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Generally, it is important to understand the complexities found in your commercial loan proposal. Many business owners fail to identify specific debt or loan covenants that are specified in the loan documents. Due to the current economic environment, commercial lenders often require personal guaranties signed by the business owner. In the event of a business failure, the business owner would subject his or her personal assets to satisfy the business liability. Additionally, banks have become more stringent on the business owner maintaining specific financial and liquidity ratios. Call our office to review your current or proposed commercial loan to fully understand your obligations. Additionally, our attorney may be able to assist you in the loan negotiation process.
Employment contracts can be extremely useful and beneficial in your business if drafted correctly. Employment contracts can specifically state the rights and duties of both the employer and the employee, such as salary, hours, and over-time compensation, and can also include grounds for termination of employment, which may help avoid a wrongful termination issue arising in the future. In addition, an employment contract can limit the liability of the employer in regards to certain actions of the employee that may exceed the scope of the employee’s job.
The simplest form of business ownership is the sole proprietorship, in which a single owner owns the business assets and liabilities in his or her individual name. This form of business structure is simple and cost-effective but it does not protect the business owner from unlimited personal liability. Partnerships are created between two or more individuals and are often formed as either a general or limited partnership. The advantages of a partnership include capital flexibility, pass-through taxation to partners, and limited liability to the limited partners in a limited partnership. It is important to note that general partners are subject to unlimited liability, similar to the sole proprietor. A corporation is a more complex form of business ownership in which owners are classified as shareholders. Shareholders of the corporation enjoy limited liability and preferential dividend taxation. A variation of the corporate form is the S Corporation, which is used by many business owners to avoid double taxation of income found in the C Corporation structure, while simultaneously providing the same limited liability protection. Finally, the limited liability company (LLC) is a hybrid business entity that allows its members to enjoy beneficial taxation and limited liability. In order to determine which business entity would best suit your needs, contact our attorney to schedule a consultation.
Starting a new business can be a tedious process. There can be many regulatory requirements that you must adhere to and the requirements can vary depending upon the type of business and your geographical location. Some of the basic requirements include occupational licenses, local business tax receipts, business permits, federal taxpayer identification, and state licenses, if necessary. In addition, you may also want to consider forming a business entity for your business, such as a corporation, LLC, or partnership. If you own or intend to use real estate for a specific business purpose, it may be necessary to obtain zoning or land use approval. In general, establishing a new business can be a rewarding venture but also requires competent and careful legal planning.
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Generally, commercial tenancies are governed by the applicable lease agreement entered into between the landlord and the tenant. A properly drafted lease agreement should include provisions outlining the remedies available when either party violates the terms of the lease. Due to the complexities involved in commercial tenancies, it is advisable for you to contact our attorney to review your lease agreement and to discuss your specific concerns.
Before you can proceed with filing an eviction complaint against your tenant, you must send the tenant the required notices under Florida law. If the tenants do not comply with your notices, then you can file an eviction complaint with your local court. It is important to note that, as a landlord, you cannot willfully ignore repair and maintenance requests from your tenants even though your tenants are not paying their rent.
Congress recently passed The Protecting Tenants at Foreclosure Act in an attempt to help renters in foreclosed properties. The Act allows you to remain in your home until the end of your lease or you must be given 90 days written notice to vacate the premises. However, these protections only apply to tenants who have entered into a lease agreement prior to the property entering foreclosure. Additionally, the tenant must be a bona fide tenant which means that you must be current on your rent and unrelated to the landlord. There are many specific guidelines related to this new legislation and we recommend you contact our attorney to discuss your particular circumstances.
An eviction complaint is filed by your landlord to formally evict you from your home. You must answer the eviction complaint within 5 business days. This does not necessarily mean that you must leave your home immediately because the landlord cannot force you out of your home until a judge orders an eviction. Keep in mind that eviction proceedings tend to move quickly and a court hearing could be scheduled within a short amount of time. Due to the time sensitive nature of an eviction, contact us immediately upon being served with an eviction complaint.
A 3-day notice is the required legal notification from your landlord before he or she can institute eviction proceedings against you. As a tenant, you have 3 business days to either pay the amount stated on the 3 day notice or vacate the premises. If you do not pay or vacate the premises within the allotted amount of time, your landlord may file an eviction complaint against you. There are a variety of legal defenses that may be available depending on your particular circumstances.
