Category: Florida BAR article
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Guerilla Research
Research is the most important weapon for lawyers. It’s like the Minutemen’s sharpshooting in the American Revolution, it helps level the playing field. Even with the computer, traditional research is still essential. I used to be a criminal lawyer, but when I switched to business litigation, I had to learn a lot of new things.…
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Special Statutory Proceedings for the Discharge of Construction Liens
In Florida, special legal proceedings can be authorized by the Supreme Court as long as they don’t conflict with the rules of civil procedure. This includes the discharge of construction liens, which is typically handled through nonadversarial means outlined in the law. However, there can be some confusion about when to use the rules of…
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Domestic Asset Protection TrustsA Viable Estate and Wealth Preservation Alternative
People are starting to use domestic asset protection trusts more to avoid taxes and protect their assets from creditors. These trusts comply with specific laws in Delaware, Nevada, Alaska, or Rhode Island. They stop creditors from taking money from the trust if the person who made it did it for their own benefit. Richard Nenno,…
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Post-death Confidentiality of Estate Planning Communications Between Attorney and Client
So basically, when a client talks to their lawyer, everything they say is supposed to be kept private. This is called the lawyer-client confidentiality rule. It means the lawyer can’t tell anyone else what the client said, unless the client says it’s okay. This rule is different from the lawyer-client privilege, which is a rule…
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Florida’s Unlimited Homestead Exemption Does Have Some Limits, Part I
Florida’s unlimited homestead exemption allows debtors to shield their assets by purchasing a new home in the state and establishing residency. Recent articles have raised concerns about this loophole being used by high-profile individuals to avoid creditors. However, there are requirements that must be met to benefit from this exemption, and not everyone may qualify.…
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The Revocable Trust as Beneficiary of the Estate and the Effectiveness of Full Waiver Forms
The article discusses the legal steps to take when administering an estate with a trust as a beneficiary. It highlights the potential conflict of interest if the person in charge of the estate is also the trustee of the trust. It explains the importance of providing all information to the trust beneficiaries. It uses the…
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Intestacy in the Context of Estate Planning in Florida: When to Apply the Intestacy Rules and How to Avoid them
In short, a law firm and their lawyer are being sued for not properly representing their client in a case. The client claims that the lawyer didn’t try hard enough and made mistakes. The lawsuit is seeking money for the client’s losses and damages. If someone dies without a will in Florida, their property will…
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Pay-when-paid Construction Contract Requirement: Bane of the Subcontractor’s Existence
Subcontractors are struggling with the “pay-when-paid” provision in their contracts with general contractors. This clause essentially means that subcontractors don’t get paid until the general contractor gets paid, which can be a big problem. The Florida Supreme Court backed this provision in a case called Peacock Construction Co. v. Modern Air Conditioning, Inc. They basically…
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The Recovery of Attorneys’ Fees and Costs for the Unsuccessful Offer of a Will for Probate
This article will explain Florida law about getting money for your legal fees and costs if you tried to get a will approved by the court but it didn’t work. It will also give tips on how to do this successfully. If someone tries to get a will approved in court but it doesn’t work,…
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Land Mines and Other Surprises in Residential Landlord and Tenant Cases
In Florida, landlord and tenant cases can get complicated due to issues with notices and legal requirements. In a case called Bell v. Kornblatt, a landlordâs eviction complaint was dismissed because the three-day notice to the tenant was defective. However, the court clarified that the notice requirement is not a matter of subject matter jurisdiction,…
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Waiting for Estate Tax Repeal: What Do You Tell Your Clients in the Meantime?
