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, 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.

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.

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.

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

The starting point for most persons interested in helping to ensure that their hard earned investments are well protected is to make an inventory of all assets and, in consultation with an experienced asset protection attorney, divide these assets into “Protected Assets” and “Exposed Assets.” The goal is to take the Exposed Assets and turn them into porcupines, so if the wolf (creditors or future persons who may try to sue you) appears at your doorstep, their reaction will be the reaction porcupines get from their predators: after sniffing around they back off.

Therefore, the key point of the Porcupine Asset Protection Strategy is to turn attractive assets or “low-hanging fruit” into Porcupines with the initial goal to preempt lawsuits.

Note: What is the lowest of the low hanging fruit? Answer: Real estate titled in your name or joint name with your spouse.

Real estate is the ideal asset for creditors, because (1) it does not disappear overnight; (2) creditors can quickly lien it; and (3) creditors can foreclose on it. This is why almost all investment property should be in a multi-member Limited Liability Company (“LLC”) with a post 2012 Operating Agreement or Limited Partnership. See 4 Take-Aways Under Florida’s New LLC Law.

2. Asset Protection Planning is Not Dogmatic

Good asset protection strategy is not dogmatic; by this I mean that it does not apply a one size fits all approach. Sometimes in this field, you will find attorneys who have a hard bias toward off-shore planning; others will have a strong preference for domestic asset protection trusts; while others may say just stay at home and take advantage of your strong Florida laws. What is best for you depends on your unique goals, unique bundle of assets, and risk tolerance.

Good asset protection planning often combines multiple layers of protection with multiple defense options – not unlike Geno Smith, the legendary basketball coach of North Carolina, who employed a successful basketball defense based upon applying multiple defensive schemes. Therefore, it is possible – and commonly used – to employ multiple asset protection techniques: some assets will be protected by Florida law, some assets by a Delaware LLC, other assets by a Nevada Asset Protection trust; if the Nevada Asset Protection Trust is seriously threatened, it can be moved off-shore and established as a Nevis Asset Protection Trust or a Cook Island Asset Protection Trust.

3. Not Based Upon Concealment

Many lay persons believe that they can protect their assets by concealing them from creditors. For example, it may be tempting to transfer an investment real estate property to a family member or friend. Such transfers are likely doomed to failure – and we are assuming your friend or family member does not get sued. The reason is two-fold. First, with modern discovery laws in the United States, a creditor can discover virtually any transfer you have ever made because they can simply depose you and you must tell the truth under penalty of perjury. In addition, there is always a paper trail, in the form of texts, email’s, bank transfers, or tax returns. The second reason concealment does not work is FUFTA, the Florida Uniform Fraudulent Transfer Act, F.S. 726. Under this law, transfers made “with actual intent to hinder, delay, or defraud any creditor of the debtor” may be clawed back. See Point #8,

Note: While concealment should never be a basis for asset protection planning, there may be value in maintaining a low public profile, so that when a creditor performs a Google search your investment entities do not show up. This could be particularly beneficial for any professional in a high-risk profession – such as a doctor, dentist, or health professional.

4. Take Full Advantage of Florida Law

It is often surprising to me that some Florida residents think they need to go to Wyoming or South Dakota to protect their assets when they often have good options under Florida law. Florida has one of the strongest (if not the strongest) homestead laws in the United States. Of course, this is one reason why O.J. Simpson moved to Florida: he purchased an expensive Florida home and claimed it as his primary residence.

For decades, Florida courts have done a superb job of protecting homestead. A good example is the Florida Supreme Court Havoco decision. In this case, Havoco obtained a $15,000 judgment against Hill. Three days before the judgment became enforceable, Hill purchased a $650,000 property claiming to make this property his homestead. Creditors argued this property could not be protected homestead because Hill converted non-exempt assets into the homestead with the intent to defraud his creditors. Despite the obvious intent to defraud the creditors, the court found the homestead was protected. See 790 So. 2nd 1018 (Fla. 2001).

Of course there are limitations to the Florida homestead protection that are beyond the scope of this summary. Florida homestead is a complex and often misunderstood protection where you need to consult with an experienced Florida attorney.

