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813 225 1918
1010 N. Florida Ave. Tampa, Fl 33602

19
Jun

estate planning documents

I often hear about my clients’ exotic trips while they sign their estate planning documents such as their wills, trusts, and related documents. Although we have all heard that it is more common to get into a car accident than a plane crash, a long get-away, an overseas trip, or parents leaving minor children for the first time, often prompts a visit to an estate-planning attorney. Ideally, the documents will not be needed, but nevertheless, my clients feel peace of mind knowing that their plans have been put into writing and properly signed.

Parents traveling without kids may rush to have their first will prepared, wishing to nominate a guardian of their minor children. Parents should also prepare a nomination of guardian of a minor along with their will and trust. Additionally, if a minor child is staying with grandparents or a friend, parents can sign a power of attorney designating their child’s caretaker temporary authority to act on the child’s behalf. The caregiver will then be able to sign summer camp forms, permission slips, or take the child to the doctor in the event of an emergency. This is another document that will provide relief to both the parents and the caretaker, as all parties know that the child can be cared for in the event of an emergency.

I would advise that everyone should have the following basic estate planning documents:

  • Last Will and Testament and Revocable Living Trust, if appropriate;
  • Durable Power of Attorney;
  • Advanced Directive for Health Care; and
  • Nomination of a Preneed Guardian.

None of us are invincible, yet many of us put off the very important matters of determining who will receive our assets, who will be in charge of collecting and distributing those assets, and who will make day to day and medical decisions in the event of incapacity. Planning for a vacation, particularly a long trip or a visit to a second home, will prompt a frenzy of packing, cleaning, and organizing to get ready, and this is a good opportunity to prepare and organize legal documents.

I recommend not only having estate planning documents in place before summer travels begin, but also ensuring that current documents are up to date, and in a secure location such as a fireproof safe. My firm will hold original documents upon request at no additional charge, and we provide copies of all documents in an organized book. If you do not have your original documents, confirm their whereabouts and note such location on your copies. You may also choose to provide copies to your nominated agents, such as your attorney-in-fact, health care surrogate, personal representative, and trustee.

Finally, take a moment to organize all legal documents in a safe place before you leave. Along with estate planning documents, a basic binder and plastic sheets are perfect for holding other legal documents that may be applicable, such as:

  • Child’s birth certificate
  • Marriage license
  • Divorce documents, child support, and alimony information
  • Vehicle titles
  • Deeds to property
  • Tax returns and important tax forms
  • Receipts
  • Either a list of assets with contact information or current financial statements
  • Life insurance policies
  • Retirement statements
  • Digital asset information
  • A list of usernames and passwords for online accounts, online bill pay, and social media accounts
  • Social Security Cards
  • Passports

This list is not exhaustive, but it is a good start for organizing your important legal and financial documents. Another great resource is the ABA/AARP Checklist for My Family: A Guide to My History, Financial Plans, and Final Wishes, the checklists mentioned in the book, are available at no charge on the ABA’s website found here. Once your documents are signed, organized, and securely stored, you will feel much more at ease while sipping your pina colada on vacation this summer!

 

 

Estate Planning Attorney

Elaine N. McGinnis is an established Estate Planning attorney with nearly fifteen years of experience handling Estate Planning, Probate, Trust Administration and Elder Law cases. Elaine’s clients depend on her to understand their individual needs, discuss goals, and prepare the documents appropriate for each case. Call today to schedule a consultation at (813) 676-9082 or via email to marketing@whhlaw.com.

12
Jun

Community Association Board MembersI have been to a number of community association meetings in the past year, and too many of them were contentious, confrontational, loud, rude and generally ugly. I have written a number of Codes of Conduct for adoption by boards of directors to address behavior ranging from being unprepared for the meeting to falling down drunk to screaming obscenities. Boards have to deal with negative interactions with anyone from other board members to association members to the drunken boyfriend of an owner to the renter who has been there for years; and the behavior seems to occur relatively randomly and in any combination of participants. Association meetings can be as much fun as reality television.

