Wills, Trusts, & Estate Planning

On July 1, 2023, Governor Ron DeSantis signed Senate Bill 264, known as the Interests of Foreign Countries Act, transforming the regulatory landscape of real estate transactions in Florida. This unprecedented legislation limits and regulates foreign principals and entities' sale, purchase, and ownership of certain properties. As the Florida Real Estate Commission (FREC), the Department of Agriculture and Consumer Services (DACS), and the Department of Economic Opportunity (DEO) work towards implementing the law's specifics, uncertainties abound.As such, the involv...

As we delve into Brevard County, Florida's real estate market trends, April 2023 presents various developments. The data, which encompasses single-family homes and townhouses/condos, reflects certain buying trends, pricing, and inventory availability shifts.Brevard County Residential MarketStarting with single-family homes, April 2023 saw a modest decrease in closed sales, down 5.5% from the previous year, with 978 units closed compared to 1,035 in April 2022. This dip also aligned with a significant drop in cash sales by 27.5%.While the drop in sales might raise eyebr...

The County Commission meeting began at 5:03 PM, with Commissioners from Districts 1 through 5 in attendance. The Board of County Commissioners acts as a quasi-judicial body when addressing rezoning and Conditional Use Permit requests. Both applicants and opponents must provide evidence or expert testimony to support their stance, and the Board must decide whether the request aligns with the Comprehensive Plan and Zoning Ordinance.The Commissioners are required to disclose any communication they've had regarding a request, as well as any site visits, inspections, or inv...

The real estate market in Brevard County, Florida, has experienced some interesting changes in the first quarter of 2023, according to the Brevard County Residential Report. The report reveals that the number of closed sales for Q1 2023 was 2,471 units, a 9.9% decrease compared to the 2,741 units closed during the same period last year (Q1 2022). There was also a decrease in cash sales of 17.1% during Q1 2023. On the other hand, new pending sales decreased by 8.2%, while new listings increased by 0.3%.One of the most notable changes is the increase in median sales price for...

Identifying home defects before purchasing a property is crucial for several reasons, especially in Florida where there are specific concerns that homebuyers should be aware of. A home is a significant investment, and it is essential to ensure that it is structurally sound and free from any potential hazards that could pose risks to occupants or result in expensive repairs. Failure to identify home defects before purchasing a property can lead to significant financial losses, as well as legal disputes between buyers and sellers.In Florida, there are several common defects t...

The Brevard County real estate market has seen its fair share of ups and downs in recent years, and the latest trends suggest that the market is continuing to evolve. In February 2022, the market saw a decrease in closed sales, new pending sales, and new listings but an increase in cash sales. Let's take a closer look at some of the latest Brevard County real estate market trends.Closed SalesIn February 2022, closed sales in Brevard County were down by 1.0% compared to last year. The number of units closed was 880, down from 889 in February 2021. However, there was an ...

IntroductionA reverse mortgage is a means for elderly homeowners to pull funds from equity in their home without the need to make regular mortgage payments.[1] In a reverse mortgage, the lender provides funds to the homeowner in lump sum or periodic payments, and the homeowner does not have to repay the balance back unless or until certain events happen, such as their death or the sale of the home.[2]A reverse mortgage lender is essentially taking the risk that the funds they front to the borrower in exchange for a mortgage on the property will be recoverable in the event o...

LGBT couples and families face unique challenges in the probate process.In the LGBT community, the concept of a “chosen family” is prominent.[1] This is because members of the LGBT community are often estranged from their blood relatives and are less likely to have children than the general population.[2] This presents a problem, however, as family members by choice are given less deference by the law than family members by blood.[3]Members of the LGBT community are not unaware of this, and studies indicate that they take greater care in planning their estates.[4] This use ...

IntroductionA lost will is a will that a testator was known to have in their possession but cannot be found after they die.[1]In Florida, if a will is lost, the presumption is that the will was destroyed by the testator because the testator wished to revoke it.[2] To defeat this presumption, the lost will must be established and subsequently admitted to probate.[3] The requirements for establishment are laid out in the Florida Statutes.[4] The relevant provision provides:Any interested person may establish the full and precise terms of a lost or destroyed will and offer the...

Under Florida law, a deed is a written instrument that creates, makes, grants, transfers, or releases an estate, a freehold interest, or an interest for a term of more than one year in, of, or out of any messuages, lands, tenements, or hereditaments.[1] Deeds must be signed by the vendor, or their agent, in the presence of two subscribing witnesses.[2]A deed that follows the form for warranty deeds as prescribed in the Florida Statutes is “held to be a warranty deed with full common-law convenants . . . .”[3] This refers, among others, to the covenant of seisin, the covenan...

