PLDO MESSAGE REGARDING COVID-19
THIS ISSUE'S HEADLINES
Florida to Permit Electronic Estate Planning Documents and Remote Notarization
Tax Development Considerations in Valuation Process
Guardianships – An Effective Alternative for Caring for Loved Ones
Title Insurance Policy Protection Gives You Peace of Mind
FLORIDA TO PERMIT ELECTRONIC ESTATE PLANNING DOCUMENTS AND REMOTE NOTARIZATION
Florida is entering the digital estate planning age. Effective July 1, 2020, Florida will permit the remote electronic signature of any “testamentary instrument” which disposes of an individual’s property on or after his or her death. This includes a will, a codicil to a will and a trust or trust amendment with testamentary aspects. Florida’s new law will also permit electronic signatures of a health-care advance directive, a waiver of spousal rights and a power of attorney authorizing banking or investment powers.
Historically, estate planning documents in Florida needed to be signed by the client in the physical presence of two witnesses and notary. This new law, however, will permit an individual to electronically sign his or her estate planning documents electronically if they are outside the state of Florida (witnesses may also be outside the state of Florida) if they follow strict procedural rules using a remote online Florida notary.
For an electronic estate planning document to be valid the client, witnesses and notary must electronically sign the instrument by means of audio-video communication that permit them to see and hear each other. The electronic signing will be conducted by a remote notary in Florida who will confirm who the client is through a series of questions and proper identification. The questions asked by the notary are related to their personal information (i.e., prior addresses, vehicle information, etc.) as well as questions meant to determine if the client is being unduly influenced to conduct the signing. The remote notary must also validate the identity of the witnesses.
A properly executed electronic will must be part of an electronic record that contains affidavits by the witnesses and an acknowledgment by the testator with the electronic will. The audio-video communications of the questions, identity verification and electronic execution of the will must be recorded by the notary in an electronic record and subsequently stored with a “qualified custodian”. The qualified custodian must maintain adequate insurance and have robust online security requirements to comply with the new law. The electronic will is to be maintained by the custodian will until the client’s death, at which time the electronic will would be offered to the court to probate by the custodian.
It remains to be seen how the new law will work in practice – online platforms need to be created to record the audio and video associated with the execution of the documents, qualified custodians need to be verified to store the electronic wills, and remote online notaries need to be trained. But ready or not the future is here in Florida. For further information regarding this new rule or other questions you may have about your estate and trust planning needs and concerns, please call PLDO Senior Counsel Jason S. Palmisano at 561-362-2030 in our Florida office or email email@example.com
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TAX DEVELOPMENT CONSIDERATIONS IN VALUATION PROCESS
Many business owners choose to operate using pass through entities (PTE). A PTE such as an S corporation or a partnership allows for a single layer of income tax, as opposed to a C corporation. C corporations have two layers of tax - one at the entity level on earnings and one for distributions that are taxed as dividends at the shareholder level. With an S corporation, earnings pass through the company untaxed to the business and are taxed on the owner’s personal return.
S corporations remain a popular choice for operating businesses as all owners of the business enjoy protection for their personal assets from claims that arise from the business. A popular alternative to the S corporation is the limited liability company (LLC), which also offers protection for the owner’s personal assets and involves less corporate formality than an S corporation. An LLC does not have an independent tax status; however, the owners of the LLC can make an election and choose the tax status of the business for income tax purposes. Many owners that formed their business as an LLC choose to be taxed as an S corporation. This is done by filing an election with the IRS. Partnerships are less popular due to the requirement that in most partnerships at least one partner must have personal liability for business debts.
When valuing interests in a PTE, taxpayers and the IRS have disagreed on whether a discount should be applied in valuing the entity because of the untaxed nature of the entity’s earnings. The standard used in valuing an asset is what a willing buyer would pay a willing seller, as long as the buyer and seller have full knowledge of all the relevant facts and neither party is under a compulsion to act.
PLDO Partner and estate, trust and tax attorney Gene M. Carlino provides an in-depth explanation of the methods used for the valuation process, United States Tax Court case law reviews and other considerations individuals and business owners should be aware of in his latest advisory, entitled Tax Development Considerations in Valuation Process. For further information or questions that you may have, please contact Attorney Carlino in Rhode Island at 401-824-5100 or in our Florida office at 561-362-2030 or email firstname.lastname@example.org.
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GUARDIANSHIPS – AN EFFECTIVE ALTERNATIVE FOR CARING FOR LOVED ONES
When a spouse, family member, or friend becomes incapacitated and unable to make decisions for him or herself and does not have a properly drafted Power of Attorney in place, you may feel as if you have no options to help your loved one. While executing a well thought out Power of Attorney is the most cost effective and simple way for a person to appoint a decision-maker for when they become incapacitated in the future, petitioning for the probate court for the appointment of a guardian is an effective alternative.
