Owning real estate in a revocable living trust can avoid probate but there are considerations like ensuring homestead property tax exemptions are preserved, checking for due on sale clauses in mortgages, and being aware that placing homestead property in a trust may impact protections from bankruptcy claims. Placing property in a trust provides benefits but the document must be drafted correctly and asset protection, taxes, and impacts of two-trust estate planning should be discussed with an attorney.
What you need to know before and after the Final Decree of Divorce. This presentation was given by Gary Ashmore at the Texas Advanced Paralegal Seminar in October 2012.
Do landmen need to be licensed real estate brokers in Ohio?: a breakdown of the facts and procedural history of Dundics v. Eric Petroleum Corp., 2017-Ohio-640
What you need to know before and after the Final Decree of Divorce. This presentation was given by Gary Ashmore at the Texas Advanced Paralegal Seminar in October 2012.
Do landmen need to be licensed real estate brokers in Ohio?: a breakdown of the facts and procedural history of Dundics v. Eric Petroleum Corp., 2017-Ohio-640
Malpractice Suit Against Trustee Who Failed to Inform Beneficiaries of Potent...theBurgessGroup
The successor trustees and beneficiaries of the Vitello family trust sued Kathleen King O'Brien, a Michigan lawyer, for malpractice in her handling of a policy owned by the trust when she was the trustee. O'Brien sought coverage from her malpractice insurer, Hartford Casualty. But it denies her claim because she had failed to timely notify it of the reasonably foreseeable possibility that the Vitello trust would pursue a malpractice claim against her.
The latest news and insights from the team at Adam Leitman Bailey, P.C. - must-read case highlights, articles, and recent press mentions key to expanding your knowledge of real estate law. In this issue, learn about the First and Second Department split on proprietary cooperative leases, how homelessness is effected by rent stabilization, how ALBPC won over $1M for a boutique brokerage firm, and more...
This article discusses the separation of insureds clause as it applies in various policies: CGL, business auto, garage, truckers, and business owners. Includes reference to additional insured and cross liability coverage on the commercial general liability form.
The wording of current liability insurance policies has brought about questions concerning who is insured and to whom the various exclusions and conditions apply. The separation of insureds clause under the CGL form, for example, states that the insurance applies “as if each named insured were the only named insured’’ and “separately to each insured against whom claim is made or suit is brought.’’ So a question arises: if the named insured makes a liability claim against an entity who is an insured under the named insured’s CGL form, will the insurer defend that other insured and pay the named insured for his or her alleged damages?
Another example is exclusion (j) (4) on the CGL form. That exclusion deals with property damage to personal property in the care, custody, or control of the insured. Here, the question is: does the exclusion apply only to the particular insured that has the personal property in his or her hands, or can it be applied to all the insureds under the CGL form simply because one of the insureds has control of the property?
Malpractice Suit Against Trustee Who Failed to Inform Beneficiaries of Potent...theBurgessGroup
The successor trustees and beneficiaries of the Vitello family trust sued Kathleen King O'Brien, a Michigan lawyer, for malpractice in her handling of a policy owned by the trust when she was the trustee. O'Brien sought coverage from her malpractice insurer, Hartford Casualty. But it denies her claim because she had failed to timely notify it of the reasonably foreseeable possibility that the Vitello trust would pursue a malpractice claim against her.
The latest news and insights from the team at Adam Leitman Bailey, P.C. - must-read case highlights, articles, and recent press mentions key to expanding your knowledge of real estate law. In this issue, learn about the First and Second Department split on proprietary cooperative leases, how homelessness is effected by rent stabilization, how ALBPC won over $1M for a boutique brokerage firm, and more...
This article discusses the separation of insureds clause as it applies in various policies: CGL, business auto, garage, truckers, and business owners. Includes reference to additional insured and cross liability coverage on the commercial general liability form.
The wording of current liability insurance policies has brought about questions concerning who is insured and to whom the various exclusions and conditions apply. The separation of insureds clause under the CGL form, for example, states that the insurance applies “as if each named insured were the only named insured’’ and “separately to each insured against whom claim is made or suit is brought.’’ So a question arises: if the named insured makes a liability claim against an entity who is an insured under the named insured’s CGL form, will the insurer defend that other insured and pay the named insured for his or her alleged damages?
