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Battaglia, Ross, Dicus & McQuaid, P.A. Has 8 Lawyers Recognized by Best Lawyers®

Battaglia, Ross, Dicus & McQuaid, P.A. — Thu, 18 Aug 2022 20:49:01 +0000

Congratulations to Caitlin C. Szematowicz, Andrew R. Pardun, Aubrey O. Dicus, Jr., Bruce Marger, Howard P. Ross, Jonathon Douglas, Robert Kapusta, Jr., and Sean K. McQuaid for being recognized among The Best Lawyers in America®.

Each attorney has been chosen for professional excellence in the 2023 edition of The Best Lawyers in America® for work in specialized areas. Earning this title is one of the highest honors an attorney can earn.

The Best Lawyers in America®, “The Best at What We Do”

Best Lawyers is a company founded on the principle that “the best lawyers know who the best lawyers are.” They have broadcasted respected peer-review publications in the legal field for over four decades.

To be recognized by Best Lawyers is one of the most highly esteemed and widely regarded titles by clients and professionals in the legal community. The publications of Best Lawyers are known for their reliable and unbiased legal recommendations.

They compile a list of the most outstanding lawyers through a rigorous peer-review survey process, which includes tens of thousands of confidential evaluations from lawyers—only the top lawyers who receive enough votes and approval of Best Lawyers to earn this acclaimed title.

Furthermore, Best Lawyers in America® is a company proudly committed to diversity, equity, and inclusion. They actively focus on creating and running a company that advocates for cultural programs and diversity.

Howard P. Ross

Howard P. Ross is recognized in the 2023 edition of Best Lawyers for his practice in Corporate Law, Mergers and Acquisitions Litigation, Commercial Litigation, and Commercial Transactions / UCC Law. He has also been recognized as “Lawyer of the Year” for his work in Corporate Law.

Howard is a respected member of the Florida Bar, with over 50 years of membership. In addition, he’s a member of the American Bar Association.

Howard is a legal expert dedicated to professional excellence in Business Litigation and Civil Litigation. He’s devoted his career to a broad range of business litigation and business transaction law, including:

Business Structures
Business Disputes
Contracts and Other Agreements
Real Estate Matters
Commercial Title Insurance
Residential Title Insurance

Thanks to Howard’s extensive experience, he can quickly and effectively analyze complex litigation and transactional/relationship matters. Another unique strength is his ability to determine the course of action that is in the client’s best interests. He is known for his strategic work in the transactional/relationship area because he is sensitive to preventive law measures. With his understanding of planning and avoiding future disputes, he can create resolutions and make future disputes less difficult and stressful.

Howard is Board Certified in Business Litigation Law and in Civil Trial Law. In addition, Howard is a former arbitrator and former member of the American Arbitration Association’s National Commercial Roster of Neutrals. Howard is a member of The Large, Complex Commercial Case Panel and the M&A and Joint Venture Panel.

In addition to achieving the Best Lawyers in America Award, Howard is recognized as a Florida Super Lawyer, has a Martindale-Hubbell AV Preeminent rating, and is a Recipient of the Albert Nelson Marquis Lifetime Achievement Award. He’s also achieved the following awards: Martindale-Hubbell Top Rated Lawyer in Real Estate Law, Lawyers of Distinction, America’s Most Honored Professionals, and has an AVVO 10 rating.

Sean K. McQuaid

Sean K. McQuaid is recognized in the 2023 edition of Best Lawyers for his practice of Plaintiff’s Personal Injury Litigation.

Sean McQuaid is currently the President of Battaglia, Ross, Dicus & McQuaid, P.A. He practices personal injury, car accidents, motorcycle accidents, truck accidents, wrongful death, and criminal law.

Sean was also the President of the St. Petersburg Bar Association for 2020-2021.

Since joining the firm in 2000, he has been the fastest rising lawyer in the firm’s history. Sean joined the firm as an associate in 2000, became a shareholder in 2006, and became a named partner in 2013. Now, he is the President of the firm.

His personal injury practice is one of the top in the Tampa Bay area. He consistently receives 5-star reviews from satisfied clients who speak highly of his work.

Sean is a member of the Florida Bar, the Bar of the Federal District Court for the Middle District of Florida, the St.Petersburg Bar Association, the Clearwater Bar Association, the National Association of Criminal Defense Attorneys, the Pinellas Association of Criminal Defense Lawyers, the Florida Association of Criminal Defense Lawyers and various other legal associations.

Sean began his legal studies at Stetson University College of Law in 1997, graduating with his Juris Doctor and Masters in Business Administration degrees. During law school, he was a member of the Moot Court Board and competed across the country.

Sean also attended Princeton University from 1993-1997, where he was a 4-year varsity letterman and captain of the Princeton University Baseball Team.

Sean’s diverse experiences as a leader and an athlete contribute to his straightforward and competitive approach to practicing law. He is committed to excellence and determined to win.

Aubrey O. Dicus, Jr.

Aubrey O. Dicus, Jr. is recognized in the 2023 edition of Best Lawyers for his practice in Commercial Litigation, White-Collar Criminal Defense, Defendants Personal Injury Litigation, and Plaintiffs Personal Injury Litigation. He is the former President of Battaglia, Ross, Dicus & McQuaid, P.A.

Aubrey graduated from Emory University with a degree in Economics and attended Stetson Law School from 1971-1974. Afterward, he partnered with Anthony S. Battaglia and Howard P. Ross.

His almost 50 years of litigation experience has involved everything from personal injury and criminal defense to civil and commercial litigation. Aubrey has represented clients and won multi-million dollar claims. In addition, he’s represented government agencies, including the Pinellas County Sheriff’s Department.

Best Lawyers in America is just one of many accolades Aubrey has earned. He’s also been a Florida Super Lawyer for several years and maintains a Martindale-Hubbell AV preeminent highest rating.

In addition to his myriad of awards and honors, he is highly respected for his involvement and commitment to the local legal community. He is a previous President of the St. Petersburg Bar Association and former President of the Pinellas County Criminal Defense Lawyers’ Association. He also served as a founding member of the Board of Directors of the Florida Association of Criminal Defense Lawyers.

Aubrey also served as the Master of the Bench with the American Inns of Court, Pinellas County Chapter, and Barney Masterson Inn of Court. Furthermore, he received “The Barney” for his professionalism, civility, ethics, and legal excellence.

Aubrey is dedicated not only to serving in the legal field but to his local community as well. In addition to all of his professional and community legal services, Aubrey also has:

served on the Stetson Law School Advisory Council
served as President of the Stetson Alumni Association
been Member of the Tampa Bay Chamber of Commerce
Was appointed as the Governor’s Representative on the Community Development Corporation, Neighborhood Housing Services, Inc.
served on the Pinellas Emergency Mental Health Services Advisory Board and Finance Committee

Jonathon Douglas

Jonathon Douglas is recognized in the 2023 edition of Best Lawyers for his practice in Insurance Law, Insurance Litigation, and Plaintiff’s Personal Injury Litigation.

Jonathon prioritizes fighting for the rights of his clients. He’s distinguished for his compassionate approach to all his clients and knows their recovery and well-being are paramount.

Jonathon attended the University of Florida, earning his BA and BS, both with honors. He then went on to attend Stetson University College of Law. There, Jonathon learned and practiced the art of trial advocacy. He also clerked for the Honorable Shawn Crane and interned at the State Attorney’s Office and Public Defender’s Office during his time at Stetson.

Following his graduation, Jonathan went on to work as Assistant Public Defender for the Sixth Judicial Circuit. Then he moved on to defending the rights of the accused in State and Federal Courts as an associate with the Hebert Law Group. From there, he worked as a Civil Trial Litigator and partner with Goodis, Thompson & Miller representing some of the largest insurers in Florida.

Jonathon uses his inside knowledge of insurance practices to help policyholders hold insurance companies accountable. He knows how to win a successful insurance claim.

Caitlin Szematowicz

Caitlin Szematowicz is a Partner at Battaglia, Ross, Dicus & McQuaid, P.A. She has been practicing Civil & Commercial Litigation, Appeals, and Employment Law with the firm since August 2012.

