Florida Probate Litigation Lawyer Blog

FIRPTA – Be Aware!

August 1, 2016 | by Chepenik Trushin LLP

FIRPTA: Increased Withholding and Other Changes

Most professionals have familiarity with the Foreign Investment in Real Property Tax Act (“FIRPTA”), especially those that have foreign clients investing in U.S. real estate. On December 18, 2015, the President signed into law the Protecting Americans from Tax Hikes Act of 2015 (“PATH Act”). The PATH Act significantly alters FIRPTA withholding for foreign persons disposing of investments in U.S. real estate. Realtors, accountants, closing agents and title companies need to familiarize themselves with the changes.

The PATH Act increases the FIRPTA withholding rate from 10 percent to 15 percent on certain dispositions and distributions of United States Real Property Interests (“USRPIs”).^[1] Similarly, the withholding rate for the transfer of a partnership interest or the beneficial interest in a trust or estate has been increased from 10 percent to 15 percent.^[2] The new withholding rate applies to all such dispositions that take place after February 16, 2016.^[3] However, the new FIRPTA rules allow for a 10 percent withholding rate where the amount realized on the disposition of property being used as a residence is between $300,000.00^[4] and $1 million.^[5] In other words, if a foreign person sells his or her personal residence for $999,000.00 the amount to be withheld shall be $99,900.00. However, if the foreign person sells his or her personal residence for $1,000,100.00, the amount to be withheld on the sale shall be $150,015.00. The amount withheld is offset by the gain on the disposition of the USRPI and is refundable to the extent the amount withheld exceeds the underlying tax liability.^[6] The increased FIRPTA withholding rate is not an actual increase in tax, but a means of ensuring compliance with U.S. tax law. An exemption found in the old rule remains in place, providing that a foreign person is not subject to FIRPTA withholding where the property sold is used as a residence and the amount realized does not exceed $300,000.00.^[7]

Trustee Acting Squirrely?

July 22, 2016 | by Chepenik Trushin LLP

When a Trustee Goes Bad: Removal of a Trustee

Trustees play a critical role in trust administration. Settlors, or creators of the trust, give trustees legal title and management authority over the settlor’s property for the benefit of the beneficiaries. An unruly trustee could improperly deplete the trust property and leave nothing for the beneficiaries. Florida recognizes the importance of the trustee’s role and has numerous statutes regulating trustees and protecting beneficiaries. The provisions include, but are not limited to:

The trustee shall administer the trust in good faith, in accordance with its terms and purposes and the interests of the beneficiaries, and in accordance with the Florida Trust Code. 736.0801, Fla. Stat. (2006).

Does ingesting medical based pot make you incapable of creating a will or trust?

July 12, 2016 | by Chepenik Trushin LLP

Possibility of the Effect of Marijuana on Estate Planning

In the 2014 legislative session, the Florida Legislature passed the Compassionate Medical Cannabis Act of 2014, which authorizes certain physicians to prescribe low-THC cannabis for use by specified patients. Nearly two years later, due to legal challenges, Floridians still have not been able to receive this medical treatment. However, because the law may become effective in the near future, certain questions must be addressed, particularly questions regarding the intersection of marijuana use and testamentary capacity.

One of the legal prerequisites for making a will in Florida is that the maker (the testator) must have testamentary capacity, that is, a sound mind. Insofar as lack of testamentary capacity is one of the grounds frequently used to challenge the making and execution of a last will and testament, the testator’s testamentary capacity may be called into question if he or she had been prescribed medical marijuana and had, in fact, taken medical marijuana during any aspect of the preparation or execution of the subject will.

Settlor’s, Trustee’s and Beneficiary’s – Meet your “Jedi Knight”, Trust Protector

June 30, 2016 | by Chepenik Trushin LLP

Trust Protectors: An Extra Layer of Protection

Traditionally, a trust has three main participants, a settlor, a trustee, and one or more beneficiaries. A settlor creates and/or contributes property to the trust. A trustee manages and holds the property in the trust for the benefit of other people who are said to have a “beneficial interest” in the trust. Beneficiaries are the people who have those beneficial interests. For example, a father, acting as a settlor, might create a trust, naming his wife as the trustee, to distribute money for the benefit of their children, who are the beneficiaries of the trust. However, a fourth participant has increasingly been used in trusts: the trust protector.

Historically, trust protectors were mainly used in offshore trusts and rarely in domestic trusts. A trust protector acts as an extra layer of protection for the settlor. A trust protector is customarily appointed to supervise the trust and ensure that the settlor’s intent is effectuated. A trust protector may have the power to modify terms of a trust to ensure that the settlor’s intent is carried out.

B.B. King, a music legend – Undue Influence and Capacity in real life

June 24, 2016 | by Chepenik Trushin LLP

B.B. King Estate Fight: One Year Later and No End in Sight

Legendary blues musician B.B. King passed away on May 14, 2015 due to congestive heart failure at the age of 89. In a will created in 2007, King named his longtime business manager, Laverne Toney, as the executor/personal representative of his will. The 2007 will, thus, puts Toney solely in charge of administering King’s assets, his property, and his trust. In June 2015, a Las Vegas judge confirmed Toney’s appointment as sole executor, and rejected efforts to contest the will made by four of Mr. King’s children.

