Florida Probate Litigation Lawyer Blog

Florida Passes the “Florida Fiduciary Access to Digital Assets Act”

March 21, 2016 | by Chepenik Trushin LLP

For hundreds of years, most information existed in tangible form, usually in paper documents. However the advent of digital technology, has transformed the way people acquire and store information and transact business. As people continue to embrace digital technology, many tangible documents have been replaced by digital files. This shift towards digital media has created challenges for fiduciaries tasked with corralling digital assets for individuals who have either lost capacity or died.

In Florida, when an individual dies or is declared incapacitated, a fiduciary is required to use their legal authority to inventory the person’s assets, pay the persons creditors and expenses, and preserve the assets while they are incapacitated or transfer the assets to the proper beneficiaries. Traditionally, an individual’s personal information could be located by searching their paper records, where one could find information regarding bank accounts and bills to be paid. However, the digitalization of personal information has made locating these records more complicated. Fiduciaries must identify and locate these digital assets, determine who has control over access to the assets, and figure out how to access those assets. Continue Reading

Challenging Estate Plans: Modification of Sumner Redstone’s Estate Plan Prompts Allegation of Mental Incapacity

March 7, 2016 | by Chepenik Trushin LLP

Sumner Redstone, the controlling shareholder of Viacom Inc. and CBS Corp., is going to trial over claims that he is mentally incompetent. Redstone stepped down as executive chairman of both companies in early February.

The claims of incompetency come from Manuela Herzer, Redstone’s alleged ex-girlfriend, who was recently removed as Redstone’s health-care representative. In her suit, Herzer argues that Redstone lacked the mental capacity to remove her as his health-care representative and evict her from his mansion last October. Additionally, Herzer claims that Redstone has been “the victim of undue influence, fraud, manipulation, and chicanery” by those around him.

Florida Looks to Become the Preferred Destination for Family Trust Companies

February 29, 2016 | by Chepenik Trushin LLP

In 2014, the Florida Legislature passed the Florida Family Trust Company Act, which established a structure for the formation, operation, and regulation of Family Trust Companies (“FTCs”). An FTC is a corporation or limited liability company, exclusively owned by one or more family members, that provides trust services to a related group of people. FTCs can serve as trustees and provide other fiduciary duties, such as investment advisory, wealth management, and administrative services. There are many advantages of forming a FTC, including:

Increased flexibility and control over asset management
Greater protection of family privacy
Increased liability protection for fiduciaries
Continuity of the trustee upon death, resignation, or removal of a decision maker
The ability to integrate the younger generation into the family wealth management

A Life Estate Explained

February 22, 2016 | by Chepenik Trushin LLP

Most people are familiar with the term life estate, but may not understand the exact details of how a life estate operates. First, “life estate” refers to a real property arrangement. A life estate is essentially just a method of splitting ownership of real property between two classes of people. In every valid life estate, there is at least one “life tenant” and at least one “remainderman.”

The life tenants and the remaindermen hold different property interests. The life tenants are the owners of the property during life. Each life tenant has the right to live in the property (rent-free) until his or her death. Following the death of the last life tenant, the property automatically transfers to the remaindermen. Following the transfer, the remaindermen become the full owners of the property, not subject to any life estate. One of the fundamental benefits of using a life estate to transfer property is that the transfer happens outside the probate process. A non-probate transfer allows the remaindermen to become full owners of the property without the cost, delay, and inconvenience associated with the probate process. Continue Reading

Are You Widowed? You Need To Plan Your Estate Too!

February 15, 2016 | by Chepenik Trushin LLP

Losing a spouse can involve some of the most painful experiences, difficult hardships, and distressing emotions. Often times, the remaining spouse feels bombarded with overwhelming and newfound decisions, ranging from heartfelt personal dilemmas all the way to crucial financial planning matters. Despite the emotional difficulty in handling personal finances after the passing of a loved one, engaging in estate planning is not only important, but rather a necessity.

Preferably, before death, spouses should seek professional assistance from an attorney to help draft wills that clearly express how the estate would be expected to pass. In order to protect the survivor, spouses must be extremely clear with their wishes long before illness or death. For example, spouses should ensure that all wills and life insurance policies are up-to-date with the names of the proper beneficiaries. This will prevent unnecessary, yet costly court costs or perhaps even money passing to an individual that was never intended. Continue Reading

What All Realtors Should Know When Representing a Foreign Buyer

February 8, 2016 | by Chepenik Trushin LLP

Recently, the Financial Crimes Enforcement Network (“FinCEN”) promulgated new rules which require certain U.S. title insurance companies to identify the natural persons behind companies used to pay “all cash” for high-end residential real estate in Miami-Dade County, Florida.

