By Phil Rarick, Weston Trust Attorney, and Jasmine Benitez, Legal Assistant

Estate planning is essential for ensuring your wishes are carried out after you are gone. Today, the preferred choice for estate planning is a living revocable trust. But what happens if a qualified beneficiary disagrees with the terms of the trust? Can a Florida trust be contested? The short answer is yes. However, contesting a trust in Florida is not easy; there are specific legal grounds and procedures to follow.

Why Would a Florida Trust Be Contested?

The five most common reasons for challenging a Florida trust are as follows:

1. Lack of Mental Capacity The person who created the trust (the settlor or grantor) must have been of sound mind when executing it. If the settlor was mentally incapacitated due to illness, age, or other factors, the trust could be contested.
2. Undue Influence If someone can prove that the settlor was pressured or manipulated into creating or altering the trust, it may be invalidated. This could include family members or caregivers influencing the settlor’s decisions.
3. Fraud If the trust was created under fraudulent circumstances, such as misrepresentation or deceit, it can be contested in court.
4. Improper Execution Trusts must follow Florida’s legal requirements to be valid. If the trust wasn’t executed properly—such as failing to sign, witness, or notarize the document correctly—it may be challenged. A Florida trust must be signed with the same formalities as a Florida will – the settlor must sign first in the presence of two witnesses.
5. Changes to the Trust Amendments or revocations to the trust can be contested, especially if there are concerns that these changes were made under suspicious circumstances and contrary to the grantor’s intent. Changes made within a few months of a grantor’s death are often suspicious, as are changes made by a grantor who has been isolated from his or her family by a caregiver or family member.

How Can a Florida Trust Be Contested?

Contesting a Florida trust involves a legal process that requires specific steps:

1. Filing a Petition

The person contesting the trust must file a timely petition with the probate court where the trust is being administered.

Note: Challenges to a trust must typically be done within 3 months of receiving notice of the trust or the trust’s offering for probate.

2. Gathering Evidence

Contesting a trust requires solid evidence to back up the claim. This might include medical records showing that the grantor lacked mental capacity or testimonies indicating undue influence or fraud.

3. Proving Grounds for Contesting

The person challenging the trust must prove that it is invalid due to one of the legal grounds—such as incapacity, undue influence, or improper execution. Without adequate evidence, the court will likely uphold the trust.

4. Mediation, Arbitration or Trial Today, most trust disputes are resolved through mediation or arbitration, but if the case goes to trial, the court will ultimately decide the outcome. Many trusts now require a process called mediation-arbitration: first, the contesting party must try to resolve the dispute through mediation; failing mediation, the dispute is submitted to binding arbitration. A judge or arbitrator will review all the evidence and determine if the trust stands or if it should be modified or invalidated.

Protecting Your Trust from Being Contested

Although trusts can be contested, there are steps you can take to minimize the chances of a challenge:

• Proper Execution: Work with an experienced estate planning attorney to ensure the trust is executed correctly and follows all legal requirements.
• Clear Intentions: Be clear about your wishes and discuss them openly with your beneficiaries to avoid confusion or misunderstandings.
• No-Contest Clause: A no-contest clause is not valid in Florida; however, as a practical matter, it may be advisable to include it in your trust for psychological purposes and as an expression of the grantor’s intent.

Conclusion

While Florida trusts can be contested, doing so requires strong legal grounds and a formal process. This is one reason why you do not want to try to save money doing it yourself or using an attorney who does not concentrate on trusts. You have heard this before, but you certainly would not want a general surgeon doing brain surgery. The same common sense applies to trust drafting.

If you’re considering creating a trust or have concerns about a trust being contested, consulting with an experienced estate planning attorney can help protect your interests and give you peace of mind.

For more information, contact Phil Rarick, Weston Trust Attorney, at info@raricklaw.com.

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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 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, 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, Weston Trust Attorney

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Every family needs instructions in the event of disability or death. A Family Trust, also known as a Living Trust, is your detailed, legally binding instructions to care for you and your family in the event of mental incapacity or death. A trust can accomplish all the goals of a will and in addition avoid probate and guardianship when properly funded. A will must go through a bureaucratic, expensive and time-consuming legal process called probate where the court may intervene in your personal or business affairs. This is why the Revocable Family Trust has become the preferred plan of choice over a will for most people; it is almost certainly the best plan if you have children.

Understanding a Family Trust – a/k/a Living Trust

There are three primary roles in a Family Trust: the grantor, trustee, and beneficiary.