Regardless of whether you wish to remain in your home or not, there are certain legal requirements you must adhere to in order to obtain a favorable result. Simply withholding rent is not an effective strategy because your landlord can then evict you for non-payment of rent even though your landlord has not complied with your requests. Call our office to speak to our attorney about your legal rights.
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An attorney can send the required demand letters to the customer, giving the customer a final chance to pay the amount due. Additionally, the attorney can institute legal proceedings against the customer in order to collect the monies due. Oftentimes, if the underlying contract contained a provision for attorneys’ fees and costs, you may be able to recoup your legal fees from the customer. Call our attorney to review your case.
Secured debt is a loan that is secured by an asset. For example, a car loan is a secured debt because the loan is secured by the car and if you do not pay your car payments, the lender can repossess the car and can sue you for any remaining balance. On the other hand, unsecured debt, such as credit card debt, is not secured by a specific asset. Therefore, when a lender attempts to collect on unsecured debt, it must sue you for a money judgment. There are different legal strategies for each type of debt that can be utilized against the creditor.
You MUST answer the lawsuit within 20 days of being served. If you do not submit an answer to the court, the lender may be able to obtain a default judgment against you. Depending on the amount you owe, you may have been served with a hearing date that you must attend in order to protect your rights. The amount you owe determines whether your case is filed in small claims court, county court, or circuit court. You should contact our firm as soon as you are served in order to obtain the most favorable result.
The federal Fair Debt Collections Practices Act (“FDCPA”) and its Florida counterpart, the Florida Consumer Collections Practices Act (“FCCPA”) regulate the activities of debt collectors. For example, both Acts prohibit threatening or harassing letters and phone calls from debt collectors and also limit the hours in which debt collectors can contact you. In addition, you may be able to obtain a money award for any violations the debt collector engages in. Thus, it is crucial that you retain all documentation you receive from the debt collector as well as keep detailed information regarding when the debt collector contacted you. Keep in mind that once you have hired an attorney to represent you, the debt collectors can no longer contact you directly. Contact our office to discuss your rights.
An attorney can assist you in negotiating a favorable settlement with your credit card companies, which may avoid costly legal proceedings. Oftentimes, credit card lenders are more willing to work out a payoff or settlement with you prior to litigation. If the credit card lender is forced to sue you to collect the debt, it can significantly increase the amount you owe because the lender’s legal fees and costs can be added to your total amount of debt.
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Filing a bankruptcy petition triggers an automatic stay that prohibits any creditors from attempting to collect from the debtor or the debtor’s property. Until the automatic stay is lifted, creditors are generally prohibited from taking any individual action against the debtor. Certain creditors may be able to petition the court to lift the automatic stay and you should be aware that there are various exceptions to the automatic stay.
There are no limits on the number of times you can file for bankruptcy in your lifetime; however, there are restrictions on how often you can file for bankruptcy. For example, if you have previously obtained a discharge under a Chapter 7 bankruptcy, then you must wait 8 years before attempting to file another Chapter 7 bankruptcy. Other factors may affect your ability to file for bankruptcy and you should contact our office to discuss your particular case.
Normally, a bankruptcy will be reported on your credit report for 10 years. A bankruptcy reported on your credit report, in and of itself, does not necessarily preclude you from obtaining credit in the future. Actually, filing for bankruptcy can be one of the most effective ways to repair your credit over the long run.
A Chapter 11 bankruptcy is commonly used by business organizations who are insolvent or who are facing insolvency to reorganize itself under court supervision while continuing its normal daily operations. A Chapter 11 bankruptcy is very complex and requires careful legal and financial planning.
Unlike a Chapter 7 bankruptcy, a Chapter 13 bankruptcy does not discharge your debts. Rather, a Chapter 13 allows the debtor to propose a payment plan in order to repay creditors over a 3 to 5 year period. A bankruptcy trustee is still appointed and the trustee can collect the future earnings of the debtor in order to pay the unsecured creditors. A Chapter 13 bankruptcy may be more desirable because the debtor can retain his or her assets during the repayment period.
A Chapter 7 bankruptcy usually involves the debtor’s assets being liquidated by the bankruptcy trustee in order to pay off creditors. Generally, an individual who undergoes this type of bankruptcy usually gets a fresh financial start by receiving a discharge order from the bankruptcy court for most debts. Although a Chapter 7 is the most commonly sought after form of bankruptcy, there are certain debts that usually cannot be discharged, such as federal tax liens and student loans.
