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Articles Posted in Elder Law

By Phillip B. Rarick, Esq., Miami Probate Attorney

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:

By Phil Rarick, Estate Planning Attorney

______#1. Successor Trustee. This is the person you have appointed to step into your legal shoes if you become incapacitated – in other words, one of the most important estate planning decisions you can make. Who have you appointed to take charge if you are incapacitated? What is the order of succession of trustees? If you have any question whatsoever about your order of succession, please call the office at (305) 556-5209.

______#2. Asset Protection. Do you have any rental real estate that is in your individual name or an S corporation? Do you have a single member LLC? This is low hanging fruit for any potential creditor, and likely needs to be protected by placing the property in a multi-member LLC (limited liability company) or LP (limited partnership). Do you know which assets you own that are protected and which are exposed? If not, we can help analyze this important issue.

By Phil Rarick, Miami Trust Attorney

Hard to believe we are in mid-Fall and 2016 is coming to a close.   Now may be a good time to sit down with a Miami trust attorney and review your estate plan.  One of the biggest problems we see with individual estate plans is failure to keep the plan updated to ensure that it continues to meet the changing needs of your dynamic family. Here is a short checklist:

  1. Marriage/Divorce.Has there been a marriage, divorce, or separation of anyone named in your will or trust – such as your adult children or grandchildren?  Most persons want to ensure that their hard earned money goes to their children – or grandchildren –  not to any spouses.

Checklist for Amending your revocable trust

Checklist for Amending your revocable trust

Note: Your revocable living trust is designed to be as dynamic as your family.  It serves as the master set of instructions to care for you and your family.  Therefore, when there are big changes in your family, you may need an experienced Miami trust attorney to amend your revocable trust.

______#1. Marriage/Divorce.  Has there been a marriage, divorce, or separation of anyone named in your will or trust?  If there has been a marriage of an adult child (without a prenuptial agreement) you may need to amend your revocable trust to make sure monies designated for this adult child are protected.

By: Jacqueline R. Bowden, Miramar Estate Planning Attorney

As of October 1, 2015, Florida’s Healthcare Designation laws, provided under Chapter 765 of Florida Statutes, have changed providing more flexibility for the person appointing the surrogate, formerly known as the “principal.”

Three Options.  Currently, for a healthcare surrogate to make medical decisions, the attending physician must evaluate the principal’s capacity. If the physician finds the principal lacks capacity to make medical decisions, then the surrogate is permitted to review medical records and make medical decisions. Under new legislation the principal now has three options to choose from:

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.

____    1.         Minimum of 10 death certificates (these can usually be obtained through the funeral home)

____    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.

12 Point Summary of Florida Successor Trustee Duties

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

  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.

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

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

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

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