The grantor is the person who makes the trust; the Trustee is the person who is legally found to follow the trust instructions exactly as stated in the Trust. And the beneficiary? Every dime of the trust must go to the beneficiaries. Initially, you can be the Grantor, Trustee, and, along with your spouse or children, the Beneficiaries.

Most Family Trusts are revocable because the grantor wants to retain 100% control over the trust instructions and change them whenever he or she wants at any time during their lifetime.   Control and flexibility are two key goals in Trusts.  The Trust has a major advantage over the mortal person: it does not become incapacitated, and it does not end at death.  It continues to provide for your family as long as needed to help protect the lifestyle of your family.   If you have children, it can help ensure they get a high-quality education and that the funds cannot be claimed by a spouse or creditor of the child.

Key Benefits of a Revocable Family Trust

1. Avoiding Guardianship. Guardianship is a bureaucratic legal process where the court supervises the person and/or property of a person.  The court selects the Guardian.    In my 30 years of practice as a Miami Trust attorney, I cannot recall anyone who wanted to allow a court to intervene in their personal or business affairs; almost all persons want a family member to take charge if they have a temporary or permanent incapacity.  A trust can help you keep legal control in the family.

2. Avoiding Probate. One of the biggest advantages of a family trust is that it allows assets to bypass the probate process provided the Trust is properly funded. Probate is the court-supervised process of distributing a deceased person’s estate, which can be time-consuming, costly, and public. By transferring assets to a family trust, those assets can be distributed directly to the beneficiaries without the need for probate, saving time and money.

3. Protection for Minor Children and Young Adults. The Trust can help ensure that funds going to minor or adult children are used in a smart way.    For minor children, a trust can help ensure that the minor child does not waste the funds by getting a big lump sum payment or that the funds could be claimed by creditors of the child after age 18.  Rather, the trust can help ensure the child receives a first-rate college and graduate education. For adult children who may marry or are already married, the trust can provide protections so the adult child’s spouse cannot claim funds designated for the child.

Conclusion Whether you have $100,000 or over $1 million you should first consider a Family Trust or a Living Trust over a Will for your estate plan as a Trust that is properly funded will help avoid the bureaucratic legal processes known as guardianship and probate. Plus, the trust can provide strong protections for minor and adult children to make sure your hard-earned money is used in a smart way for your children’s future.

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For more information about the Family Trust or Living Trust see our short guide, Understanding Living Trusts by Miami Trust attorney Phil Rarick or contact our office at (305) 709-2858 for a consultation.

Notice: This article is intended for informational purposes only. It is important you consult with an experienced Miami Trust attorney. For more information contact attorney Phil Rarick at  (305) 709-2858 or by email prarick@raricklaw.com.

Here is the good news/bad news I received from my bank today regarding my Paycheck Protection Program (PPP) Application: The good news: your application has been approved; the bad: the SBA is out of money and you must wait for Congress to refund the program!

Although I have heard of a few small businesses that have received funding I am guessing that most persons reading this letter have encountered similar frustrations. Note: if you have received funding, please so reply.

We predicted in my first letter regarding PPP that the $349 billion fund would run out of money and this Thursday it did. It lasted two weeks! For an interesting map on where the funds were distributed nationwide see PPP Loan Allocation Map.

My message to you now is don’t give up. Yes, many small businesses with average monthly payroll over $1 million got preferential treatment by the big banks. However, the banks are incentivized under the SBA program to make small loans under $1 million.

And more encouraging: there is strong bi-partisan pressure to refund the program. (If only Congress could stop the bickering and see the urgency of the threats to millions of small businesses.) Regardless, if you have applied and are waiting to get approval, keep checking with your bank to make sure they have all necessary documentation and try to get confirmation your application has been approved. If you have not applied, do so immediately.

My son-in-law is a senior manager for a major regional bank in the western states and is working over-time this weekend to continue to process applications. My bank advisor also tells me she is working this weekend on her bank’s back-log of applications. Both banks believe the program will be refunded. I think that is a good bet.

The Covid-19 Pandemic has changed the world as we know it and presented daunting challenges we have not encountered in our life time. It requires a total review of your estate plan and business entities to assure you are taking full advantage of Florida laws designed to protect your family and business.

