trusts must follow Florida’s legal requirements to be valid. If the trust wasn’t executed properly—such as failing to sign, witness, or notarize the document correctly—it may be challenged. A Florida trust must be signed with the same formalities as a Florida will – the settlor must sign first in the presence of two witnesses.
5. Changes to the Trust Amendments or revocations to the trust can be contested, especially if there are concerns that these changes were made under suspicious circumstances and contrary to the grantor’s intent. Changes made within a few months of a grantor’s death are often suspicious, as are changes made by a grantor who has been isolated from his or her family by a caregiver or family member.

How Can a Florida Trust Be Contested?

Contesting a Florida trust involves a legal process that requires specific steps:

1. Filing a Petition

The person contesting the trust must file a timely petition with the probate court where the trust is being administered.

Note: Challenges to a trust must typically be done within 3 months of receiving notice of the trust or the trust’s offering for probate.

2. Gathering Evidence

Contesting a trust requires solid evidence to back up the claim. This might include medical records showing that the grantor lacked mental capacity or testimonies indicating undue influence or fraud.

3. Proving Grounds for Contesting

The person challenging the trust must prove that it is invalid due to one of the legal grounds—such as incapacity, undue influence, or improper execution. Without adequate evidence, the court will likely uphold the trust.

4. Mediation, Arbitration or Trial Today, most trust disputes are resolved through mediation or arbitration, but if the case goes to trial, the court will ultimately decide the outcome. Many trusts now require a process called mediation-arbitration: first, the contesting party must try to resolve the dispute through mediation; failing mediation, the dispute is submitted to binding arbitration. A judge or arbitrator will review all the evidence and determine if the trust stands or if it should be modified or invalidated.

Protecting Your Trust from Being Contested

Although trusts can be contested, there are steps you can take to minimize the chances of a challenge:

• Proper Execution: Work with an experienced estate planning attorney to ensure the trust is executed correctly and follows all legal requirements.
• Clear Intentions: Be clear about your wishes and discuss them openly with your beneficiaries to avoid confusion or misunderstandings.
• No-Contest Clause: A no-contest clause is not valid in Florida; however, as a practical matter, it may be advisable to include it in your trust for psychological purposes and as an expression of the grantor’s intent.

Conclusion

While Florida trusts can be contested, doing so requires strong legal grounds and a formal process. This is one reason why you do not want to try to save money doing it yourself or using an attorney who does not concentrate on trusts. You have heard this before, but you certainly would not want a general surgeon doing brain surgery. The same common sense applies to trust drafting.

If you’re considering creating a trust or have concerns about a trust being contested, consulting with an experienced estate planning attorney can help protect your interests and give you peace of mind.

For more information, contact Phil Rarick, Weston Trust Attorney, at info@raricklaw.com.

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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 the 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 who is experienced in Florida trust 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.

By Phil Rarick, Weston Trust Attorney, and Jasmine Benitez, Legal Assistant

In Florida, qualified beneficiaries of a trust have a legal right to receive an accounting from the trustee. This accounting is a detailed report of the trust’s financial activities, including income, expenses, distributions, and the status of trust assets. It ensures transparency and helps beneficiaries verify that the trustee is managing the trust according to Florida law.

Note: Unless you waive your right to an accounting, the Trustee has a duty to provide an accounting to all qualified beneficiaries. This accounting must comply with F.S. 736.0813. Among other things, the trustee must disclose his or her fees and costs charged to the trust.

What is Trust Accounting?

A trust accounting typically includes:

• Income: Dividends, interest, or rent generated by the trust.
• Expenditures: Distributions to beneficiaries, trustee fees, CPA fees, and administrative costs.
• Investments: Records of any asset purchases or sales.
• Balances: Beginning and ending balances for the accounting period.

This report gives beneficiaries critical insight into how the trustee is managing the trust.

Florida Law on Beneficiary Rights

Under Florida Statutes Section 736.1008, qualified beneficiaries have the right to request an accounting at any time. Trustees must provide this accounting within a reasonable period upon request.

What Happens if a Trustee Fails to Provide an Accounting?

If a trustee does not provide an accounting, beneficiaries can:

• Request one in writing.
• Petition the court to compel the trustee to provide the accounting.
• Seek the removal of the trustee.

Why is Trust Accounting Important?