What is Capacity?Capacity is the ability of someone to make rational decisions, and thus be accountable for their actions. Individuals with capacity are people with the power to make important life decisions in the eyes of the law; those with capacity are legally recognized as autonomous or semi-autonomous individuals.The question of capacity is rooted in state of mind. As legal concepts, the standards for capacity are designed to protect those who are legally vulnerable as a result of some kind of mental infirmity. This infirmity could be temporary, such as alcohol intoxic...

While probate ensures full disclosure of a decedent’s real and personal assets, shortens the timeline for creditors’ claims, and reduces the risks of errors in a will, the disadvantages outweigh the benefits. The probate process is time-consuming, has higher expenses, and intrudes on a family’s privacy. Attorney fees, court costs, estate executor/administrator fees, and accounting fees push the costs even further. In fact, the cost of probating a will usurps 3% – 8% of the gross estate value, taking up to 13 months to settle, which may extend to several years if an uncooper...

Key Takeaways:C corps have double taxation while S corps have pass-through taxation.C corps can have unlimited owners, while S corps are limited to 100 shareholders.C corps are the default entity you are assigned during registration.Setting up a business structure is one of the most important foundations of jumpstarting your business growth. Some people opt for LLCs, but there are others who go for S Corporation or C Corporation. If you’re trying to choose between the two business structures, it’s important that you understand what each legal entity entails and its unique d...

Can you imagine spending years of your life working to build the perfect image of your company, products or services only to realize that you cannot successfully protect the brand that you have so carefully built? That is where the importance of selecting a trademark which is not descriptive comes into play.A descriptive trademark is something that can easily be avoided, however it is important to know how trademarks are categorized in order to be better equipped with the knowledge of how to make your trademark the strongest that it can be. The consequences of having a desc...

When you sit down with an attorney to go through the fundamentals of the estate planning process, one of the questions you will almost certainly be faced with is this: who would you like to designate as your power of attorney. You may be unfamiliar with this legal document and wondering, “What the heck is a power of attorney, anyway?”Many people have questions about choosing a power of attorney and what it means, what it entails, and who you could or should designate. To help you start thinking ahead, we have answered some of the most frequently asked questions about power ...

Key Takeaways:Survivorship life insurance offers greater death benefits at lower costs than typical life insurance because the benefits are not paid until two or more policyholders have died.Because survivorship life insurance lists someone other than the decedent’s estate as a beneficiary, this type of insurance does not need to be distributed by a court through a probate process.Survivorship life insurance may not be right for those who will need the death benefits in the immediate term in order to pay off expenses after the death of their spouseIs survivorship life insur...

According to the dictionary, the definition of the word trust is a “firm belief in the reliability, truth, ability, or strength of someone or something.” When it comes to legal matters, it takes on a whole other meaning. However, you’ll still want significant “trust” built into a revocable living trust. That’s why you should secure the assistance of an experienced attorney and why you’ll want to carefully choose trustees who always have your best interest at heart.Keep reading to learn more about this important legal process and how it can benefit you and your estate.What i...

If you are a non-US person living outside the US and are considering investing in US real estate it’s important to understand taxation for foreign real estate investors.  It’s equally important to remember that the information is not a substitute for personal tax advice. Each investor should seek personalized advice from a qualified US tax professional. That being said, It is no secret that many foreign investors find the US real estate market to be an attractive target for their investment funds.[1] There are multiple variations of real estate investments, including commer...

Six months after oral arguments were heard in the matter of Google LLC v. Oracle America, Inc., the Supreme Court of the United States (SCOTUS) has issued a decision.[1] However, despite the nearly unprecedented level of speculation that surrounded what the impact of the Court’s decision would have; the SCOTUS’ holding does not appear to be as groundbreaking or revolutionary as some may have anticipated.The two major issues in the Google LLC v. Oracle America, Inc[2] case was whether Oracle’s Java programming language's application programming interfaces (APIs) are sub...

A corporation must file the necessary paperwork with the Secretary of State to be incorporated. The incorporation process might take some time, and while this process is pending, the individuals forming the corporation may need to sign purchase orders, leases, or other necessary contracts. The individual who signs any of these contracts lists the corporation’s name, but the corporation is not technically in existence and will not be liable until the corporation adopts the contract.Any contract entered into prior to the incorporation of a business entity is a possible liabil...

The issue of whether or not computer code is subject to copyright protection has finally reached the Supreme Court of the United States (SCOTUS).[1] Although the particular court case surrounding this controversial issue has only been making its way through the hierarchy of the courts for the past 10 years, the core issue that is up for debate has been in the making over the past 40 years.[2] Additionally, while the stakes for the parties who are involved in the lawsuit, namely Google LLC and Oracle America, Inc., are high and amount to billions of dollars in potential dama...