Florida homestead is not the only Florida law that residents should take advantage of. Real estate investors should almost always consider LLC’s – limited liability companies – to protect their real estate and limit creditors to an unattractive remedy called a charging order. The two fundamental take-aways on Florida LLC’s is that they should be multi-member (unless owned by a limited partnership) and they must have a robust LLC Operating Agreement drafted after 2012 because the Florida LLC law was fundamentally changed in 2012. See Basic LLC Checklist.

Other investments protected by Florida law are (1) IRA & qualified plan benefits; (2) wage exemption; (3) wage accounts (but only for 6 months); (4) life insurance, both term and cash value provided the policy is owned by the insured; (5) annuities; (6) Florida Pre-Paid Plans; (7) 529 college plans. Note: this is not a complete list.

5. Domestic Asset Protection Trust – That Can Be Moved Off-Shore – As A Core Planning Tool

Most persons considering the best way to protect their cash, stocks and other equities likely need a Domestic Asset Protection Trust (“DAPT”). This is where Florida residents usually need to consider another state jurisdiction because Florida does not protect “self-settled” trusts: a trust where the grantor is also the beneficiary. However, Nevada, Delaware, Alaska and other states do have strong legislation protecting self-settled trusts.

Nevada has modern laws designed for robust DAPT’s. The 5 major advantages of a Nevada DAPT are: (1) no state income tax; (2) 2 year statute of limitations for future creditors; (3) 2 year statute of limitations or 6 months from date of discovery for pre-existing creditors; (4) No pre-existing torts exception creditors; (5) allows self-settled trusts. For a more complete discussion of such trusts, and specifically the Hybrid Nevada DAPT, see my article Nevada Asset Protection Trusts: Your Best Option?

6. Asset Protection Plan integrated with Estate Plan

Prior to the new federal tax law, the Tax Cut and Jobs Act of 2017, much asset protection planning could have a sound estate tax avoidance rationale. Now, with the estate tax exemption of $5.6 million in 2026 (the current exemption is $11.2 million, but this is temporary and drops down to $5.6 million in 2026) such a rational is not realistic for many persons. However, there are often fundamentally sound estate planning reasons to do such planning because a good asset protection plan should usually be integrated with your estate plan. Usually the goals are not just to protect your assets now and for the rest of your life, but also to protect them for your children and grandchildren. No one wants to spend your life working to build a valuable nest-egg, only to see a big piece of this nest-egg lost in your child’s divorce case. Further, the core component of most estate plans is a revocable living trust; such a trust must be integrated with all domestic corporate entities and other trusts. The take-away here is that you should not do asset protection planning without connecting and integrating it with your estate plan. If challenged, you have a legal basis to claim that transfers made were done as part of your over-all estate planning, and not attempts to “to hinder, delay, or defraud any creditor”.

7. Insurance As War Chest – Not An Incentive For Lawsuit

Insurance – such as malpractice insurance for the professional or casualty insurance for the real estate investor – is a critical component of a comprehensive asset protection plan. However, in determining how much insurance you need consider that a primary purpose of your insurance should be to give you a war chest to defend a legal attack. More commonly, insurance is an incentive to a lawsuit. The first request you will get from a personal injury for a person injured at your business is a demand letter for disclosure of all insurance that you have on the property. You are required to disclose this information under Florida law. If the damages are substantial, the PI attorney will want to go beyond the policy limits and sue you personally. Insurance – not coupled with an asset protection plan – is a big incentive for a lawsuit; it is the equivalent of putting a bulls-eye target on your assets. Under our Porcupine Asset Protection Strategy we want to minimize any such incentive. Therefore, the two big take-aways here are: First, have adequate insurance to fund a war chest to vigorously defend a lawsuit. Second, do not rely simply on insurance – take advantage of Florida law and other laws to protect these assets with a good asset protection plan. In the long run, such a plan is far cheaper than paying for large insurance policies.

