Pye Law

Posted By pyeblog on January 17, 2012

If you are the personal representative  of an estate, you want to be able to walk into the attorney’s  office, present the original will,  obtain the documents you need drawn up and walk out ready to start settling the estate once the attorney files the papers with the probate court clerk.

A “self-proved” or “self-proving” will is going to help make this process MUCH easier.

If you are doing your estate planning now, make things easier for your personal representative by signing a will that is self-proved.

Background

To make a valid will in Florida, you must put it in writing and sign it at the end. If you can only make an “x” or some other mark instead of signing, two witnesses must be present and must also sign their names to the will in your presence. If you can’t sign or even make a mark, you can authorize someone else to sign for you, but again, you must have two witnesses who also sign their names to the will in your presence.

In order for the will to be accepted by the court  to open an estate, Florida law requires that the will be “proved by the oaths or affirmations of two competent witnesses.”

So if you had simply signed your will in front of two witnesses, those witnesses  swear under oath that they did indeed watch you sign that will on a paper you attorney draws up. But what an inconvenience for the witnesses and what if you signed the will 30 years before you died? Will the witnesses still remember? Are they still alive? Can they be found? If not, can someone else swear that they recognize your signature on the will?

Self-proved will

A self-proved (sometimes called “self-proving”) will solves this problem.

If the will contains certain acknowledgements and affidavits, the court shall accept the will without the need of witnesses to the signature. Make sure your Florida attorney make this kind of will for you.

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Posted By pyeblog on January 15, 2012

In Florida pets cannot receive an outright bequest of property (money, house, etc) from your will because animals are considered property themselves. So, leaving money directly to your pets is not permissible, but their care can be otherwise addressed.

The primary problem to setting up a trust for your pet is the fact that no human beneficiary enforces the terms. Simply put, who will go to court to make sure that your pet is getting the right dog food and that the trustee has not bought a new car with your money? Also, there is always the possibility that the probate court, when reviewing your will, could find that your generousness is “capricious” or “frivolous”. There is good news for pet owners who are concerned about caring for their pets who survive them. Following a few guidelines will allow your attorney and the courts to carry out any wishes for your pets.

1. Create and carry an “Animal Card” so that if you are injured or die unexpectedly, emergency personnel will know that somewhere a beloved pet is waiting and relying on your return. This card should list the pet’s name, type of pet, location, and any special care instructions. Having your veterinarian listed is also highly recommended.

2. Create an “Animal Document” to place with your will or estate documents.

3. If you plan on providing for your pets after your death, name a human beneficiary who will receive funds to cover the pet’s expenses and be your pet’s caretaker. Obviously, discuss this possibility with the potential caretaker ahead of time to insure he or she is willing to care for your pet. Naming alternate caretakers is also recommended if the primary dies, or predeceases you…or can no long care for your pet.

4. Although painful to deliberate, your will should provide some instructions and resources for the final resting place of your pet at the conclusion of its life.

As with all things legal, you should discuss your wishes with an attorney who knows the laws for pet trusts. Insuring the identity of your pet in your will is also vital. Some cases have come to light in which trusts were abused by the beneficiary who used a succession of similar animals (“black cats”) as a means to procuring more money. Your veterinarian can help you positively identify your pet by implanting a microchip or guide you to one of the DNA identification services.

Another consideration, as more people keep pets later in life and veterinary medicine continues to advance our pets’ life spans, there is a real possibility that your pet could outlive you. Proactive measures can insure that your pet is not left unattended in the event of your death or disability. Your estate attorney can help organize the best plan for your means. Additionally, your veterinarian may have resources detailing organizations that offer homes for pets who survive their owners.

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Posted By pyeblog on December 23, 2011

In a previous post on my blog, I covered highlights of Florida’s Homestead Exemption in a Chapter 7 Bankruptcy. In this post, I am pulling together all of the applicable exemptions in bankruptcy and giving the reader the actual ready legal reference. Some of the statutes are easier to read and understand than others, thus it is helpful if you have an attorney explain to you the impact of each on your particular situation. Many of these numbers “double” for a husband and wife filing jointly. Again, consult with an attorney for further discussions.

Unless otherwise noted, all law references are to Florida Statutes Annotated.