Another example is exclusion (j) (4) on the CGL form. That exclusion deals with property damage to personal property in the care, custody, or control of the insured. Here, the question is: does the exclusion apply only to the particular insured that has the personal property in his or her hands, or can it be applied to all the insureds under the CGL form simply because one of the insureds has control of the property?
The use of a Land Trust allows a person to buy a piece of property, conceal the fact that they own the property, limit themselves from most liability associated with the property, yet retain almost all the rights of ownership including, legally claiming Homestead exemption if the property is a primary residence. A land trust is an arrangement whereby one person or entity (the trustee) holds both legal and equitable title to real estate and holds it for the benefit of another party (the beneficiary).
The April 2010 Edition of the Wild Felice and Pardo, PA Estate Planning, Asset Protection and Probate administration newsletter featuring news and tips useful for any resident of Fort Lauderdale, or the greater South Florida area who is interested in planning their estate, protecting their assets and avoiding probate. Protect yourself from asset sharks.
Contesting a Last Will and Testament in MissouriCharlie Amen
"Gaining a better understanding now of what a Will contest involves may help you understand the importance of
executing a well thought out and professionally drafted Last Will and Testament that will discourage would be contestants from challenging your Will. Learn more about contesting a last will and testament in Missouri in this presentation."
This presentation considered newly enacted progressive trust laws within the overall context of the vital importance of selecting proper trust jurisdiction in the wealth planning process. Concepts such as the community property trust, dynasty trust, directed trust, trust protector, family advisor, privacy, and trust taxation were discussed in detail, with special focus on how these compelling modern trust planning tools have combined to render the United States both a worldwide tax and privacy haven for families across the nation.
Trust Administration is the process people often find themselves in unexpectedly, after the death of a spouse or parent who created the trust prior to passing on.
"How to transfer your wealth to the next generation through estate planning" took place on April, 8th at the Tower Club, Vienna, VA. Our special guests were Mr. Milton Buffington and Mr. Saeid B. Amini, two well known experts that shared, for two hours, their experience on identifying legal issues and mechanisms that businesses and individuals can use to transfer their wealth and assets more efficiently, to the next generation.
This was a complimentary seminar hosted by Saeid B. Amini and Milton Buffington through the courtesy of Provanedge Financial and Richard B. Osmann, Ed.D.
This pamphlet which is based on Wisconsin law is issued to inform and not to advise. No person should ever apply or interpret any law without the aid of a trained expert who knows the facts, because the facts may change the application of the law.
1. Personal Injury &
Wrongful Death
lItIgatIon
estate PlannIng
oWnIng real estate In a
real estate & tItle revocaBle lIvIng trust
Insurance
By: Dorothy l. Korszen
MarItal & faMIly
september 2007
envIronMental
& lanD use
real estate titled in a person’s name must go through probate in the state in which the
BusIness real estate is located. People who own property in several states may avoid numerous probate
proceedings by creating revocable living trusts which, among other benefits, allow their heirs to
taxatIon avoid probate to the extent that the trust has been “funded.” real estate is transferred to a trust
elDer laW by preparing and recording a deed transferring the property to the trustees of the trust. then,
after a grantor passes away, the successor trustee of the trust can transfer the property in hopes to
asset ProtectIon avoid probate proceedings in any state where properties are located.
although a trust may help avoid probate, there are several issues to consider before
attorneys transferring real estate to your revocable living trust. for example, if you wish to transfer home-
earl Drayton farr, jr.
stead property to a trust, you should make sure you will continue to receive the $25,000 exemp-
(senior counsel)
tion from ad-valorem property taxes, and preserve your save our homes (soh) cap which limits
the assessed value of your property. for more information on the soh cap, please refer to the
guy s. eMerIch farr newsletter: “tax Winds Blow hard-Don’t lose your cap!” by guy s. emerich, March 2004.
jacK o. hacKett II With a revocable living trust where the grantor retains the present right to possess and live on the
MIchael P. hayMans
property, the property will retain both the $25,000 exemption and the soh cap. your attorney
can review your trust to determine if it is drafted to allow you this right. either you or your attor-
charles t. Boyle ney may need to provide the property appraiser with an affidavit stating that you have this right.
