Author Archives: Admin

Best Practices for Storing Estate Documents

Being locked out of your car or house can be a frustrating, time-consuming, and sometimes costly experience. Luckily, depending on your security system, it is as easy as calling a locksmith. What happens, though, if you are a trustee or executor and you are locked out of important documents or digital accounts? Best practices for ensuring smooth estate succession incorporates not only having the proper estate succession structures, but also the logistics of where to properly store hard copies of important documents. This article addresses some best practices for safekeeping of your important documents; a follow-up article shall address digital accounts.

After you’ve created your estate planning documents, one of the next decisions is where to store those documents so that your executor or trustee can easily find the original documents when needed. Because the executor or trustee will need the original will to handle your affairs most efficiently, such documents should be stored in a safe and accessible place, and the executor or trustee should know exactly where such estate planning documents are kept and how to access them.

If you decide to store the original copy of your estate documents in your home or personal business, they should be stored, at a minimum, in a locked filing cabinet or safe. If you store your documents in a location that requires a combination, password, or key for entry, be sure to share that information with someone you trust, such as your spouse, your adult children, your CPA, or your attorney. One of the best at-home options would be to store them in a waterproof and fireproof safe (ideally, the safe would be large and heavy or built into the structure of the home to help prevent thieves from taking the actual safe.)

While some people initially think a safety deposit box is their best option, unless the box is jointly managed (and your survivors are authorized to access the safe deposit box), the bank will likely require a court order to access the box, which could take a long time. Florida law provides that if a safe-deposit box is rented or leased in the names of two or more lessees, access to the safe-deposit box will be granted to either of them, regardless of whether the other lessee is living or competent (Florida Statutes § 655.937 ). Beware, though, on what is specifically provided in the lease or rental agreement with the bank regarding their individual policy. Additionally, access to the box is not the same as ownership of the contents of the box. At this time, Florida does not have a specific statute that determines the ownership of the contents of safe deposit boxes. Furthermore, the registration of the safe deposit box may have nothing to do with ownership of the contents of the box. The general rule is that contents of the safe deposit box are part of the probate estate unless the contents (a) are registered to a trust; (b) ownership of the contents is in some form of joint ownership; or (c) the co-lessor can prove ownership separate and apart from the deceased person. The lesson is clear, to be safe, never store your will in a safe deposit box unless you can be fairly certain someone else has access.

If you spent time, effort, and money to protect your assets and leave a legacy, you should protect the documents which protect you in order to make the disbursement of your assets reflect your desire.

Should you need to review your security plan, feel free to reach out to our offices for a free consultation. Our legal professionals are on hand to assist you.

A White Paper on Turnkey Real Estate Investments as Securities

turn-key-real-estate-investments-securities


turn-key-real-estate-investments-securities

Turnkey Real Estate Investment Opportunities have become extremely popular in the U.S. for real estate professionals, promoters and sponsors, on the one hand, and investors, on the other.  For real estate professionals, the “turnkey” investment structure provides access to readily-available capital.  And for investors, the “turnkey” opportunity provides passive income from a real estate asset usually titled in the name of the investor although managed by the sponsoring real estate professional or an affiliate.

The question that has arisen, however, is whether Turnkey Real Estate Investment Opportunities are actually “securities” and, as securities, need to be marketed and sold under state and federal securities laws.  This White Paper addresses that subject.

We prepared this comprehensive White Paper at the request of one of our clients to help real estate sponsors better understand this area of securities laws.  Click to Download this FREE White Paper now!

Probate Law and the Digital Era

probate law

probate law

Being locked out of your car or house can be a frustrating, time-consuming, and sometimes costly experience. Luckily, depending on your security system, it is as easy as calling a locksmith. What happens, though, if you are a trustee or executor and you are locked out of important documents or digital accounts? Best practices for ensuring smooth estate succession incorporates not only having the proper estate succession structures, but also the logistics of where to properly store hard copies of important documents. This article addresses some best practices for safekeeping of your important documents; a follow-up article shall address digital accounts.

After you’ve created your estate planning documents, one of the next decisions is where to store those documents so that your executor or trustee can easily find the original documents when needed. Because the executor or trustee will need the original will to handle your affairs most efficiently, such documents should be stored in a safe and accessible place, and the executor or trustee should know exactly where such estate planning documents are kept and how to access them.

If you decide to store the original copy of your estate documents in your home or personal business, they should be stored, at a minimum, in a locked filing cabinet or safe. If you store your documents in a location that requires a combination, password, or key for entry, be sure to share that information with someone you trust, such as your spouse, your adult children, or your attorney. One of the best at-home options would be to store it in a waterproof and fireproof safe (ideally, the safe would be large and heavy or built into the structure of the home to help prevent thieves from taking the actual safe.)