An accounting ensures that:

• The trust is being managed properly and in line with the grantor’s intent.
• Beneficiaries can verify that distributions and expenses are legitimate.
• Potential issues, such as mismanagement, can be addressed early.
• The trustee’s fees and costs are reasonable.

Conclusion

A qualified beneficiary’s right to trust accounting is a key protection under Florida law, ensuring transparency and accountability. If you are a qualified beneficiary and believe the trustee is not fulfilling their duties, consult an estate planning attorney to understand your options. If you are a trustee, do not try to administer the trust without an experienced Miami trust attorney. For more information about Trust Administration, see our guide: Practical Tips For The Florida Trustee.

For more information, contact Phil Rarick, Weston Trust Attorney, at info@raricklaw.com.

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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 the 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 who is experienced in Florida trust 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.

By Phil Rarick, Weston Trust Attorney, and Jasmine Benitez, Legal Assistant

The answer is yes – under certain circumstances, a trustee can be removed from their duties. A trustee has a high fiduciary responsibility to act in the best interest of the qualified beneficiaries, but if they fail to do so, there are legal grounds for removal.

This blog will walk you through the typical legal grounds for removing a trustee, the process involved, and what steps you can take if you believe a trustee is not fulfilling their responsibilities.

Legal Grounds for Removing a Trustee in Florida

A trustee in Florida can be removed for a variety of reasons, typically tied to their failure to act in accordance with the trust’s terms or their fiduciary duties. Common grounds for trustee removal include:

– Breach of Fiduciary Duty

A trustee has a legal obligation to act in the best interests of the beneficiaries, and any violation of this duty is grounds for removal.

• Self-dealing: The trustee uses trust assets for their own benefit.
• Mismanagement of assets: Failing to invest or manage trust property properly, or making risky, imprudent investments. A trustee must follow the prudent investor rule, which can best be summarized as follows: the trustee should ensure that trust investments stay ahead of inflation but are not in high-risk investments such as cryptocurrencies. Unless otherwise stated in the trust, the investments should be broadly diversified. And importantly, the Trustee assets must produce income for the beneficiaries. See 5 Warning Signs That A Trust Is Not Performing.
• Failure to make required distributions: Not following the trust’s instructions on when and how to distribute assets to beneficiaries.

– Lack of Transparency and Failure to Disclose Information

Trustees are required to provide regular, accurate, and complete information about the trust to the beneficiaries. If a trustee fails to disclose relevant information or is not transparent about the trust’s activities, this could lead to their removal.

• Not providing annual financial statements
• Withholding or failing to disclose the trust document
• Not informing beneficiaries about important trust decisions.

See 5 Key Rights of a Florida Trust Beneficiary.

– Conflict of Interest

A trustee must act impartially and without personal bias. If a trustee has a conflict of interest, such as standing to benefit personally from a decision, they can be removed. This could include situations where the trustee is in a personal dispute with a beneficiary or has a financial interest that conflicts with their duties.

The Process for Removing a Trustee in Florida

If you believe a trustee should be removed, the process typically involves legal action, either through the terms of the trust or by petitioning the court. Here’s a breakdown of the steps involved:

1. Review the Trust Document

Start by reviewing the trust document. Some trusts include provisions that allow for the removal and replacement of a trustee, either by the beneficiaries, a co-trustee, or a third party (such as a trust protector or advisor). If the trust includes such provisions, the process for removal may be relatively straightforward.

2. Petitioning the Court for Removal

If the trust document doesn’t specify how a trustee can be removed or if there’s no agreement among the beneficiaries, the next step is to petition the court. The petition is typically filed in the probate court or circuit court that has jurisdiction over the trust.

3. Court Decision

If the court finds that the trustee has violated their fiduciary duties, breached the terms of the trust, or otherwise failed to fulfill their responsibilities, it can order their removal. The court may also appoint a successor trustee, either from a list of qualified individuals provided by the trust or based on its own determination of who would be the best fit to administer the trust.

4. Appointment of a Successor Trustee

If the trustee is removed, a new trustee will need to be appointed. If the trust document specifies a successor, they can take over immediately. If not, the court will appoint someone to act as the new trustee.

