Page 14 - Boca Club News - November '20

Page 14, Boca Club News
Legal

Asset Protection Issues in Florida

By Michael J Posner, Esq., a partner However, in Florida, there are many methods of asset one, hence not reachable by creditors or divisible without both
in Ward, Damon, Posner, Pheterson protection that occur simply by residing as a citizen of this State. spouses conveying the interest.
& Bleau, P.L. a mid-sized real estate, The primary protection lies in the Florida Constitution. Article Special rules exist to create property as tenants by the
estate planning and business-oriented X, Section 4 provides: entireties. It must be received as a married couple, each must hold
law firm serving all of South Florida, “There shall be exempt from forced sale under process of title to the property, each must have equal use and possession
with three offices in Palm Beach any court, and no judgment, decree or execution shall be a of the property, must remain married and have an equal interest
County. They specialize in estate lien thereon, except for the payment of taxes and assessments therein. Failure to meet each of these criteria invalidates the
planning and asset protection. They thereon, obligations contracted for the purchase, improvement entireties protection. Also, the judgments are not invalid, only
can be reached at (561)594-1452 or at or repair thereof, or obligations contracted for house, field or inchoate, which means that upon breaking of the entirety’s
mjposner@warddamon.com other labor performed on the realty..” estate (by death, divorce, or transfer), a creditor’s judgment
I often get calls asking me to assist a client with asset This means that if you own a home, whether married or immediately attaches to the asset. Also, judgments against both
protection. Many people believe they need a revocable trust single, with or without children, condominium or cooperative, spouses may still reach entireties property (so no fighting over
in order to obtain asset protection. However, a revocable trust, regardless of value and regardless of whether you have a the steering wheel).
which allows the grantor to retain control of their assets as trustee mortgage, a judgment creditor cannot foreclose their judgment Judgment creditors have another tool to obtain payment of
of the trust, provides no creditor protection to the grantor trustee, against your homestead property. Even a municipality is unable claims against Florida debtors. They have the right to garnish
and is simply a tool for estate planning purposes. In order to use to foreclose a code enforcement lien on homestead property. up to twenty-five (25%) percent of a person’s wages and bank
a trust for creditor protection the grantor must give up control This protection extends past the death as long as your property accounts. However, debtors who serve as the head of a household
of the assets and appoint a separate trustee, who is not legally descends to your spouse or children. Note that if you file (married couples and single parent with children or dependent
obligated to act as directed by the grantor. bankruptcy, the Florida exemption preempts state law, requiring relatives) may not have these assets garnished. A head of
that you must have resided at the property as your homestead household is the person who provides at least fifty percent of
for at least forty months to obtain full protection. Prior to forty the living expenses for the household. A debtor, when served
Grape Expectations from page 13 months of continuous residency, the cap is approximately $160k. with the garnishment notice, must file notice of this exemption
In addition, homestead property is limited to one-half acre in within twenty days.
Chenas, Chiroubles, Cote du Brouilly, Fleurie, Juliennes, a municipality and one hundred sixty acres in unincorporated A favorite method of asset protection is the limited liability
Regnie, Moulin a Vent and Morgon. No need to memorize areas. company. For example, if you own a rental property and a
these. There’s no quiz at the end, but we will say a bit more If you have a judgment and wish to sell or refinance a tenant or guest is hurt, you are liable for any damages, even if
about the more readily available Cru wines. These are wines homestead property, Florida law allows clearance of those claims owned as entireties property. Any claims in excess of insurance
you need to try. by giving the creditor a forty-five-day notice of homestead, coverage would be a judgment against all other assets exclusive
While most wine aficionados consider the Ms. Morgon which gives the creditor a limited window to challenge the of homestead. However, if the property is owned in a limited
and Moulin a Vent, as the only really age-worthy Beaujolais, homestead claim. In addition, after sale, the homestead sale liability company, the claims would only be against the company
there are other single vineyard wines that you need to taste. proceeds remain protected as long as the proceeds are used to and its assets.
Fleurie is produced in a more masculine style with tastes purchase a new homestead. We recommend placing same in a Limited liability companies have a second benefit. Creditors
of red currant and black cherry, mouth-watering acidity and homestead trust rather than commingling the funds after any can reach shares held in a corporation, but membership units in
a long refreshing finish. Many exhibit silky tannins, dark such sale while searching for a replacement homestead property. a multi-member LLC cannot be taken away, only the available
fruit flavors and a long spicy finish. Producers to seek out Florida also recognizes a special estate, called tenants by distributions may be reached (which distributions are frequently
are Georges Duboeuf and Clos de la Roilette. The Duboeuf the entireties. This is property owned by married couples, such controlled in closely held companies).
Flower Label is most commonly found in wine shops and as real property (non-homestead), bank accounts or brokerage Asset protection is an important tool, but if deployed
sells for less that $20 a bottle. It comes highly recommended. accounts. Under common law in Florida, the claims of individual improperly may result in unnecessary expenses and consequences,
Brouilly is the largest Cru in Beaujolais. Many of the creditors cannot reach properly-created entireties property. In the so working with a good estate and asset protection attorney is
better producers make wines with a bouquet of violets, a eyes of the law, property owned by a married couple is treated as key to obtaining the best results.
gorgeous palate of sweet fruit and a terrific balanced finish.
Some of these Brouilly can rival the great red Burgundies
made a few miles away at a fraction of the cost. Seek
out: Joseph Drouhin, Domaine Rochette and, of course,
Duboeuf.
While Fleurie, Brouilly and Saint-Amour are made in a
more Burgundian style, with medium body, velvety texture
and a fruity finish that should be consumed within four years
of harvest, the following three Crus are bigger wines.
Morgon – These wines are probably the richest and
earthiest of all Beaujolais. After at least five years they take
on the silky texture of great Burgundy. They are heavier,
deeper in color, and in no ways resemble the Nouveau
style. These wines often surprise the palates of even the
most discerning wine snobs. Recent vintages like 2016
will need three years or more before the tannins soften and
provide that velvety mouth-feel. Louis Jadot, Guy Breton
and Duboeuf all bring to the market excellent examples of
Morgon at affordable prices.
Moulin-a-Vent can produce the most full bodied and
powerful of all the Cru Beaujolais. They are often slightly
oaked and more structured. They can age for up to 20 years.
The great Negociants i.e.; Drouhin, Jadot and Duboeuf
always produce the most reliable examples of each Cru.
These wines may be a bit more expensive ($20-$40), but
certainly more cost-effective than red Burgundies.
Julienas and Chenas - These Crus are smaller in size and
stature, but nonetheless produce fine examples of Beaujolais
at affordable prices.
In brief, when someone scoffs at Beaujolais as being
some light, insignificant wine not suited for “real”
drinking, have them try one of the Cru Beaujolais. It’s my
best recommendation for that “turkey wine” you should
bring to friends for Thanksgiving dinner. And tell them I
recommended it.

561/397-2902