Military members are afforded certain protections and benefits while in active duty, including protections relating to housing and accommodations. For this reason, landlords need to be aware of the laws that can affect the landlord’s relationship with its military tenants. In 2003, the United States Congress enacted the Servicemembers Civil Relief Act (“SCRA”) to revise and expand the Soldiers’ and Sailors’ Civil Relief Act of 1940.[1] The SCRA provides legal protections for active military members to enable them to focus on the defense of the nation.[2] The SCRA includes p...

In 2002, the United States Congress passed the Sarbanes-Oxley Act (the “Act”) of 2002 to combat corporate and accounting fraud.[1] The Act was passed in response to a series of corporate bankruptcies and other scandals that occurred in previous years, the Enron scandal for example.[2] Under section 404 of the Act, the Securities Exchange Commission (“SEC”) had to adopt rules requiring that each annual report submitted by a company include an internal control report.[3] This internal control report should contain:(1) a statement of management's responsibility for establ...

The landlord-tenant relationship involves more than the exchange of rent payments for access to residency. In Florida, when a landlord and tenant enter into a lease agreement, they agree to be bound by a plethora of terms, whether express in the agreement or imputed by operation of law. One such obligation imposed upon both parties is maintenance. Maintaining rental property is a way to protect both parties’ investment in the property but also to comply with the law. Outside of the terms of a lease agreement, there are certain minimum maintenance responsibilities for both t...

Service dogs[1] aid people with disabilities so that they can fully participate in daily life routines and activities.  Dogs can be trained to perform many significant tasks to assist people with disabilities. These service dogs offer support to people with physical or mental disabilities including those who are visually impaired, deaf or hard of hearing. When it comes to housing, landlords and property managers generally enforce pet policies for the properties they rent. The Americans with Disabilities Act of 1990 (ADA)[2] prohibits discrimination in public accommodations ...

Consequences and Avoidance StrategiesIn the age of the internet, successful marketing and advertising requires businesses to be able to immediately capture the attention of potential customers. Often, this can be accomplished by using a familiar face or voice in advertising material. Whether it is a celebrity talking about their favorite hamburger or an NBA player’s picture on a box of cereal, such endorsements tend to play a role in the marketing success of a product or service. However, when a person’s identity is used without their permission, what may have seemed like a...

In the digital age, the culture surrounding how a business is “reviewed” by a customer or patron has become one of the most determining factors of a businesses’ success. The growing popularity of websites such as Yelp, Google, Bing, and other services which allow people to rate and review businesses has in turn resulted in a surge in the importance and impact that these reviews can have. With reviews now becoming the driving force behind influencing where consumers choose to take their business to, it is more essential than ever to understand what options a business has aft...

Non-U.S. individuals and corporations investing in real estate within the United States will need to be familiar with one of the biggest challenges facing foreign nationals involved in U.S. real estate: the Foreign Investment in Real Property Tax Act (FIRPTA).  FIRPTA makes sure that foreign nationals earning money off real estate transactions based in America pay their fair share of taxes for it. Under FIRPTA, a foreign seller of U.S. real property is subject to a tax withholding at closing, and the buyer in such transaction is obligated to submit the tax withholding to th...

When a person sells a house, vacant land, or other piece of property, there are certain requirements that must be followed. Most states require an affidavit of title. An affidavit of title is a document specifying that a property seller owns the property.[1] In addition, in an affidavit of title, the seller swears under oath that certain other facts about the property are correct.[2] An affidavit of title offers many benefits to a buyer. Primarily, it provides added protection against the seller for the buyer that the property is free and clear of any major legal problems i...

McConville v. United States involved a petition for review of an order of the Securities and Exchange Commission (“SEC”) finding violations of several sections of the Securities Exchange Act of 1934 by the chief financial officer of Akorn Incorporated.[1] Akorn Incorporated manufactured and sold diagnostic and therapeutic pharmaceuticals to wholesalers and end-use consumers.[2] Akorn would process and keep track of its orders using various rates, corporate credits, and payment schedules (e.g. current, thirty to sixty days past due, etc.).[3] Akorn used a system that involve...

Recently, the Office of Compliance Inspections and Examinations (“OCIE”) issued a Risk Alert listing the deficiencies and weaknesses found most often by the agency while examining registered investment companies (“funds”).[1] The Risk Alert also includes observations that focus on money market funds and target date funds.[2] According to the Risk Alert, the most common deficiencies and weaknesses are those related to the fund compliance rule, disclosure to investors, the board approval process involving advisory contracts, and the fund code of ethics rule.[3]The Fund Compli...

When it comes to real estate, although significantly different from owning a condo or renting an apartment, individuals may consider investing in a housing cooperative[1] (often referred to as “co-op”). In considering whether to do so, purchasers should determine whether the purpose of the co-op investment is not for profit and thus not considered a security or for-profit and thus considered a security. United Housing Found. v. Forman[2] is an important case in which the United States Supreme Court determined that The Securities Act of 1933 and of the Securities Exchange Ac...