Key Takeaways:

1. Yes, a trustee can be removed in Florida for reasons such as breach of fiduciary duty, lack of transparency, failure to disclose trust information, and conflicts of interest.
2. The process of removing a trustee generally involves petitioning the court, unless the trust document provides a mechanism for removal.
3. If you are a beneficiary, communicate your concerns, gather evidence, and consult with an experienced Miami trust planning attorney to determine the best course of action.
4. After removal, a successor trustee must be appointed to ensure that the trust is administered properly and that the beneficiaries’ interests are protected.

Trustees play a critical role in managing trusts, and when they fail to fulfill their duties, it’s essential to take prompt action to protect the trust and its beneficiaries. If you’re facing issues with a trustee in Florida, working with an experienced Miami trust attorney can help ensure that the trust is properly managed and that your interests are defended.

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Consult with a Miami Trust Attorney

Consulting with an experienced estate planning attorney is crucial. An attorney can help you assess whether the trustee’s actions—or lack of action—justify removal, and they can guide you through the process of filing a petition with the court. They can also help you understand your rights as a beneficiary and what you can do to protect your interests.

For more information, contact Phil Rarick, Weston Trust Attorney, 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 the 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 who is experienced in Florida trust 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.

By Phil Rarick, Weston Trust Attorney, and Jasmine Benitez, Legal Assistant

Many real estate investors wrongly believe that a Florida Land Trust can offer asset protection. While this type of trust is known for providing privacy and simplifying estate planning, they do not provide comprehensive protection from creditors or legal claims. A better option is often a multi-member Florida limited liability company with a strong operating agreement that takes advantage of Florida’s anti-Olmstead law.

What Is a Florida Land Trust?

A Florida Land Trust is a legal structure where a trustee holds the title to a piece of property, but the beneficiary (property owner) maintains control. The beneficiary has all rights to use, manage, and profit from the property, while the trustee’s role is to handle administrative tasks. One of the most notable benefits of a Land Trust is that the beneficiary’s identity remains private, as the trustee’s name appears on public records instead.

Note: This means that if you wish to protect your privacy, then you cannot be the Trustee; you need to find a third party whom you trust to serve as Trustee.

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Can a Florida Land Trust Protect Your Assets?

While a Land Trust offers privacy, it is important to clarify that it does not provide true asset protection in the way that many people assume.

1. Limited Protection Against Creditors

A Florida Land Trust does not protect property from creditors or legal judgments because it is typically a self-settled Trust. If you face a lawsuit or have outstanding debts, creditors can still pursue the property held in the trust. Even with a Florida Land Trust, a creditor who obtains a judgment against you can still gain access to the property. The trust does not block creditors from identifying the beneficiary or forcing the sale of the property.

2. Lack of Lawsuit Protection

While the Land Trust keeps your name off public records, it does not prevent lawsuits or other legal actions from impacting on the property. If you are sued personally, your real estate holdings may still be at risk, as the trust doesn’t offer the same protection as forming an LLC or other business entities that legally separate assets.

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How Can a Florida Land Trust Be Used in Your Estate Plan?

While this trust itself does not fully protect assets, it can still be part of a broader asset protection strategy.

• Simplified Estate Planning: A Land Trust facilitates the easy transfer of property to heirs without probate. However, this advantage does not extend to asset protection against creditors.
• Combined with an LLC: For stronger asset protection, pairing a Florida Land Trust with a Limited Liability Company (LLC) can help separate your personal assets from your real estate holdings. An LLC offers protection from creditors by shielding your assets from liability tied to the property.

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Conclusion

Get it right the first time. To explore your best legal options to protect your real estate investments, contact an experienced Weston estate planning attorney who also concentrates on asset protection.

For more information, contact Phil Rarick, Weston Trust Attorney, 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 the 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 who is experienced in Florida trust 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.

By Phil Rarick, Weston Trust Attorney

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Every family needs instructions in the event of disability or death. A Family Trust, also known as a Living Trust, is your detailed, legally binding instructions to care for you and your family in the event of mental incapacity or death. A trust can accomplish all the goals of a will and in addition avoid probate and guardianship when properly funded. A will must go through a bureaucratic, expensive and time-consuming legal process called probate where the court may intervene in your personal or business affairs. This is why the Revocable Family Trust has become the preferred plan of choice over a will for most people; it is almost certainly the best plan if you have children.

Understanding a Family Trust – a/k/a Living Trust

There are three primary roles in a Family Trust: the grantor, trustee, and beneficiary.