Given the social conditions, what motivates someone to serve on a community association board of directors these days?  I’ve been working with community associations for more than 33 years and I have given a lot of thought to this question.

Here’s what I have so far, and fair warning – there are sweeping generalizations involved in these descriptions.  And, I am only talking about board members in this piece.

Ideal directors love where they live and want to help their communities.  They take their duties seriously without being heavy-handed.  They solicit input from the members and do their best to follow the laws. They ask the association attorney if they are not sure.  They let the association manager do his or her job, without micro-managing.  In short, they do their best. And in reality, this list describes most board members.

What about the directors who are disorderly, disruptive or confrontational; who fight with the other directors and get into shouting matches with the members who come to the meeting?  Why is he or she on the board?

Let’s roughly categorize types of board members from whom we experience “bad behavior:”

  1. Resume or Bio Board Members – These folks get on the board so they can put it on their bio, or because their company encourages volunteering. They generally don’t attend every meeting. They may not be conscientious about reading the board packet before the meeting. They don’t volunteer for any committees or projects.
  2. Career Board Members – Sometimes you have directors who identified themselves by the job/work they were doing. When they retire, they feel lost, with no identity.Then, they run for the board to fill that void. This may be the problem director who acts unilaterally, without board involvement or support.
  3. Pet Project Board Members – These are directors who have a particular project they want accomplished, so they run for the board to push it through. They generally are not interested in anything else, and do not have much else to contribute. Sometimes they will resign before the end of their terms, if they accomplish the goal or if it looks as if they won’t be able to get it done.
  4. Avocational Violation Board Members – Occasionally, a member who has received a number of violation letters decides to run for the board so he can continue to do whatever he wants. He things he won’t get any more letters if he is on the board.
  5. “In the Know” Board Members – Some people love to be “the one who knows.”They feel empowered if they can answer a question or share the inside information. A director like this may not understand the boundaries of confidentiality, or the elements of fiduciary duty, and this could cause liability for the board and damages to the association.
  6. “Defending My Honor” Board Members – These directors have short fuses and tend to go off the deep end at the slightest provocation. And they take any disagreements or adversarial comments very personally, considering them to be a slur on their individual honor or integrity or competence.
  7. Overly-Enthusiastic Board Members – They volunteer for every project, want to chair committees, and micromanage the manager to the verge of creating a hostile work environment.

How do you deal with these myriad challenges, without getting sucked into the drama, and still get the business of the association conducted, all while maintaining your sanity?  Stay tuned for the next installment.

 

Community Association Attorney Ellen Hirsch de HaanEllen Hirsch de Haan has over 30 years of experience practicing homeowners and community association law. She regularly teaches classes on the subject to further educate homeowners and property managers alike. Ask to join our email list to learn more by contacting marketing@whhlaw.com.

05
Jun

Bankruptcy fUS Bankruptcy Court Tampailings in the Middle District of Florida (Tampa, Ft Myers, Orlando and Jacksonville) increased in 2016 and are on the rise in 2017 after declining for several years due to the improving local and national economy. This means that if someone (a person or company) owes you money then there is an increased chance that you might receive a Suggestion of Bankruptcy or Notice of Commencement of Bankruptcy Case advising you that a bankruptcy case has been filed.

Sometimes Creditors receive the dreaded notification or other documents pertaining to the bankruptcy filing and choose to do nothing because they are unsure of what the documents mean and what they need to do. This is understandable—bankruptcy law is often counterintuitive and complicated and certainly different from how things work in the “real world”. By doing nothing, however, you risk serious financial penalties including loss of your claim and the ability to enforce a lien against the Debtor.

