Archive for June, 2011
MOVIE REVIEW: “LIFE AS WE KNOW IT” (Bad Estate Planning Makes for an Awful Film)
This surely predictable attempt at romantic comedy is awkwardly wrapped in a tragic incident. The thin plot involves a married couple, Allison and Peter, trying to set up each of their best friends, Holly and Messer, on a blind date. It proves to be a disaster. Over time, Allison and Peter have a baby; Holly and Messer dutifully attend birthday parties and remain antagonistic toward each other. Suddenly, Peter and Allison are killed in an automobile accident and, …surprise…, they have named Holly and Messer as co-guardians for their child. The remainder of the movie involves Holly and Messer trying to care for the baby and ending up falling in love. A predictable, and unbelievable, affair.
The best aspect of the film for me, is that it provides an opportunity to point out the estate planning errors of Allison and Peter (the married couple). Although they had a lawyer and a Will naming co-guardians, their first mistake was that they did not prepare emergency temporary guardianship documents which would have enabled Holly and Messer to pick up the baby the night of the accident. Instead, the baby was placed in the care of child protective services and it was several agonizing and scary days of working through red tape before the screen couple was able to retrieve the child. Depending upon the age of the child, even a few days in foster care can be quite shocking.
The child was with a babysitter on the night of the accident, but the babysitter was a minor. We generally recommend that someone within a five to ten minute drive of your home be appointed emergency temporary guardian of your minor children. In the event that such a tragedy occurs, that person can keep the child until the permanent guardians can arrive. The babysitter must be aware of the names of these emergency guardians so that the police can notify them to come pick up the children before they are taken away to foster care. We believe this to be an extremely important and overlooked part of estate planning.
The next mistake Allison and Peter made was to select two single people who hated each other and had no parental experience as co-guardians. This was compounded by the fact that neither Holly nor Messer was informed prior to the couple’s death that they had been named guardians. It is unlikely that real life would work out as smoothly as the scripted movie. Considering who should raise your children in the event of a tragedy requires substantial thought as well as making the people you choose aware of the possible responsibility. Their agreement to serve should be discussed, agreed upon and secured at the time of the preparation of the estate planning documents.
Finally, Allison and Peter did not leave sufficient funds to raise the child. Apparently, there was no life insurance or other savings, just enough insurance to cover the mortgage on a large house. This led to financial difficulties for Holly and Messer. It is your responsibility to provide the financial resources for raising your child. That should not be the responsibility of the guardians.
The movie is not an enjoyable experience, but it does offer a platform for discussing how to come to terms with the tragedy of a young couple dying and leaving their only child without a temporary guardian or confirmed permanent guardian, and for how to make sure their child will be financially secure upon their death.
Please call my office if any of these issues apply to you or anyone you know. Properly naming guardians is an extremely important part of being a parent.
NEW LEGISLATION (Good News for a Change!)
The busy beavers in the Florida Legislature have passed several bills this year which affect our clients in the estate planning and asset protection areas. This newsletter will be our first report on new legislation and focuses on two new bills which were passed to either overturn or clarify recent decisions of the appellate courts. Both of these new laws became effective on May 31, 2011 and contain good news.
First is an act relating to individual retirement accounts (IRAs), amending Florida Statute Section 222.21. This new law provides that inherited IRAs are exempt from claims of creditors. An individual’s IRA (to which he/she has contributed) clearly has been exempt from claims of creditors. However, once the IRA accountholder died and passed those assets to a spouse or children, even if the assets remained in a “rollover” or inherited IRA, they no longer were exempt from creditor’s claims. This law overturns the court case which decided that inherited IRAs were not exempt from the beneficiaries’ creditors and has retroactive application to all inherited individual retirement accounts without regard to the date such account was created.
The second bill relates to limited liability companies (LLCs), amends Florida Statute Section 608.433 and provides that a charging order against a member’s limited liability company interest is the sole and exclusive remedy available to enforce a judgment against a member of a multi-member LLC. This new law clarifies the primary asset protection benefit of an LLC.
This new law was passed because in 2010, the Florida Supreme Court held in the case of Olmstead v. Federal Trade Commission, 44 So.3d 76 (Fla., 2010), that a charging order is not the exclusive remedy available to a creditor holding a judgment against the sole member of a Florida single-member limited liability company. This ruling caused uncertainty in the business community about its breadth and questions arose as to whether businesses were better off organizing LLCs under the law of other jurisdictions where a charging order is clearly the exclusive remedy available to a judgment creditor. The legislature has now made it clear that the major asset protection benefit of organizing as an LLC remains intact, so long as there is more than one member of that LLC.
In the case of a single-member LLC, the ability to protect that member’s assets is not as strong. A charging order is not the sole and exclusive remedy by which a judgment creditor may satisfy the judgment against a judgment debtor who is the sole member of an LLC. If a judgment creditor establishes to the satisfaction of a court of competent jurisdiction that distributions under a charging order will not satisfy the judgment within a reasonable time, then, upon such showing, the Court may order the sale of that member’s interest in the LLC pursuant to a foreclosure sale. Accordingly, the asset protection benefits of a single-member LLC in Florida remain limited. However, if an LLC can be established with multiple members, the asset protection benefits of an LLC are much stronger.
This newsletter is only intended to provide a general overview of these two new laws. As always, if you have any specific questions or concerns about these laws, please do not hesitate to contact me.