The grantor is the person who makes the trust; the Trustee is the person who is legally found to follow the trust instructions exactly as stated in the Trust. And the beneficiary? Every dime of the trust must go to the beneficiaries. Initially, you can be the Grantor, Trustee, and, along with your spouse or children, the Beneficiaries.

Most Family Trusts are revocable because the grantor wants to retain 100% control over the trust instructions and change them whenever he or she wants at any time during their lifetime.   Control and flexibility are two key goals in Trusts.  The Trust has a major advantage over the mortal person: it does not become incapacitated, and it does not end at death.  It continues to provide for your family as long as needed to help protect the lifestyle of your family.   If you have children, it can help ensure they get a high-quality education and that the funds cannot be claimed by a spouse or creditor of the child.

Key Benefits of a Revocable Family Trust

1. Avoiding Guardianship. Guardianship is a bureaucratic legal process where the court supervises the person and/or property of a person.  The court selects the Guardian.    In my 30 years of practice as a Miami Trust attorney, I cannot recall anyone who wanted to allow a court to intervene in their personal or business affairs; almost all persons want a family member to take charge if they have a temporary or permanent incapacity.  A trust can help you keep legal control in the family.

2. Avoiding Probate. One of the biggest advantages of a family trust is that it allows assets to bypass the probate process provided the Trust is properly funded. Probate is the court-supervised process of distributing a deceased person’s estate, which can be time-consuming, costly, and public. By transferring assets to a family trust, those assets can be distributed directly to the beneficiaries without the need for probate, saving time and money.

3. Protection for Minor Children and Young Adults. The Trust can help ensure that funds going to minor or adult children are used in a smart way.    For minor children, a trust can help ensure that the minor child does not waste the funds by getting a big lump sum payment or that the funds could be claimed by creditors of the child after age 18.  Rather, the trust can help ensure the child receives a first-rate college and graduate education. For adult children who may marry or are already married, the trust can provide protections so the adult child’s spouse cannot claim funds designated for the child.

Conclusion Whether you have $100,000 or over $1 million you should first consider a Family Trust or a Living Trust over a Will for your estate plan as a Trust that is properly funded will help avoid the bureaucratic legal processes known as guardianship and probate. Plus, the trust can provide strong protections for minor and adult children to make sure your hard-earned money is used in a smart way for your children’s future.

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For more information about the Family Trust or Living Trust see our short guide, Understanding Living Trusts by Miami Trust attorney Phil Rarick or contact our office at (305) 709-2858 for a consultation.

Notice: This article is intended for informational purposes only. It is important you consult with an experienced Miami Trust attorney. For more information contact attorney Phil Rarick at  (305) 709-2858 or by email prarick@raricklaw.com.

3 CREATIVE WAYS FAMILY LAW ATTORNEYS CAN USE TRUSTS

By: Phillip B. Rarick, Miami Trust Attorney, and Maria C. Gonzalez, B.C.C., Family Law Attorney

The following note is a brief review of three popular trusts that can help ensure compliance with future financial obligations set forth in a Pre-Nuptial Agreement or Marital Settlement Agreement.

Hypothetical #1. Husband and Wife plan to marry and are expecting their first child in 7 months. Husband has a net worth of $10 million; Wife $200,000. In addition to all support needs for their child, Wife wants assurance that she will have an independent source of funds during the marriage, and sufficient funds if the marriage is dissolved to maintain the same quality of lifestyle she enjoyed during the marriage. Husband wants assurance that funds set aside for Wife are not used for a lavish lifestyle during the marriage; if Wife dies such funds would continue to be wisely managed for their children.

Solution: Irrevocable Spousal Lifetime Access Trust. The Pre-Nup requires establishment of an irrevocable Trust with a third party as Trustee for the sole benefit of Wife for her lifetime. In addition to any child support obligations, Husband will commit to fund $1 million into an Irrevocable Spousal Lifetime Access Trust. The Pre-Nup requires the Husband to fund the Trust with $1 million cash and the Trustee is required to purchase a $5 million term life insurance policy with the Trust as the beneficiary. The “Triggering Event” is defined as the annulment, dissolution of marriage, divorce proceeding or similar proceeding between the Husband and Wife. Wife has liberal rights to all income produced by the Trust; therefore prior to the Triggering Event, the Trustee can distribute such amounts of income as the Wife requests for her health, education, maintenance, support, and reasonable comfort. After the Triggering Event, the Wife can direct the Trust to distribute all income and principal as she wishes provided sufficient funds remain to fund the Life Policy. Note: This type of Trust has excellent asset protection features for the funds in the Trust.