While some people initially think a safety deposit box is their best option, unless the box is jointly managed (and your survivors are authorized to access the safe deposit box), the bank will likely require a court order to access the box, which could take a long time. Florida law provides that if a safe-deposit box is rented or leased in the names of two or more lessees, access to the safe-deposit box will be granted to either of them, regardless of whether the other lessee is living or competent (Florida Statutes § 655.937 ). Beware, though, on what is specifically provided in the lease or rental agreement with the bank regarding their individual policy. Additionally, access to the box is not the same as ownership of the content of the box. At this time, Florida does not have a specific statute that determines the ownership of the contents of safe deposit boxes. Furthermore, the registration of the safe deposit box may have nothing to do with ownership of the content of the box. The general rule is that contents of the safe deposit box are part of the probate estate unless the contents (a) are registered to a trust or (b) ownership of the contents is in some form of joint ownership (c) or the co-lessor can prove ownership separate and apart from the deceased person. The lesson is clear, to be safe, never store your will in a safe deposit box unless you can be fairly certain someone else has access.

If you spent time, effort, and money to protect your assets and leave a legacy, you should protect the documents which protect you in order to make the disbursement of your assets reflect your desire.

 From finance to Facebook, our lives have been extremely linked and synced to the internet. Phones, tablets, and computers are not merely important but are essential to life in today’s modern world. After you pass, if your loved one, executor, or trustee only has access to your physical estate documents (power of attorney, will, trust, etc.) without access to your devices and online accounts, administration of your affairs will be much more cumbersome than envisioned.

In Florida, the law grants fiduciaries legal authority over the deceased’s digital assets and accounts (Florida Fiduciary Access to Digital Assets Act, SB 494, Chapter 740.) This law provides “procedures for the disclosure of digital assets [and] authoriz[es]the court to grant a guardian the right to access a ward’s digital assets under certain circumstances.” The law also allows disclosure of content of electronic communications of a deceased user. “If a deceased user consented to or a court directs the disclosure of the content of electronic communications of the user, the custodian shall disclose to the personal representative of the estate of the user the content of an electronic communication sent or received by the user if the personal representative gives to the custodian…” certain required documentation. However, it may be prudent to lay out in your estate documents any and all online accounts you have, and your wishes for them. Why not have an easier and streamlined process for wrapping up your affairs?

Leaving your executor detailed instructions and account information will save time and frustration. The most useful thing to include in your instructions is a list of usernames, passwords, PINs, and all related accounts. If you do this, be sure to leave the instructions in a secured place and tell your executor where to find them. You may also want to provide additional guidance, such as lists of accounts or subscriptions that should be closed or terminated; details about how to use your online bill payment services or money-transfer accounts; a final message for your social media accounts; wishes for your blogs or websites, and/or requests not to access certain accounts. You should provide these instructions in a separate documentation or online storage. Having layers of security and encryption should always be part of the protocol for good protection. The hard part will be remembering all the accounts you have, all the passwords you have accumulated, and keeping the list up to date

Whether you’re in need of estate planning or would like a consultation on best practices and updating your estate planning, give our office a call to set up a complementary consultation.

Am I ready for a Structured Asset Protection and Estate Plan?

asset protection

Do you own a home or business? Do you want to protect those assets, but aren’t quite sure how? Many have at least heard of a will or trust but confuse the differences between the two when managing assets.

Our office has prepared countless asset protection and estate plans for various individuals and families. However, we have also seen some catastrophes when clients attempted to manage assets without the assistance of legal advice. One prior client attempted to pass on his business assets without any legal services and ended up being swindled out of his fortune due to a botched transfer of his assets. This unfortunate disaster could have been avoided with the proper asset protection and estate protection tools, including but not limited to the more common ones: trusts, wills, LLCs, and a properly structured plan.

Trusts allow you to manage assets inter vivos or during your lifetime. You must designate a trustee to oversee the trust, transfer your assets to the trust, and decide whether your trust will be revocable or irrevocable. A revocable trust can be revoked or amended, but is subject to the claims of creditors during your lifetime.[1] An irrevocable trust cannot be amended, and is subject to the claims of creditors only to the extent any amount can be distributed to you or for your benefit; otherwise, it is off limits to creditors.[2] Irrevocable trusts can be especially valuable for liability purposes, because the trust owns the assets and the trustee disposes of the proceeds according to your wishes. Hence, a creditor would not be able to liquidate assets you put in a trust, the proceeds of which are directed to someone other than yourself, since you no longer own the assets disposed of within the trust.