She is not only distinguished for her professional excellence but also known for her active involvement in the legal community. The Best Lawyers in America® is just one of Caitlin’s many accolades. She has also been recognized as a “Rising Star” Florida Super Lawyer for five consecutive years (2018-2022) and was named Florida Trend Legal Elite in 2022.

While she dedicates her career work to the service of others, Caitlin has successfully built an impressive extracurricular portfolio involving numerous leadership positions. She currently serves as the Past President of the Barney Masterson American Inn of Court. In addition, Caitlin has previously served as the President of the St. Petersburg Bar Foundation and Past President of the Pinellas County Trial Lawyers Association. She was also a member of the Board of Trustees for the St. Petersburg Bar Foundation for six years.

Caitlin has served on the St. Petersburg Bar Foundation’s annual professionalism seminar committee and is appointed to the Sixth Judicial Circuit’s Professionalism Committee. She was also selected twice as a speaker for the Florida Bar Practicing with Professionalism CLE.

Her peers chose her as a recipient of the Barney Masterson American Inn of Court’s Thomas E. Penick, Jr. “The Rock” Award for her exceptional service to the community.

Caitlin graduated Magna Cum Laude from the University of Florida Levin College of Law in May 2012. Before that, she graduated Cum Laude from the University of Tampa’s Honors Program in 2008.

Caitlin graduated from law school with Pro Bono and Criminal Justice certificates. She was also a notable research associate with the Florida Innocence Commission, contributing significant research work. As such, she was recognized for her outstanding research contributions to the Florida Innocence Commission’s Final Report to the Supreme Court of Florida.

During her school years, she worked as an appellate law clerk for a firm in Washington, DC. She also was an extern at the US Attorney’s Office and a Certified Legal Intern at the State Attorney’s Office.

Andrew R. Pardun

Andrew R. Pardun was recognized in the 2023 edition of Best Lawyers for Real Estate Law.

He is currently a partner with the firm. He specializes in the following areas: Commercial & Residential Title Insurance, Commercial and Residential Real Estate Closings, and Business Law.

Andrew received his Juris Doctorate Degree at Stetson University College of Law and his MBA with honors. He completed his MBA with a perfect 4.0 GPA and was a member of the Beta Gamma Sigma Business Honors Society.

In addition, Andrew completed his Master of Laws Degree in Taxation at Villanova University. Before that, he attended the University of South Florida for his undergraduate studies, majoring in Finance. He also served as the President of the Sigma Chi Fraternity and Vice President of the Interfraternity Council.

Andrew’s has been recognized him in the legal community with a perfect 10/10 ranking from AVVO. He’s also a Super Lawyer’s Rising Star, one of the most distinct honors available to Florida attorneys.

Andrew is comfortable in leadership positions and has continuously held them throughout his life. After college, Andrew gained experience working in the financial services industry and co-owned a real estate investment firm in Tampa.

Andrew is the current Treasurer of the St. Petersburg Bar Association. He has also served as the Chairman of the Real Property Section of the St. Petersburg Bar Association.

Mayor Rick Kriseman recently appointed Andrew to the City of St. Petersburg’s Nuisance Abatement Board. He is also an active member of the Attorneys’ Title Fund, Pinellas Realtors Organization, and The Barney Masterson’s American Inn of Court.

Bruce Marger

Bruce Marger is recognized in the 2023 edition of Best Lawyers for his practice in Litigation and Practice in Trusts and Estates.

Bruce is also experienced and practices in the following fields: estate planning, estate and gift tax planning, income tax planning for estates and trusts, probate and trust administration, and real property law, as well as probate and trust litigation and planning related to qualified plan/IRA distributions.

After graduating from Miami Senior High, he completed his higher education studies at the University of North Carolina and Harvard Law School. Bruce double-majored in Political Science and Accounting. While at UNC, he was also chair of the Debate Council and a member of Phi Beta Kappa and Beta Gamma Sigma. Then, while at Harvard, he concentrated his studies on tax and estate planning.

He is currently an active member of the Florida Bar. In addition, he serves as Chair of the Judicial Poll Committee and Chair of the Real property, Probate, and Trust Law Section. He also contributed to developing the board certification in Wills, Trust and Estates law. Furthermore, Bruce is a Fellow of the American College of Trust and Estate Counsel (ACTEC).

A respected veteran, Bruce served in the US Air Force and Air Force Reserves for 15 years before practicing law. He earned a rank as a Major before leaving the service to practice law full-time. He is married to his college sweetheart, Mary Ann, and they have three children.

Robert Kapusta, Jr.

Robert Kapusta, Jr. is recognized in the 2023 edition of Best Lawyers for his practice in Real Estate Law.

Robert’s expertise in Real Estate Law is varied and extensive; he practices in the following areas: Mergers and Acquisitions, Tax and Estate Planning, and Business and Corporate Law.

Prior to practicing with Battaglia, Ross, Dicus & McQuaid, P.A., Robert practiced with Fisher & Sauls. He received his Bachelor’s degree from Cornell University, Juris Doctor degree from Stetson University College of Law, and Master of Laws (LLM) degree in taxation from the University of Florida College of Law.

Robert is also a Certified Public Accountant and is admitted to practice in all Florida courts.

While not practicing law, Robert volunteers his time and talents to local community organizations. He is passionate about helping local businesses grow. As such, he also helps foster the growth of economic vitality, arts education and appreciation, and capital school improvements.

Additionally, Robert dedicates himself to expanding educational programming opportunities in St. Petersburg. He does so through various leadership positions and civic activities. Aside from his awards as an outstanding legal professional, he’s also won the following awards:

H. Bernice (“Bernie”) Lodge Lay Person of the Year Award for 2008-2009 from the St. Petersburg Kiwanis Club
“Hero Among Us” award in 2015 from the St. Petersburg Bar Foundation in recognition of his tireless community service

Elite Attorneys, Helping Clients in Need

The firm would like to congratulate all 8 attorneys on achieving The Best Lawyers in America® award. This would not have been without such wonderful and loyal clients. The goal of each of our lawyers is to put the client’s best interest first.

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Battaglia, Ross, Dicus & McQuaid, P.A. Welcomes Newest Firm Lawyer, Lama Alqasemi

Battaglia, Ross, Dicus & McQuaid, P.A. — Wed, 13 Jul 2022 18:40:27 +0000

Battaglia, Ross, Dicus & McQuaid, P.A. is pleased to announce that Attorney Lama Alqasemi has joined the firm. She will utilize her skills to assist clients in the areas of estate planning, tax planning, and probate and trust administration. The firm looks forward to having Ms. Alqasemi on the team as she is a future star in the legal field. The firm continues to grow due to the combined efforts of its premier staff and talented lawyers dedicating themselves to the service of their clients.

About Lama Alqasemi

Lama Alqasemi is an up and coming attorney who recently joined Battaglia, Ross, Dicus & McQuaid, P.A. Her practice areas include: Estate Planning, Charitable Gift Planning, Estate and Trust Administration, Business Succession Planning, and Guardianship.

Ms. Alqasemi is known for being accessible and personable to her clients. She places a high priority on staying connected to her clients and co-workers. Ms. Alqasemi says that some of the most memorable moments in her career as an attorney have been when she was able to find creative ways to help her clients. Ms. Alqasemi finds it extremely rewarding to re-instill hope in the lives of her clients facing hardships. As a compassionate attorney, Ms. Alqasemi has maintained relationships with her clients far beyond assisting them with legal issues.

Ms. Alqasemi is not just a caring attorney; she’s also a competent one. She prides herself on being knowledgeable on relevant legal developments as they pertain to each client’s unique situation.With her training on tax law, she will be able to handle complex issues. With her background, she is able to assess issues through a local, national, and/or international lens.

Her varied life experience, education, and training allow her to approach legal issues uniquely and connect deeply with her clients. As such, Ms. Alqasemi is distinguished for being able to offer exceptional and authentic legal services. During law school, she worked as a clerk at the Department of Justice in Washington, D.C. In addition, she worked as a clerk for Dentons, one of the largest internationally renowned firms in Prague, Czech Republic.

Prior to joining Battaglia, Ross, Dicus & McQuaid, P.A., Ms. Alqasemi worked as an attorney at Absolute Law Group in Ocala, Florida.