8. Timing Is Critical

Timing is one of the most critical considerations in asset protection planning. Asset protection planning is usually not viable after:

• Parent of 18 year old driver who seriously injures a young biker
• Owner of rental real estate where late night party results in a fight and guest getting stabbed;
• The doctor who is served with a summons after a botched surgery;
• Pre-divorce planning by a husband trying to scam his wife (or wife trying to scam her husband. (Here there is a good pre-marriage legal solution: it is called a Prenuptial Agreement.)
• Owner of house where worker pressure cleaning the roof falls off and breaks back.

In such situations it may be too late to do any planning. The reason is FUFTA: Florida Uniform Fraudulent Transfer Act, F.S. 726. This is a powerful creditor civil remedy (not a criminal remedy) that allows a creditor to claw back any transfer made “with actual intent to hinder, delay, or defraud any creditor of the debtor”. Creditors may rely upon the “badges of fraud,” such as making transfers to an asset protection entity that renders the creditor insolvent.

The take-away on this is simple: Plan when waters are quiet – before the problem arises. Do not put this planning off to another time; do it now.

Conclusion

Asset Protection Planning covers a wide breadth of law; it requires an experienced attorney who concentrates in such planning. For more information contact Rarick Trusts & Wills Law at info@raricklaw.com or call (305) 709-2858.

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:

• Decedent’s probate estate;
• Decedent’s fractional interest in property held by the decedent in joint tenancy with rights of survivorship or tenancy by the entireties;
• Property in a revocable trust or a discretionary trust for the decedent’s benefit;
• Cash surrender value of insurance policies on the decedent’s life;
• Death benefits payable under retirement plans;
• Certain transfers within a year of the decedent’s death;
• Transfers in satisfaction of the elective share;
• “Pay on Death” or “POD”; “Transfer on Death” or “TOD”; and “In Trust For” or “I/T/F”; and co-ownership with rights of survivorship accounts. The decedent’s interest is that portion that the decedent could withdraw immediately before death without an obligation to any person. If Tenancy by the Entireties, one-half is included.

This is not a complete list; see F.S. §732.2035. What is Excluded?

Not much. Here are some of the major exclusions:

• Real property that constitutes the decedent’s homestead;
• Insurance in excess of the cash surrender value is generally excluded;
• Gifts that qualify for the gift tax annual exclusion; and
• Transfers with the written consent of the spouse. (Spousal consent to gift split is not written consent.)

Again, this is not a complete list; see F.S. §732.2045.

Deadline for Making Elective Share Election

The general rule is that the election must be made within the earlier of six months of the date of service of the Notice of Administration or two years from the date of death. F.S. 732.2135.

Rarick Trusts & Wills Law has been trusted by numerous law firms and many families during the past 20 years for probate, estate planning, trust and asset protection cases. To schedule an appointment with Phil Rarick, a Miami probate attorney, call (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 in Miami probate attorney. Your receipt of information from this website or blog does not create an attorney-client relationship and the legal privileges inherent therein.

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.

The following is a helpful comment from a recent Forbes article:

U.S. law requires U.S. persons to report any worldwide income, including income from foreign trusts and foreign bank and securities accounts. Note that, by statute, these FBAR provisions apply to all U.S. persons and are not limited by the residency of the person since the laws of the U.S. are applicable to all U.S. citizens, U.S. residents, entities, including but not limited to, domestic corporations, partnerships, or limited liability companies created or organized in the U.S. or under the laws of the U. S., and trusts or estates formed under the laws of the United States. See Forbes, Reminder: FBAR Electronic Filing. Summary of Disclosure/Reporting Requirements for Off-Shore Assets

Here is a quick overview of the most common filing requirements for off-shore assets as reported in attorney Alan Gassman’s Thursday Report:

1. Form 3520: Annual Return to Report Transactions with Foreign Trusts and Receipt of Certain Foreign Gifts

When Required: If a U.S. person: (1) creates or transfers money or property to a foreign trust; (2) receives (directly or indirectly) any distributions from a foreign trust or; (3) receives certain gifts or bequests from foreign persons, estates or other entities.

2. Form 3520-A: Annual Information Return of Foreign Trust with U.S. Owner

When Required: By any U.S. person who is treated as an owner of any portion of a foreign trust under the grantor trust rules.