Hypothetical #2: Both Husband and Wife want to ensure that their children will receive not just a high-quality private education through high school, but also have no excuse not to secure a quality post-high school degree, including a graduate degree.

Solution: Children’s Educational Trust. The parties commit to paying $100 per child per month into an Irrevocable Children’s Educational Trust. The Trustee is required to invest the funds in the Florida Prepaid College Fund, Florida 529 Savings Plan, or similar 529 plan. Individuals can contribute as much as $90,000 to a 529 plan in 2024 if they treat the contribution as spread over a 5-year period. Such plans grow tax free and avoid the high tax rate of Trusts. These plans provide excellent income tax reduction planning plus help ensure a high quality education for the children.

Hypothetical #3: One or both parties is not a good money manager which has led to financial stress that is a primary cause for the couple’s divorce. Both agree for the need to purchase or continue payment offer existing life insurance policies upon death of the spouse who has been the main provider.

Solution: Children’s Safe Harbor Trust. The MSA provides for the establishment of an irrevocable Trust to own the policies and pay the premiums. See post Children’s Safe Harbor Trust. The parties agree to yearly funding to the Trust to cover the premium payments. The sole beneficiary of the Trusts are the children; distribution standards are health, education, support, and best interests of the child at the sole discretion of the Trustee. Note: The trustee’s discretion is absolute to protect the children from creditor claims or claims of their spouses if they marry.

Notice: This article is intended for informational purposes only. It is important you consult with an experienced Miami Trust attorney. For more information contact attorney Phil Rarick at  (305) 709-2858 or by email prarick@raricklaw.com.

More Resources:

• Practical Tips for Administration of a Florida Trust
• Florida Trustee Checklist

By: Phil Rarick, Miami Trust Attorney You will miss this deadline if you do not read carefully – and you may need a magnifying glass to find it. Around the last weeks of August, you should have received in the mail a “Notice of Proposed Property Taxes” or “TRIM Notice” from your county property tax appraiser. This is NOT a bill but a notice. Buried at the bottom of your Notice in small print is an important deadline for appealing your tax assessment.

Clearly, the county does not want to encourage you to appeal your property taxes, exemptions, or right to claim homestead for your primary residence that you live in. Note these deadlines:

• Miami-Dade: The deadline for you is at the bottom of your Notice according to the Property Appraiser’s website. This is the deadline that is binding on you. The deadline on the TRIM notice I received for the property in Miami Lakes said September 17, 2024. Note, however, that your deadline is the one listed on the notice that you received. For more information click: Miami-Dade Trim Notice.
• Broward: September 18, 2024. For more information click: Broward Trim Notice.

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Should You Appeal? If your taxes have significantly increased, you may wish to consider an appeal of your assessment. Approximately 40% of appellants are able to successfully challenge their property tax assessments. The cost to appeal is only $15.

What To Do: If your property taxes have significantly increased, we recommend you have the valuation screened by a professional who is experienced in challenging assessments before the Value Adjustment Board. Many professional appraisers will take your case on a contingency fee; you simply need to pay the $15 filing fee. You need to make your own independent assessment of a professional to do this work.

Note: Our Firm does not do this appeal work and makes no recommendations of professionals who do; this notice is strictly a public service reminder courtesy of the Firm.

Homestead: Make sure you check your TRIM notice for your primary residence to confirm that you are receiving the Homestead tax exemption. Miami-Dade Appraiser cautions: Do Not Jeopardize Your Homestead Exemption by renting your homestead. When renting your home periodically for more than 30 days in two consecutive years, you will be ineligible for the Homestead Exemption or the SOH Cap.

Remember: It is not necessary to have all your evidence before you file. If in doubt, pay the $15 and file your appeal. The most important goal at this point is to get your appeal filed on a timely basis if you want to appeal. After the deadline, it is exceptionally difficult to file.

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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 the 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 or 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.

