Jul 122012
 
When May A Surviving Spouse Elect To Take 1/2 Of The Homestead?

Article X, Section 4(c) of the Florida Constitution imposes restrictions on the transfer or devise of homestead property.  While living, a husband and wife who own homestead property may transfer an interest in this property only if both of them sign the deed, mortgage, or other conveyance.  Upon death, there are limits upon how an individual can devise homestead property that are largely dependent on who survives the decedent. If someone attempts to devise the homestead in a manner that is not authorized by Florida law or the Florida Constitution, the Florida Statutes determine the proper manner of descent.  The More…

Jul 102012
 
Protecting Your Assets From Your Teenage Drivers

Many people are unaware that, under Florida law, a motor vehicle is considered a dangerous instrumentality and an owner of a vehicle who allows someone else to use it has a legal obligation to insure that the vehicle is safely operated.  If the person borrowing the vehicle damages property or causes personal injury, the owner is as considered as liable as the operator. This legal doctrine can cause serious issues for parents who have teenage drivers that are using their cars.  If the child operate the car negligently and causes an accident, the parent can be held liable as the More…

Jul 032012
 
Prenuptial Agreement Will Likely Play Key Role In Cruise-Holmes Divorce

Katie Holmes, the actress and wife of Tom Cruise, shocked celebrity-watchers last week by filing for divorce while Cruise was away from the country working on a movie project.  Holmes’ petition was filed in New York and seeks full custody of the couple’s young daughter.  As this legal drama unfolds, a central issue will be the existence and terms of a prenuptial agreement between Cruise and Holmes. A prenuptial agreement is a contract between two people who are about to wed which spells out how their assets will be distributed in the event of their divorce or death.  Prenuptial Agreements More…

Jun 292012
 

A person who is asked to serve as trustee of a Florida trust should know and understand what their potential liability may be for actions they take while serving.  The Florida Trust Code outlines the issue of breach of trust and provides some relief to limit trustee liability. Under the Florida Statues, a violation by a trustee of a duty the trustee owes to a beneficiary is a breach of trust.  In order to remedy a breach of trust that has occurred or may occur, a court may: Compel the trustee to perform or enjoin the trustee from acting; Compel More…

Jun 272012
 
Removal Of A Trustee May Be The Best Way To Settle A Trust Issue

Generally, the settlor of a Florida Revocable Trust selects the successor trustee who will be responsible for making sure that the settlor’s beneficiaries are cared for in accordance with their wishes when they have passed.  If the beneficiaries of a trust become dissatisfied with the performance of the trustee, the best solution may be the resignation or removal of that trustee.  If an agreement may be reached between the parties, the trustee may consent to resign in return for releases by the beneficiaries.  If not, removal may be possible under the terms of the trust instrument or in accordance with More…

Jun 202012
 
Revocable Living Trusts Can Reduce Personal Representative Fees As Well

So much is made over the attorney’s fees that may be saved through the use of a Florida revocable living trust that it is easy to forget the other fees that may be saved as well.  This can include personal representative’s fees since, in Florida, a personal representative is entitled to a commission payable from the estate assets without court order as compensation for ordinary services.  This commission is based on the compensable value of the estate, which is the inventory value of the probate estate assets and the income earned by the estate during administration. Personal representative fees are More…

Jun 142012
 
The Pitfalls Of Placing A Florida Residence Into A Revocable Trust

One of the essential tools in the Florida estate planning attorney’s toolbox is the revocable living trust.  These trusts are an effective method for avoiding the arduous Florida probate process while also protecting family privacy and helping to plan for the possibility of incompetency.  So what is the problem with using these marvelous instruments to hold the family residence? Many people are under the impression that holding a personal residence in a revocable trust is an innately bad thing, especially when it comes to protection from creditors.  Back in 2001, Florida estate planners became alarmed at a bankruptcy case which More…

Jun 052012
 
Court Rules That $500,000 Found in House Walls Belongs to Estate, Not Homeowners

An Arizona appeals court has ruled that $500,000 found in the walls of a house belongs to the heirs of the man who put it there and not the current owners. Apparently, before he died the decedent had a habit of hiding cash and other valuables in unusual places in the homes he lived in.  After he passed away, his two daughters found stocks and bonds, as well as hundreds of military-style green ammunition cans containing gold or cash, hidden throughout his home.  After seven years of searching, the daughters sold the home to a couple who planned to do More…

Jun 012012
 
Insurance May Not Be Enough To Protect A Business Owner’s Personal Assets

Previously, we discussed piercing the corporate veil and the role that maintaining adequate insurance can play in determining whether a piercing action will succeed.  But what happens when insurance is not enough?  This is the time when a personal asset protection plan comes into play. It is no secret that insurance companies are in the business of making money and that a large part of their business is generated through the denial of claims.  After all, is it not preferable from their standpoint to bring in all those premiums and pay out nothing at all?  Take, for example, the story More…

May 232012
 
Lack Of Insurance May Be Justification For Piercing The Corporate Veil

Last week we discussed the legal phenomenon known as “piercing the corporate veil”.  If judgment creditor succeeds in a piercing action, courts can ignore the corporate liability shield and hold the individual owners of the company personally responsible if there is not enough assets in the company to satisfy their judgment.  This often happens when the evidence shows that the business did not follow proper corporate formalities, when owners commingle business funds with personal funds, or where the owners failed to adequately capitalize the business. When the company does not have insurance, or has not purchased enough insurance to keep More…