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

In Florida, qualified beneficiaries of a trust have a legal right to receive an accounting from the trustee. This accounting is a detailed report of the trust’s financial activities, including income, expenses, distributions, and the status of trust assets. It ensures transparency and helps beneficiaries verify that the trustee is managing the trust according to Florida law.

Note: Unless you waive your right to an accounting, the Trustee has a duty to provide an accounting to all qualified beneficiaries. This accounting must comply with F.S. 736.0813. Among other things, the trustee must disclose his or her fees and costs charged to the trust.

What is Trust Accounting?

A trust accounting typically includes:

• Income: Dividends, interest, or rent generated by the trust.
• Expenditures: Distributions to beneficiaries, trustee fees, CPA fees, and administrative costs.
• Investments: Records of any asset purchases or sales.
• Balances: Beginning and ending balances for the accounting period.

This report gives beneficiaries critical insight into how the trustee is managing the trust.

Florida Law on Beneficiary Rights

Under Florida Statutes Section 736.1008, qualified beneficiaries have the right to request an accounting at any time. Trustees must provide this accounting within a reasonable period upon request.

What Happens if a Trustee Fails to Provide an Accounting?

If a trustee does not provide an accounting, beneficiaries can:

• Request one in writing.
• Petition the court to compel the trustee to provide the accounting.
• Seek the removal of the trustee.

Why is Trust Accounting Important?

An accounting ensures that:

• The trust is being managed properly and in line with the grantor’s intent.
• Beneficiaries can verify that distributions and expenses are legitimate.
• Potential issues, such as mismanagement, can be addressed early.
• The trustee’s fees and costs are reasonable.

Conclusion

A qualified beneficiary’s right to trust accounting is a key protection under Florida law, ensuring transparency and accountability. If you are a qualified beneficiary and believe the trustee is not fulfilling their duties, consult an estate planning attorney to understand your options. If you are a trustee, do not try to administer the trust without an experienced Miami trust attorney. For more information about Trust Administration, see our guide: Practical Tips For The Florida Trustee.

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

The answer is yes – under certain circumstances, a trustee can be removed from their duties. A trustee has a high fiduciary responsibility to act in the best interest of the qualified beneficiaries, but if they fail to do so, there are legal grounds for removal.

This blog will walk you through the typical legal grounds for removing a trustee, the process involved, and what steps you can take if you believe a trustee is not fulfilling their responsibilities.

Legal Grounds for Removing a Trustee in Florida

A trustee in Florida can be removed for a variety of reasons, typically tied to their failure to act in accordance with the trust’s terms or their fiduciary duties. Common grounds for trustee removal include:

– Breach of Fiduciary Duty

A trustee has a legal obligation to act in the best interests of the beneficiaries, and any violation of this duty is grounds for removal.

• Self-dealing: The trustee uses trust assets for their own benefit.
• Mismanagement of assets: Failing to invest or manage trust property properly, or making risky, imprudent investments. A trustee must follow the prudent investor rule, which can best be summarized as follows: the trustee should ensure that trust investments stay ahead of inflation but are not in high-risk investments such as cryptocurrencies. Unless otherwise stated in the trust, the investments should be broadly diversified. And importantly, the Trustee assets must produce income for the beneficiaries. See 5 Warning Signs That A Trust Is Not Performing.
• Failure to make required distributions: Not following the trust’s instructions on when and how to distribute assets to beneficiaries.

– Lack of Transparency and Failure to Disclose Information

Trustees are required to provide regular, accurate, and complete information about the trust to the beneficiaries. If a trustee fails to disclose relevant information or is not transparent about the trust’s activities, this could lead to their removal.

• Not providing annual financial statements
• Withholding or failing to disclose the trust document
• Not informing beneficiaries about important trust decisions.

See 5 Key Rights of a Florida Trust Beneficiary.

– Conflict of Interest

A trustee must act impartially and without personal bias. If a trustee has a conflict of interest, such as standing to benefit personally from a decision, they can be removed. This could include situations where the trustee is in a personal dispute with a beneficiary or has a financial interest that conflicts with their duties.

The Process for Removing a Trustee in Florida

If you believe a trustee should be removed, the process typically involves legal action, either through the terms of the trust or by petitioning the court. Here’s a breakdown of the steps involved:

1. Review the Trust Document

Start by reviewing the trust document. Some trusts include provisions that allow for the removal and replacement of a trustee, either by the beneficiaries, a co-trustee, or a third party (such as a trust protector or advisor). If the trust includes such provisions, the process for removal may be relatively straightforward.