The hard new reality: What plan was best for you prior to 2020 may not be what is best for you today

Take this three minute survey for a quick assessment:

If single: Special 2020 Asset Protection Checklist for Single Professionals

If married: Special 2020 Asset Protection Checklist for Married Professionals Note to All: Two important legal documents for everyone over age 18:

• An up-to-date Florida specific Durable Power of Attorney
• A comprehensive Florida Health Care Surrogate

Special note to all parents with college students and young adults:

We now know that COVID-19 can attack any age. The last people who consider a DPA and Health Care Surrogate mentioned above are young adults. If you are a parent with adult children over age 18, I urge you to convince your sons or daughters to secure these important legal instruments. For a flat fee, we are available to prepare these documents, review the key legal provisions with your adult children, and email them for signing.

We will get through this together, as we did after Pearl Harbor and 9/11, and will be a stronger, more united country. Stay well and stay safe!

You can always count on the Americans to do the right thing – after they’ve tried everything else. – Winston Churchill.

Millions of small business owners and self-employed have filed for loans under the Paycheck Protection Program because part or all of the loan can be forgiven if you retain your employees and maintain their salary levels.

Okay, we know, as of this writing, millions have applied and few have received!

But assuming SBA gets through this current bottle-neck and the funding starts to flow, then your focus will be on maxing out the amount that can be forgiven.

The SBA will forgive the part of your loan that covers the first eight weeks of payroll, mortgage interest, rent, and utility payments immediately after you receive funding. You must use 75% of the borrowed loan for payroll costs; only 25% can be for mortgage interest, rent, and utilities.

The SBA will not forgive the portion of the loan used for other expenses; this part of the loan will be maintained at a 2 year loan at 1% interest rate. Loan payments are deferred for the first 6 months of the loan although interest will accrue during this time.

So even if part of your loan is not forgiven, the loan terms are exceptionally favorable for you – maybe this explains why many banks have been lying low in the grass and not soliciting applications because they simply do not want to take on a boat-load of low interest rate loans or short term loans that are quickly forgiven.

So here are 5 quick tips for maxing out your loan forgiveness:

1. If possible, do not reduce the number of full time employees during the 8 week period. The SBA will do a Head Count Analysis for this period and reduce the forgivable portion of your loan according to a head count formula.

Note #1: The CARES Act allows the business to remedy the forgiveness amount by June 30, 2020, but it is still unclear how mechanically you do this. Expect further SBA guidance on this point.

2. If possible, do not reduce employee salaries during the 8 week period. The SBA will do a Wage Analysis and reduce the forgivable portion according to their wage analysis formula for any such reduction. But see Note #1 above.
3. Keep the loan funds in a separate bank account and only withdraw to cover eligible expenses.
4. Keep a separate expense account to accumulate all eligible costs.
5. Document all eligible costs.

For a deep dive into the tax benefits for small business under the CARES act I highly recommend for other attorneys and professional advisors the recent webinar by estate tax lawyer, super-guru and friend Alan Gassman: Update On The Paycheck Protection Act Loan Rules.

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.

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.

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.

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.

7 TIPS 1. Before You Clean Up Document Your Losses

Do not start clean up until you have documented your losses from Hurricane Irma. Use your cell phone to document your structural, equipment, and water damages with ample video and pictures. (Hopefully you also took pictures immediately prior to Irma.) Document everything, and then make a back up of those pictures/videos. Get a notebook and keep a log of all actions taken and all expenses, such as mitigation, clean up and professional fees. Of course, save all receipts.

2. Gather & Review All Insurance Policies

For damage to your home, the most obvious source of coverage is your residential property insurance policy. However, there may be other policies such as a separate flood insurance policy. In addition, you may have coverage under auto, boat, and marine policies. If you are faced with a potential claim from a third party, you may have a liability policy and an umbrella policy.

For business owners you need to review your commercial property policy. Flood loss is commonly excluded from residential policies but may be covered under your commercial policy.

If you do not have flood coverage, you still may have coverage under another policy where the covered cause contributes to the loss, such as wind, power outage, storm surge or other area wide causes.

3. Put Your Insurance Company on Written Notice

As soon as you have been able to assess the damages – and even if you have not been able to assess all the damages – put your insurance company on written notice by sending an email to the carrier. Even if you are not sure of coverage, put the company on notice. A notice is simply that: a notice that you may have a claim. There is no reason to delay. Make sure the notice is in writing – email is usually the best and fastest and sent to the agent required by your policy. At the top of your email put, “Please Confirm Receipt” and save all confirmations. In addition, most popular programs such as Outlook, allow you to get a “Delivery Receipt” and “Read Receipt”. Always try to get a confirmation of receipt.