Bankruptcy is a legal process used by individuals and businesses when financial sustainability is no longer possible. Due to the current economic conditions, high unemployment, and lack of access to proper financial planning, many individuals find themselves contemplating bankruptcy through no fault of their own. When you become overwhelmed by your financial obligations, bankruptcy can be an effective legal strategy. However, there are many ramifications you must consider when filing for bankruptcy. There are many aspects involved in a bankruptcy proceeding and filing for bankruptcy can have long lasting consequences. Call our office if you are considering filing for bankruptcy to discuss your options with our attorney.
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Due to the current housing crisis, there are many opportunities to purchase quality homes at affordable prices. However, you should be cognizant of any judgments or liens that are still outstanding on the home. Liens can come in a variety of forms, including HOA and IRS tax liens. Before purchasing your new home, contact our office in order to fully protect yourself.
A foreclosure occurs when the lender sues you because you have defaulted on your mortgage loan. The foreclosure process can often be a long and complex process and can result in a judgment of foreclosure being entered against you and your home being sold at a foreclosure sale. On the other hand, a short sale occurs when you sell your home to a third party for an amount that is less than your outstanding debt. The lender must approve a short sale before you can proceed.
A mortgage modification occurs when the lender modifies your existing mortgage loan in order to meet your current financial situation. Each lender has its own loss mitigation programs and requirements, which can often be a complex process to figure out. Contact our office to determine whether you qualify for a mortgage modification with your lender and to obtain assistance with your request for a mortgage modification.
A deficiency judgment can arise in a variety of situations, including when your home is foreclosed by the lender and sold at a foreclosure sale and the proceeds of the sale are insufficient to satisfy your outstanding debt. A deficiency judgment can also occur in a short sale or deed in lieu. Basically, a lender can obtain a deficiency judgment against you when it receives less than what you owe. Although it is not guaranteed, you may be able to obtain a waiver of deficiency judgment.
A deed in lieu of foreclosure is when you negotiate with the lender to hand over your property to the lender in order to satisfy your outstanding debt. It can be beneficial to you because it immediately releases you from your obligation; however, there can be significant tax and legal consequences, so it is imperative that you contact our office before proceeding with a deed in lieu of foreclosure.
A lender files a foreclosure complaint with the local court in order to begin the foreclosure process on your home. Once you are served with the foreclosure complaint, you MUST answer the complaint within 20 days. Contact our office as soon as you are served in order to protect your rights and discuss your legal options.
An acceleration or demand letter is sent by the lender once the borrower has defaulted on the mortgage payments. You have received this letter because the lender is required to send it before the lender can proceed with the foreclosure process. The letter serves as the lender’s final attempt to collect the past due payments before the lender commences legal action to collect the debt. Generally, you have 30 days to respond to an acceleration or demand letter if you chose to do so.
Yes. It is always beneficial to attempt to negotiate a mortgage modification or short sale with the lender prior to the institution of foreclosure proceedings. Foreclosure proceedings also drive up your outstanding debt obligation because the lender can add on its legal costs to the amount you owe.
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There are various forms of guardianship recognized in the State of Florida. An involuntary guardianship generally arises when another individual petitions the court for permission to handle your affairs. A voluntary guardianship occurs when you authorize another person to be responsible for your affairs and it can be revoked by filing a petition with the court. Plenary guardianship is defined as a full guardianship over you and your finances. A guardianship can also be limited in nature, meaning that the guardian only has certain rights. Guardianship proceedings are very complex and have many requirements that must be fulfilled in order to comply with the rules governing guardianships in Florida.
Yes. These documents are typically designated as “Advanced Directives” because they state your wishes in regards to many different aspects of your life in the event you are unable to make those decisions yourself. A living will directs hospitals and doctors to remove you from machines that are artificially prolonging your life if you have been deemed in a persistent vegetative state, an end-stage condition, or a terminal condition. It is important to note that you should also have a Do Not Resuscitate (DNR) order that states the same instructions as your living will because first responders, such as paramedics, deal with DNRs, not living wills. Without a living will, your family and friends may not be able to carry out your wishes in terminating artificial life support.