Lama Alqasemi’s Education and Background

Ms. Alqasemi completed her undergraduate studies at the University of South Florida with a B.S. degree in Integrative Animal Biology.

She then attended George Mason University in Arlington, Virginia, where she earned her Juris Doctor. After obtaining her Juris Doctor, she went on to earn her Master of Laws in Taxation (LL.M.) from the University of Florida Levin College of Law.

Ms. Alqasemi comes from a large family, which has instilled in her the ability to be a good team player. Being one of five children has taught her the art of negotiating from a very young age. Litigation is not just Ms. Alqasemi’s passion but a family tradition. Her grandfather was also an attorney and is one of her greatest inspirations.

Ms. Alqasemi is a Tampa Bay native, where she grew up and recently relocated back to her hometown. When she’s not helping clients, Ms. Alqasemi loves spending her free time outdoors, in nature. In addition, she enjoys socializing and spending quality time with her friends and family.

Ms. Alqasemi strives to keep a solid and active presence in the local Tampa Bay community. She also commits a considerable amount of her time to educational outreach programs.

She will practice in the following areas at Battaglia, Ross, Dicus & McQuaid, P.A.:

Estate Planning
Charitable Gift Planning
Estate and Trust Administration
Business Succession Planning
Guardianship
Tax Planning
Probate Administration

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What are Trusts and How to Plan Them?

Hunter Rawls — Mon, 26 Jul 2021 14:38:22 +0000

Estate planning is a process that covers a large range of organizing, arrangements and cataloging for handling your affairs when you pass away. One important area that can significantly benefit your family are trusts. Here is an Estate Planning attorney’s guide to trust planning:

What Are Trusts?

Trusts are one of the most important parts of estate planning law. Put simply, a trust is similar to a treasure chest. It’s like a locked safe, holding valuable items and agreements for your family. You and your estate planning attorneys set up the trust, selecting what to place inside and lock it. Of course, in reality, there is no treasure chest. Instead, a trust is a legally binding document. A trust can only be accessed by ‘trustees.’ For this reason, the initial Trustee is typically you individually, while successor trustees often include your close family members, children and/or your closest friends. The current acting trustee can access the trust, change the assets within it and distribute the contents as per the conditions laid out in the trust. Successor Trustees are granted these privileges only at the time they are designated to serve. This is typically upon your death or incapacity. Trust planning can play a crucial part in shaping the future of your family. They can ensure your guidance, vision and support for your loved ones are still alive even after your death.

Types of Trusts

There are two basic types of trust – living trusts and testamentary trusts. Regardless of whether you’re the grantor, trustee or beneficiary, it’s crucial to be able to know the difference between the two. If you need further guidance, then contact an estate planning attorney.

Revocable Living Trusts

Living trusts, also referred to as revocable trusts, are set up during a person’s lifetime. The creator (known as a ‘grantor’) can make changes at any moment while they’re living, including dissolving (“revoking”) it, adding or removing beneficiaries and buying or selling assets. When the grantor dies, a living trust becomes irrevocable as the grantor is no longer alive to make changes to it.

Testamentary Trust

Although Trusts and Wills are commonly believed to be mutually exclusive, the reality is that sometimes they can work together. A testamentary trust doesn’t come into play until after the grantor’s death. The grantor has the right to cancel the trust at any moment and make adjustments for their after-death planning. It is important to keep in mind that since this Trust is created by a will, probate is required prior to administration. That being said, there are numerous advantages regarding testamentary trusts, particularly with asset protection and special needs beneficiaries.

What Is the Difference Between a Trust and a Will?

Wills and trusts are areas of estate planning law that help protect your assets and ensure they pass on to your heirs. A will is a written document that expresses a deceased person’s wishes, including naming guardians for children, granting cash and objects to family and friends. A will only become active after one’s death. However, a trust is active the day you create it and a grantor can list the distribution of assets before their death – unlike a will. Wills must go through a legal process called probate, which has an authorized court administrator review them. Probate can be lengthy and cause family tensions, so it’s always best advised to use the support of an estate planning attorney. Trusts, however, are not required to go through probate when the grantor dies – they cannot be contested.

Why Set up a Trust? – The Benefits

Remain in Control

Trust planning allows you to maintain control over selected assets. Up until your death, you can make changes to a revocable living trust. Once you pass away, your decisions stay in place. This allows you to dictate where your assets go, ensuring nobody can interfere with your plans. You can also choose to have your success trustee make distributions periodically. Estate planning attorneys often recommend successor trustees to make income distributions for circumstances such as health, education and financial support. Some people may choose to have a trustee hold the assets until their children turn 35 or some other age, ensuring they get support and assets at suitable moments and events in their lives. For another example, let’s look at a person entering a new marriage but has children from their previous marriage. They may want to ensure any assets or money shared with their new spouse pass down to their children from the first marriage – a trust may allow them to do this.

Tax Benefits

Trust planning can be used to minimize estate taxes, ensuring financial support for generations further down the family tree.

Avoid Florida Probate Court

With the help of an estate planning attorney, you can help your family and loved ones avoid Florida probate court when receiving assets after your death. By making the asset no longer under your name, but the name of the trust, you can avoid probate court, which is often complicated and emotionally taxing for those involved.

Protection

Trusts are a popular type of estate planning as they allow beneficiaries a means of protecting assets. For example, if a beneficiary goes bankrupt, then a family gift could go missing. But if the gift was received through a trust, then the gift may be protected.

Ongoing Transfers

Estate planning attorneys can help use trusts to transfer large sums of money. For example, by establishing a trust that buys a life insurance policy on the grantor. When the grantor dies, the insurance proceeds would be distributed to the beneficiaries.

Trusts Protect Special Needs Individuals or Medicaid Recipients

If you have a child with special needs or if you’d like to help provide support after your death for someone receiving Medicaid, then a Florida living trust is essential. An individual with special needs receiving government benefits such as Medicaid could see their parents’ inheritance be counted against them to qualify for benefits programs. Thanks to trust planning, you can ensure the trust supplements those benefits.This is an important strategy to ensure your child is supported sufficiently. If your child receives government benefits for their disability, contact an estate planning attorney to ensure they’re supported even after your death.

Key Takeaways – What Are Trusts?

A trust is a special type of legal document that holds assets for beneficiaries to receive after the trust creator’s death.
There are the parties involved in trusts: grantors, trustees and beneficiaries.
Trusts set rules on when and how assets are distributed.
Trusts ensure your wishes are retained, even after death.
Trusts can remove the need for probate.

Hire an Estate Planning Attorney for Trusts in St Petersburg, FL

If you’re interested in creating a trust to protect your future generations from losing assets, cash and time in probate then contact a St Petersburg estate planning attorney today. With over 60 years in helping the St Petersburg community, Battaglia Ross Dicus & McQuaid, P.A., you’re in safe hands. Contact us today for a free consultation.

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Do I Need a Probate Lawyer in Florida?

Robert Kapusta — Mon, 28 Jun 2021 11:58:53 +0000

Probate lawyers in Florida can resolve various problems that are near impossible to overcome without professional support. From family conflicts to the validity of wills, here’s a guide on why you need a probate lawyer in Florida:

What Is Probate?

Probate is a legal term given to the process of proving a will. Probate ensures that the deceased’s estate is distributed fairly among the heirs by following the wishes planned in their Will. If there was no Will left behind, the process goes through probate court to determine how the estate will be distributed among the deceased’s heirs. While probate can often take a few weeks for smaller estates, it can last years for bigger estates with individuals making claims and petitions in court.

What Is a Probate Lawyer?

A probate lawyer is a Florida state licensed attorney who guides the executors and beneficiaries of a will or estate through the probate process. From identifying estate assets and beneficiaries, to distribution of the inheritances, they ensure everything is done correctly and as planned by the deceased when they were alive. Probate lawyers help avoid conflicts, misunderstandings and ensure a smooth transition of assets outside of court.

Do I Need a Probate Lawyer in Florida?

In almost all circumstances, you are required to hire a Probate lawyer in Florida. There are only rare instances where it is not necessary. These include ‘disposition without administration’, ‘summary administration’ (for very small estates) and any estate where the executor is the sole beneficiary. However, even then it is advised given the technical complexities.