Note: For water damage from Hurricane Irma be careful about the language you use to report it. Since many residential policies exclude damage from floods but do cover “wind-driven rain”, it may be best to contend that your house suffered “water damage” rather than state that “my house got flooded”. A professional adjuster can help assess whether the damage is caused by “wind-driven rain” or a flood. Never misrepresent your loss, but don’t help the insurance company by reaching premature conclusions that give them an excuse for denying coverage.

4. Demand An Insurance Adjuster Inspect Your Property ASAP!

Do not tolerate unreasonable delay by your insurance company. Yes, the insurance company representative may have a heavy case load following Hurricane Irma but you want to be near the front of the line. After you give notice, put the ball in the court of the insurance company: expect and demand that the company send an adjuster immediately to photograph your losses. If they fail to do so, document your requests via email. In the event the company acts in bad faith, proof of such delay will be critical to proving your case in court.

5. Assess Coverage for Business Interruption

If you have a small business, you may need to prove your lost profits for the time that the business was interrupted. Of course, the time frame for a hurricane such as Irma can begin well before Irma arrived, as most businesses had to close several days before the hurricane hit in order to give employees time to prepare. After the hurricane passed, there was down time for employees to return, since many evacuated out of state. Note: There are two main types of business interruption: one that covers for lost profits and one that covers contingent business interruption such as losses due to damage to customers or suppliers. The distinction between the two can raise complex issues. Your best answer to resolving these issues is a forensic accountant or public adjuster who specializes in assessing such revenue losses.

6. Mitigate Damages – Such as Mold

You can generally assume that you always have a duty to mitigate losses. If you have serious water damage, most policies require you to take prompt action to dry out the wet areas and will thereafter provide reimbursement for such costs. In South Florida, mold is a big issue. You may need to hire a professional mold remediation company that can do the clean-up and give you a warranty that the area will be free of mold for a period of time following the clean-up.

7. Hire Experienced Experts to Evaluate and Advocate

Remember the adjuster who reviews your loss is paid by your insurance company and your insurance company is in business to minimize loss. You may need to hire your own adjuster if the damages are significant to get a true, independent valuation. As mentioned, for business interruption, I strongly recommend securing the services of a CPA or public adjuster.

BIG WARNING: Be careful in signing an assignment of benefits to public adjusters or any remedial companies. Read the engagement agreement! If any questions, call your attorney.

5 TRAPS 1. Watch Out for Policy Deadlines: Calendar All Deadlines

If you miss a deadline in your policy, it could kill your claim. Therefore, after reviewing all your policies, calendar all deadlines, such as the deadline to file a proof of loss or file suit if you disagree with the insurance company. Also, it is good practice to put a “tickler” reminder on your calendar to advise you of upcoming deadlines.

2. Do Not Rely Upon Verbal Notice

If you report a loss by telephone, confirm that report with a follow-up email of your conversation with the insurance company representative. See Tip #3 above.

3. Do Not Disclose Information In Bulk

This caution applies to all claims, but is particularly important for business interruption claims. Be careful of requests from the insurance company for bulk downloads of your financial information. You should secure the advice of a professional adjuster to give the insurance company only relevant information to prove your claim.

4. Negotiate The First Offer: It May Be Low

You may get a good first offer – and you may not. Therefore, be prepared to negotiate your first offer. Insurance companies make profits by underpaying claims – not overpaying them.

5. Don’t Act Too Quickly To Release the Insurance Company

To close their case on your claims, insurance companies are going to want you to sign a release that will prevent you from having “settlor’s remorse” and asking for more payments at a later date. Beware of checks that state “Full and Final Settlement” because they mean exactly that: Full and Final. Prior to signing anything, or cashing any checks, it is advisable to first review the release – and the scope of that release – with your attorney.

How We Can Help

For over 20 years, we have helped small businesses in good times and bad – such as when big hurricanes like Irma strike and there is a need to resolve insurance claims. You pay for insurance for years to cover such times as these. It is time for your insurance company to step up – quickly. We are available to meet with you and assess your claims. Our initial consultation fee is $275. To schedule a consultation contact Christy at Rarick Trusts & Wills Law, (305) 709-2858 or email me at prarick@raricklaw.com. We look forward to working with you.

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 business and 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.

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.

2. New Births Of Children/Grandchildren. Has there been a birth or adoption of a child or grandchild? First, if so, congratulations! Second, this child may need to be added as a beneficiary of your will or trust with detailed instructions to make sure all funds are wisely spent first for education or health needs.

