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Articles Posted in Estate Planning

By Phil Rarick, Weston Estate Planning Attorney

You and your spouse are finally going out for the evening.  The babysitter, a  high school  student,  has arrived and you are loading the young woman with last minute instructions:  time for bed, make sure the kids brush their teeth, books to read little Tommy, etc, etc.   What is ironic is many such fretful parents leave more instructions for their babysitter when they are out for a brief night out than they do if they would suddenly die.

Many parents have life insurance to provide for their spouse and children.  What is missing here is that life insurance without detailed instructions could mean that your son or daughter gets a windfall when they turn 18 and then proceed to blow it on a hot car and high living – your dream of them getting a quality post high school education is up in smoke.

By Phillip B. Rarick, Esq. and Jay R. Beskin, Esq.

Last year the Federal annual gift tax exclusion was $15,000 and the amount remains the same for 2019.  This means you can walk down the street and give out $15,000 to every person you meet and not have to file a gift tax return.   If you are married, husband and wife can combine their annual exclusions and give $30,000 to each child or grandchild.  As long as your gifts are below the annual exclusion amount, they are not counted against the lifetime gift exemption which is currently $11.4 million per person (Note: Be careful this is temporary and expected to drop to $5.6 million in 2026).

Note:  Be very careful about making outright gifts to children.  It is far safer to use a “Gifting Trust” so that the money is wisely used for the child’s college education or other needs – and so that the child does not blow it when he  turns 18 or his creditors grab it when he is in his 20’s.

By: Phil Rarick, Esq. 

A Short Story With a Big Lesson

Everyone admired the Anderson family.    Walter and Joan had 5 children and had worked hard all their lives to give their children the best of American life:  each child received a car when they were a junior in high school – provided they had a 3.2 GPA.   Two children went to FSU, two went to University of Miami, and one to Cornell.  They all enjoyed the benefits from Walter and Joan’s small business – a flower import business next to the Miami airport.   Walter and Joan had started the business 45 years ago, the year they were married, and it had grown into a business with 19 employees and many good customers including Publix.

By: Phil Rarick

Here is a scenario we see more and more with persons who try to do estate planning themselves, specifically Florida Wills, without consulting with an experienced estate planning attorney.     Louise has three adult daughters, Erma, Madeline, and Roseanne.  The daughters are all close and speak to each other at least once a week.   Louise wants to treat them all equally.  Louise has four major assets: her home, a traditional IRA, a checking account, and a savings account.

Louise downloads a Florida Will form on the internet and says each child is to get one-third of everything she might own at death.  She is careful to sign the will before a notary and two witnesses with a “Self-Proving Affidavit”.  Louise dies, and the daughters schedule a meeting with a Probate Attorney.  At the meeting the probate attorney informs the daughters that the Will is good under Florida law.   However, despite the Will, 100% of the assets go to Erma.  Madeline and Roseanne are not happy.  How can this happen?

By: Jacqueline R. Bowden Gold

Our office handles probate estates for many out of state residents through our Florida Counsel services. In handling the estates there are three common problems we see with Non-Florida Wills that can easily be avoided by consulting with a Miami Estate Planning attorney. If you have a non-Florida resident who owns Florida real estate an ancillary administration may be required upon their passing.  You should consider these problems when drafting their Will:

  • Naming an out of State Attorney as Personal Representative or Executor.

By: Jacqueline R. Bowden Gold

It is no surprise that Florida is different from the other 49 states.  (Exhibit A: Google “Florida Voter Recount”)  What is confusing to some probate attorneys outside the state – and many within the state –  is our unique Procedure for “Probating” Homestead Property.   Pursuant to Florida Statute 733.607, protected Florida homestead property is not considered a probate asset, so why does it usually require a probate proceeding?

First, we must define what is homestead. Homestead is real property, of no more than 160 contiguous acres outside a municipality, or no more than one-half of an acre of contiguous land in a municipality, owned by a natural person, and the improvements on it. Art. X, §4(a), Fla. Const. In addition, to qualify for homestead it must be the decedent’s primary or permanent residence prior to death and the property must be owned by a natural person.

May the odds be with you –but frankly they’re not.    More than 60% of doctors over the age of 55 have been sued at least once, according to a new survey by the American Medical Association (AMA).  Doctors are not the only professionals at risk. Virtually all small business owners and professionals face multiple risks from the person injured at a party on  one of your properties, the “friend” who borrows your jet ski and hits a swimmer,  dissatisfied customers, disgruntled employees, and unhappy ex-partners.

It is a simple reality: We live in a hostile legal environment, and the chance you will not face costly litigation at some point in your career is not good. The good news is that you can fight back.  Here is a quick summary of our “Porcupine” Asset Protection Strategy with tested legal strategies that can help protect your investments and property.

  1. Make Your Assets As Unattractive as Possible to Attack with a Good Asset Protection Strategy

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:

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