3. Form 8938: Statement of Specified Foreign Financial Assets

When Required: If U.S. person has interests in certain specified foreign financial assets exceeding $50,000 on the last day of the tax year, or $75,000 at any time during the year ($100,000 and $150,000 respectively for taxpayer Married Filing Jointly).

4. FBAR: Report of Foreign Bank and Financial Accounts

When Required: If a U.S. person has (1) financial interest or signature authority over one or more foreign financial accounts, and (2) the aggregate value of such accounts exceeded $10,000 at any time during the calendar year.

5. Form 5471: Information Return of U.S. Persons with Respect to Certain Foreign Corporations

When Required: Generally required for U.S. persons who are officers, directors, or shareholders in certain foreign corporations.

6. Form 8865: Return of U.S. Persons with Respect to Certain Foreign Partnerships

When Required: To report information regarding foreign partnerships controlled by a U.S. person; transfers from a U.S. person to a foreign partnership; or to report acquisitions, dispositions or changes in foreign partnership interests by a U.S. person.

More Information

For a good summary of Voluntary Disclosure of Offshore Assets see two recent articles by attorneys Alan Gassman, Lesley Share and Brandon Ketron as reported in Alan Gassman’s Thursday Report:

Voluntary Disclosure of Offshore Assets: Part I Voluntary Disclosure of Offshore Assets: Part II 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 Weston estate planning 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 a Big Red Flag: bundling multiple investment properties in the same LLC. This is a mistake we are seeing more and more often: a real estate investor has six condo rental homes; all rental homes are owned by the same LLC. This investor has essentially defeated the purpose of the LLC. A slip and fall claim on one of the properties would expose all six to the claim.

Does this mean every property should have a separate LLC? In most cases, for maximum protection, the answer is yes, especially if each property has equity. But you may say that this will increase my accounting and paperwork – and heaven knows I already have too much paperwork.

The answer to this quandary is to have a holding company that will centralize and simplify management. Each property will be owned by a separate LLC and each LLC will be owned by the holding company. Bookkeeping can be centralized in the holding company. With a good accounting program like QuickBooks, accounting can be efficiently managed.

The investor may reply, “No problem. I have an umbrella insurance policy.” Frankly, there is no such thing as an “Umbrella” insurance policy: every insurance policy has gaps and exceptions. “Umbrella” is a great name the insurance companies have come up with to market and sell an insurance product. I recently reviewed an umbrella policy – by an established and reputable insurance company – and this policy had six pages of exceptions. Umbrella policies do have their place as a supplement to a comprehensive asset protection plan, but to make the policy the centerpiece of the asset protection structure is a big mistake. It provides a false sense of security and makes the properties much more attractive to attack.

Take-Away Points

1. Avoid bundling multiple investment properties in the same LLC.
2. Consider a holding company to centralize and simplify management of investment properties.
3. Do no rely upon umbrella insurance as a substitute for protection by an LLC.
4. A properly structured LLC that takes advantage of the protections provided by Florida law is the entity of choice for most investors and usually the most cost effective way to protect investment properties.

For further information contact Rarick Trusts & Wills Law at (305) 709-2858 or 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 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 a simple fact: most small businesses cannot afford or even survive a major dispute between partners if the dispute ends up in court. Such disputes can doom the small business due to interruption of the company business, distract the principal partners from focusing on growth, and soak up all capital needed to sustain the company.

The following are 5 Take Away Points for avoiding court intervention in your business:

1. Find a creative business attorney with a proven track record in resolving business disputes – outside of court. You often need a creative asset protection attorney with a good business and tax background. Typically, each side has to realize they will not get 100% of what they want – there will need to be compromise. But this compromise will be far less costly and destructive than having a bureaucratic court intervene.
2. Do the economic analysis. In other words do the math. Compare the cost, time, business interruption, and uncertainty of going to court with the minimal costs and certainty of reaching an agreement outside of court. Even a simple dispute can cost $20,000 to resolve if each side has to file court pleadings.
3. Do the litigation risk analysis. Litigation always involves risk. You risk getting a judge or jury who may not understand your case regardless of how strong it is. Every good litigator will emphasize this fact in their engagement letter with you: he or she cannot guarantee any results – there is no such thing as a “slam dunk” legal case.
4. Find a friendly forum. A court venue is by definition a non-friendly forum, and is designed to encourage expensive discovery and expand the contentious issues. A mediation venue is designed to encourage compromise, narrow the issues, focus on the big ones, and reach settlement quickly.
5. Preemptive Planning to avoid disputes. By far the best solution is to pre-empt disputes in the first place by having a clear agreement for resolving disputes, and a clear exit strategy if disputes cannot be resolved. This means that whenever you have one or more partners you should have an Operating Agreement, if you have an LLC, or a Shareholder Agreement, if you have a corporation. You may be best of friends with your partner now, but of course, just like you, your partner is going to put his or her interests, and the interests of his family first if disagreements arise.

