Aman Law Firm Blog

Saturday, August 14, 2010

Bad Facts Make for Bad Law

The Florida Supreme Court recently issued an opinion in the Olmstead case that does not bode well for small business owners in Florida.  The result in the case was appropriate based on the circumstances – a couple of small business owners scammed thousands of consumers out of millions of dollars. But the rule of law that emerges means that single member owners of limited liability companies are now exposed to the claims of creditors, whereas they were not so exposed prior to this ruling.

Our firm has for years recommended the “single-member LLC” as a preferred vehicle for small business owners because of the many benefits afforded by this form of entity.  However, the Olmstead decision now casts a dark shadow on this choice of entity.  Fortunately, there are alternatives available with proper planning. If you or someone you know has a single member (or even a few member) Florida limited liability company, we recommend that you contact us for an appointment to discuss alternatives, or contact another experienced practitioner in this area of the law.


The Olmstead opinion

Tampa Tribune article


Friday, August 6, 2010

Update on the Estate Tax

What’s going on with Federal Taxes?  Here’s a recent article that will get you up to speed, with all the political angles included!

Tuesday, August 3, 2010

Florida Statute Helps with Estate Plans in 2010

On May 27, 2010, Governor Charlie Christ signed new Florida Statute 733.1051 into law, which, among other “fixes” to the estate planning laws in Florida, addresses a potential problem in the estate plans of Floridians created by the fact that there is no federal estate tax in effect in 2010. The law is retroactive back to January 1, 2010, and provides a judicial option for the beneficiaries of Floridians’ estates who die in 2010 and have an estate plan that relies on federal estate tax laws to fund AB Trusts or other types of estate plans.  Under the new law, the beneficiaries may seek a judicial modification of the estate plan for the deceased Florida resident. The law does not apply to estate plans that clearly anticipate no federal estate tax in 2010, and will become null and void at the earlier of such time in 2010 as the federal estate tax is reinstated or January 1, 2011.

Friday, December 18, 2009

Should I Pay My Mortgage?

This would have seemed like a strange question even 5 years ago.  But I talk to people on a regular basis who are asking that question – “Should I pay my mortgage?” – even some who have the short-term ability to do it.  Florida is one of the highest ranking states in “strategic defaults,” i.e., intentional defaults where the homeowner stops paying even though they can afford it (at least by someone else’s analysis).  In these economic times, there are a number of factors to consider.  A helpful article on the issue appeared recently in the Wall Street Journal.  The authors suggest these factors to consider:

·       Am I willing to rent for at least 3 to 5 years while waiting to qualify for a home loan again?

·       Can I accept a blot on my credit record for seven years, one likely to make any loan I need more expensive?

·       Am I willing to take the risk that my lender will continue to dun me for the balance owed on the mortgage after the foreclosure process is completed?

·       How much can I save by renting, taking into account the tax deduction I get for mortgage interest and real estate taxes?

·       Do I have a moral responsibility to keep my legal financial commitments?

·       What will be the effect of a foreclosure on my neighbors and community?

Click here to be directed to the full article in the WSJ.

If you need advice or assistance with a loan modification, short sale, or foreclosure defense, we at Aman Law Firm can help.  Just give our office a call and schedule a consultation.

Monday, December 14, 2009

2009 Year End Planning


As we cruise through yet another year, there is still a window of time prior to December 31st to make some planning moves to improve your position going into 2010.  Of course, it all depends on your particular situation, but here are some possible moves to make:

1.      Purchase a car. State and local excise taxes that are paid for the purchase of a vehicle are potentially tax deductible. If you itemize your tax return, you may have the ability to include these taxes as additional deductions. In addition, there are significant tax credits available for energy efficient vehicles purchased before year end.

2.      Energy credit for energy conservation. Purchasing insulation for your home that may not only save you money on your heating and air conditioning bills, but will also provide you with an energy-related tax credit. Keep in mind these are credits, not deductions. This means that the credit is a direct amount of money that will be returned to you in the form of an increased refund or lower tax bill.

3.      Check gains and losses. You may wish to offset your gains with losses to the extent that you have any gains in 2009. If not, you may wish to sell assets before year end and take the tax loss, which may be utilized up to any gains, and if there are no gains, then up to $3,000.00 from other income for the year, with a carry-forward of the balance. Keep in mind that assets included in retirement plans are normally not tax deductible, so gains or losses are going to be taken on non-retirement plan assets.

4.      Charitable deductions. Consider donating property, goods, and other assets, such as cash donations, stocks, bonds, etc. before year end. You may also consider making a 2010 donation in 2009, thus taking advantage of the deduction a year early. Payment of pledges for future obligations may also be made before year end, and these may also be charged to your credit card. By charging them in 2009, they become charitable deductions in this year even though you may not pay the charge card in the same year.