A guardianship is a legal relationship authorized by a probate court which appoints an individual, the guardian, to handle personal and financial matters for an incapacitated person, referred to as the ward. In Rhode Island, the probate court may appoint a decision-maker for some or all of these categories: financial matters, health care matters, relationships, and residential matters. To obtain a guardianship, an individual must submit a petition for guardianship to the probate court outlining the areas the proposed ward lacks decision-making capacity. Along with the petition, the person filing will need to submit a Decision-Making Assessment Tool (“DMAT”). The DMAT is a form that assesses the potential ward’s decision-making abilities. The DMAT is completed by the potential ward’s primary care physician.
Once the petition and DMAT are submitted, the probate court will appoint a Guardian Ad Litem (“GAL”). The GAL is appointed solely for the purpose of protecting the interests of the potential ward during the probate court proceedings. The GAL is required to visit the potential ward and guardian and prepare a report for the probate court.
The probate court will hold a hearing after proper notice is given to all interested parties. At the hearing the proposed ward will have the opportunity to contest the petition. The probate judge will determine if the proposed ward lacks the decision-making capacity in some or all areas outlined in the petition. In determining to what degree, if any, a guardianship should be granted, the law seeks to balance an individual’s autonomy against providing for the individual’s safety and well-being. Finally, if the guardianship is granted, the court will issue a certificate of appointment and in its order outline the areas in which the guardian has the authority to make decisions for the ward. The probate court will require the guardian to post a bond, with or without surety, to ensure the guardian’s faithful performance.
After being appointed, a guardian is a fiduciary, meaning he or she has a duty to act in the best interests of the ward. Additionally, a guardian who has authority over a ward’s health care, residence, and/or relationship decisions is required to file an annual status report with the probate court. Moreover, a guardian who has authority over the ward’s finances or personal property is required to submit an annual accounting to the probate court, which in limited circumstances, can be waived. If you would like to discuss exploring a guardianship for a family member or friend, please contact PLDO Associate Katherine D. Bishop at 401-824-5100 or email email@example.com.
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TITLE INSURANCE POLICY PROTECTION GIVES YOU PEACE OF MIND
Your real property may be one of your biggest assets, whether it is a primary residence, second home or investment property. As such, you know you need hazard insurance and you may need flood insurance, but is an owner’s title policy really needed?Many people are surprised to discover that when buying a new property, an owner’s policy of title insurance is optional.While it may be considered “optional,” smart buyers are wise to consider title insurance asnecessary. An owner’s policy of title insurance provides coverage for the owner in the event a defect of title, a valid lien or other claims involving the real property are discovered after closing on the property.
Generally, when an individual is buying a new home in Florida, they assume that the seller is transferring full and unencumbered ownership of the land and any buildings. This is a reasonable assumption. However, to ensure free and clear title is received, a buyer is cautioned to not waive or otherwise refuse a policy of title insurance. In some Florida counties, the obligation to provide an owner’s policy is contractually a seller’s obligation and typically adds little cost to the buyer.
The process of preparing title insurance begins upon receiving a copy of the fully signed contract by your title company or real estate lawyer, who will order a variety of searches in preparation for closing the transaction. These searches include the following:
- the title commitment: which outlines any liens or recorded encumbrances against the property and requires certain additional searches to be performed;
- the tax and lien search: this search will uncover any code enforcement issues, utility charges, and other liens or potential liens that may not have been recorded in the official records. When representing a buyer, we always want this search to also include a search for open and outstanding permits;
- an estoppel: if the property is located in a homeowner’s or condo association, this search will verify with the association the fees due, any special assessments, and whether the owner is in violation of any of the covenants of the association; and
- a survey, if necessary.
PLDO Senior Counsel Leah A. Foertsch has significant experience working with clients conducting their title investigations and preparing title insurance policy legal documentation for closing residential and commercial property transactions cost-efficiently. Please contact Attorney Foertsch with questions about how to protect your assets and financial well-being prior to closing on a residential or commercial property in our Florida office at 561-362-2030 or email firstname.lastname@example.org.
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PLDO MESSAGE REGARDING COVID-19
Please be assured that the lawyers and staff at PLDO are committed to providing uninterrupted quality legal service during this challenging time. We are in this together and we will all be better and stronger when it is behind us...and it will be.
More than one week ago, our firm mobilized to work remotely in order to keep everyone safe from the virus and our priority is to continue providing responsive and seamless services despite the change. All of our offices are fully equipped with advanced technology to support remote meetings and consultations and we remain committed to providing you with the support you need.
Please do not hesitate to contact your PLDO attorney directly in our Rhode Island, Massachusetts or Florida offices or call our toll free number at 866-353-3310 to discuss your legal matter or schedule a remote consultation.
The attorneys and staff at PLDO are committed to doing our part in containing and mitigating exposure to the coronavirus for our staff, their families, our clients and community during these truly unprecedented times. We will keep you informed when conditions change and as information becomes available.
For COVID-19 information, please visit the links below or contact your state’s health department.
Centers for Disease Control and Prevention
IRS Coronavirus Tax Relief
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