Homestead

222.01, .02, .03, .05; Fla. Const. 10-4 – Real or personal property, including mobile or modular home and condominium, to unlimited value. Property cannot exceed: 1/2 acre in a municipality, or 160 acres elsewhere. Spouse or child of deceased owner may claim exemption. May file homestead declaration. Also, tenancies by the entireties in real property are exempt as to debts of one spouse. See my earlier posting in the blog for further information on the Florida Homestead Exemption in Chapter 7.

Personal Property

222.22 – Prepaid hurricane savings accounts, prepaid medical savings account deposits, and prepaid college education trust deposits.

222.25 – Motor vehicle up to $1,000; prescribed health aids; federal income tax credits or refunds.

497.56(8) – Pre-need funeral contract deposits.

Fla. Const. 10-4 – Any personal property up to $1,000 total, or up to $4,000 if no homestead claimed. 

Wages

222.11 – For head of family, 100% of earnings up to $750 a week; applies to either unpaid or paid wages, or wages deposited in a bank account for up to 6 months.

222.21 – Federal government employees’ pension payments that are needed for support and were received up to 3 months prior to the bankruptcy.

Pensions

11 U.S.C. § 522 - Tax exempt retirement accounts (including 401(k)s, 403(b)s, profit-sharing and money purchase plans, SEP and SIMPLE IRAs, and defined benefit plans). 

11 U.S.C. § 522(b)(3)(C)(n) – IRAS and Roth IRAs to $1,171,650.

121.131 – State officers and employees.

122.15 – County officers and employees.

175.241 – Firefighters.

185.25 – Police officers.

222.21 – ERISA – qualified benefits, IRAs and Roth IRAs.

238.15 – Teachers.

Public Benefits

222.201 – Public assistance, unemployment compensation, Veterans’ benefits, and social security.

440.22 – Workers’ compensation.

960.14 – Crime victims’ compensation unless seeking to discharge debt for treatment of crime related injury.

Alimony and Child Support

222.201 – Alimony and child support needed for support.

Insurance

222.13 – Death benefits payable to a specific beneficiary.

222.14 – Annuity contract proceeds excluding lottery winnings; life insurance cash surrender value.

222.18 – Disability or illness benefits.

632.619 – Fraternal benefit society benefits.

Misc.

769.05 – Damages to employees for injuries incurred in hazardous occupations.

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Posted By pyeblog on December 22, 2011

For a trust to be effective it has to own title to the property or asset. When you transfer title of your assets into the trust it is called “Funding your Trust.” Funding is the process of transferring the name on accounts or property to the name of the trust. As an example, accounts in the name of Albert and Alberta Gator, would now be held as ” Albert and Alberta Gator, Trustees of the “Gator Family Trust” dated December 21, 2011.

When the assets are in the name of the trust there is no need for Florida probate since the estate is now controlled by the trustee of the trust. You or you and your spouse can be the primary trustees receiving full control to buy, sell, borrow or transfer in the case of a spouse’s death. After both spouses die, the trust identifies the person who will act as successor trustee. The trust gives that person the right to manage all assets on behalf of your wishes made known in the trust document. You and your spouse will decide who will manage all affairs.

The people who will receive the benefit of the trust’s assets are called the beneficiaries. Typically the estate will go to the surviving spouse. If there is no surviving spouse, assets will pass to the people you named in your trust. You are not limited to who you want to receive your estate. You can name your children, relatives, friends, or a charitable organization to be your beneficiary.

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Posted By pyeblog on December 20, 2011

Florida exemption laws protect equity in your residence up to an unlimited amount, for most people. (Most states protect only a certain dollar amount — ranging from nothing to over one hundred thousand dollars.) This means that no matter how much equity you have in your home, you get to keep it if you file for Chapter 7 bankruptcy

However, be aware that there are a few requirements to claim that unlimited homestead exemption. You can use the unlimited exemption only if: (1) The property is your primary residence. (2) You’ve owned a home in Florida for at least 40 months. Under the bankruptcy law effective in 2005, you must be have lived in the state of Florida for at least 40 months (three years and four months) before you can claim any homestead protection greater than $146,450. If you haven’t owned a home in Florida for at least 40 months, the homestead amount is limited to $146,500 which is more than enough for most homeowners considering bankruptcy (3) The property does not exceed ½ acre (or 160 outside of a municipality).