Wills allow you to pass on assets to designated beneficiaries after your lifetime, meaning your wishes take effect upon your demise. You simply designate a personal representative, who must be a Florida resident, unless related by lineal consanguinity, to carry out your wishes upon your demise with respect to your assets owned at the time.[3] You may change your will as many times as you wish before your demise; nothing in your will is permanent until you pass away. In Florida, if you do not have a will upon your demise, then the state will determine how your assets are distributed.

Limited liability companies or LLCs can be effective in organizing your assets while distancing yourself from various liabilities. LLCs can own many different assets such as real estate, stock, self-directed retirement plans, vehicles, and other assets. Assets owned by your LLC would circumscribe the extent of creditors’ claims against that entity only and not your personal assets. Furthermore, you can put your various LLCs into a trust or dispose of them in your will, making transfer processes smoother. These are just some of the strategies our law firm can implement for you and your family.

As always, you want to seek the advice of legal counsel before executing any estate documents. If you or your loved ones have questions regarding how to protect your assets, you could obtain a complimentary consultation with our office. Our team of dedicated professionals is standing by to assist you.

[1] Fla. Stat. §§ 736.0505(1)(a), 736.0602(1).

[2] Fla. Stat. § 736.0505(1)(b)

[3] See, Fla. Stat. §§ 733.302, 733.304.

Sued by a business partner

Have you ever contemplated going into business with a colleague? Maybe it’s someone with whom you’ve had a great experience on a previous project. It all sounds great in theory and you’re ready to move ahead. You may want to pump the brakes and review this blog before contracts are executed and funds are exchanged.

What would happen if you or your business partner were accused of mishandling funds or misrepresenting the details of a transaction? Our office has been on both sides of the aisle for this dilemma. We recently represented clients who were swindled out of funds entrusted to people who were working together (call it conspiring together), but did not necessarily own a company together. Ultimately, it was a convoluted business scheme which left our clients out of pocket in excess of six figures and the defendants pointing the finger at one another. Fortunately, we were able to obtain a seven-figure judgment against the culprits, who ended up  jointly and severally liable for the judgment.  The problem, of course, is in collecting on the that judgment.

Now, the more important question: how do you avoid such a devastating outcome, but still do business with a colleague?

First, evaluate the extent of your relationship with your business partner. Is this a one-time transaction or an ongoing business venture? Are there any documents evidencing your characterization of the business relationship? Although you may only intend to collaborate with your partner(s) for a specific business venture, as opposed to starting a corporation, your relationship could nonetheless, be deemed a partnership.

Florida will consider an association of two or more persons carrying on as a co-owners of a for profit business as a partnership.1As such, you could be held jointly and severally liable for all obligations of the partnership, unless otherwise agreed or provided by law.2Therefore, as a legally recognized partnership, anything your business partner does in his or her capacity as your business partner, could leave you to be held equally liable for any and all claims relating to such activity. It is highly important that the terms of the business relationship be memorialized in writing.

Next, take all the preventive measures that you can. Be open and transparent with your potential colleagues and counterparts regarding the terms of every transaction. Although unintentional, even the slightest misrepresentation of a material term could be materially damaging. Negligent misrepresentation is defined as a misrepresentation of a material fact which the party should have known was false, made to induce another to rely on their representations, on which the other party did, in fact, rely to their detriment.3

Have you disclosed all material terms to your colleague(s)? Keep accurate records of all your communications to and from the colleagues. Maintain even more precise accounting records regarding the transaction. Be patient and ensure your colleagues understands the nature of the transaction at the onset to avoid later issues because of  a lack of clarity.

If you are already reacting to accusations regarding ongoing business dealings with a business partner, cooperate with the harmed party to rectify the situation prior to the commencement of any litigation. Communicate with your business partner regarding the accusations and expectations of all interested parties. If the harmed party nonetheless pursues litigation, seek legal counsel immediately, and cease all further communications, even to your partner until you’ve had an opportunity to speak with someone advocating specifically on your behalf.

If you or someone you know has been accused of mishandling funds or have questions regarding your business partner(s) and corporate structure, we always provide a free consultation so that you may better understand your legal options.

1Fla. Stat. 620.8101(7) (2018).

2Fla. Stat. 620.1404 (2018).

3Simon v. Celebration Co., 883 So. 2d 826, 832 (Fla. 5th DCA 2004).