2. Petitioning the Court for Removal

If the trust document doesn’t specify how a trustee can be removed or if there’s no agreement among the beneficiaries, the next step is to petition the court. The petition is typically filed in the probate court or circuit court that has jurisdiction over the trust.

3. Court Decision

If the court finds that the trustee has violated their fiduciary duties, breached the terms of the trust, or otherwise failed to fulfill their responsibilities, it can order their removal. The court may also appoint a successor trustee, either from a list of qualified individuals provided by the trust or based on its own determination of who would be the best fit to administer the trust.

4. Appointment of a Successor Trustee

If the trustee is removed, a new trustee will need to be appointed. If the trust document specifies a successor, they can take over immediately. If not, the court will appoint someone to act as the new trustee.

Key Takeaways:

1. Yes, a trustee can be removed in Florida for reasons such as breach of fiduciary duty, lack of transparency, failure to disclose trust information, and conflicts of interest.
2. The process of removing a trustee generally involves petitioning the court, unless the trust document provides a mechanism for removal.
3. If you are a beneficiary, communicate your concerns, gather evidence, and consult with an experienced Miami trust planning attorney to determine the best course of action.
4. After removal, a successor trustee must be appointed to ensure that the trust is administered properly and that the beneficiaries’ interests are protected.

Trustees play a critical role in managing trusts, and when they fail to fulfill their duties, it’s essential to take prompt action to protect the trust and its beneficiaries. If you’re facing issues with a trustee in Florida, working with an experienced Miami trust attorney can help ensure that the trust is properly managed and that your interests are defended.

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Consult with a Miami Trust Attorney

Consulting with an experienced estate planning attorney is crucial. An attorney can help you assess whether the trustee’s actions—or lack of action—justify removal, and they can guide you through the process of filing a petition with the court. They can also help you understand your rights as a beneficiary and what you can do to protect your interests.

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, 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.

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.

Florida Successor Trustee Checklist

By Phillip B. Rarick, Miami Trust Attorney

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. Sign Acceptance of Trustee Duties and Affidavit of Trust

____ 2. Take possession of all legal records including:

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

____ 3. 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

____ 4. 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. Remember:

• House and other real estate or rental properties
• Storage room

____ 5. Lock and secure all real estate and household contents

____ 6. Engage an experienced Florida trust administration attorney

____ 7. Engage CPA or accountant and determine deadlines for filing tax returns

____ 8. Contact decedent’s Financial Advisor

____ 9. Order minimum of 10 death certificates (these can usually be obtained through the funeral home) and collect documents on Document Checklist.

Click Here for: Document Checklist

_____ 10. Calendar important dates: such as deadline for filing decedent’s final 1040 tax return and 1041 tax return for the trust.

Note: As Trustee, you are liable to the IRS for all trust tax matters.

_____ 11. Buy a notebook and keep track of your time and work on behalf of the trust:

Note: Few beneficiaries will appreciate the time and extensive work of the trustee. To be fully compensated for your time, you likely will need to account for all your time incurred as trustee.

Second Priority Action Items

_____ 12. Complete Master Information List: This is an inventory of all the decedent’s assets and most importantly how they are titled and what, if any, beneficiary designation.

• Contact info@raricklaw.com for List.

____ 13. Open Trust Checking Account with bank

____ 14. Set up Quicken/QuickBooks or similar accounting program

Note: As Trustee you must account for all funds received and all funds paid out. If you are not adept and diligent at accounting, hire a bookkeeper or accountant. Remember as Trustee you will need to provide a detailed accounting to all trust beneficiaries for all trust income and expenses.

____ 15. File Notice of Trust with the Clerk of Court

_____ 16. Determine names and addresses of all qualified beneficiaries with assistance of Trust attorney

_____ 17. Within 60 days of accepting Trustee duties, send Notice of Trust to all qualified beneficiaries; this notice must comply with Florida law

____ 18. Deposit Will with the Clerk of Court

____ 19. Advise Post office to forward mail

____ 20. Cancel utilities, subscriptions

____ 21. Contact homeowner’s insurance and keep insurance current

____ 22. Review insurance for all rental properties and keep payments current

____ 23. If homeowner association, contact and keep payments current

____ 24. Inventory Safe Deposit Box with at least one witness after first consulting with trust attorney

____ 25. Search records for potential creditors

Note: Do not pay creditors until you have ascertained their legal validity and priority. As trustee you have the duty to contest creditor claims that are not valid and pay claims according to their priority. A spouse is typically not liable for the debts of the deceased spouse.