5.      IRA Withdrawals. In 2009, it is not necessary to take a minimum required distribution from a retirement plan, thus allowing you to delay taxable withdrawals until the following year. The intent of this law was to allow your fund to accumulate more money for retirement, based on the downswing in the market. However, if you need the money, and if you have other obligations you wish to make, such as gifts or bills paying, consider reviewing the amount of taxable income anticipated for the year and take out only as much as necessary to maintain a low bracket for tax payments. Always be sure to consider the possibility that social security benefits will be taxable if the threshold for income is received based on your marital status.

6.      Consider the child care credit or one for dependent care. In many cases, children may be supporting their parents, and they may need to sign a multiple support agreement, whereby the credit for the parent is rotated on an annual basis between multiple children. The credit is eligible for child care expenses as well as the expenses of caring for a disabled spouse or disabled adult who is dependent while you work or look for work.

While there are many other opportunities, these are a few that you can consider before the holidays occur, so there is ample time to attend to any payments, expenditures, or tax issues before December 31.

Thursday, December 10, 2009

No Social Networking with Florida Judges

It seems that the latest thing in legal marketing is the social networking scene, including Facebook, Twitter and other forms of internet interaction.  Well in Florida, where we practice, you better watch out if you decide to include a judge in your social network.  That is a no-no according to the Florida Judicial Ethics Advisory Committee.  The FJEAC recently rendered an advisory opinion warning judges not to add lawyers to their “friends” network on social networking sites.

The Committee’s conclusions are as follows:


Whether a judge may post comments and other material on the judge’s page on a social networking site, if the publication of such material does not otherwise violate the Code of Judicial Conduct.


Whether a judge may add lawyers who may appear before the judge as “friends” on a social networking site, and permit such lawyers to add the judge as their “friend.”


Whether a committee of responsible persons, which is conducting an election campaign on behalf of a judge’s candidacy, may post material on the committee’s page on a social networking site, if the publication of the material does not otherwise violate the Code of Judicial Conduct.


Whether a committee of responsible persons, which is conducting an election campaign on behalf of a judge’s candidacy, may establish a social networking page which has an option for persons, including lawyers who may appear before the judge, to list themselves as “fans” or supporters of the judge’s candidacy, so long as the judge or committee does not control who is permitted to list himself or herself as a supporter.


*   *   *

This is a truly interesting opinion.  I guess I better not be “friends” with a judge!

Sunday, December 6, 2009

House Takes Action on Estate Tax


In an action which addresses some of the unease and speculation about the federal estate tax, on Friday, December 4, 2009, the U.S. House of Representatives voted to extend the current 2009 law indefinitely.  This prevents the estate tax from being repealed in 2010.  The new law means that in 2010 and beyond there will continue to be a $3,500,000 exemption for each individual from the federal estate tax, with a rate of up to 45%.  The Senate has not yet acted on the matter, but is expected to before the end of the year.  Estate planners keep a sharp eye on these events, since they make a difference in how to craft effective plans for clients.  Click here for a helpful Wall Street Journal article on the House bill.

Tuesday, December 9, 2008

Christian Fraternity Sues the University of Florida for Recognition


The Eleventh Circuit Court of Appeal granted Beta Upsilon Chi’s time-sensitive motion for injunction pending appeal. The University must now recognize BYX during the appeals process. This favorable ruling protects BYX’s ability to pursue its ministry to students during the crucial period of time at the beginning of the school year.


