Florida Estate Planning Lawyer Blog

Often families have vacation property that has been owned for may years or generations. It would be virtually impossible for most children to acquire or maintain these types of properties in today's market.

We often use business entities or trusts to hold title to the property and other assets to help provide for the management and expense of owning and operating a vacation home. When the property is going to be inherited by more than one child or family. An operating agreement or trust agreement can provide rules for handling allocation of time, and expenses among the children and their families.

If you have a family beech or lake home or a ski lodge you may want to talk with a Florida Estate Planning Lawyer about how to protect the property from your creditors, the creditors of your children, and disputes between your children regarding the use and expense sharing of the home in the future.

By now, it is impossible to not know of the terrible housing market within the state of Florida with all the news of foreclosure and the like. There are many people that are in a are underwater in terms of home values. However, there are also some people taking advantage of the current housing market. These people are entrepreneurs looking to buy properties on short sale or at foreclosure auctions.

These entrepreneurs are working out of their own homes and likely seeing some profits through renting the newly acquired properties. Only some of these entrepreneurs are fully taking advantage of the asset protection options available to them. One of the main advantages is forming a multiple member limited liability company or LLC in Florida. It is reasonable that one entrepreneur would own about three properties. The entrepreneur could have each property owned by a separate LLC so as to minimize his risk of liability if an accident were to happen to a tenant in one of the properties. In that case, that tenant would likely be able to access the assets of that one LLC instead of all of them.

In order to provide yourself with this advantage and to realize other benefits that may apply to your situation, you should contact a Jacksonville Business Formation lawyer to assist you in setting up a Florida LLC. Take advantage of the Florida housing market today by setting up a LLC by calling 904-685-1200 to talk to an Florida Asset Protection Lawyer . Also, you can find more information on LLC's and other asset protection vehicles online by clicking on the areas under the "Business Formation Practice Area" section of the webpage hyperlinked to in this sentence.

On May 31, 2011, Governor Rick Scott approved House Bill 253. The Bill was crafted in response to the Florida Supreme Court decision in Olmstead v. FTC last year. It clarifies that a charging order is the sole remedy available to a creditor who holds a judgment against a member of a multiple member LLC. However, single member LLC's remain vulnerable to creditors forcing a debtor to surrender all right, title and interest in his LLC to satisfy an outstanding debt.

If you are interested in learning more about how to protect your Florida assets, contact a Jacksonville Asset Protection Lawyer to talk about your circumstances and the different options available in Florida.

Florida's Governor is expected to sign a bill that was passed by the Florida Senate on April 29th, 2011 which will apparently retroactively make a charging order the sole and exclusive remedy by which a judgment creditor of a member or a member's assignee may satisfy a judgment from a the interest in an LLC and that foreclosure is not an available remedy in a multi member LLC.

Single member LLC do not have as strong of a protection and a creditor can apply for a foreclosure when it is shown that distributions will not satisfy the judgment within a reasonable amount of time.

Here is the house bill text on the subject which was passed on May 2nd 2011

CS/HB 253 - Limited Liability Companies
GENERAL BILL by Civil Justice Subcommittee and Stargel and McBurney (CO-SPONSORS) Passidomo; Schwartz; Steube

Limited Liability Companies: Provides that charging order against member's limited liability interest is sole & exclusive remedy available to enforce judgment creditor's unsatisfied judgment against member or member's assignee with respect to limited liability company; provides exception for enforcing judgment creditor's unsatisfied judgment against judgment debtor or assignee of judgment debtor of single-member limited liability company under certain circumstances; provides that, in case of multimember limited liability company, certain remedies are unavailable to judgment creditor attempting to satisfy judgment; prohibits court from ordering such remedies; provides construction relating to secured creditor rights, specified principles of law and equity, and continuing enforcement jurisdiction of court; provides legislative intent; provides for retroactive application.

As a Jacksonville Beach Estate Planning Attorney I have heard countless stories of trustees who have been entrusted to administer, distribute, and account for trust funds to family members and beneficiaries . . . who DON'T!

Sad but true, the death of a grantor, trustor, or settlor of a trust fund may reign in the terror and unabashed greed of many trustees.