According to the 2015 Profile of International Home Buyers in the Miami Association of Realtor Business Areas, foreign real estate buyers account for 36% or $6.1 billion of total sales volume in the South Florida real estate market. Florida remains the top state for international buyers accounting for 21% of all foreign purchases in the United States. Miami in particular continues to have the most foreign buyers accounting for 74%, which is more than double than the national figure of 35%.

As a result, it is more important than ever for realtors with foreign buyer clients to have their clients engage an international tax attorney to ensure that the ownership of the property is structured with tax efficiency. Foreign persons purchasing U.S. real estate without consulting an international tax attorney may be putting themselves in precarious tax positions if the tax implications are not considered. Below is a high level discussion of some of the key issues.

David Bowie’s Estate Planning Guarantees Empire is Left to His Family

January 21, 2016 | by Chepenik Trushin LLP

Legendary rocker David Bowie was as brilliant in his estate planning as he was talented in his artistic ventures. Bowie’s colorful 50-year career encompassed both, a successful musical career and an acting career, which ultimately ended when Bowie succumbed to cancer in early January. Bowie’s empire, valued at an estimated net worth of $230 million, is primarily the result of several successful world tours and the sale of an estimated 140 million records. However, despite living a lavish lifestyle, with real estate in New York City, Switzerland, Los Angeles, London, and the Caribbean island Mustique, Bowie was said to have been “very much into estate planning issues at a relatively young age.”

Bowie’s financial astuteness was further evidenced by his creative invention of “Bowie Bonds”, created by Bowie and financial adviser, David Pullman. Bowie Bonds were asset-backed securities which awarded investors a share in Bowie’s future royalties for ten years. Bowie was able to retain ownership of his work rather than selling the copyright, and he was then granted complete ownership of the rights after the ten-year period. The scheme was created in the mid-1990’s and was bought by American insurance company Prudential Financial for $55 million. Pullman noted that even then, Bowie’s intent was always that “at the time of his death his assets would all transfer to his family and beneficiaries.” Bowie’s beneficiaries, model-wife, Iman, and his two children, can now financially benefit from Bowie’s strategic and forward planning.

New Year, New Estate Planning Tips

January 4, 2016 | by Chepenik Trushin LLP

The New Year is here, but some things may never change. The gym membership is already beginning to look old and your other resolutions have fallen by the wayside. However, one resolution that should be kept is the resolution to keep your estate plan up to date. Don’t have an estate plan? Then it is time to create one.

Updating Your Estate Plan

You may already have an estate plan that has been in place for years now. That’s great news! But there are a few important considerations to take into account. Have you acquired any new assets, such as a new property or a new life insurance plan? Then your estate plan warrants an update. Or you may have already disposed of assets, and the inclusion of those assets in your estate plan is no longer relevant. Including the change in assets will help keep your intentions protected.

Have there been any changes in your personal life that would entail a need for an update? Have you recently been divorced? You may want to remove your former spouse as a beneficiary of your estate. Or maybe you have recently wed. Including your spouse in your estate plan will help avoid some headache (and heartache) in the future. Continue Reading

One of My Relatives Passed Away, Do I Have to Pay Their Debt?

December 23, 2015 | by Chepenik Trushin LLP

The last thing you want to deal with when grieving the passing of a loved one is incessant phone calls, emails, and possibly even personal visits from creditors who are seeking to collect the debt owed by your loved one. Unfortunately, these unethical and sometimes illegal practices are not uncommon. Creditors often take advantage of a family member’s grief and lack of knowledge on the law governing a decedent’s debts in an effort to get the family member to answer for the decedent’s debts.

Well, here is something that might come as a bit of a surprise to you: you do not have to personally pay those creditors!

Planning for Incapacity: Planning for When You Can No Longer Plan

December 9, 2015 | by Chepenik Trushin LLP

Let’s face it—no one wants to contemplate the possibility of a time when she or he is unable to take care of herself or himself. However, the truth of the matter is that it could happen to anyone at any time. In general, a person becomes incapacitated when that person no longer has the ability to make or enter into certain types of medical or legal decisions and agreements. Florida law specifically defines incapacity as “the inability of an individual to take those actions necessary to obtain, administer, and dispose of real and personal property, intangible property, business property, benefits, and income.” Wouldn’t you rather plan ahead for this “inability” so that you still have significant input into what will happen if or when you are unable to manage your own financial and medical affairs?

Various documents exist for a person to plan for incapacity. The type of document to execute depends on the type of care being considered. If dealing with property, a person might elect to execute a Power of Attorney. If dealing with the care of a person, various options include a Durable Power of Attorney, a Living Will, and a Health Care Surrogate.