Category: Florida BAR article
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The New Florida Family Trust Company Act
The Florida Family Trust Company Act was signed into law in 2014, allowing for the creation and regulation of family trust companies (FTCs) in Florida. FTCs provide trust services for family members and also offer investment and administrative services. Before this law, there was no way for FTCs to operate in Florida. Existing FTCs need…
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Can Selection of a Trustee Be a Material Purpose Under F.S. §736.0706(2)(d)?
When someone creates a trust, they choose who will be in charge of it, called the trustee. In Florida, the law allows the beneficiaries of the trust to ask the court to remove the trustee for certain reasons. One of those reasons is called “no-fault removal,” and it has four requirements. The court can remove…
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Where the Presumption of Undue Influence Should Not Apply: Consider the Dutiful Son and the Dutiful Daughter Exceptions
More than 30 years ago, the Florida Supreme Court outlined a list of factors called the Carpenter factors that can be used to show if someone influenced a person to create a will or trust in their favor. This changed the way probate and trust cases are handled because it made it easier for someone…
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2020: A Challenging Year for Keeping Up With Changes to Probate and Guardianship Rules and Statutes
Probate and guardianship laws in Florida had a lot of changes in 2020, which affected how attorneys handle these cases. These changes came from new laws and updates to existing rules. It’s important for attorneys to pay close attention to these changes to make sure they follow the right procedures when filing documents with the…
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Enter the Twilight Zone: The IconBrickell Case and Mixed-Use Condominiums
Mixed-use developments in Florida are becoming more common, with buildings that have a lot of different uses in one place. For example, the Four Seasons in downtown Miami has offices, a hotel, a gym, and residential units all in one building. But, there can be challenges with figuring out who is responsible for maintaining shared…
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Terrain, Taxes, and Land Trusts: Saving the Florida Panther Through the Use of Conservation Easements
The Florida panther is the official state animal of Florida and the last remaining kind of “Puma” in the eastern United States. The population was severely reduced by hunting and the species was put on the endangered species list in 1973. By 1995, there were only 20 to 30 Florida panthers left in the wild,…
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The End of the Two Subscribing Witnesses Requirement for Florida Leases
The Florida Legislature changed a law so that two witnesses are no longer needed for a lease of real property. This makes the process simpler and brings Florida in line with most other states. The old law, which dates back to before Florida was a state, required two witnesses for leases longer than a year.…
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Overcoming Retirement Plan In-SECURE-ity
The SECURE Act, passed in 2019, changed some rules about individual retirement accounts (IRAs). Now, people can keep putting money into their IRAs after they turn 70-1/2, and they have to start taking money out at age 72 instead of 70-1/2. Also, if someone inherits an IRA, they have to take the money out within…
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Legal Magic: Turning Real Property Foreclosures Into Uniform Commercial Code Sales
When people borrow money to buy a house, they have to follow certain rules to pay it back. If they don’t follow the rules, the lender can take the house away. This process is called foreclosure. The rules for foreclosure are different in each state, and some states give borrowers more time to fix the…
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The Yellow Brick Road to Oz Becomes Clearer
The Tax Cuts and Jobs Act of 2017 added a new tax incentive called the Qualified Opportunity Zone (QOZ) program. This program allows taxpayers to defer paying tax on capital gains from selling an asset and also eliminate some of the tax on those gains. To take advantage of these benefits, investors must act before…
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Danger Will Robinson: The New Frontier of Remote Online Notarization and Electronic Wills
In June 2019, Florida passed a law allowing notaries to perform notarial acts remotely using audio-video technology and enabling the execution of electronic wills. The law goes into effect on January 1, 2020, with the electronic wills provisions becoming effective on July 1, 2020. The law includes details on how to become an online notary,…
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Homestead Planning Under Florida’s New Safe Harbor Statute
The new law allows a spouse to give up their rights to their home in a simple way, using specific language in a deed. This doesn’t give up other protections, like protection against creditors, and doesn’t affect other inheritance rights. It became a law on July 1, 2018. Homestead rights protect a surviving spouse from…
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Failure to Deliver: The Problem with Pocket Deeds and a Review of Alternatives