To Overcome The Technical Hurdles

Under Florida probate law, after someone passes away, their assets must be transferred out of their name. Doing so requires complicated technical rules and hurdles that can be highly frustrating for a non-lawyer. In particular, the system in Florida is often too complex to follow without guidance and there is a lack of set-up to provide legal assistance. Judges in Florida require probate documents to meet various specifications and wordings through forms that are mostly unavailable online or even in libraries.

To Avoid Family Conflict

The last thing you want after a family member passes away is a conflict in the family over money or assets. Sadly, it’s a story that repeats itself time and time again. One famous example came following the death of Jimi Hendrix in 1970. With no will to his name, he left behind a $160 million estate. Fifty years later and that battle is still raging on. These battles are not limited to the rich and famous. Thankfully, a probate lawyer can step in and detangle the complexities of managing any estate so family rifts are stopped. They ensure everyone gets the slice of pie that was planned for them.

If a Family Member is Making Threats

If you hear rumors of family members suing over disagreements or you’re beginning to see conflicts arising, then contact a probate lawyer in Florida as soon as possible. Probate lawsuits can tear families apart and cost a lot of money. Acting fast will minimize losses and get everyone a fair resolution faster than without the help of a professional.

Determining Beneficiaries

If there is no will, or if it’s unclear, you may struggle to determine who is getting what and who is involved in the Will. A probate attorney in Florida will take action by petitioning the probate court to determine the identity of the true beneficiaries.

Challenging the Validity of a Will

Our probate lawyers in Florida regularly handle disputes over the validity of wills. These lawsuits can be filed before and after the Will is admitted to probate. Most commonly, a probate lawyer in Florida can help to contest wills for:

A lack of signing formalities.
If the person who made the Will lacked proper mental capacity when it was signed.
Undue influence
Fraud

Creating Estate Plans

Probate lawyers in Florida can also help be proactive. If your loved one has dementia or Alzheimer’s, for example, then a probate attorney can help put in place an estate plan while your loved one is still able to. This ensures their vision and wishes are documented before it’s too late. Perhaps most importantly, a probate attorney in Florida will protect your loved one from outside influences that wish to take advantage of them.

Surviving Spouses

If you’re a surviving spouse, Florida law entitles you to certain benefits. A probate attorney in Florida will assist you in maximizing your entitlements.

Creditor Claims

Often a creditor is owed money by a deceased person through unpaid medical bills or credit card bills. Family members should never voluntarily pay these bills, as there are certain criteria that the creditors must first meet. A probate lawyer in Florida can help provide guidance through creditor claims to ensure you and your loved one’s rights are protected.

Probate Attorney When There Is a Will

If someone in your family has died with a will to their name, then your family is advised to use a probate lawyer to guide all parties through the probate process – from the estate executor to the beneficiaries. This covers all manner of guidance from paperwork and distribution of assets to conflict and ensuring the Will was created in a fair environment – for example, if the decedent suffered from dementia.

Probate Attorney When There Is No Will

If the deceased did not create a will before their passing, then the estate is distributed among the rightful beneficiaries according to Florida law. In these circumstances, a probate attorney in Florida can help the estate administrator with the distribution of the assets in line with Florida state laws. In these situations, conflicts are often frequent and tensions can become high. Without a probate attorney in Florida, you may find yourself caught in disputes that last years.

Should We Use Summary Administration If Available?

Although summary administration may be an option to you if your family is entitled to a small estate, it may not always be the best option. For example, it may be unsuitable if:

The Will leaves property to many beneficiaries, who would each have to sign a contract to sell the property and other related papers.
The beneficiaries include minors, so guardianships may need to be set up until they’re adults. However, with a probate attorney, you may be able to avoid that through the Florida Uniform Transfers to Minors Act.
If a beneficiary is uncontactable, then summary administration cannot work without their presence. Probate, however, can.
If a beneficiary refuses to cooperate, formal administration will likely be required, improperly filing summary administration may actually lengthen the probate process.

Is It Too Late to Start Probate?

No. In Florida, there is no deadline to open a probate. Probate lawyers in Florida often handle estates years and sometimes even decades after a person’s death. However, issues may arise if heirs have also died since their loved one’s passing. Family members also sometimes lose track of each other, so the following generations aren’t aware of estates or know who is entitled. Thankfully, probate can start with minimal information and allow your family to receive the inheritance and assets they’re entitled to. If you have any concerns or fears over complications, it’s advised to speak with a probate lawyer in Florida to see which route is best for your family.

Do I Need to Appear in Florida To Probate an Estate?

These days everything is done by email, mail and phone. So unless a dispute hearing arises, there’s no need to go to a court in Florida.

Hire a Probate Attorney in Florida

If you and your family face difficulties with an estate, will, or trust, contact us today for a free consultation. Battaglia, Ross, Dicus & McQuaid, P.A. attorneys specialize in Estate Planning, Probate and Elder Law. With vast experience in helping families overcome complicated financial circumstances, he can help you today, whether that’s with estate planning, probate or more.

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Understanding The Difference Between A Will Vs. Trust

Lama Alqasemi — Fri, 28 May 2021 21:18:02 +0000

The terms “will” and “trust” are commonly used, but the difference between will vs. trust can often be quite challenging to distinguish and legally complex to execute correctly. As life progresses, the need to plan for the future and prepare for unforeseen circumstances becomes increasingly important. A Last Will and Testament (will) and/or trusts are an integral part of estate planning, and they can often work in tandem to create a comprehensive estate plan for individuals and families. Many estate plans incorporate both wills and trusts. If you are interested in learning more about protecting your financial assets and estate, consider contacting our experienced attorney at Battaglia, Ross, Dicus & McQuaid, P.A. at 727-381-2300 to learn more about your options.

What Is a Will?

A Last Will and Testament (will) is a document that details how property will be handled and distributed after a person’s death, according to Chapter 731 of the Probate Code in Florida. A will involves three main parties:

The testator: the individual who creates the will,
The executor: the individual responsible for administering the estate after the death of the testator, and
The beneficiaries: the people who will receive some asset(s) from the estate.

The executor is typically named directly in the will, but if not, one is assigned by a judge in court. The beneficiaries of the will may object to this, which can complicate and extend the process. This also means that a will automatically becomes a public document immediately after the death of the testator. It is important to note that wills can include instructions regarding several different legal areas. A will may have incorporated how children under 21 will be cared for, which beneficiaries will inherit the estate, how assets will be disposed of, or even any unique wishes that the testator has. If an individual wishes to have a large sum of money donated to charity, a will has the power to specifically address that choice. Without having a will in place, your estate will be divided and distributed under Chapter 732 of Florida Intestacy Laws, which focuses heavily on spousal and familial relationships. Failure to have an estate planning document in place can lead to undesired scenarios: for example, the family home may be sold in lieu of going to the desired relative. In order to ensure your wishes are carried out after your death, it is important to consider establishing legal documents that address your specific intentions and wishes.

Advantages of a Will

There are several advantages a will provides including the following:

Allows the opportunity to name guardians of children under 21.
The ability to clarify funeral arrangements.
Wills are easily amenable, as they do not take effect until after death.
Allows the opportunity to make donations to institutions or charities.
Easier to execute.

Disadvantages of a Will:

There are disadvantages to a will as well, including the following:

Subject to probate (court process that includes having a judge distribute assets and follows the specifications outlined in the will)
Does not maintain privacy after death.
Can lead to disputes among beneficiaries.

What Is a Trust?

A trust includes any property or assets that are put aside and protected for the benefit of another individual. This property can be anything ranging from land to money to possessions, as long as it holds value. A trust involves three parties:

The grantor/settler: the person who creates the trust,
The trustee: the entity that holds legal title to the estate, and
The beneficiary: the individual who will assume control of the trust in the future.

Under Chapter 736 of the Florida Trust Code, a trust can come in many forms. Some of these include a revocable living trust, irrevocable trust, spendthrift trust, or discretionary trust. The most common is the revocable living trust; this type of trust is able to be changed, revoked, or added onto by the grantor at any time during his or her lifetime. Visiting with an experienced estate planning attorney at Battaglia, Ross, Dicus & McQuaid, P.A. can help you better understand all of your legal options.