By Phil Rarick, Miami Trust Attorney

Naming a minor child as a beneficiary of a will, life insurance policy, IRA, 401K, bank account or any other source of fund is almost always a substantial mistake for four reasons:

1. If the funds are over $15,000 a guardian ad litem may need to be appointed by the court for the minor to access the funds upon death or disability of the parent. See F.S. 744.301. Court costs to petition the court and secure such funds on behalf of the minor could run from $3,000 to $5,000.
2. Upon reaching the age of 18 the minor becomes of legal age and can immediately claim all funds. Therefore, if the goal was to set aside the funds for the child’s education, then these funds are likely lost. How many 18-year-olds have the money management skills to handle any significant sum of money? Would they use the funds for college tuition – or purchase a bright yellow Mustang? You may think your child is the exception, but do you really want to take this risk?
3. After age 18, the funds can be attacked by creditors of the child. Let’s say the child gets an American Express card and maxes out the credit card. American Express could have a claim on your adult child’s inheritance.
4. If distributed at age 18, the funds will be considered as available funds for any financial assistance or scholarship the adult child seeks for college or university entrance. In a properly structured trust, the funds would not be factored into such need based financial assistance.

Much Better Options

1. Prepare a Protective Educational Trust or Safe Harbor Trust For Minors as part of your revocable living trust or in a separate irrevocable trust. Such Trusts would allow you to appoint a person you trust to act as a trustee for any monies you intend to go to your minor children or grandchildren. These types of Trusts can also help ensure that every dime is used for the benefit of your child – and no one else. See our Quick Reference Guide: Understanding Living Trusts For Florida Residents.
2. Do not name minors a primary or contingent beneficiary of life insurance.We see clients often get poor advice from life insurance agents on this point. For married couples, it is popular to name the other spouse as primary beneficiary and children as contingent beneficiaries. If the spouse does not survive, and the funds go to the minor children, you have all the four problems mentioned above. Rather, consider a revocable or irrevocable trust that names your children as beneficiaries and provides guidelines for when the funds can be distributed. Trusts come in thousands of different variations – consult a Miami trust attorney to help you decide how best to structure the trust.
3. Do not use Uniform Gift To Minor Accounts or UGMA accounts – except for small sums under $1,000. These accounts are overused. The beneficiary of a UGMA (Uniform Gift to Minor Account) can receive the entire sum at age 21. These funds are much better protected if they flow into a trust.

For more information about protecting funds for your minor children, contact an attorney at Rarick Trusts & Wills Law at (305) 709-2858 or info@raricklaw.com. As Miami trust attorneys, with over 60 years of collective experience, we welcome the opportunity to meet with you and discuss your best legal options.

Notice: This article is intended for informational purposes only. It is important you consult with an experienced Miami Trust attorney. For more information contact attorney Phil Rarick at  (305) 709-2858 or by email prarick@raricklaw.com.

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.

Its a New Year and time to file your 2026 Annual Report if you own a Florida LLC (limited liability company), corporation, or partnership. The deadline is May 1, 2026. The state will charge you a $400 late fee if you miss this deadline.

The official Florida web site is www.sunbiz.org. This site has “Consumer Notices” to alert you to bogus web sites that try to scam persons who file these reports.

How To Safely File

The legitimate email notice will state that it is from the Florida Department of State; Subject: Official 2025 Annual Report Notice for: [Name of your corporate entity].

This notice will give you instructions on how to file on line at www.sunbiz.org where you will find a banner that states, “’Florida Department of State, Division of Corporations”.

Florida Department of State fees for the annual registration of corporate entities are:

• Limited liability company: $138.75
• Corporation: $150.00
• Limited Partnership: $500

Watch For These 3 Scams Scam #1: F.C.F.S. – Florida Corporate Filing Services. This outfit sends you a notice in the mail that looks like they are official certificates from the State of Florida with a Tallahassee address and will request about $47 for a Certificate of Status. In another scam they may request $125 for filing corporate minutes. People are tricked into thinking such documents are required by the State – they are not. Scam #2: Corporate Filing Services Center. This group requests about $68 for a certificate of status – again, not required by the State. Scam #3: C.F.S – Certificate Filing Service. This gang has exceptionally impressive and official looking paper that resembles the quality paper of a birth certificate. They will request about $49 for a certificate of status. This is NOT required by the State. Note: The Department of Agriculture and Consumer Services (DACS) now has the statutory duty and responsibility to investigate potential scams and fine violators under the new “Government Impostor and Deceptive Advertisement Act” (GIDAA). For more information, see section 817.417, F.S. or visit the FDACS’s Division of Consumer Services. Good Time To Review Your Corporate Records – and Update Them

This is a good time to conduct an annual review of your LLC, corporation or limited partnership.