A durable power of attorney is a crucial document and you should pick your agent very carefully. A durable power of attorney is an instrument by which you can empower another individual to act on your behalf. A durable power of attorney can survive your incapacity or incompetency and can be effective either immediately or it can become effective only when you become incapacitated or incompetent. Under Florida law, a durable power of attorney is effective until it is revoked.
Although a durable power of attorney can contain language authorizing the agent to make healthcare decisions for you, Florida law has created a healthcare surrogate designation to specifically deal with healthcare authority. The healthcare surrogate designation allows you to name the individual(s) you want to make healthcare decisions for you in the unfortunate event that you are unable to make them for yourself. A designation of a preneed guardian permits you to name an individual that you would like appointed as your guardian if you were to ever need a guardian. Naming a preneed guardian can be important because a guardian can have control over both you and your finances and if you do not name who you wish to serve as your guardian, the court will appoint an individual to serve as your guardian.
A special needs trust is a specific type of trust that is drafted in order to protect the beneficiary’s government benefits, such as Medicaid. Under the special needs trust provisions, the trustee can only distribute money to the beneficiary to help supplement and not supplant governmental benefits and entitlements to ensure that the beneficiary won’t lose his or her ability to obtain benefits. Essentially, the money from the trust cannot be used for anything except to supplement government benefits or the beneficiary would be at risk for losing the governmental benefits.
A land trust is a trust that is created to hold ownership of your real estate in a way that protects your privacy. The owner of the property is not known to the public because only the trustee of the trust is identified in public records. As the confidential owner of the real property, you may be able to avoid certain liens and lawsuits because it is difficult for other individuals or agencies to find out who is the actual owner of the particular property. This type of privacy would not necessarily be available if you were to hold real estate in a corporate form or in a limited liability company as the owners of these types of business structures are known to the public. For the purposes of estate planning, a land trust is also beneficial because probate can be avoided on the specific property held in the land trust.
Most people do not realize that the death benefit proceeds on the life insurance you own are subject to estate tax upon your death. For example, suppose a father owns a $1,000,000 life insurance policy and subsequently dies, his gross estate must include the $1,000,000 for estate tax purposes. If the highest current estate tax rate is 45% then $450,000 would have to be paid in estate taxes to the federal government. The father’s wife and children would only receive $550,000 of the entire death benefit due to the taxation of the life insurance death benefit. One way to remedy this problem is to create a properly executed Irrevocable Life Insurance Trust (ILIT). An ILIT is an irrevocable trust that allows you to remove the death benefits from your gross estate upon your death by removing any incidents of ownership you may have over your life insurance policies. The ILIT holds your life insurance policies as the owner and a trustee is appointed to pay the premiums. There are specific gift tax issues and waiting period requirements that must be addressed prior to the creation of an ILIT and you should contact our firm to discuss your particular situation.
Revocable and irrevocable trusts are some of the most common trusts used in the field of estate planning . Both trusts can be either funded or unfunded to meet the specific needs of you and your family members. A revocable trust or living trust can be created for the purposes of avoiding probate, acting as a pourover trust when you die, and can facilitate the handling of your assets in the event of incompetency. Most revocable trusts can be created so that you, as the grantor, can also act as a trustee and an income beneficiary. The main advantage of a revocable trust is that current transfers of property made to the trust can be revoked in the future which allows you to retain flexibility over the use of your property. However, a revocable trust does little to reduce your estate tax burden in the event of your death due to your retained right to revoke transfers to the trust. Irrevocable trusts are trusts that are created for the purposes of estate tax reduction, asset protection, and charitable estate planning. Irrevocable trusts are primarily created so that individuals with large taxable estates can remove certain assets from their gross estate thus reducing estate tax liability. It is important to note that a transfer to this type of trust cannot be revoked in the future by the grantor and you may also be subject to gift taxation on the taxable value of the asset transfer to the irrevocable trust. Contact our office if you need assistance in determining which type of trust may be more suitable for you and your family.
A trust is essentially a mechanism to hold assets that is managed by a trustee for the benefit of a third party. Trusts are governed by the terms of the trust agreement, which specifies the properties held, the duties of the trustee and the rights of the beneficiaries. Trusts can be utilized for a wide variety of purposes, including estate tax reduction, incapacity planning, asset protection, and avoidance of probate. There are many different types of trusts that can be drafted by your attorney to accommodate your specific requirements.
