Florida Probate Litigation Lawyer Blog

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.

The Role of the Personal Representative in an Estate

November 10, 2015 | by Chepenik Trushin LLP

Who will handle your matters after you have passed away? Here in Florida, a personal representative is in charge of handling the matters of your estate, regardless of whether you died with a will. If a person dies intestate (i.e., without a will, and therefore likely without a named personal representative), then a personal representative will be appointed by the court. Choosing a personal representative whom you trust should be an important consideration when drafting your will.

That may lead you to wonder, who can serve as a personal representative? And who does the state feel is preferable to serve as a personal representative? Florida Statutes have addressed these questions and have explained who is qualified to serve as a personal representative. Generally speaking, any person who is sui juris (meaning, “of one’s own right”) and is a resident of Florida at the time of the death of the person whose estate is to be administered is qualified to serve as a personal representative.

Valuable Estate Planning Lessons Can Be Learned from Lamar Odom’s Health Scare

October 28, 2015 | by Chepenik Trushin LLP

By now you have probably heard about former NBA star, Lamar Odom’s, health scare. Odom was found unconscious in a Nevada brothel on Tuesday, October 15, 2015. Fortunately, Odom’s condition has improved, and he appears to be on the road to recovery. What you might have not heard about in the news, however, are the estate implications and complications that came as a result of lax estate planning on behalf of Odom.

Although Odom was a highly-skilled NBA player, his increased fame can be attributed largely to his starring role on E!’s hit TV-series “Khloe & Lamar.” Because of the popularity of the series, Khloe Kardashian and Odom’s “divorce” got a lot of attention and publicity from the media, but apparently not from the California courts. As it turns out, the couple signed and filed divorce papers in July of 2015, but due to a severe backlog in the California courts, their divorce has not been finalized. As a result of the delay, Lamar Odom and Khloe Kardashian are still legally married. These circumstances created an interesting situation when Odom was found unconscious at the brothel because, as his legal spouse, Khloe Kardashian is responsible for making medical decisions on Odom’s behalf.

Ensuring the Validity of Your Last Will and Testament

October 22, 2015 | by Chepenik Trushin LLP

There are a number of reasons why people choose to execute a Last Will and Testament. Some individuals create a will to ensure that their loved ones are provided for upon their passing. On the other hand, other people create a will to ensure that certain family members are specifically excluded from the distribution of their estate. Often times, however, life circumstances and/or the desires of the testator change between the execution of a will and the testator’s passing. In such instances, a modification or revocation of the previously executed will is necessary to reflect the changed testamentary intent.

Many people assume that they can modify or revoke their will simply by drawing a line through existing provisions, handwriting in new provisions, and initialing next to the changes. While this may be considered a valid modification in other states, this type of alteration is not valid under Florida law. Florida law requires strict adherence to what are known as “will formalities” in both the execution and the modification of a will. Any deviation from these strict formalities may result in a will being deemed invalid by a court, further resulting in the will not being admitted to probate and thereby frustrating the testamentary intent of the testator.