Advantages of a Trust

There are several advantages that trusts provide, which include the following:

Avoidances of the probate process.
Continuation of management in the event of illness or disability.
In some cases, trusts can lessen the burden of taxes.
Maintains privacy after death.
Protection from court challenges and disputes.

Disadvantages of a Trust:

However, trusts are not always the most beneficial for every person’s estate planning needs. Some of the disadvantages of a trust include:

A trust is unable to name guardians or caretakers for children.
The creation of a trust can be complicated and legally complex.

Will vs. Trust: Key Differences

There are a few key differences between a will vs. trust in Florida, including the following:

Effective Date

A will goes into effect only after the death of the individual who created the will (testator). Before the death of the testator, the will is not in effect. This is beneficial because it allows for quick and easy changes to the document. A trust, on the other hand, goes into effect the moment it is created. In that case, unless the trust is a living revocable trust, it cannot be altered.

Probate

Probate is a formal legal process wherein a court will prove whether or not a will is valid. This process handles identifying assets, having the property appraised, and paying debts or taxes. Probate begins after the death of the individual and, in some cases, can become time-consuming and burdensome. It is also subject to the court’s rules and deadlines. The ease of probate depends on the time it takes to successfully distribute all assets and property. Only wills must go through the probate process. Trusts are completely private and do not go through the probate process.

Public vs. Private

It is worth mentioning that once a will moves into probate, it becomes a public document. This means that the will can be easily discovered, and therefore, contested by family members, relatives, or anyone with a potential claim on the estate property. A trust, alternatively, is a private document that remains private throughout its lifetime. Therefore, the privacy of a will affords it a greater opportunity to avoid potential disputes among possible beneficiaries.

Contact an Experienced Estate Planning Attorney

Every person has different estate planning needs. The decision regarding a will vs. trust can prove legally complicated and complex. Consider visiting with an experienced estate planning attorney at Battaglia, Ross, Dicus & McQuaid, P.A. at 727-381-2300 to help you better understand all of your options, and ensure your financial rights remain protected for both you and your heirs.

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Jeffrey Stiller Joins Battaglia, Ross, Dicus, and McQuaid, P.A.

Battaglia, Ross, Dicus & McQuaid, P.A. — Fri, 12 Mar 2021 21:06:23 +0000

The firm would like to give a warm welcome to our newest member to join the team. Jeffrey Stiller will be utilizing his vast experience and passion for helping people manage complicated financial circumstances to lead our Estate Planning & Probate division.

We look forward to working with Jeffrey and taking advantage of everything he brings to the table.

About Jeffrey Stiller

Jeffrey M, Stiller, ESQ is an associate with Battaglia, Ross, Dicus & McQuaid, P.A. specializing in Estate Planning, Probate & Elder Law.

His vast experience and passion for justice and helping people manage complicated financial circumstances have proved consistently pivotal in high-profile cases.

Born and raised in Detroit, Michigan, he attended Eastern Michigan University and later Stetson University College of Law, where he earned top honors in his Federal Income Tax and Legal Writing Seminar courses.

At his last position, he served as the lead attorney servicing Florida and Michigan clients for one of the largest independent finance companies in the nation.

Now, as a member of the Florida Bar, Jeffrey has gained a reputation for developing and maintaining these client relationships throughout Florida. Jeffrey has also worked for the Social Security Administration and as an adjunct professor for Henry Ford Community College.

In addition to his roles in Estate Planning, Probate & Elder Law, Jeffrey is respected for his practice in:

Trusts, Wills, Powers of Attorney, Living Wills and Business Entity Formation.

He has drafted and reviewed hundreds of estate plans involving Revocable Trusts, Irrevocable Trusts, Special

Needs Trusts, Wills, Durable Powers of Attorney, Restatements of Trust, Certifications of Trusts,

Trust Amendments, Deeds, and LLC documents. While also consulting and advising clients regarding estate planning, asset protection, and Medicaid planning. He has also established hundreds of corporations and limited liability companies.

His experience in attending local and national networking events with third-party brokers and financial institutions to develop business relationships and generate income makes him a highly trusted and successful part of our firm.

Jeffrey offers 30-minute complimentary consultations for first-time clients and makes house and hospital calls upon request.

Educational Background & Training

Jeffrey has over a decade of experience in the areas of Estate Planning, Probate & Elder Law. Jeffrey has been a member of The Florida Bar since May 2012 and the State Bar of Michigan since 2013.

Jeffrey earned a Juris Doctor (the highest education available in the legal profession) with the highest grade awards in Federal Income Tax, Legal Writing Seminar, Contracts I and Contracts II at Stetson University College of Law in Florida. Before that, he earned a Bachelor of Science, Criminal Justice degree at Eastern Michigan University.

After leaving college, he quickly worked hard to get hands-on experience in the areas of law and finance in Florida – moving from an intern at Aegon Financial Services in St. Petersburg to a Law Clerk at the offices of Darrin T. Mish in Tampa. He later returned to his native Michigan, shining as a Document Review Attorney while reviewing thousands of documents for relevant and privileged materials related to antitrust and

residential mortgage-backed security disputes. He then displayed his expertise and speaking skills as an Adjunct Professor at Henry Ford Community College in Michigan.

This was followed by gaining crucial experience as a Claims Representative at the Social Security Administration assisting thousands of individuals to apply and receive Social Security retirement, Disability, and SSI benefits, walking them through the appeals process if their benefits had been terminated, suspended, or claims had previously been denied. He later became an Associate Attorney at The Lawmaster Law Firm in Michigan. Here he utilized his passion and expertise to manage all phases of medical mergers & acquisitions and establish hundreds of corporations and limited liability companies throughout Michigan and Florida.

Finally, at his previous position at Brook and Wendt, PLLC, Jeffrey was a Partner and Estate Planning Attorney. Here he consulted and advised clients regarding estate planning, asset protection and Medicaid planning, alongside assistance with all aspects of funding Revocable and Irrevocable Trusts.

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Revocable Trusts

Lama Alqasemi — Wed, 20 May 2020 12:04:08 +0000

In Florida, you generally have two options regarding what operates as the main vehicle of your estate plan: (1) a Last Will & Testament vs. (2) a Revocable Trust. Revocable Trusts are also known as “Living Trusts” and sometimes referred to as “Family Trusts.”

Revocable Trusts Avoid Probate

The primary advantage of having a Revocable Trust vs. a Will is that assets titled in the name of the Revocable Trust avoid probate upon your death. Wills, on the other hand, do not avoid probate. To read more about Wills, click here: Top 5 Key Ingredients in Will Preparation. For a comprehensive discussion on probate avoidance techniques, click here: Estate Planning Myth: Wills Avoid Probate.

Most of my clients want to avoid probate for the following reasons:

The Personal Representative (or “PR” for short, also known as the “Executor”) in a probate proceeding must wait for the court to grant “Letters of Administration” in order to access estate assets, whereas the Successor Trustee named in a Revocable Trust can access trust assets immediately without court supervision or interference. Thus there is virtually no time delay in a trust scenario, whereas a probate proceeding typically takes anywhere from nine months to a year or more.

In probate proceedings, the PR is required to notify “reasonably ascertainable” creditors and publish a legal “Notice to Creditors” in a newspaper, thereby providing an open forum for potential creditors to make claims against the estate. On the other hand, the Trustee of a Revocable Trust has no affirmative duty to notify creditors regarding the nature and value of trust assets. A creditor seeking to access trust assets would need to file a separate lawsuit in order to subpoena this information. In short, the Trustee of a Revocable Trust has much more leverage in dealing and negotiating with potential creditors after the person who created the Revocable Trust dies.

