Category Archives: Partners Blog

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).

5 Critical Elements To Look for When Seeking the Services of an Attorney

Larry Pino

If you are planning to seek the services of an attorney, here are five critical elements to consider:

  1. Be clear the attorney is competent in the area in which you need assistance.  Law, like medicine, is specialized.  Best to seek out the assistance of a specialist in what your needs are; it will be less expensive in the long run and the work product will be better.
  2. Make sure both you and your attorney are clear as to what your objectives are and what is achievable.  If your attorney understands what you are trying to get accomplished, he or she will be better able to advise you as to what can reasonably be achieved, and what might be more problematic.
  3. Discuss, agree and have in writing the fee arrangement with your attorney.  There is no reason why either of you should ever be surprised about the billing once it starts.  The time to have that conversation is up front.
  4. Discuss and come to terms on how you and your attorney will communicate.  One of the major points of discontent between a client and an attorney is a lack of ongoing communication on the part of the attorney.  Best to have that conversation about your expectations up front.
  5. Check with the Bar Association to confirm whether there are any disciplinary proceedings against your attorney.  If there were, it doesn’t mean to stay away from a particular attorney if the above conditions are met, but knowing if there are prior client complaints will help you make a more informed decision.

Feel free to contact PinoNicholson PLLC today at 407-425-7831 to learn more.

Bells and Whistles: A Guideline for Avoiding the Pitfalls of Contracts

Image source: www.ukconstructionmedia.co.uk

You’ve had a great opportunity presented to you, and assumed you could handle the entire transaction on your own. You and your counterpart exchanged notes you wrote on a napkin at lunch and some text messages later during the week. You typed up a quick contract based upon a free template you found online, and your counterpart was ready to commence services right away. While frowned upon, this is actually common in today’s era of technology.

You both executed the contract, but then early on, something goes wrong, and your counterpart refuses to pay. Whose responsibility is it? What do you do? No one expects to end up at this juncture, yet, so many contract deals wind up arriving at this final destination.

While it is vital that you seek legal counsel early in any financial transaction you may be contemplating, here is a list of preliminary items to consider initially to avoid some common pitfalls while deciding to seek legal assistance:

 

  1. Beyond the standard boilerplate language necessary to avoid lengthy judicial procedures, e.g. applicable laws, jurisdiction, and venue, substantive provisions must be included to ensure avoidance of some common pitfalls in a breach of contract scenario. For example, some contracts fail to state the grounds for default or provide indemnification provisions in the event of any future legal claims.

 

  1. While the average consumer may consider what is mainly required of a contracting party, they may nevertheless fail to specify the grounds for termination: terms that allow a part to discontinue the contract. Consider what conduct are grounds for termination or a material breach. We represented a corporate client during litigation of a breach of contract claim. The defendants argued our clients initially breached the contract, while our clients argued that the defendants’ funding deficiency caused them to breach. Unfortunately, the contract, which our office did not draft, never identified the grounds for a breach, clarified a material breach, or instructed who was to perform first, let alone the nature of the relationship in the event one of the conditions was waived. With so many open-ended questions, the resulting litigation was substantial.

 

  1. Clarify each party’s responsibilities. So often, key details are overlooked: who’s financially responsible while the goods are in transit up until the time the transaction is complete; who’s responsible for utilities; how do the parties receive official notices and other important communications; is insurance required; who’s responsible for any negligent conduct, and so forth? We represented a local mega church, which often hosted programs for various organizations benefiting the local community. One local organization wanted to host a program to assist ex-convicts in the rehabilitative process. We very much supported the effort and counseled the church about the risks for which an appropriate indemnification would limit the church’s exposure to liability.

 

  1. It’s important to clarify any allotted waivers. While a party may be in breach of a contract, you can give up your legal rights to sue for any breach, or rescind the contract due to any breach, in the event a waiver is given, implicitly or explicitly.

There are just some of the common pitfalls in contracts that we see daily. My law professor once told me, “A good litigator knows how to draft a contract, but a great transaction attorney knows how to avoid litigation.” These initial conversations will help prevent many disputes that ultimately end up in litigation.

While breaches of contract are never fun, they can be adequately provided for in an appropriately drafted contract. Engaging the right legal team to assist you in your legal transactions can be the difference between walking away from a deal with everything you wanted or walking away with nothing. Contact us today for a free consultation.

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