3. Discord in Family. Unfortunately, we have seen too many cases where family warfare breaks out among the children where the father, mother, or both are no longer around to maintain peace. To avoid such disharmony, it is important to have clear instructions in your living trust and a strong, independent successor trustee with good peace making skills. If this is a concern, have you addressed it in your trust prepared by a Miami trust attorney?

4. Disability of beneficiary. Have any of the persons you have named as a beneficiary suffered any type of mental or physical disability? If so, it may be necessary to modify your instructions to make sure any funds designated for this beneficiary are used in the most effective way possible. For example, if a beneficiary may be entitled to receive SSI or other government benefits, this beneficiary may need a Special Needs Trust.

5. Poor Money Managers in the Family. Are any children not good money managers?Do you need to amend your trust instructions to make sure these funds are protected and cannot be grabbed by their creditors?

6. 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 decisions you can make. Who have you appointed to take charge if you are incapacitated? What is the order of succession of trustees?

7. Year End Gifts. This year, any person can give $14,000 to any person – child, grandchild, or friend – tax free. This gift must be made prior to December 31. Such gifts require no reporting to the IRS, but gifts in excess of $14,000 do. Remember: you never want to make such a gift outright to a minor child because they may blow it when they turn 18. Better to make the gift to an Educational Trust for the benefit of the minor child.

As Miami trust attorneys, we endeavor to help keep your estate plans up to date with the changing needs of your family. We are available to meet through December 16. Please call Christy at (305) 709-2858 or email to cmedina@raricklaw.com to schedule an appointment. Have an enjoyable November!

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.

______#2. New Births Of Children/Grandchildren. Has there been a birth or adoption of a child or grandchild? This child or grandchild may need to be added as a beneficiary.

______#3. Discord in Family. Is there a potential for disharmony to break out in the family if you are disabled or no longer around to maintain peace? In such a case you need to amend your revocable trust to ensure you have a strong, independent successor trustee with good peace making skills.

______#4. Disability of beneficiary. Have any of the persons you have named as a beneficiary suffered any type of mental or physical disability? If so it may be necessary to modify your instructions to make sure any funds designated for this beneficiary are used in the most effective and prudent way possible. For example, if a beneficiary may be entitled to receive SSI or other government benefits, this beneficiary may need a Special Needs Trust.

______#5. Poor Money Managers in the Family. Are any children not good money managers, or if married, have marital issues with their spouses? Do you need to amend your trust instructions to make sure these funds are protected and cannot be grabbed by their creditors – or an unhappy spouse? As Miami trust attorneys, Let us know if we can help amend your trust.

______#6. 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) 709-2858.

______#7. 2013 Estate Tax Planning Check. The American Taxpayer Relief Act (ATRA) fundamentally changed estate tax planning beginning in 2013. For 2016 the new law increases the estate tax exemption to $5.45 million per person. If you have a credit shelter trust prepared prior to 2013, it should be reviewed now. If you are not sure of the type of trust you have, call the firm at (305) 709-2858.

______#8. Trust Funding. Funding is simply the transfer of your assets into your trust. If our firm drafted your trust, immediately after you signed your trust, we reviewed how your assets are titled and gave you detailed Funding Notes. Have you followed up on these instructions? It is a good idea to annually review the funding of your trust. It is also advisable to annually sign a new assignment of assets into your trust that will help sweep into the trust assets owned on the date of the transfer.

______#9. Life Insurance. When is the last time you checked (a) the owner of your life insurance policies; and (b) the beneficiary designations for those policies? Typically, you want your living trust to be the beneficiary of your life insurance policy because the trust provides the detailed instructions to help ensure the money is prudently used.

Big Note: Some life insurance should be owned by an irrevocable life insurance trust to avoid the estate tax.

______#10. Estate Plan Review. Has it been more than three years since we sat down and reviewed your estate plan? If so, we recommend that you schedule a meeting as soon as convenient to assess whether your plan continues to meet all the needs of your family. This list contains some of the frequent life changes and should not be a substitute to a consultation.

APPOINTMENT:

To schedule an appointment to review or amend your revocable trust or the funding of your trust, call Rarick Trusts & Wills Law, experienced Miami trust attorneys, at (305) 709-2858 or email Christy at cmedina@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.