Darol h.M. carr
another consideration before transferring property to your trust is whether the property
connIe M. schIDer
has a mortgage. virtually all mortgages now include a “due upon sale” clause that allows the
DavID a. holMes lender to call for the outstanding balance of the mortgage to be due upon transfer of the prop-
gary a. Kahle erty. however, the garn-st. germain act, 12 u.s.c.a. § 1701j-3, provides that the transfer of
residential property containing less than five (5) dwelling units from the owner to the owner’s
jennIfer r. hoWell
revocable living trust will not trigger the “due on sale” clause. along the same line, some lenders
roger h. MIller III will not provide financing for property purchased by the trustee of a trust. In those cases, owners
Dorothy l. KorsZen may purchase the property in their individual names and then transfer the property to their trust.
In florida, as long as the beneficial ownership of the property remains the same, documentary
jIll c. Mccrory
stamps will not be due upon transfer of the property to your trust.
tIna M. Mays
WIll W. sunter
If asset protection is a concern, you should consult with an attorney before transferring
real estate to your trust. “asset protection” refers to steps taken to insulate assets in the event
anthony c. DuBBaneh of litigation or bankruptcy. revocable living trusts are not created for asset protection purposes.
aretI g. tsItsaKIs for a more thorough discussion, please refer to the farr newsletter: “asset Protection” by David
a. holmes, april 2004. as a general rule, and for asset protection benefits, owning property as
a tenancy by the entirety will help assure that only joint creditors can attach a judgment to your
2. Personal Injury &
Wrongful Death
lItIgatIon
estate PlannIng
property. accordingly, if asset protection is an issue, you may choose not to transfer your real
property to your revocable living trust.
real estate & tItle
Insurance
When considering homestead property, there is the additional concern of protection from
MarItal & faMIly claims in bankruptcy. In many situations, your homestead will be considered an exempt asset
in bankruptcy proceedings. however, in 2001, the Bankruptcy court for the Middle District of
envIronMental florida held that real property owned by a trust was not exempt property. In re Bosonetto, 271
& lanD use
B.r. 403 (Bankr. M.D.fla. 2001). recently, the very same court declined to follow Bosonetto, in-
BusIness stead relying on In re alexander, 346 B.r. 546 (Bankr. M.D.fla. 2006), and held that the debtor’s
interest in the property, even though it was owned by her trust, is an exempt asset. In re edwards,
taxatIon
356 B.r. 807 (Bankr. M.D.fla. 2006). however, the court did not expressly overrule Bosonetto.
elDer laW therefore, if there is any concern that bankrupty may become an issue, and you do not wish to be
a test case, you should discuss this issue with your attorney before titling your homestead property
asset ProtectIon
in your trust.
couples who have established two trusts for estate tax planning face extra consider-
ations in determining how to title property to their trusts. non-homestead property can be titled
to either trust or partially to each trust, based on how the assets will be allocated to the trusts.
however, with respect to the homestead, the florida constitution limits how homestead property
can be devised. florida courts have held that you cannot circumvent these homestead restric-
tions on devise and descent by titling property to a trust. therefore, if a couple elects to transfer
homestead property to one of their revocable trust, they will need to execute pre- or post-nuptial
agreements. this is not a concern with most joint family trusts.
holding title to real property in a revocable living trust provides many benefits. Before
deciding if these benefits outweigh any potential concerns, you should discuss the pros and cons
with your attorney.
Punta gorda office:
to subscribe to our monthly newsletters, please visit our website at www.farr.com
99 nesbit street
Punta gorda, fl 33950
Phone: 941.639.1158 this newsletter is for general information and education purposes only.
fax: 941.639.0028 It is not offered as legal advice or legal opinion.
englewood office: to the extent this message contains tax advice, the u.s. treasury Department requires us to inform you
33 s. Indiana avenue that any advice in this letter is not intended or written by our firm to be used, and cannot be used by
englewood, fl 34223 any taxpayer, for the purpose of avoiding any penalties that may be imposed under the Internal revenue
Phone: 941.460.9334
code. advice from our firm relating to federal tax matters may not be used in promoting, marketing or
fax: 941.460.9443
recommending any entity, investment plan or arrangement to any taxpayer.