The Florida Trust Code provides that a Trustee of an irrevocable trust is required to keep beneficiaries of the trust fund informed about the trust and its administration. <a href="http://www.jacksonvillelawyer.pro/lawyer-attorney-1335101.html" target=new>Florida Revocable Trusts</a> become irrevocable upon the death of one or all of the grantors.  Florida Statutes also dictate that the trustee make available to all beneficiaries certain accountings which will among other things:

• Show all cash and property transactions and all significant transactions affecting administration during the accounting period, including compensation paid to the Trustee; and

• Reflect the allocation of receipts, disbursements, accruals, or allowances between income and principal when the allocation affects the interest of any beneficiary of the trust.

If you are a Qualified Beneficiary of a Florida Trust and believe you are not receiving the information you are entitled to from a Trustee, contact a Jacksonville Beach Trust Attorney who can discuss with you several options on how you can remedy your situation.

The recent court decision which removed the charging order protection for single member LLC's has raised concern over whether a multi member LLC has charging order protection.

In addition, a member in Florida is defined as one who has an an economic interest in a Florida LLC as well as one who has been admitted as a member. In the case of bankruptcy, one may no longer be considered a "member" as defined in Florida law.

Many Florida lawyers are advising those who have single or multi member LLC's in Florida to switch them to LLC's in other states or change them to Florida Limited Liability Partnerships. Please note that just changing to a FLLP or FLLLP is not enough, one must have a special operating agreement which sets fourth obligations that will make it an executory contract in the case of bankruptcy.

If you have a Florida LLC, you should contact a Florida Business Lawyer to talk about how to change your organization or what options you have to protect your assets.

The 3rd DCA recently ruled that a contractor who enters into a contract with a company to install a satellite system was not able to enforce the contract because the contractor was not a licensed electrical contractor and as such the contract was unenforceable Under Florida Statute 489.532.

In Florida, in order to engage in electrical contracting, a person must be certified or registered with the state. § 489.516(2), Fla. Stat. (2004). The statutes generally define an "electrical contractor" as any person "who has the experience, knowledge, and skill to install, repair, alter, add to, or design . . . electrical wiring, fixtures, appliances, apparatus, raceways, conduit, or any part thereof, which generates, transmits, transforms, or utilizes electrical energy in any form." § 489.505(12), Fla. Stat. (2004). Additionally, section 489.532 states that, "As a matter of public policy, contracts entered into . . . by an unlicensed contractor shall be unenforceable in law or equity by the unlicensed contractor."

Disclaimer: I found this case and thought it was interesting and may provide my clients and readers some benefit. Please do not call me about providing legal advice or to defend against your contractors suit as it is not an area that I practice in.

Due to the recent decision of the Florida Supreme Court, many single-member limited liability company owners have been left confused and upset. The Ohmstead decision expressly eliminated most of the asset protection benefits that single-member LLCs were thought to have. Creditors of the member can use all available remedies to recover their debt, not just the charging lien that was thought to be the sole remedy. Now it may be possible for a creditor to force the sale of LLC assets and seize all management decision-making.

This decision has sparked new ideas on how to protect debtors who are the owner in a single-member LLC. According to one academic, adding an unrelated business partner as a new member could offer protection. This would require the new member receive some consideration such as a share of the profits so that the reorganization would not be a fraudulent transfer. Also, a second option would be to reorganize the LLC in another state with more desirable LLC protections. Some LLC owners may consider converting to limited partnerships to offer a stronger protection that might be available under the current law. The Florida legislature is expected to address this issue in the future to clarify the standing of multimember LLC's

While the decision did not deal with multi-member LLC's, there is language in the opinion that has raised concern with many around the state over the issue of whether a multi-member LLC offers asset protection in Florida. It seems that it might be possible for a creditor to pierce a LLC and foreclosure on the shares, which may not be possible with a limited partnership interest. Given the current uncertainty with asset protection and LLC's in Florida you should have your operating agreements reviewed to make sure that they are updated to include provisions that would not permit a creditor who has taken an interest in the LLC to vote or participate in the business decisions, is not guaranteed any distributions, and any moneys that would be provided to the original members who have creditor problems are use to purchase annuities for that member or are paid in the form of wages if that individual's wages are protected from creditors

Although these options may seem like quick fixes, they are complex and are not guaranteed solutions to the problem because it will take years for appellate courts approve them. If you have any questions about how this decision may affect you, contact a Florida Asset Protection Attorney for help.