A “pocket deed” is a deed that is not actually given to the person it’s meant for until the person who owns the property dies. The problem with this is that if the owner dies before giving the deed, the transfer of property is not valid. Both the delivery of the deed and the acceptance…
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The Uniform Partition of Heirs Property Act: A Solution in Search of a Problem
The Florida Bar Journal recently talked about the Uniform Partition of Heirs Property Act (UPHPA), saying it’s better for heirs’ rights. But Florida’s current probate law already protects those rights. The UPHPA may cause more problems than it solves. Florida law allows property to be divided and sold fairly. So, the UPHPA may not be…
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Only One Can Win? Property Tax Exemptions Based on Residency Under Florida Law
Summary: Legal firm Smith & Associates is representing John Doe in a lawsuit against XYZ Corporation for negligence. The case is expected to go to trial in six months. If you want a property tax exemption in Florida and you’re married, you and your spouse can’t both have exemptions in different states. But, if you…
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Preemptive Rights and Wrongs: First-Refusal and First-Offer Rights
Boris, the owner of Mallchester Mall, wants to add a clause to the All Brands USA lease giving them first dibs if the mall is sold. This might not be possible because the store is part of the mall, not a separate building. But Boris really needs the lease signed so he can refinance the…
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Full Disclosure: The Unexpected Ambits and Annals of the Adequate Disclosure Doctrine
Florida law favors transparency in the administration of trusts, which means trustees have to regularly update beneficiaries on the trust. Trustees are protected from being sued for breaking the rules as long as they tell the beneficiaries what’s going on with the trust, but it’s not always clear what counts as “adequate disclosure.” Recently, a…
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Creating Vertical Subdivisions for Fun and Profit
Vertical subdivisions are when separate parcels with different uses are stacked on top of each other in one building. They are becoming more common in Florida as the state gets more urban. Developers might choose this type of project because it can make the different parts more valuable when they are all put together. For…
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A Sermon on the Mount (Sinai): Enforceability of Charitable Pledges Against an Estate and Guidance for the Estate Planner and Benevolent Personal Representative
In Florida, personal representatives of estates have a tough decision to make when it comes to honoring charitable pledges made by the deceased. If the pledge doesn’t meet certain criteria, the estate could be sued for paying it and may not get a tax deduction. There are three options for the personal representative, ranging from…
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Fiduciary Duty: A Foundational Tenet Trending Back Into the Forefront
In the next 15 years, a lot of older people in the U.S. will pass on their money and assets to their families, which will be the biggest transfer of wealth ever in the country. Most of this money is owned by people over 60 years old, and they are expected to pass on $4.1…
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Taking the Quick Out of Quitclaim Deeds
The Dingle v. Dellinger case is a reminder for attorneys to be careful when preparing transfer deeds for real estate. In this case, the attorney made a mistake in the deed, and the people who were supposed to receive the property sued the attorney for negligence, even though they weren’t the attorney’s clients. This case…
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Chapter 9 Legal Services Plans: An Opportunity for Florida Attorneys to Deliver Legal Services to Floridians in the Post-COVID-19 World
In Florida, there is a rule that allows legal services plans to operate, which can benefit both clients and attorneys. Creating a Chapter 9 plan can help Floridians access legal services. The Chapter 9 plan is governed by specific rules and regulations. The Florida Bar supports the idea of legal services plans to increase people’s…
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What We Got Here Is Failure to Communicate: The Legal, Ethical, and Monetary Considerations of Effective Communication
The American Bar Association says that lawyers must provide interpreters or translators for clients who have trouble speaking English or who are Deaf. Lawyers also have to make sure they understand their clients and that their clients understand them, even if there are cultural differences. If a lawyer doesn’t do this, it’s considered discrimination and…
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Modern Complexity Demands New Ways of Working: The Future of the Lawyer-Nonlawyer Partnership
In February 2020, the Pennsylvania Law School held a conference about the future of the legal profession. Keynote speaker Vijay Govindarajan, a professor at Dartmouth College, talked about how successful organizations focus on managing the present, forgetting the past when necessary, and creating the future. This applies to the legal profession, too. The Florida Bar…