So what should you do when one of these Notices arrives in the mail? The first and most important thing that I can tell you is to not give up hope! As a Creditor you have several options depending on the type of claim that you have against the Debtor. Claims are typically secured (common examples are lien on a car, a homeowner’s association/condominium association lien, or a mortgage lien) or unsecured (such as debts from credit cards, medical bills, signature loans, or deficiencies after repossession or foreclosure sales). If you hold a judgment against the Debtor they debt may be either secured or unsecured depending on what steps you have taken to collect on the judgment prior to the bankruptcy filing and whether your judgment has “attached” to the Debtor’s assets, including real estate. Regardless of the type of claim you have, you should reach out to your bankruptcy attorney to discuss what options you have in a particular case.

Here are some situations that often arise in bankruptcy cases and which require action on your behalf as Creditor. Please note that there are many other common situations which can occur in bankruptcy case. I will discuss these in future articles.

Proofs of Claim: You may receive a Notice from the bankruptcy court advising you that there are funds available to pay creditors in a case and alerting you to file a Proof of Claim. It is important to file a Proof of Claim when you receive notice to do so. The Proof of Claim is a specific form that you must file in order to be paid. The form is comprehensive and may require detailed attachments depending on the type of claim you have against the Debtor. You must file a claim to be paid. I’ve been a bankruptcy attorney for over 25 years and I’m aware of several situations where Creditors have left “money on the table” by not filing a claim in a bankruptcy case despite the Bankruptcy Trustees holding significant funds which are available to pay creditors. There is also a deadline imposed by the Court for the filing of such claims. The deadline is called the “bar date”. Claims filed after the bar date are not paid except in certain very limited situations and only if the bankruptcy court expressly permits them to be paid. Needless to say, a bankruptcy Proof of Claim is an important document that needs to be properly handled. Contact your attorney with your proof of claim questions.

Valuations of Property, Lien-Stripping and “Cramdowns”: If you hold a secured claim against the Debtor it is important to know that the Bankruptcy Code in certain circumstances allows a Debtor to seek to “value” your claim and reduce the amount of your secured claim or even eliminate your lien entirely. Typically the Debtor will seek such valuation in a motion filed with the bankruptcy court which will be served on you. In many instances the motion will be served by “negative notice” which requires you to affirmatively oppose the Motion within a very short period of time (usually 14 to 21 days) failing which the Motion will be granted without hearing and without further notice. I’ve seen large homeowners/condominium association liens and second mortgage liens removed this way and oftentimes the affected creditor—after the fact—recalls receiving the Motion but doing nothing since it was not aware of what the Debtor was trying to do and the ultimate impact on the claim. It’s usually too late to do anything about one of these Orders once it is entered so make sure to contact your attorney if you receive a Motion or Debtor’s Plan which seeks to “value” your secured claim or otherwise modify your secured claim in any way.

Fraud/Dishonesty of Debtor: A Creditor might hold a claim resulting from fraud, misrepresentation, or other types of dishonest acts by the Debtor. The Bankruptcy Code provides that certain types of these claims will not be discharged (eliminated) in the Debtor’s bankruptcy case. However, if it up to the Creditor to assert the non-dischargeable nature of the claim in the case and obtain a determination from the bankruptcy court that the debt is one of these types. If the Creditor fails to seek such a determination in these cases then the debt will be discharged regardless of the nature and severity of the fraud! Needless to say, if you believe that fraud, misrepresentation or some type of dishonesty is involved on the part of the Debtor in regards to the debt owed to you then you should contact your bankruptcy attorney to review the same and discuss the best course of action available to you.

This article is an overview of some aspects of the bankruptcy process. The bankruptcy laws are complicated and there are many nuances and exceptions to the general rules. Seek advice from your attorney when you receive a bankruptcy notice or other documents pertaining to a bankruptcy case.

 

Brad Hissing is a Bankruptcy Attorney with over 26 years of experience in representing creditors, Trustees and other parties in bankruptcy cases. He has extensive experience in Creditors Rights and Insolvency matters in both consumer and Chapter 11 commercial cases. He can be reached at BradH@whhlaw.com or by phone at (813) 676-9075.

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