The Apple Law Firm has expanded again and added a Jacksonville Bankruptcy Lawyer and a Jacksonville FDCPA Lawyer who can help Stop Creditor Harassment in Florida. Look for an exciting announcement with a new lawyer addition next week in a related area of Florida Estate Planning.

This week our new Blog designs went live. Please let us know what you think about our
Florida Foreclosure Defense Lawyers Blog
Jacksonville Criminal Defense Lawyer Blog
Florida Estate Planning Lawyer Blog

Our Gun Trust Lawyer Blog did not change its format.

Apple Law Firm Update

The Supreme Court of Florida recently had a chance to consider the single member LLC and the charging order protections under Florida Law. As expected by many, the single member LLC is not afforded the protection that a multi member LLC can be under certain circumstances. If you are wanting to structure your business entities and assets to protect against future and unknown liabilities, you should discuss these with a Florida Asset Protection Attorney.
Here is what happened in this recent case. This is not our typical blog posting, but its very fact specific so we have decided to post a short summary of the case for those who want to look at the facts, issues, and holding of the court. If you want a copy of the full case, let me know and I can send it to you.

Continue reading "Florida Asset Protection : LLC issues: Olmstead v. Federal Trade Commission" »

A Jacksonville Trial Lawyer can be very helpful in the event that your dispute needs to go to trial. There are many different types of Jacksonville trial attorneys. The Apple Law Firm has Jacksonville Civil Trial lawyers as well as Jacksonville Criminal Trial Lawyers. We Deal with Family law, criminal, trust, will, estate planning, foreclosure defense, probate, guardianship, and asset protection issues. Many cases never go to trial and are settled by a Jacksonville Trial Attorney long before seeing a court room. If you would like t discuss your circumstances or what options you have to protect your rights please contact a Jacksonville Trial Attorney today.

For more information on Jacksonville or Florida Foreclosure Defense See the Florida Foreclosure Defense Lawyers Blog.

Attorney Kevin W Davidson of the Green Bay Wills, Trusts & Estate Planning Blog wrote an article on the pitfalls of Do it yourself asset protection where he talks about some of the problems with trying to protect your own assets.

Over the last 6 months the number of inquiries for asset protection have significantly increased. Unfortunately most of these people did not take action when they had significant assets without potential liabilities, but are only now beginning to consider it as the liabilities become a certainty. While there are things that can be done at this stage to protect, reduce the risk of loss, or increase the ability to negotiate one's debts, it is always best to address these issues prior to problems arising.

If you would like to discuss Florida Asset Protection you should Contact a Florida Asset Protection Lawyer.

If you are using a payroll service, payroll company, or payroll agent, you should be careful because the IRS has taken the position that a business is on the hook for unemployment taxes if the payroll agent goes bankrupt. Among the steps the IRS has recommended are the following:

1. Make sure the agent has posted a fiduciary bond;
2. Insist that all IRS correspondence regarding your company’s payroll taxes come to you, not to your payroll agent; and
3. Make sure that your payroll agent deposits your taxes electronically so that it will be easy for you to check your bank statements to make sure the payments were made.

Jay Shepherd who writes the Gruntled Employees Blog has a good article on the "Eight Ways to Lose a Noncompete Case." Here is his list of the 8 most common ways companies to lose a noncompete case:

1. Putting too much faith in the belief that the court will enforce the language of the noncompete agreement as written.
2. Trying to enforce a noncompete against employees who really don't possess any confidential information or customer relationships.
3. Drafting the noncompete too broadly.
4. Focusing only on geography, duration, and scope of the noncompete rather than on the existence of protectable interests.
5. Waiting too long to file.
6. Asking for an injunction before you've developed enough evidence.
7. Filing in the wrong jurisdiction.
8. Focusing on the law instead of on the story of the case.

Jay's bottom line is that "If your client's wearing the white hat, and your agreement is narrowly drafted, and your secrets or customer relationships are in imminent peril, then you've got a fighting chance of winning. Otherwise, wave goodbye to the former employee and get back to work."

While many of these are true in Florida, when there is a protectable business interest, most Florida Courts are willing to rewrite the agreement and make some of it enforceable. If you would like your non-compete agreement reviewed, Contact a Florida Non-Compete Lawyer.

The Wills, Trusts, and Estates Prof Blog had a posting on an unusual motion by a pro se plaintiff. In the case Washington v. AA. Allamo, the judge imposed sanctions on the plaintiff for filing a motion entitled "Motion to Kiss My Ass".