____ 26. Keep current payments to legally valid secured creditors.

____ 27. Determine if any Employee Benefits

____ 28. Contact health care providers, such as doctors, hospitals, clinics and determine if they have accepted Medicare assignment for their services. If they have, then they have agreed to accept Medicare and any other insurance payments for their services. Therefore there should be no reason for them to file a claim in the estate for any unpaid portion of their statement. If we have a list of the Medicare providers, we will prepare objections to any claims they file against the estate.

____ 29. Social Security: If the decedent was receiving Social Security, contact (a) the Social Security Administration to inform them of the decedent’s death; (b) the bank where the social security check is being deposited directly into to inform them of the decedent’s death. The Social Security checks are issued at the first of the month and they are in payment for the previous month. The decedent must have lived the entire month to be entitled to the Social Security check. For example, if the decedent died August 15, and the Social Security check was automatically deposited on September 3, the decedent is not entitled to the September 3 check or any checks thereafter. You must contact the bank and request that they return the check to Social Security. Often the bank does this automatically as a service to customers. If the check is not returned, the Social Security Administration will take steps to collect the check(s).

____ 30. Make a claim for Social Security death benefit if (a) decedent has enough hours worked during his or her lifetime; and is (b) survived by a spouse or dependent child. For additional information contact Social Security at 800-772-1213.

____ 31. Determine if any claims for life insurance or veteran death benefits.

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, P.A. have helped many family members navigate these tasks as the Trustee, Co-Trustee or Personal Representative of the Estate. We are ready 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.

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.

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.

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.

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!

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.

1. A legally adopted child or adoptive parent of the decedent;
2. Related by lineal consanguinity to the decedent;
3. A spouse, or a brother, sister, uncle, aunt, nephew, or niece of the decedent, or someone related by lineal consanguinity to any such person; or
4. The spouse of a person who otherwise qualified under this section.

A Common Drafting Mistake: We see this mistake made in a few wills every year: the decedent names a non-resident of Florida, such as a close friend, or an out of state attorney as their Personal Representative. These individuals would not qualify to serve as personal representative. What Happens If The Person Named In The Will Cannot Serve? If the will has an order of succession for Personal Representatives and there are other named Personal Representatives that do qualify under the terms of Fla. Stat. § 733.304 then the next in line individual can serve. If there is no order of succession for Personal Representative in the will, or no one named qualifies, then we look to Fla. Stat. §733.301. Preference in appointment of Personal Representative would indicate that if those named in the will can not serve, and there is no surviving spouse, then the next eligible person in a testate estate would be a person selected by a majority in interest of the persons entitled to the estate. If no such majority is reached, then a devisee under the will can serve. If more than one devisee applies, the court may select the one best qualified. Keep in mind that the person selected by the majority or the devisee must be a Florida resident to qualify. Intestate Appointment Preference In intestate estates preference in appointment is as follows:

1. The surviving spouse.
2. The person selected by a majority in interest of the heirs.
3. The heir nearest in degree. If more than one applies, the court may select the one best qualified. See Fla. Stat. §733.301

In most instances an individual who falls within one of these descriptions can be found and is qualified and willing to serve as Personal Representative. In the rare instance that an individual who falls within these categories can not be found, the court may appoint someone to serve, either in a testate or intestate estate, but the person the court appoints, if a non-resident, must be qualified to serve according to Fla. Stat. §733.304.

Special Note: All Trust companies incorporated under Florida law, and all state banking corporations, savings associations, national banking associations and federal savings and loan associations that are authorized and qualified to exercise fiduciary powers in Florida are qualified to act as personal representative. See Fla. Stat. §733.305. Conclusion: A non-resident of Florida can serve as Personal Representative only if related by lineal blood or legal adoption to the decedent, or married to a lineal blood or legally adopted relation of the decedent. For more information contact attorney Phil Rarick, Miami probate 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 probate attorney. Your receipt of information from this website or blog does not create an attorney-client relationship and the legal privileges inherent therein.

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.