Although B.B. King did not have children from either of his two marriages, he nevertheless claimed to have 15 children with 15 different women over the course of his lifetime. Confusing the situation still further, King’s doctors determined in the 1980’s that due to King’s low sperm count, he was not able to conceive children. However, King never disputed paternity, and claimed to be the father of all 15 children, 11 of whom are still alive and have been fighting Toney over the estate.

Personal representative designation in Last Will and Testament – Convicted Felons

June 20, 2016 | by Chepenik Trushin LLP

Florida Limitation on Convicted Felons Serving as Personal Representatives in Probate Administration

When contemplating preparing a last will and testament, there are many options that have to be considered before drafting can begin. One important consideration is deciding who to nominate as the personal representative of your estate.

A personal representative is a fiduciary who is appointed by the court to administer the decedent’s estate.. Depending on the jurisdiction, a personal representative may also be known or referred to as an executor, administrator, or other name. Florida Statute § 733.301 outlines who has preference in appointment as the personal representative in various scenarios. When the decedent dies testate, meaning with a last will and testament, preference is given to the personal representative nominated in the will. If the nominated personal representative is unwilling, unable or unfit to serve, any successor nominated in the will has preference. In the event all nominated personal representatives are unwilling, unable or unfit to serve, preference goes to the person selected by a majority in interest of the persons entitled to the estate. If there is no person selected by a majority, preference goes to a beneficiary under the will, and if more than one beneficiary applies, the court may select the person best qualified.

When Wills mean Business

June 14, 2016 | by Chepenik Trushin LLP

When Wills Mean Business: Planning for Your Business’s Future

Planning for the future is not only necessary in your personal life, but also in your professional life, especially if you either own a business or invest in a business. Putting an estate plan in place early on, and keeping it updated to reflect changes in the business, can protect your business in the event of your death. Two South Florida examples illustrate the necessity of planning ahead for your business.

In November 2015, Pebb Enterprises LLC, based in Boca Raton, suffered the loss of two of its managing principals and five employees in an airplane crash. The plans put in place by the principals kept the company in business after the devastating event. In contrast, after the death of its president, Naples based Vantage Lighting was undervalued and dissolved, because the president died without a will.

What Happens when one Executes a Will in Two Different Countries, with Different Beneficiaries?

June 3, 2016 | by Chepenik Trushin LLP

The United States is famously known for its influx of immigrants moving here to build their lives, to retire, and for various other reasons. But specifically, tropical and sunny Florida is a very popular place for those coming from other countries. A booming 129,525 people moved to Florida from other countries just this past year! It is very common for people to own property in both their native home, as well as here in the United States.

As people build their lives, it is very important to plan what will happen after death to property both in the U.S. and abroad. This especially became important for Elena Isleno, a citizen of Argentina. Ms. Isleno owned property both in Argentina and in Florida. In order to protect her assets and decide what should be done with her properties, Ms. Isleno executed a will in New York; certain property went to friends and family in Argentina, while others to friends and family in the United States.

Qualifying as a Personal Representative in Florida

May 27, 2016 | by Chepenik Trushin LLP

When thinking about creating a will, there are many considerations that have to be factored in before putting anything in writing. An important consideration is deciding who to appoint as the personal representative for the estate.

A personal representative is an individual who is appointed to administer the decedent’s estate through probate. Under Florida Statute § 731.201, a personal representative is an umbrella term that could refer to an executor of a valid will or an administrator appointed by the probate court for an intestacy estate in cases where there is no will or there is an invalid will. Under Florida Statute § 733.302, in order to be a personal representative, an individual must be a resident of Florida and sui juris, considered to be competent under the statute. The Probate Code gives preference in the appointment of a personal representative in the event of either testate or intestate estates. For an estate with a valid will, preference is given to the personal representative named in the will, or a person selected by a majority of interested persons, or a devisee of the decedent. Under Florida Statute § 733.301, for estates without a will or with an invalid will, preference is given to the surviving spouse, then to a person selected by a majority of the interested parties, and then to the heir nearest in degree to the decedent. Continue Reading

Adult Adoptions as an Estate Planning Tool

May 20, 2016 | by Chepenik Trushin LLP

Many people utilize a will, a trust, or some other standard form of estate planning to ensure that their loved ones are provided for upon their death. However, in Florida, individuals have an additional estate planning tool: adult adoptions. Under Florida Statute § 63.042, a husband and wife, an unmarried adult, or a married person without the other spouse joining as a petitioner may adopt an adult. The statute does provide certain limitations, for example, if a married person wants to adopt without the other spouse joining as a petitioner, then the non-joining spouse must consent to the adoption. However, a court can excuse this requirement. Generally, Florida’s adoption statute is less restrictive than similar statutes in other states because it does not impose the common age difference requirement. Under this requirement, there must be a certain age difference between the party being adopted and the party wishing to adopt in order for the adoption to be legal. This means that in Florida an adult is able to adopt another adult regardless of age.