Beta Upsilon Chi (BYX), aka Brothers Under Christ is a Christian men’s fraternity that is dedicated to instilling Christian values in college men through Bible studies, accountability groups, and other activities. BYX was denied recognition as a registered student organization by the University of Florida because BYX requires its members to be Christian. The university perceived this requirement as a violation of the school policy prohibiting discrimination on the basis of religion. By denying recognition to BYX, the university excluded it from a number of benefits made available to all other registered student organizations, including participation in the student organization fair, use of the facilities on campus, and access to channels of communication such as bulletin boards and listservs.
On July 10, 2007, counsel for BYX initiated a lawsuit against the University of Florida challenging the university’s exclusion of BYX as a violation of BYX’s First Amendment rights, including the right of expressive association. The right of expressive association protects an organization’s ability to form around a set of shared principles. As stated above, the purpose of BYX is to instill Christian values in college men, and this purpose will be hindered by the forced inclusion of individuals who are hostile to BYX’s shared faith commitments. Accordingly, BYX seeks a judicial declaration that the Constitution requires the University of Florida to recognize BYX as a registered student organization, with all the benefits that flow from such recognition.
On October 17, 2007, counsel for BYX filed a motion for preliminary injunction, in light of the irreparable harm caused by the University of Florida’s denial of recognition. For example, the University of Florida’s actions have hindered BYX from recruiting new members during fall rush, the most crucial time in the year for recruitment, and call into question the group’s continued viability. The district court rejected BYX’s motion on May 28, 2008.
On July 30, 2008, the Eleventh Circuit Court of Appeals granted BYX’s time-sensitive motion for injunction pending appeal, thereby protecting BYX’s ability to recruit new members during fall rush as the circuit court considers BYX’s appeal of the district court’s decision.
BYX is represented by the Center for Law & Religious Freedom and the Alliance Defense Fund.
Press Releases
Litigation Documents
Complaint –  July 10, 2007.
Appellant’s Opening Brief – July 25, 2008
Gainesville Sun: Alice Wallace, All-male Christian fraternity sues UF – July 11, 2007
USA Today/Associated Press: Mitch Stacy, Christian frat sues University of Fla. – July 10, 2007
Media Appearances
Audio: Interview of Tim Tracey on Across the Nation with Bob Dunning, on the Catholic Channel – July 13, 2007 (contact Across the Nation for audio).
Video: Fox News interview of Tim Tracey and BYX students in Florida by reporter Orlando Salinas. August 13, 2007 (contact Fox News for video).
Blog Commentary
The Center Blog: Tim Tracey, Questioning Beta Upsilon Chi’s Piety, on whether the Bible permits lawsuits – July 12, 2007.
The Chronicle of Higher Education News Blog: Andrew Mytelka, Christian Fraternity Sues U. of Florida Over Denial of Recognition – July 11, 2007.
The Center Blog: Tim Tracey, Center Sues University of Florida for Excluding Christian Fraternity, on the initiation of this lawsuit – July 10, 2007.
Other Resources
Beta Upsilon Chi: National organization.

Monday, November 24, 2008

The Basics of Transfer Taxes


1. What are the federal transfer taxes?

There are three federal transfer taxes – the gift tax, the estate tax, and the generation-skipping transfer (GST) tax.  Each of these impose a tax on wealth transfers made during life or at death. The goal of the estate planning attorney is to avoid or minimize these taxes by taking advantage of exemptions, exclusions and deductions as part of an overall wealth transfer plan.

2. Are there any state transfer taxes?

Yes, many states have wealth transfer taxes, which can apply in addition to the federal transfer taxes. Florida does not have a wealth transfer tax, but even if you are a Florida resident, you may have state transfer taxes if you own property in a state other than Florida.

3. In terms of my net worth, at what point should I be concerned about planning to avoid transfer taxes?

If your taxable estate is less than the estate tax exemption at the time of your death, no federal estate tax will be due. Conversely, if your taxable estate exceeds the exemption available to you, estate tax will be due based upon the value of your taxable estate that exceeds the available exemption.

Sunday, November 23, 2008

Estate Planning and the Enhanced Life Estate Deed


One of my clients is an elderly divorcee. She recently contacted me with several concerns about her estate. Her primary concern was that she wanted to keep her home out of probate when she passes away. Like most people, she doesn’t like the idea of her property being tied up in legal limbo for months before her beneficiaries (in this case, her three sons) take possession of the home. She was advised by another attorney to set up a trust, put her home (her only asset of real monetary value) into the trust and then manage the trust until she passes away. She brought the matter to me as she does with all of her legal concerns. I advised her that a simpler way for her to handle the matter might be to execute an “Enhanced Life Estate Deed” also known as the “Lady Bird Deed” (named in honor of former First Lady, Ladybird Johnson) or a “Transfer on Death Deed.”

What is an Enhanced Life Estate Deed?
An Enhanced Life Estate Deed is a document that would deed my client’s home to her children but reserve for my client a life estate coupled with the ability to sell the property at any time. This is called an “Enhanced Life Estate.” In layman’s terms, this means that (1) my client still owns the property; (2) my client can sell the property at any time without notifying her beneficiaries; and (3) if my client never sells the property, the house will pass directly to her beneficiaries after she passes away without going through probate.

Florida, Texas, Ohio, California, Kansas and several other states now accept this form of conveyance. In these states it is a recommended alternative to the traditional life estate deed. Of course, where a life estate can result in unwanted capital gains taxation, it should not be used, and other forms of planning should be considered (such as a living trust).

Lady Bird Deed v. Quitclaim Deed 
In the past, people have used a Quitclaim Deed in an attempt to avoid probate. The Quitclaim Deed was supposed to make things easier for beneficiaries. A Quitclaim Deed deeds property to one’s children while the parent retains a life estate interest. The problem with the Quitclaim Deed is that my client would not be able to sell or encumber (e.g., mortgage) her property without the consent of her beneficiaries.