Both probate and trust administration involve fees and costs. In probate administration, the fees tend to be higher. This is because Florida law provides that certain percentage fees charged by the PR and his or her attorney are presumed to be reasonable. For example, the PR and his or her attorney each can charge a 3% commission on the first $1 million of probate assets, and then 2.5% commission on the next several million, with the percentage fee gradually decreasing as probate asset values increase. For example, a $2 million probate estate would entitle the PR to a $55,000 commission, as well as the attorney for the PR a $55,000 commission = $110,000.00+ in fees, not to mention court costs. This example is illustrated as follows:

$2 Million Probate Estate Example	Fee / Cost Amount
PR 3.00% Commission on 1st $1,000.000.00	$30,000.00
PR 2.50% Commission on 2nd $1,000.000.00	25,000.00
PR’s Attorney’s 3.00% Commission on 1st $1,000,000.00	30,000.00
PR’s Attorney’s 2.50% Commission on 2nd $1,000,000.00	25,000.00
Probate Court Filing Fee – Formal Administration	405.00
Estimated Personal Representative Annual Bond Premium	3,000.00
Publication of Notice to Creditors	100.00
Miscellaneous Costs (mail, copies, certified orders, etc.)	250.00
Estimated Total Fees & Costs on $2 Million Probate	$113,755.00

As you can see, probate administration is not cheap. In contrast, there are no statutory percentage fee entitlements in trust administration; rather, Florida law provides that Trustees are entitled to “reasonable compensation under the circumstances.” However, most corporate fiduciaries do charge a percentage fee between 1.00-1.50% of assets under management to serve as Trustee. Knowing what corporate fiduciaries charge to act as Trustee can serve as a guide in determining what is reasonable for an individual Trustee to be paid.

Parties to the Trust

A Trust always has at least three parties:

Party	Function
1.Settlor	This is the person who establishes the trust. Sometimes the Settlor is called the “Grantor” or “Trustor.”
2.Trustee	This is the person or entity that manages and oversees the trust assets for the benefit of the beneficiaries. The Trustee holds legal title to trust assets.
3.Beneficiaries	The beneficiaries are the persons or entities (such as a charity) who receive distributions from the trust. Beneficiaries have a beneficial interest in trust assets.

When you first establish a Revocable Trust, typically you fill all three roles: you are the Settlor, the initial Trustee, and the primary beneficiary during your lifetime. If you become incapacitated, the Trust names one or more “Successor Trustees” to continue to manage and apply the trust assets for your benefit. Following your demise, the Successor Trustee will manage and apply the trust assets for the beneficiaries you named in the trust document.

Power to Modify and Revoke

A Revocable Trust is revocable, so as long as you are alive and have the requisite mental capacity, you can revoke or amend it at any time.

Income Tax Effect of Revocable Trust

While you are living, a Revocable Living Trust is a pass-through entity for income tax purposes, meaning it will not affect your income tax filing. You can simply utilize your social security number as the Tax ID (Employer Identification Number or “EIN”) for the Trust, and all items of income, depreciation, deduction, and credit continue to pass through to you on your personal Form 1040.

Choosing a Successor Trustee

Your chosen Successor Trustee will manage trust assets in two situations: (1) if you are alive but become incapacitated, and (2) following your demise, the Trustee will distribute trust income and assets to your beneficiaries in accordance with the terms of the trust instrument. The ideal Successor Trustee is organized, detail-oriented, honest, loyal, emotionally and financially stable, impartial, available, and reliable. For additional guidance on selecting a Successor Trustee, please read my blog: HOW TO CHOOSE A TRUSTEE.

Structuring Your Beneficiaries’ Inheritance

How you structure the manner in which your beneficiaries receive their inheritance is a personal decision based on your values and wishes, as well as any special circumstances of a particular beneficiary. For example, beneficiaries with special needs, addiction issues, or a history of poor financial decisions require special planning considerations. Your estate planning attorney should help you identify any special issues and provide creative solutions to safeguard your legacy and promote the success and safety of your individual beneficiaries. If you are charitably inclined, there are a number of ways to incorporate gifts to charity that can be custom-tailored to your individual wishes in a tax-efficient manner.

Funding the Trust

In order to fully reap the probate avoidance features of your Revocable Trust, you must coordinate your assets with the Trust. This process is called “Trust Funding.” Your estate planning attorney should assist you by preparing deeds and related transfer documents to fund your trust with the majority of your assets, including: real estate holdings, business interests, and tangible personal property. Additionally, you also must coordinate the bulk of your financial assets with the Trust. Your estate planning attorney should provide guidance and best practices for coordinating bank accounts, brokerage accounts, retirement accounts, life insurance policies, annuities, and other financial assets with your Revocable Trust. This ensures that your estate plan is executed according to your wishes and minimizes the chance of any assets having to go through probate. In determining whether a Will or a Revocable Trust is the right choice for you, please read my blog: Trust vs. Will – Which is right for you?

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Myth #4: Trusts Avoid Taxes

Robert Kapusta — Fri, 01 May 2020 14:10:50 +0000

Part IV “The 4 Most Common Estate Planning Myths”

You probably have heard the adage: “Nothing is certain in life except for death and taxes.” It may be trite, but it’s also true (as so many platitudes are). Before I go any further, I’ll begin in true attorney fashion: I am not a CPA and this article should not be substituted for tax advice. Rather, consider this article a warning – the type of warning the people who trusted Bernie Madoff wish they would have received sooner: “If it sounds too good to be true, it probably is” (my apologies for yet another platitude.) “Trusts avoid taxes” – this statement may be true or false depending on what type of trust and what type of tax you mean. What many people do not realize is that in addition to the federal income tax, there are many other types of tax imposed by the IRS, including, for example:

Business Tax:	Wealth Transfer Tax:
Estimated Tax Employment Tax Self-Employment Tax Excise Tax	Estate Tax Gift Tax Generation Skipping Transfer Tax

This list is not exhaustive by any means. Thus, when someone says, “Trusts avoid taxes,” it is important to realize that both “trusts” and “taxes” are loaded terms that can have different meanings, depending on the context. In estate planning, mainly we are concerned about two categories of federal tax: wealth transfer tax and income tax. The “wealth transfer tax” category includes the estate tax, gift tax, and generation skipping transfer tax. Many Florida residents are surprised to learn that, as a result of the 2017 Tax Cuts & Jobs Act, they may no longer need to worry about the imposition of estate tax. This is because: (1) Florida does not impose a state-level estate, death, or inheritance tax, and (2) the federal estate tax laws provide an exemption of approximately $11.6 million per person in 2020. The “per person” part is important, because under current law, married couples basically can double the federal estate tax exemption, meaning unless the couple’s assets are worth more than $23 million combined, the federal estate tax likely will not apply to them. This is a simplified explanation of how the federal estate tax works, and the amount of exemption you personally have may need to be reduced by any taxable gifts you have made during your lifetime. The interplay of the federal estate and gift tax is beyond the scope of this article and will be addressed in future articles, but a good overview is available here: Federal Gift Tax Overview.

What If the Federal Estate Tax Laws Change?

The tax laws inevitably will change; this is certain. This is why it is so important to meet with your estate planning attorney on at least an annual basis. First, it gives you the opportunity to alert your attorney to changes in your family dynamic, asset holdings, and overall net worth. For example, did you buy a second home in the mountains of North Carolina last year? You need to make sure your estate planning attorney knows about the purchase so she can incorporate the same into your existing estate plan (actually, you should have told her about it before you bought it). Second, meeting with your attorney on a periodic basis gives her the opportunity to alert you to changes in not only federal tax laws, but also applicable state law updates relevant to probate, wills, powers of attorney, advance health care directives, and, yes, local tax laws. For this very reason, about seven years ago, I started offering “Complimentary Annual Reviews” to my estate planning clients to meet and review their estate plans on an annual basis. This keeps the lines of communication open, and my clients don’t have to worry about any “surprise” bills or charges for simply staying in touch with me.

Can Trusts Avoid or at Least Minimize Taxes?

With the assistance of an estate planning attorney, your trust can take advantage of existing “safe harbors” within the Internal Revenue Code to reduce or even eliminate certain types of taxes, including wealth transfer tax.

For example, the IRS allows you to leave unlimited assets at death to your spouse, who will not have to pay any estate tax otherwise due until she dies. In other words, her estate will be responsible for the estate tax due, but only to the extent the remaining assets exceed her available estate tax exemption when she dies. This concept is known as the unlimited marital deduction, and estate planners frequently take advantage of it, especially for larger estates. Essentially, the unlimited marital deduction allows you to delay the imposition of the estate tax until your surviving spouse dies; the estate tax may even be avoided entirely if your surviving spouse spends down the assets below her exemption amount.