The 1988 film “The Boost” is about a guy who loses everything when his business is affected by a change in tax laws. The repeal of the estate tax in 2001 could also affect lawyers who help people with their estate planning, but it’s not clear what will happen yet. Planning techniques that made sense…
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PAVE: A Self-Help Technique for Estate Tax Valuation Methods
Federal estate tax is usually calculated based on the value of the assets at the time of the person’s death, even if the value of the assets goes down afterwards. But there is a way for the estate to use the lower value if it’s better for them. It’s called a Protective Alternate Valuation Election…
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Ups and Downs: A REIT Dilemma
A REIT is like a mutual fund for real estate. It allows investors to buy shares in real estate properties without actually owning them. The REIT is not taxed like regular companies are, which can be an advantage. It brings together owners, property managers, and investors to make money from real estate. This article talks…
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The Interstate Land Sales Full Disclosure Act’s Two-Year Completion Exemption From the Condominium
The saying “a little bit of knowledge is dangerous” is true for real estate agents and condo developers dealing with ILSA. This law has a lot of rules and consequences, and it’s important to know how it affects condo developers. One important rule is the “two-year completion” exemption, which many developers use. A recent case,…
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The Interpretation of 7(a) and 7(b) of Title Policies Under Florida Law: Synergism Revisited
Title insurance policies do not guarantee that the title is without errors, and a title company can take legal action to fix any issues. If the title company’s action causes a delay or financial loss, it was unclear who would be responsible for covering those costs, but recent court cases have clarified this issue. In…
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Reforming Florida’s Elective Share Law: Is the Cure Worse Than the Disease?
The surviving spouse of a Florida resident who passes away has the right to a percentage of the deceased person’s assets, called the elective share. This is meant to make sure the surviving spouse has enough to live on and also recognizes their contributions to the marriage. However, there have been problems with the current…
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Notice to Caveators Prior to Will’s Admission to Probate
If someone files a caveat because they disagree with how a will is being handled, they must be given notice before the will can be approved. This gives them a chance to have their concerns heard. The law doesn’t specifically say they have to be given notice of the petition for administration, but it does…
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Multiple Representation in Estate Planning: Beyond Advisory Opinion 95-4, Part 2
An article discusses how a legal decision called Advisory Opinion 95-4 affects how attorneys work with married couples in estate planning. It talks about how attorneys and clients can decide on the specific responsibilities of the attorney in the engagement arrangement. Some attorneys may want the option to keep some information confidential from one spouse,…
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The Phantom of the Condominium
The developer of a condominium was supposed to pay their share of fees for units that were declared but not yet built. The developer argued that they only had to start paying once the units were actually sold. This led to a lawsuit which the court misunderstood the condo laws. The developer didn’t pay their…
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The Use of Forensic Document Examiners in Florida Will Contests
This article talks about using forensic document experts in Florida will contests. It discusses when to use them, what to consider when deciding to use them, and what they do. If there are claims of someone changing a will or destroying it, a forensic document expert can inspect the original will to see if it’s…
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Revocable Inter Vivos Grantor Trusts
Some people are saying that you can set up your own trust instead of using a lawyer, but I disagree. A really smart estate planning expert, Rohan Kelley, has said it’s okay for simple estates, but I think it’s still risky. Trusts and wills are two different things, and using a do-it-yourself trustee instead of…
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Who Decides Whether to Build It Higher: The Condominium Community or the Court?
The board of the condominium community has the duty to maintain the common elements, but they need approval from the unit owners to make significant improvements or alterations. Some court decisions have allowed boards to make unilateral decisions if they believe the improvements are necessary for maintaining the common elements, but not all courts agree…
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New Urbanism: Recreating Florida by Rewriting the Rules
New urbanism is a planning philosophy that focuses on creating compact, mixed-use, and pedestrian-friendly communities to combat problems like traffic, environmental damage, and ugly urban areas. Florida is the birthplace of new urbanism and has the most new urban projects. This approach looks to older towns and cities for inspiration and aims to bring back…
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Must Information in the Public Record be Disclosed to Buyers of Residential Real Property and May it be Misrepresented?
This article discusses the laws in Florida related to hiding or lying about important information when selling a house. This can include things like structural problems, pests, flooding, zoning, and environmental issues. It can also involve not telling buyers about things in the public records that could affect the property. There have been a lot…