Further, creditors of my client’s beneficiaries could obtain an enforceable lien against her home because the beneficiaries could not claim the home as homestead property. Also, spouses of my client’s beneficiaries could claim an interest in the property, either upon their husband’s death or in the event of a divorce.

The Enhanced Life Estate Deed does not share the above pitfalls. For more information about the difference between the Enhanced Life Estate Deed, Warranty Deed and Quitclaim Deed, please contact our office at 813-265-004, and ask for Jeff Aman.

Other Benefits to a Lady Bird Deed
The Enhanced Life Estate Deed has several other benefits including:
(1) bypassing probate;
(2) it does not result in capital gains for the beneficiaries because they will not receive any value until my client passes away. When she passes away, her beneficiaries take the home at a “stepped-up basis” – not my client’s original basis. A “stepped-up” basis is the value of the property on the day of my client’s death;
(3) it does not open up the property to the beneficiaries’ creditors during my client’s lifetime because the beneficiaries have no interest until my client has passed away without selling the home;
(4) it allows my client to sell her home at any time, compared to a regular life estate where she would not be legally entitled to sell her home.

Language Creating the Deed
Attorney’s Title Insurance Fund has recognized certain specific language that must be included to validate an Enhanced Life Estate Deed. Without the specific language the deed will be declared invalid for transferring the real estate in the manner outlined above.  We charge our clients $350.00 to meet with you, prepare and record the deed.

Friday, November 14, 2008

Escrow Disputes for Realtors


Q: At what point do I know whether an “escrow dispute” has arisen between the parties?

A: Essentially, there is an escrow dispute when (1) one of the parties refuses to close and (2) both parties are unwilling to sign a written authorization to the Escrow Agent as to the disbursement of the funds being held in escrow. When it appears that one or both parties will not close, the Escrow Agent (or one of the Realtors) should send a proposed Release and Cancellation of Contract (FAR Form RC-3). The FAR Form is signed by Buyer and Seller and provides for: (1) termination of the Contract; (2) release of the Realtors; and (3) disbursement instructions for the escrowed funds. Without this form or a similar disbursement authorization signed by Buyer and Seller, the Escrow Agent should not be expected to disburse any funds to either party.

Q: As an agent for one of the parties, or transaction broker, what is my role in the event of an escrow dispute? What should I do?

A: Once the escrow dispute has arisen (see above), it could be argued that the role of the Realtor has been concluded, unless due to a provision in the listing agreement or the contract the Realtor has a claim for all or a portion of her commission. Practically speaking, however, even if there is no hope for a commission on this transaction, most diligent Realtor professionals will continue to stay “in the loop” with their clients through the outcome of the escrow dispute. Parties should always be advised to seek the informed counsel of a competent real estate attorney to advise and possibly represent them as to the escrow dispute. After the dispute has arisen, it is the duty of the party or her attorney to deal with the other party and/or the other party’s attorney, and the Escrow Agent. The Realtor should not be expected to assert her client’s position in the dispute, or provide legal advice.

Q: What is the “standard procedure” for handling an escrow dispute? How is it typically processed and resolved? How long does it take?

A: It is really up to the Escrow Agent (or the parties) to move the escrow dispute toward resolution. The Contract for Purchase and Sale will set forth the appropriate procedure. Usually, there is a mediation expectation, followed by some form of binding arbitration or recourse to the local courthouse. For example, in the standard FAR Residential Contract, the parties have 30 days from conflicting demands to mediate the dispute. Failing that, the “Escrow Agent will submit the dispute, if so required by Florida law, to Escrow Agent’s choice of arbitration, a Florida court or the Florida Real Estate Commission.” Note that under the FAR Contract, the Escrow Agent chooses the forum for resolving the dispute. Other forms of contracts (e.g., FAR/BAR, Vacant Land, Commercial) vary slightly in the disposition of an escrow dispute. The relevant section of the contract in question should be referred to in each instance. In general, however, if the parties cannot settle at mediation, it could take months to reach a resolution. Parties should also be aware that the Escrow Agent is entitled to reimbursement for its reasonable attorney’s fees and costs incurred in connection with the escrow dispute. Therefore, there is ample motivation to settle early in order to avoid diminution of the available escrow funds.

Aman Law Firm assists clients in the greater Tampa Bay area, including Tampa, Lutz, Land O' Lakes, Wesley Chapel, Hillsborough, Pinellas, Pasco, and Polk Counties, and throughout the State of Florida.

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282 Crystal Grove Blvd. , Lutz, FL 33548
| Phone: 813-265-0004
14502 N. Dale Mabry Hwy, Suite 200, Tampa, FL 33618
| Phone: 813-265-0004

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