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By Phillip B. Rarick, Weston Estate Planning Attorney

Irrevocable divorce trusts should always be an important tool in the Family Law Attorneys bag of tools as a well designed trust can address multiple issues that cannot be fully resolved through a Divorce Agreement.   It may be a good idea to brainstorm possible irrevocable divorce trust solutions with an experienced estate planning attorney at the commencement of the case. Here are a few examples:

Dissolution #1:           Husband and wife have minor children, ages 8 and 10.  Wife is big shopper and bad money manager.  Your client is the Husband.  He is concerned that if child support payments go directly to wife she will use some of the funds to buy expensive clothing and keep up her lavish life style  – to the detriment of the children.  Both parents agree that they want to ensure that the children go to a private high school and a prestigious college or university after high school.

By Phil Rarick

All modern passenger jet planes have at least two engines.  Similar reasoning applies to prenuptial agreements.    Many will argue that a good prenuptial agreement should fly safely on its own without the need for a “second engine.”   However, a second engine could be a Nevada Asset Protection Trust (“APT”) that could only be contested in a Nevada court.    Simply by requiring a litigant to seek redress in another jurisdiction will present a strong financial and psychological deterrent to a disgruntled spouse seeking to overturn the prenuptial agreement.  Two engines are safer and stronger than one!

PRENUPTIAL-AGREEMENT-PLANE-TAKEOFF
Here are two initial objections that I hear from some of my Family Law attorney friends:

By Phil Rarick, Weston Estate Planning Attorney

This report is a reminder that the FBAR or Report of Foreign Bank and Financial Account is due June 30.    The FBAR is required for U.S. persons having a financial interest or signature authority over one or more foreign financial accounts, including a bank account, brokerage account, mutual fund, trust, estate, pension, cash value life insurance, or other type of foreign financial account having an aggregate value over $10,000 at any time during 2015.

Note:  A U.S. person may have a reporting obligation even though the foreign financial account does not generate any taxable income.

Phillip B. Rarick, Esq., Miami Trust Attorney

Florida law requires that a trust must keep the qualified beneficiaries of a trust “reasonably informed of the trust and its administration.” F.S. 736.0813.  A “qualified beneficiary” is a current beneficiary, intermediate beneficiary, or first-line remainder beneficiary. F.S. 736.0103(16).  These information rights fall into two broad categories for a Florida trust beneficiary:  the Duty To Inform and the Duty to Account as follows.

Note:  The notice requirements discussed here typically apply to an irrevocable trust not a living revocable trust where the settlor (trustmaker) is not incapacitated.  If the settlor becomes incapacitated or dies, then these notice requirements likely do apply.

By Jefferson H. Weaver, Esq.

Documentary Stamps Due On Sale

Buyers and sellers of real estate in Florida have some familiarity with the documentary stamp tax as it invariably shows up on their settlement statements as a closing cost.  Whether the seller alone or both the seller and buyer pay documentary stamp taxes depends on the type of transaction.  If there is no financing involved, then the documentary stamp tax will be calculated based upon the sales price of the property itself at a rate of  $0.70 per $100 of value.  The only county in Florida with a different schedule is free-thinking Miami Dade County where the rate is $0.60 per $100 of value when the property is a single family residence.  Other types of properties in Miami Dade County are charged slightly different rates of documentary stamp tax.

Note: Keep In Your Car Glove Compartment in Case You are in an Auto Accident

  1. Safety first. Move to a safe location.  If there are any injuries or property damage call 911 immediately.
  1. Stay calm. Focus on task at hand documenting the accident.  Be courteous but don’t admit fault.  An investigation may later show you were not responsible.

A big focus of our practice is helping our clients better protect their real estate investments.  However, some of our clients are surprised to learn that our legal services extend beyond real estate asset protection.  Here is a short list of our real estate services:

–           Purchase or Sale of Residential or Commercial real estate.   We will represent you on your sale or purchase.   It is often difficult to find reliable, cost efficient title companies.  We work in close collaboration with local, experienced attorneys who provide excellent title services.   We can help you close virtually any real estate transaction at a cost often below other title companies.

–           Commercial Leases.   A good commercial lease is essential to protecting the value of your property by insuring that good tenants stay, and bad tenants can be quickly and economically removed.   A strong, modern lease can help insure that you keep all your properties fully rented and tenants current in their payments.   My partner Jay Beskin is experienced with commercial leases and is available to help make sure that your new lease protects your interests.   An old lease may not be doing a good job of protecting you in 2015.   If you have an old lease, Jay is available to review it.

By Phillip B. Rarick, Esq. and Jacqueline R. Bowden, Esq.

For same-sex couples living in Florida, now is the time to take full advantage of rights long delayed to make sure that your spouse or partner is cared for come rain or shine.  Here is a checklist of some of the most important action items.

  1. Living Revocable Trust: Make instructions to care for your spouse and children. Every couple should have detailed, legally binding instructions to care for their loved ones. The best way to accomplish this is to prepare or update your living revocable trust.  Such a trust can help avoid court intervention in the event of disability or death and make sure all your hard earned money goes to your spouse or children in a wise and prudent way.  For more information about Florida living trusts, see our Quick Reference Guide:  Understanding Living Trusts for Florida Residents.

Within the past 10 years, the Living Trust has replaced the Will as the best way to care for you and your loved ones because it can avoid the fees, cost, and stress of court intervention in the event of mental incapacity or death.  Properly funded, a living trust can help you keep legal control in your family or with persons you trust and avoid having a judge – an unknown third person –  make decisions about your personal affairs.

A living trust is simply detailed, legally binding instructions to care for you and your family.  There are three key players in a trust.  First, the Trustmaker or grantor; this is the person who makes the trust.  Second, the Trustee, whose job is to follow the instructions of the trust exactly and to the spirit of the trust.  The third role are the Beneficiaries.  The Trustee’s fiduciary duties run like a laser beam to the beneficiaries:  every penny of the Trust must be used in the best interests of the beneficiaries.

Initially, you can act in all three roles in your living trust:  You can be the trustmaker, trustee and beneficiary.  Your spouse, children, or other loved ones can also be beneficiaries.

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