Jay Beskin and I have over 50 years of combined experience helping business partners reach amicable agreements even though the differences between the partners first appeared to be insurmountable. Helping the small business owner grow and succeed while avoiding court intervention has been a major theme of Rarick Trusts & Wills Law for many years. For more information about our Miami asset protection services, contact us as (305) 709-2858 or 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.

In today’s modern medicine, coupled with our information age, where virtually every procedure can be scrutinized by an “expert” easily found on Google, it should be standard procedure for every doctor to have a comprehensive asset protection plan – one that is up-to-date to meet the challenges of our fast-changing legal system.

In keeping with this spirit, we have prepared practical checklists for the Florida physician who is in group practice and one for the physician in solo practice or employed with a hospital or clinic:

Asset Protection Checklist for Florida Physicians in a Group Practice Asset Protection Checklist for Florida Physicians With A Solo Practice or Employed by a Hospital or Clinic

The checklist should not take more than 10 minutes to complete. The checklist is not designed as a substitute for a consultation with an experienced asset protection attorney. However, it is a good stress test and a way to prepare for such a consultation.

For further information, contact Phil Rarick, a Miami asset protection attorney and Weston, Florida resident. Call Mr. Rarick at (305) 709-2858 or email prarick@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 Weston 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.

For more information, contact Phil Rarick, a Miami asset protection attorney, at (305) 709-2858 or info@raricklaw.com.

* With special thanks for ideas from Alan Gassman, Esq., estate & asset protection planning attorney and guru.

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.

Florida’s new LLC statute that became effective this past January 1, 2015 made fundamental changes in the state’s limited liability company laws. These changes are so basic that we recommend that you should have a Miami asset protection attorney review all LLC’s created prior to 2015. A key provision of the new law states that an LLC will be Member Managed unless the Operating Agreement or Articles of Organization expressly provide otherwise. F.S. § 605.0407(1). The new law drives home four Take-Away Points:

1. Every LLC should have an Operating Agreement. It may be tempting to use an on-line service to create an LLC. This service will likely file a simple 1-3 page Articles of Organization for you and send you a corporate book and seal. Under the new law, the default provision will mean you have established a Member Managed LLC and it may be construed as a single member LLC unless you clearly provide otherwise in the Operating Agreement or Articles of Organization. In Florida, we never recommend Member Managed LLC’s and you usually want to avoid a single member LLC. The Operating Agreement is the true “control center” of your LLC: it controls management, ownership, administration, and if properly drafted and structured, has strong provisions to make it difficult for creditors to attack. An LLC without an Operating Agreement is most likely a weak entity providing little or no asset protection and possible control issues for the primary investor.

2. Most LLC’s should be Manager-Managed. If the LLC is not Manager-Managed, and fails to have an operating agreement that serves the interests of the controlling investors, it is possible that persons who own less than 50% of the Membership interests, but previously controlled the LLC as a Managing Member, will now need to secure the consent of the other members regarding minor day-to-day administrative matters. Note: as mentioned above, under the default provisions of the new law, the LLC will be a Member-Managed LLC unless otherwise provided in the Operating Agreement or Articles of Organization. For an excellent overview of the new LLC law see Kenneth J. Crotty’s article, Avoiding the Cinderlla Effect – Don’t Let Your LLC Turn Into A Pumpkin On January 1, 2015, published in the Thursday Report by Gassman & Associates.