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Posted By pyeblog on December 15, 2011

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Posted By pyeblog on September 29, 2011

Everyone tells you that probate is bad. People come into my office and ask me all the time: “How can I avoid probate”. The purpose of this article is to put out there an explanation of what probate is and a brief overview of the process. When someone dies owning property (real property, as well as tangible and intangible personal property) in Florida, the law provides a legal procedure for settlement of the estate. This procedure, commonly called “probate,” involves determining what property the person owned and  its value; what debts the person owed; and distributing or assigning title of the  decedent’s (the person who dies) property to its new rightful owners. Federal estate  taxes also will be determined, although these must be paid even if no probate  procedure is required.

Not all property is subject to the Florida probate process. For example, property held in a living trust does not go through probate although similar steps are generally followed by the trustee but without court supervision. Property held in joint tenancy with right of survivorship is not generally subject to probate, either. Life insurance proceeds, Individual Retirement Accounts, U.S. savings bonds and similar property where there is a named beneficiary (unless the estate is the beneficiary) also bypass probate.

Via publication of a Notice, a period of three months is required after notice is given to creditors to allow them to make claims against the estate for debts owed to them by the decedent. In certain circumstances, with court approval, an estate may be administered as a “summary administration,” where direct court supervision of the activities of the personal representative is not generally required, except to open and  to close the estate.

No probate proceeding is required in a few cases. An example would be if the decedent had no outstanding debts (or if any debts are assumed and paid by other people) and no interest in property subject to the probate process. The probate process includes the following steps guided by the Florida Probate Code:

1. Petition for probate of the will or for administration of the estate
2. Appointment of a personal representative
3. Notice to creditors
4. Assembly, inventory and appraisal of property
5. Classification and payment of demands against the estate (such as debts of the decedent and liens against his or her property)
6. Determination of homestead rights and family allowances
7. Management (and sale, if necessary) of property
8. Payment of state and federal taxes
9. Accounting to the court and distribution of property.

The person who carries out the plan for the settlement of an estate is called a “personal representative.” This can be an individual residing in Florida or a blood relative of the deceased, a bank with trust authority or a trust company. The court determines  whether the proposed personal representative is legally competent to serve. If named in the decedent’s will or trust, the person is referred to as a personal representative. If legally competent, the court will appoint that person. If there is no will naming a personal representative, the personal representative is named by the court.

Settlement of a decedent’s estate involves continual contact with the court. Various legal rights and responsibilities must be determined. For that reason, it is advisable for the personal representative to hire an attorney for assistance. The personal representative makes the choice of an attorney, although a person can state in his or  her will or trust a preference for a particular attorney to help in administration of the  estate.

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Posted By pyeblog on September 29, 2011

I am always asked a question such as this: “I own a small business and my accounts receivable increase every month. I have sent my customers statements and many sternly worded letters to little effect, what can I do?

The answer is that you can begin collection proceedings against your customers by first getting a judgment in court, and then “executing” on that judgment by garnishing bank accounts or wages, filing liens against their homes, or ordering certain assets to be seized.

If you have decided you have no choice but to sue your customers, what should you do next? It may be easier to retain an attorney to file these lawsuits, but if you have only a  few customers to sue and the amount you are owed is small enough, you might be able to file a lawsuit yourself in small claims court.

If you sue your customers and receive judgments against them, will be forced to pay you? Many people do not realize that a judgment is only an official acknowledgment that money is owed to you and not a directive for money to transfer hands. It is your  job to try to collect that money. The easiest way to do this is to garnish the debtor’s  bank accounts or wages. To garnish someone’s wages, you must file paperwork asking the court to seize the money from the judgment debtor’s bank account or wages. The debtor, in turn, will have a chance to be heard by the court before any garnishment is granted.

How does the wage garnishment work? A person’s wages can be garnished only up to a certain percent per pay. If, however, the person is paying other courtordered deductions such as child support, the amount that can be garnished will be reduced. Garnishments are continuous orders, meaning that once you file the paperwork, employers must withhold funds from an employee’s paycheck until your judgment is satisfied. Unfortunately, if another creditor is already garnishing the debtor’s wages,  you may have to wait as long as six months until the other garnishment is complete.