For example, did you know that the IRS wants to tax your grandchildren’s inheritance in addition to the federal estate tax? A seasoned estate planning attorney can advise you on how the generation skipping transfer tax (also known as “GST” or “GSTT” tax) may apply to your estate plan, and, better yet, include the necessary provisions in your trust to minimize or even avoid the GSTT tax altogether.

Do Trusts Pay Income Tax?

The answer to this question generally is yes: income generated within a trust is taxable. If the answer were no, everyone in the United States would transfer their assets to trust immediately and avoid income tax for eternity – you didn’t think the IRS would allow that, right? In fact, trusts have their own type of tax return known as an IRS Form 1041. It is important to distinguish the taxation of revocable trusts vs. irrevocable trusts.

The most common type of trust in estate planning is a revocable trust. Revocable trusts generally are pass-through entities for federal income tax purposes. This means that the trust will not interfere with how you currently report your federal income tax to the IRS: all items of income, deduction, depreciation, and credit will continue to flow through to you on your personal Form 1040, and the trust will not be required to file its own income tax return during your lifetime. Many clients simply assign their social security number to their revocable trust during their lifetime. The general rule is that when you die, your revocable trust becomes irrevocable (because you are no longer alive to modify or revoke it), at which time the taxation of the trust will change.

The income taxation of irrevocable trusts is more nuanced (as compared to revocable trusts). Essentially, an irrevocable trust can be designed to be taxed as its own entity (like a corporation), but there are also ways to have an irrevocable trust taxed to a particular person, such as the person who created it (the “settlor” or “grantor”). Your estate planning attorney should discuss these options with you before the irrevocable trust is established.

If income is accumulated within an irrevocable trust that is taxed as its own entity, the trust may be taxed on ordinary income at the highest marginal rate. For this reason, many irrevocable trusts allow, or even mandate, that the Trustee distribute net income to the trust beneficiaries on at least an annual basis. In most cases, this has the effect of reducing overall income tax since many trust beneficiaries are taxed in a lower tax bracket than the highest marginal rate applicable to trusts. It is important that your estate planning attorney discuss with you the income tax effect of any trusts the attorney is recommending.

Can Trusts Avoid Tax Altogether?

Only if the Internal Revenue Code permits. The Code contains specific safe harbors that allow tax to be delayed or even avoided entirely if precise rules are followed. I recommend taking the conservative approach and following established rules sanctioned by the IRS. For example, payment of federal estate tax can be delayed or even eliminated by taking advantage of the unlimited marital deduction, discussed above. Another example is that a properly structured dynasty trust can eliminate wealth transfer tax for future generations. With respect to income tax, a common technique to defer payment of taxable gain on the sale of real estate is a so-called 1031 Exchange, and the use of Opportunity Zones to defer taxable gain is becoming more prevalent. All of these techniques have already been “blessed” by the IRS. However, if you are looking for a tax “loophole” or heard about a technique that sounds “too good be true,” my advice is: either be prepared to pay a pretty penny for a Private Letter Ruling, or stick with tried-and-true techniques that are respected by the IRS. I hope you gathered from this article that trusts serve many important purposes and, perhaps more importantly, the IRS will tax anything it can get its hands on (yet another platitude). A seasoned estate planning attorney not only will be well-versed in wealth transfer tax, but she also will examine the income tax ramifications of any proposed transaction involving revocable or irrevocable trusts.

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Myth #2: If You Die Without a Will, Your Property Goes to the Government

Robert Kapusta — Wed, 29 Apr 2020 00:01:19 +0000

Part II “The 4 Most Common Estate Planning Myths”

A common misconception about probate in Florida is that if you die without a Will, your property will go to the government or to the State of Florida. This misconception is rooted in Florida Statute §732.107, which states, “When a person dies leaving an estate without being survived by any person entitled to a part of it, that part shall escheat to the state.” In reality, it is quite rare for a deceased person’s assets to “escheat” to the State of Florida by virtue of this rule. Importantly, this rule is only triggered when a person dies and is not survived by “any person” entitled to a part of his or her estate. Thus, the relevant question is:

Who Is Entitled to Your Estate Assets When You Die?

Who is entitled to a particular asset at death depends on several factors, including how the asset is titled and whether the asset has any designated beneficiaries. For example, most people are familiar with the ability to name beneficiaries on a life insurance policy: when the insured person dies, the life insurance company will pay the death proceeds to the beneficiaries named on the policy. But what if the answer is not so obvious? To determine who will inherit your assets at death, you can use this simple 6-step guide:

Step 1: Does the Asset Have Any Surviving Co-Owners?

The first step is to ask whether the asset has any co-owners who survived the deceased person. If the answer is yes, then you need to know more about the form of co-ownership. There are two main types of co-ownership in Florida: (1) joint tenants with right of survivorship (JTROS), and (2) tenancy in common (TIC). If the co-ownership is JTROS, then the deceased person’s share of the asset will be inherited by the surviving co-owner, automatically, and there is no need to go to Step 2. This form of joint ownership trumps the Will (assuming there is one) and Florida’s intestacy statutes (if there is no Will). If the co-ownership is TIC, then the surviving co-owner will not inherit the deceased person’s share of the asset automatically. Most joint bank accounts are owned as JTROS by default (and not as TIC), meaning that when the first co-owner on the account dies, the surviving co-owner simply continues to own the account automatically. Similarly, most assets titled “husband and wife” are owned JTROS by default. However, for real estate, if the deed does not specify JTROS, the default may be TIC. If you determine that the form of co-ownership is TIC, or if there are no surviving co-owners, then go to Step 2.

Step 2: Does the Asset Have Any Designated Beneficiaries?

The second step is to ask whether the asset has any designated beneficiaries. Here are some common synonyms for designated beneficiaries:

“pay-on-death” or “POD” beneficiaries
“transfer-on-death” or “TOD” beneficiaries
“in trust for” or “ITF” beneficiaries
remaindermen

If the deceased person owned the asset in his or her sole name but named one or more designated beneficiaries, the asset will pass to the named beneficiaries who survive the deceased person. Similarly, if the deceased person owned the asset with another person as “tenants in common” (TIC) but named one or more designated beneficiaries, the deceased person’s share of the asset will pass to the named beneficiaries who survive the deceased person. In these examples, the beneficiary designation trumps the Will (assuming there is one) and Florida’s intestacy statutes (if there is no Will); thus there is no need to go to Step 3. What happens if the deceased person named a beneficiary who does not survive him or her? In this scenario, the asset will be payable to the deceased person’s estate. If this is the case, or if the deceased person did not name any designated beneficiaries to begin with, go to Step 3.

Step 3: Does the Deceased Person Have a Will?

If the deceased person owned the asset in his or her sole name (or as tenants in common) but did not designate any beneficiaries, then the asset is part of the deceased person’s probate estate. If the deceased person has a valid Last Will & Testament, then the asset will pass according to the terms of the Will through the probate process. If the deceased person did not have a Will, then go to Step 4.

Step 4: If the Deceased Person Does Not Have a Will, Then Who Are His or Her Intestate Heirs?

If the deceased person does not have a Will, then the asset will pass according to Florida’s intestacy statutes through the probate process. Florida’s intestacy statutes are like default rules for people who die without a Will. Generally, the order of intestate succession is:

First, your spouse;
Second, your descendants;
Third, your parents;
Fourth, your siblings; and
Fifth, your more remote next of kin (e.g., nieces, nephews, and cousins).

The relatives who inherit your estate if you die without a Will are called your “heirs.” The intestacy rules become more complicated than as described above if you have children with someone other than your current spouse. Thus it is especially important for people who are married but have children from prior relationships to have a detailed Last Will & Testament or Revocable Trust setting forth how assets will be divided in this type of blended family scenario, which is very common. If you cannot locate any of the relatives identified above, or if you believe that all of the deceased person’s relatives are no longer living, then go to Step 5.

Step 5: Locate the Intestate Heirs.