For 2016 the federal estate and gift tax exemption is now $5.45 million – up from $5.43 million in 2015. This means a single U.S. citizen can leave $5.45 million to their family members and friends and pay no estate tax if they die in Florida since Florida does not have an estate tax. (As some commentators have stated, Florida is a great place to die. For states where you don’t want to die see Where Not To Die)

Married U.S. citizens can leave $10.9 million to their heirs but there is a trap here for the surviving spouse. This benefit does not pass automatically to the survivor. The surviving spouse has to make a timely election to secure the benefit of the unused portion of the deceased spouse’s exemption known as the DSUEA – the decease spousal unused exclusion amount. If the surviving spouse does not make a timely election to claim the DSUEA following the death of the spouse, or did not have a credit shelter trust established and funded prior to the death of the first spouse, the surviving spouse will likely be left with the $5.45 million exemption.

Note: Let’s say the husband dies first with an estate of $8 million. Because of the unlimited estate tax exemption, the husband can gift an unlimited amount estate tax free to the wife. Therefore some might believe the surviving spouse does not need to file a 706. But to preserve the DSUEA, the wife needs to timely file a 706 return to claim her deceased husband’s $5.45 exemption.

3 Take-Away Points

1. If you have not reviewed your estate plan since 2012, this year is the time to do so because the 2012 American Taxpayer Relief Act (ATRA) has fundamentally changed how most persons plan their estates. See The Estate Planning World Has Flipped 180 Degrees by ATRA.

2. Do not be fooled into believing you have no tax issues to worry about if your estate is under $5.45 million. Now, an important tax planning objective for many persons – especially persons who purchased real estate years ago with a low basis – is to secure a step-up in basis to minimize capital gains.

3. The state of residence is important. For snowbirds or persons who split time between Florida and another state it is often advisable to clearly establish Florida as your state of domicile for tax reasons.

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.

You are named the personal representative (or executor in other states) and a loved one or family member has just died. No doubt these are difficult times, but thankfully there are many resources for 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 Personal Representative duties. Before you can legally act on behalf of the estate you will likely need to secure Letters of Administration issued by a Florida probate court that officially designate you as the legal authority in charge of the estate. Therefore, you should not take action as Personal Representative before you know your duties and what potential claims you may face from estate beneficiaries and creditors. Consult a Miami probate attorney and see our 10 Basic Legal Rights for Beneficiaries Under a Florida Will.

First Priority Action Items

____ 1. Take possession of all legal records including:

__ Original will and all amendments or codicils

Note: If decedent did not leave a will, the beneficiaries will be determined according to Florida intestate law. See Dying Without A Will In Florida.

__ Tangible Personal Property Memorandum or writing indicating instructions for distribution of tangible personal property (such as jewelry, furniture, cars)

____ 2. Take possession of all financial records such as:

__ Inventory of assets if available

__ Passwords to computer, internet media, or social media

__ Checkbooks

__ Credit cards

__ Statements from all banks, financial companies, or financial advisors

Click here for the complete checklist: Florida Personal Representative Checklist

This is a short list of initial action items for a person who accepts the duties as Personal Representative. It is not a complete list of tasks. The Personal Representative will only be able to determine all tasks after carefully reviewing the will, if there is one, with a Miami probate attorney. Attorneys at Rarick Trusts & Wills Law have helped many family members navigate the bureaucratic Florida Probate process as the Personal Representative. We are available to help you. Contact us at (305) 709-2858 or email to 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 a Miami probate attorney that is experienced in Florida probate law. Your receipt of information from this website, blog, or Miami probate attorney does not create an attorney-client relationship and the legal privileges inherent therein.

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.

First Priority Action Items

____ 1. Take possession of all legal records including:

__ Original trust

__ Original will (usually called a pour-over will if decedent had trust)

____ 2. Take possession of all financial records such as:

__ Inventory of assets Note: This may be on paper or on decedent’s computer.

__ Passwords to computer, internet media, or social media

__ Checkbooks

__ Credit cards

__ Statements from all banks or financial companies

____ 3. Take possession of all keys or codes to:

__ All vehicles or boats

__ Safe or bank safe deposit box Note: Do not allow entry to Safe Deposit Box without a witness and prior discussion of arrangements with a Miami trust attorney.

__ House and other real estate or rental properties

__ Storage room

____ 4. Lock and secure all real estate and household contents Click here for the complete checklist: Florida Successor Trustee Checklist.

This is a short list of initial tasks for a person who accepts the duties as Successor Trustee. It is not a complete list of tasks. The trustee will only be able to determine all tasks after carefully reviewing all trust instructions with a Miami trust attorney. Attorneys at Rarick Trusts & Wills Law have helped many family members navigate these tasks as the Trustee or Co-Trustee. We are available to help you. Contact us at (305) 709-2858 or email to 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 attorney that is experienced in Florida probate 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.