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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 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: 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.

By Phil Rarick, Esq.

May the odds be with you – but frankly they are not:

  • A recent study indicated that the average lawyer can now expect three legal malpractice claims during his or her career.

By Phil Rarick, Esq.

The Message.   

Apparently the message has not got out:  In 2011, the legislature threw Florida single member LLC’s under the bus.  In a compromise with the bank lobbyists called the Olmstead Patch, multi-member Florida LLC’s (or limited liability companies) were given charging order protection, but a Florida single member LLC receive none.   This means a Florida single member LLC can be easily attacked because creditors are not limited to a charging order; rather creditors can foreclose on their interests. See F.S. 605.0503Olmstead V. F.T.C.   Also See Olmstead Patch.

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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