Having practiced for more than a decade and counseled clients through thousands of probate proceedings, I have only encountered two situations where I thought the deceased person’s probate assets might be payable to the State of Florida. In both scenarios, however, we were able to locate very distant relatives by tracing the deceased person’s ancestry up through the mother’s and father’s respective family trees and then back down and out to collateral heirs. For example, in one such case, we discovered distant relatives such as second and third cousins twice removed to inherit. In one of these cases, the primary heir was a distant relative in Finland. If needed, there are heir search companies that specialize in finding distant relatives. If you cannot locate any living heirs, even with the help of an heir search company, then go to Step 6. Click here for an easy to read Table of Consanguinity showing degrees of relationships of immediate and distant relatives.

Step 6: Escheat to the State of Florida.

Florida law provides that a deceased person’s property “escheats” to the state only if all of the following are true:

There are no surviving joint owners (JTROS); and
There are no surviving designated beneficiaries; and
If there is a Will, none of the people named in the Will survive the person; and
If there is no Will, or if all of the people named in the Will fail to survive the deceased person, none of such person’s distanced relatives, no matter how remote, can be located.

What is the best way to avoid escheat to the State of Florida? Establish a Last Will & Testament or Revocable Trust that names your intended beneficiaries and covers the contingency that your beneficiaries could die before you. Even if all of your close relatives have died before you (or even if you don’t want to leave anything to your relatives in the first place), you can name non-family members in your estate plan to inherit your assets at death. For example, you can name friends or even charities to inherit your assets upon your demise. In fact, many of my clients name default or “wipeout” beneficiaries such as charities to inherit their assets if all of their family members die before them. This is a trusted technique to ensure that your assets pass according to your wishes and not to the government or to the State of Florida upon your demise.

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The 4 Most Common Estate Planning Myths | Myth #1: Wills Avoid Probate (Part 2)

Robert Kapusta — Tue, 28 Apr 2020 13:05:28 +0000

One of the biggest misconceptions about estate planning is the belief that having a Last Will & Testament avoids probate. As explained in Part 1 of this series, Wills do not avoid probate; rather, having a Will allows you to choose who will inherit your property at death instead of relying on Florida’s default statutory rules known as “intestate succession.” Part 1 of this series discussed several techniques that do avoid probate, such as joint ownership with right of survivorship and beneficiary designations, including examples and potential pitfalls if these techniques are not used correctly. This article continues this discussion by explaining how Enhanced Life Estate Deeds and Revocable Trusts also can be used to avoid probate in Florida.

Enhanced Life Estate Deeds

Similar to naming POD or TOD beneficiaries on financial accounts and life insurance policies, Florida law allows you to name beneficiaries on real property, which also can avoid probate (as long as your beneficiaries survive you). The preferred form of this technique is known as an “Enhanced Life Estate Deed,” also known as a “Lady Bird Deed.” This form of life estate deed is “enhanced” because it allows the original owner or owners to continue to use and enjoy the property without any interference from the remainder beneficiaries named in the deed – this is true legally speaking. However, in reality, life estate deeds (even “enhanced” life estate deeds) can cause title issues when the original owner wants to sell or refinance the property. For example, suppose at death Rick and Marty wish to leave their house to Rick’s son, Bobby, from a prior marriage. Rick and Marty execute and record an Enhanced Life Estate Deed reserving an enhanced life estate for their lifetimes, with the remainder to Bobby when both Rick and Marty have passed away. Suppose further that Rick dies first, and thereafter Marty wants to sell the property and downsize to a smaller residence. Although Marty legally can sell the property without Bobby’s joinder or permission, in reality, the title agent handling the real estate closing will require Bobby’s signature in order for Marty to sell the property. This is important to understand in deciding whether an Enhanced Life Estate Deed is a suitable component of your overall estate plan. For senior clients who do not plan to sell their residence before death, an Enhanced Life Estate Deed may be the perfect fit to avoid probate upon their demise; however, for younger clients who plan to sell or refinance their residence property in the next 5 or 10 years, an Enhanced Life Estate Deed may prove to be a burden rather than a benefit.

Revocable Trusts

Property titled in the name of a Revocable Trust avoids probate upon the death of the original owner (known as the “Settlor” of the Trust). This is because the Trust is a legal entity that lives beyond the Settlor; in fact, Trusts can last up to 360 years in Florida. Of all of the probate avoidance techniques described in this Parts 1 and 2 of this article, Revocable Trusts certainly are the most flexible, in part because as long as the Settlor is alive and has capacity, he or she can modify the Trust from time to time. Common reasons clients modify their Revocable Trusts include:

Changes in family dynamics (e.g. marriage, death, divorce, birth of children or grandchildren).
Change in net worth or acquisition of new assets (e.g. purchase of a new residence or vacation residence).
Changes in the tax laws.
Changes in state law.

Revocable Trusts are also preferred because they allow you to plan for multiple contingencies, including for minor beneficiaries, beneficiaries with special needs, beneficiaries with addiction issues, or beneficiaries who simply just are not good at managing money.

Comparison: Trusts vs. Joint Ownership vs. Beneficiary Designations

Bringing it all together, consider the pros and cons of using a Revocable Trust vs. joint ownership vs. beneficiary designations to avoid probate. For example, suppose Rick and Marty are married and have a $2 million brokerage account to which they have contributed relatively equally over the years. They own the account as joint tenants with right of survivorship (JTROS). Rick wants his 50% of the account ultimately to pass to his son, Bobby, and Marty wants his 50% of the account ultimately to pass to a combination of nieces and nephews and his favorite charity. As such, Rick’s Will leaves his entire estate to Marty, followed by Bobby, and Marty’s Will leaves his entire estate to Rick, followed by his nieces, nephews, and the charity.

Joint Ownership + Wills:

If Rick and Marty rely on joint ownership and their respective Wills, then who ultimately inherits the account will depend upon who dies first. For example, if Rick dies first, then Marty will inherit the entire account automatically by right of survivorship, and when Marty dies, the account will be distributed to his nieces, nephews and his favorite charity pursuant to his Will, and Bobby will get nothing. Conversely, if Marty dies first, Rick will inherit the entire account by right of survivorship, and when Rick dies, the account will be distributed to Bobby, and Marty’s nieces and nephews and charity will get nothing.

Beneficiary Designations:

Suppose instead that Rick and Marty name Bobby as 50% POD beneficiary on the joint account, with Marty’s nieces, nephews and the charity designated to split the remaining 50% as POD beneficiaries. Suppose further that Bobby dies before Rick and Marty, and Rick dies soon after, having never updated the beneficiary designation to Bobby on the account. When Marty dies, who receives the 50% originally allocated to Bobby? Unfortunately, the answer here is unknown. Likely, the result will depend in large part on how the particular financial institution’s beneficiary forms and internal policy function when a named beneficiary predeceases the account owner.

Revocable Trust:

Suppose instead that Rick and Marty establish a Revocable Trust and title the $2 million brokerage account in the name of the Trust. The terms of the Trust provide that upon the first spouse’s death, the surviving spouse continues to have access to the account funds; however, when the surviving spouse dies, the proceeds are to be split 50% to Bobby, and 50% to Marty’s nieces, nephews, and his favorite charity. Importantly, the terms of the Trust further provide that if Bobby fails to survive Rick and Marty, then Bobby’s 50% should be distributed: one-half to Bobby’s wife and one-half in further trust for Bobby’s minor children (i.e., Rick’s grandchildren). What’s more, the Trust also provides that the funds in Bobby’s children’s trusts can be used to fund their college education, and if there is any property remaining after college, they can have the rest when they turn 25. As you can see, for Rick and Marty, their Revocable Trust not only avoided probate, but it also allowed them to plan for contingencies like Bobby’s unexpected death, including taking care of Bobby’s surviving spouse and his minor children’s college education. In reality, most of my clients use a combination of joint ownership, beneficiary designations, and Revocable Trusts as key components of their overall estate plan. A qualified estate planning attorney will examine each of your assets with you, including current ownership and beneficiary designations, to determine how best to structure your estate plan based upon your unique circumstances, family dynamics, and goals. Occasionally, some clients can get away with relying on beneficiary designations supplemented by a simple Will. However, most clients reap huge benefits by incorporating a Revocable Trust as the cornerstone of their estate plan. Please click here to read Part 1 of The 4 Most Common Estate Planning Myths: Myth #1: Wills Avoid Probate.

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