3. Divide the Management Powers into two positions: Administrative Manager and Executive Manager. You want your LLC operating agreement to provide robust protection. One key strategy to consider is to divide the management powers into the Administrative Manager, who has full authority to make all fundamental decisions for the LLC except only two: the power to make distributions and the power to dissolve the LLC. These powers are reserved for the Executive Manager. A creditor trying to attack the LLC will be limited to a charging order as their exclusive remedy. If the Administrative Manager has no power of distribution, the creditor will need to get jurisdiction over the Executive Manager in order to have a charging order of any value.

4. Make the Operating Agreement an Executory Contract: Include Ehmann Provisions. Thomas Wells, a preeminent tax attorney in Florida, writes that it is important for the operating agreement to be an executory contract because if one of the members is subject to bankruptcy the bankruptcy court cannot disregard the terms of the agreement and state law that provide asset protection benefits for the debtor member in light of the case In re Ehmann, 319 B.R. 200 (Bankr. D. Ariz. 2005). The Ehmann provisions recommended by Wells are intended to make clear that the Operating Agreement constitutes an executory contract with respect to all membership interests. See treatise, Asset Protection In Florida, Ch. 4-46, p. 4-45, Third Ed, published by the Florida Bar.

For more information, contact Phil Rarick, a Miami asset protection attorney, at (305) 709-2858 or 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.

– 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.

3 Important Tips

1. Do Not Title Real Estate In An S Corporation

As my colleague, attorney Alan Gassman, says, “Don’t put real estate into darned S Corporations.” S corporations may have been the best choice 15 years ago, but today the entity of choice is a Florida or Delaware LLC (limited liability company), and in some cases the LLLP (limited liability limited partnership).

There are multiple reasons for this. First, the LLC is a higher quality of asset protection. Second, an LLC is easier to administer. Third, the LLC offers more flexibility for tax planning than an S corporation. For example, S corporations can only be owned by individuals and certain types of trusts. They cannot be owned by non-residents, corporations, or family limited partnerships. On death, the tax basis inside an S corporation does not change, but with an LLC it can increase to the fair market value of the ownership interest on date of death – potentially saving significant capital gain taxes for the surviving spouse or children.

2. Consider Conversion To LLC If You Have Real Estate In An S Corporation

If you have some properties in S corporations, there is a clear remedy: convert the corporation to an LLC.

3. Get It Right – At The Time Of Purchase

I recently purchased a new car for my wife. The car dealership, without asking me, began to prepare all the paperwork to title the car in my name. When I told them they had to redo the paperwork to put it in my wife’s name I heard a few moans, but they did as requested.

Title to your car should only be in one person’s name and it should be in the name of the person who drives the car the most. Otherwise, a good personal injury attorney would have two persons to sue: the driver and the owner. For real estate, it is equally important to make sure the property is titled to maximize protection.

The point here is get it right at the beginning – before you put any name on a real estate contract. Therefore, before you purchase real estate – before you sign anything – give us a call. We do not charge for short telephone conversations with our clients. We will help you determine the best way to hold title and if needed, assist with the sale or purchase.

For more information, contact Phil Rarick or Jay Beskin at (305) 709-2858 or 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 trust attorney. Your receipt of information from this website or blog does not create an attorney-client relationship and the legal privileges inherent therein.

Note: This is a partial list of key items. Invariably there are other considerations. Consult your estate planning attorney.

1. Revise living revocable trust or will:

• Remove partner as beneficiary
• Remove partner as trustee or successor trustee and name new trustee
• Remove partner as personal representative under will
• Remove partner’s children as beneficiaries

2. Sign new Durable Power of Attorney (“DPA”):

• Revoke all prior DPA’s naming partner as agent or attorney-in-fact
• Name new agent to hold your DPA

3. Sign new Health Care Surrogate and Living Will:

• Revoke all prior Health Care Surrogates naming partner as agent or health care surrogate and name new health surrogate

4. Life Insurance Policies beneficiary designations: Is partner a beneficiary?

5. Beneficiary designations for retirement plans (such as 401k) or IRA’s: Is partner a beneficiary?

6. Beneficiary designations for annuities: Is partner a beneficiary?

7. Irrevocable Trusts: Such trusts are often complex and should likely be reviewed by a trust attorney to determine if (1) the trust includes language for termination of the partner’s interest in event of divorce; (2) partner is a beneficiary, trustee or protector; and (3) partner’s children have any beneficial interest in the trust.