A will is a document that allows you to direct your estate assets to individuals or organizations upon your death. Generally, a comprehensive estate plan almost always includes a will. A will is an important document because without a properly drafted and executed will, the court will determine who will receive your estate assets in accordance with state intestacy laws. A will can accomplish numerous objectives such as providing for a bequest of specific property, establishing testamentary trusts, appointing guardians for minor children, and providing family income during probate administration.
Generation skipping transfer taxes (GSTT) will apply to transfers made to a “skip party” that are completed during life or at death. A “skip party” is defined as a person who is deemed to be two or more generations below the transferor. For example, a grandfather making a lifetime gift to his grandchild or great grandchild could trigger GSTT in addition to federal gift taxes. If you are considering a transfer to a skip party, you may want to consider using special dynasty trusts to obtain favorable tax benefits by maximizing your GSTT exemption. The intricacies involved with creating such trusts will require competent legal and financial advice.
The federal gift tax is another wealth transfer tax levied by the IRS on inter vivos or lifetime gifts. The IRS will impose gift tax on a conveyance that is considered to be a gratuitous and complete transfer. Examples of gifts that may be taxable can include cash gifts, gifts of personal property and any other transfer where adequate compensation is not received in return. There are some exceptions to the general gift taxation requirements such as gifts to spouses, charities, and direct payments to medical providers or educational institutions for the benefit of another. The Internal Revenue Code provides for an annual gift tax exclusion for individuals and married couples of present interest gifts to an unlimited number of donees. This ultimately allows you to transfer up to the previously mentioned exclusion amount annually to each donee without paying any federal gift tax. If you plan on gifting amounts in excess of the individual annual exclusion amount to any one donee, then a federal gift tax return will have to be filed with the IRS. A cumulative lifetime gift tax credit is available to individuals to help offset gift tax liability; however, it is important to note that your cumulative adjusted taxable gifts (post 1976) will be added to your taxable estate in calculating your potential estate tax liability. Gift taxation can become very complicated depending upon the specific structure of the transfer and you should contact your CPA to discuss your gift tax situation.
The federal estate tax is a wealth transfer tax that is imposed by the IRS upon the death of an individual. In addition, certain states also levy an estate tax upon the death of a taxpayer. It is difficult to state with certainty whether or not your estate will be subject to estate tax upon your death. There are a wide variety of factors that will affect whether or not your estate will be subject to federal estate tax such as the current exclusion amount, valuation of your gross estate, available deductions, and applicable tax rates. Many people are surprised to find out that the IRS includes all of their assets in their gross estate at fair market value. All of your assets including your business, home, cars, investments, retirement accounts, real estate, and even the death benefit on your life insurance policy can be included in your gross estate. Proper estate planning can help reduce estate taxes so that you are able to pass on more of your assets to your heirs rather than to the government. The threshold exclusion amount for which a federal estate tax return will be required can change periodically; therefore, you should contact our attorney to discuss your potential estate tax liability. Our attorney can work closely with your CPA and/or CFP to incorporate estate tax reduction strategies into your comprehensive estate plan.
Probate is the legal court process in which the state governs the collection, administration, and distribution of your estate assets at your death. Distribution of your probate assets will pass either through your will and/or state intestacy laws. Normally, a personal representative is predetermined or appointed to supervise and manage the probate process. Many estate planning professionals advise their clients to avoid probate because the probate process can be costly, lengthy, and all probate proceedings and documents are open to the public. Probate can be avoided by the use of will substitutes and funded trusts.
Generally, you may want your estate plan reviewed by an attorney at least every 5 years to ensure that your estate plan is up to date with the current law. Additionally, life altering events may require you to update or revamp your existing estate plan to reflect these new life changes. The following events may necessitate an evaluation of your estate plan: marriage, having children, divorce, death of a spouse or relative, disability of a spouse or relative, the sale or purchase of a business, sale or purchase of a home, receiving an inheritance or life insurance proceeds, etc. There are many other events that can trigger the need to evaluate your current estate plan. Contact our attorney to schedule a review of your estate plan to determine whether changes are necessary.
Estate planning is not just for the rich and wealthy. Estate planning encompasses a wide variety of components that affect many individuals regardless of their net worth. Estate planning is not only an effective tool to reduce taxes and preserve your wealth, it also serves to provide protection in the event of incapacity, incompetency or severe disability. A comprehensive estate plan is a vital element in your long term planning that should not be overlooked.