We have prepared a 10 Point Checklist to assist you. To get this list click here: 10 Point Checklist For Florida Corporate Entities

It may be advisable to make an appointment with our office to ensure your corporate minutes are properly prepared, are up to date, and accurately reflect key issues, such as who are the controlling officers, who are the owners, and what shares or units does each owner hold.

To schedule an appointment, call our office at (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 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.

By Phillip B. Rarick, Miami Trust Attorney, and Hannah S. Rarick, J.D. Candidate

Effective as of last year July 1, 2021, Florida is now 1 of 15 states to enact the Uniform Directed Trust Act (FUDTA), F.S. §§736.1401 to .1416, that allows a third party other than the Trustee to take over some part of the trust administration – such as supervision of a small family business. This third party is called a Trust Director (or directing Trustee) in the new statute; but is also commonly referred to as a Trust Advisor under prior law or Trust Protector in other jurisdictions.

Here are Five key points in the new Directed Trust Act: 1. Expanded Trustee Protections. The focus of the new act is to expand the guidelines and protections for Trustees who are “directed” to take or not take certain actions during the trust administration. F.S. 736.1409. The person who can give such directions is now referred to as either (a) Trust Director (F.S. §736.1406) or (b) a “directing Trustee” (F.S. §736.1412).

Note: I am going to use “Trust Director” as I find “directing Trustee” confusing. The act anticipates that the Trustee will not

also serve as Trust Director otherwise why then do you need a Trust Director? However, the new law does not prohibit a Trustee from also serving as a Trust Director.

2. Powers of the Trust Director. These powers are very broad and include power over investment, management, distribution of trust property, amend trust, and terminate Trust. Powers that are excluded include powers of appointment and the powers to remove a Trustee or Trust director.

3. Clarification of Trust Director Standard of Care. Before FUDTA, it was not clearly defined what fiduciary duty was imposed on the Director. Now, the new law states the Trust Director’s minimum duty is to act in good faith and in accordance with the beneficiaries’ interest, which is parallel to a Trustee. This duty is applicable to any person who holds the role of directing a trustee, despite the title of the position.

4. Trust Director Can Now Issue a 6-month limitation notice. A 6-month limitation notice can now be issued by both the Trustee and Trust Director. A Trust Director can issue 6-month limitations notice per F.S. 736.1008 that can effectively cut off claims by a beneficiary of the acts of the Trust Director unless an action for breach of trust based on matters disclosed in a trust accounting or other written report is commenced within 6 months after receipt from the trustee or a trust director of the limitation notice.

5. Effective date: July 1, 2021. But here is the curve ball. The new law is currently effective, although F.S. §736.1403 provides “(a) If the trust was created before July 1, 2021, this part applies only to a decision or action occurring on or after July 1, 2021.”

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 the 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.

Here is the good news/bad news I received from my bank today regarding my Paycheck Protection Program (PPP) Application: The good news: your application has been approved; the bad: the SBA is out of money and you must wait for Congress to refund the program!

Although I have heard of a few small businesses that have received funding I am guessing that most persons reading this letter have encountered similar frustrations. Note: if you have received funding, please so reply.

We predicted in my first letter regarding PPP that the $349 billion fund would run out of money and this Thursday it did. It lasted two weeks! For an interesting map on where the funds were distributed nationwide see PPP Loan Allocation Map.

My message to you now is don’t give up. Yes, many small businesses with average monthly payroll over $1 million got preferential treatment by the big banks. However, the banks are incentivized under the SBA program to make small loans under $1 million.

And more encouraging: there is strong bi-partisan pressure to refund the program. (If only Congress could stop the bickering and see the urgency of the threats to millions of small businesses.) Regardless, if you have applied and are waiting to get approval, keep checking with your bank to make sure they have all necessary documentation and try to get confirmation your application has been approved. If you have not applied, do so immediately.

My son-in-law is a senior manager for a major regional bank in the western states and is working over-time this weekend to continue to process applications. My bank advisor also tells me she is working this weekend on her bank’s back-log of applications. Both banks believe the program will be refunded. I think that is a good bet.

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.