For more information, contact Phil Rarick at (305) 709-2858 with Rarick Trusts & Wills Law, a Miami attorney with over 20 years of experience in asset protection.

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.

Florida same-sex partners and same gender couples who were legally married in a state outside of Florida and have now moved to Florida should consider using a TBE (Tenants by Entireties) Delaware LLC to own Florida real estate or intangible property. Here is why.

Strategy

An important asset protection strategy available to married persons in Florida is to hold title to real estate or other property as Tenants by Entireties. This is a form of ownership only available to a married couple. It is a good strategy to protect assets because a creditor must have a claim against each spouse to reach the asset. If the creditor has a claim against only one of the spouses, the asset is usually well protected.

Of course the problem is that Florida currently does not recognize same sex marriage. However, Delaware does and it also has the advantage of having strong Tenants by Entireties protection similar to what we have in Florida. Delaware also has a strong, modern LLC (limited liability company) statute that provides good asset protection for both single and married persons.

Conclusion

Until such time as Florida joins the national trend to recognize same sex marriage, the safest way to protect real estate and intangible property may be to use a TBE Delaware LLC for same sex spouses or partners. A word of caution: The TBE Delaware LLC must have a robust operating agreement that clearly provides for tenancy by the entireties ownership and charging order protection.

Note: We welcome your questions. Contact Phil Rarick, Miami asset protection attorney, Rarick Trusts & Wills Law, P.A., at (305) 709-2858 or prarick@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.

ASSET PROTECTION CHECKLIST FOR THE FLORIDA SMALL BUSINESS OWNER

For more information, contact Phil Rarick, Miami trust attorney, with Rarick Trusts & Wills Law at (305) 709-2858 or 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 trust attorney. Your receipt of information from this website or blog does not create an attorney-client relationship and the legal privileges inherent therein. Nota Especial La información en este blog es de carácter general y no esta supuesto contestar preguntas jurídicas para un individual. No confía en la información presentada en este documento para sus problemas individuales legales. Si usted tiene una pregunta legal sobre los hechos y circunstancias individuales, debe consultar a un abogado experto en fideicomiso. La recepción de la información de este sitio web o en este blog no crea una relación de abogado con el cliente y los privilegios inherentes en ellos.

Paul Lee, the National Managing Director of Bernstein Global Wealth Management, captured the essence of the new consensus in his presentation. The new law increases the estate tax exemption to $5.34* million per person and $10.68* million for a married couple. With the increased exemptions and permanence of portability of the deceased spouse unused exclusion (DSUE), Mr. Lee’s major Take-Away Points are:

• Estate planning is now far more complicated for estates above the $5.34* million threshold
• Applicable exclusion amount of $5.34* million per person:
  • Should be used as little as possible
  • Taxpayers should consider keeping as much as possible in order to obtain a “step-up” in basis for their assets in order to minimize capital gains taxes
• Income tax considerations
  • Can now be more important than transfer tax consequences
  • Should be considered in tandem with potential transfer taxes
• Estate Tax Inclusion
  • Can save more in income taxes
  • Should be forced if the income tax savings are greater than the transfer tax cost
• State of Residence
  • Will give rise to very different types of estate planning

Updating credit shelter trusts to maximize step-up in basis and provide broad flexibility in tax planning upon death of the first spouse should now be a priority for most married couples. Widows and widowers who are beneficiaries of a credit shelter trust may need to consider distributing assets out of the trust – assuming the trust allows for this – or decanting the trust to a more flexible trust if it does not.

Our Recommendation: All credit shelter trusts and estate plans prepared prior to 2013 should be reviewed. We welcome your comments or questions. Contact Phil Rarick or Jay Beskin, Miami trust attorneys, at (305) 709-2858. *NOTE: In 2016 the estate tax exemption has now increased to $5.45 million per person and $10.9 million for a married couple. 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 trust attorney. Your receipt of information from this website or blog does not create an attorney-client relationship and the legal privileges inherent therein.