So, are there any other options for collections? There are, for instance, you may take  your judgment and file it as a lien against a person’s real estate and foreclose upon it (subject to homestead etc.). Also, you may ask the court to seize tangible items (e.g.,
jewelry, computers, equipment) and sell them at auction, then give you the proceeds. These are fairly complex procedures which are difficult to do without a lawyer’s advice.

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Posted By pyeblog on September 29, 2011

While a copyright notice is not required for a copyright to exist, if you are going to use it, you might as well do it right. Federal law sets forth the proper elements of a copyright notice.

The general form of the copyright notice is set forth in the Federal copyright statute (17 U.S.C. 401). There are three parts to the copyright notice under this law:

• The first part has three options: the © symbol (the letter “C” in a circle), the abbreviation “Copr.,” or the word “Copyright.” (In the case of a sound recording, the letter “P” in a circle is used instead.)

• The second part of the notice is the year of first publication of the work.

• The third part of the notice is the name of the copyright owner or some abbreviation by which the name can be recognized, or some generally known alternative designation of the owner (e.g., “IBM”).

The year of first publication may be omitted when a pictorial, graphic or sculptural work, with accompanying text matter, if any, is reproduced in or on greeting cards, postcards, stationary, jewelry, dolls, toys, or any useful articles.

The positioning of the copyright notice on the work is important. A notice should be affixed to the copies of the work in such a manner and location as to give reasonable notice to the claim of copyright.

Examples of possible copyright notice positions include:
• For a book: Copyright notice should be placed on the title page or the page immediately following, either side of the front or back cover, or the first or last page of the main body of the work.

• For computer programs: Copyright notice should be placed with or near the title or at the end of the work on paper printouts of the work, at the user’s terminal at signon (and removed only after the user takes some action such as pressing a key or clicking on a mouse), on continuous display on the terminal, or reproduced on a label securely fastened to the copies of the work or to containers used as a permanent receptacle for copies of the work.

Proper placement of the copyright notice depends on the specific work. A proper copyright notice, along with the proper registration of the work in a timely manner, can
enhance the copyright owner’s remedy in the event the work is infringed.

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Posted By pyeblog on September 29, 2011

The limited liability company (“LLC”) is quickly becoming the business organization of choice for many small business owners. The growing popularity of LLCs is the result of its simplicity and flexibility. Limited liability companies are separate legal entities like corporations but are treated as passthrough entities for tax purposes provided they have not elected to be treated as taxable entities. The members are protected from personal liability for the company’s debts, and profits and losses are passed directly through to the members. The LLC does not pay income taxes itself.

An essential element to the efficient operation and governance of an LLC is the operating agreement. A Florida LLC can be organized without a written operating agreement. However, if there is no written operating agreement, the provisions of the Florida Statutes govern the relationship of the members and the operation of the LLC, and many of the statutory default rules leave open important issues.

An operating agreement should provide sufficient detail to serve as a road map for the members with respect to LLC governance and operation. This is all the more important since LLCs are a relatively new form of entity in Florida and the parties involved and the public at large likely have very little experience in dealing with them. The initial drafting of the operating agreement is very important because a welldrafted agreement will reduce the potential for disputes between the LLC members and managers in the future.

Every LLC operating agreement should address these essential elements:
1. Contributions of the members — Many statutory rights of the members are based on the value of their capital contributions, so it is vitally important that this information is recorded in the operating agreement. If contributions will be in a form other than cash (such as services), it is important that the members explain the form and value of such noncash capital contributions.

2. Transferability of membership interests — The operating agreement should describe the restrictions on the transferability of membership interests and explain the rules governing transfers.

3. Withdrawal rights — If the members want a right to withdraw from the LLC, the terms and conditions governing withdrawal must be addressed in the operating agreement.

4. Death, bankruptcy or divorce of a member — It is important that the members specify what will happen to their membership interests in the event of a death, bankruptcy or divorce of a member. Otherwise, there may be a number of undesirable possible outcomes. For example, an heir of a deceased member, a divorced member’s  exwife, or a creditor of a member may become a member of the LLC.

5. Allocation of profits, losses and distributions — It is often desirable to allocate profits, losses and distributions in a manner other than based on the value of the capital contributions of each member. By addressing these issues in the operating agreement,  the members can ensure fair allocations to the members.

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