• Barry Nelson & Richard Franklin: Inter Vivos QTIP Trusts Could Have Unanticipated Income Tax Results to Donor Post-Divorce, Steve Leimberg's Estate Planning Email Newsletter - Archive Message #2244, 09/15/2014

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  • Published in Steve Leimberg's Estate Planning Email Newsletter - Archive Message #2244 on 9-15-14. Testamentary QTIPs are perhaps the most common form of marital deduction trust. The rules for structuring a QTIP trust upon the settlor’s death are generally known and accepted, but the creation of inter vivos QTIP trusts are less common, even though such trusts offer superb estate planning opportunities. While the core principles of testamentary and inter vivos QTIP trusts are exactly the same, inter vivos QTIP trusts require additional considerations that are not as well known to those who may not be using inter vivos QTIP trusts on a regular basis. This commentary highlights one of those considerations. 

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• Same Sex Marriage Ruling in Florida, HOT TOPIC! by Jennifer Okcular. Two recent decisions in Miami Dade and Monroe Counties have struck down Florida’s Constitutional and Statutory Ban on Same Sex Marriage (Florida Statutes Section 741.212 and Florida Constitution Article I, Section 27). 07/28/2014

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• Barry Nelson & Why Post-Judgment Asset Protection is Not a Four Letter Word, Steve Leimberg's Asset Protection Planning Email Newsletter - Archive Message #239, 03/10/2014

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  • Published in Steve Leimberg's Asset Protection Planning Email Newsletter - Archive Message #239 on 3-10-14. A recent LISI newsletter commented on an attorney who assisted a debtor post-judgment and cautioned against lawyers using the words “asset protection” in timesheets or on memos. This commentary describes situations where it is ethical and proper to assist debtors with certain post-judgment asset protection planning, and questions whether the term “asset protection” should be avoided. ​

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• Protecting Trusts From Claims of Alimony or Child Support, Trusts & Estates Magazine, March 2014.​

  • PDF ARTICLE

  • Parents who want a child’s inheritance to pass into a trust, rather than outright, often seek to prevent the child’s former spouse from reaching such assets in the event of divorce. Practitioners should consider whether a trust jurisdiction other than Florida is preferable based on Berlinger v. Casselberry.​

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• Bacardi: The Hangover, The Florida Bar Journal, March 2014.​

  • This article is a follow up to the March 2012 Florida Bar Journal article, "Bacardi on the Rocks." Attorneys advising their clients that a Florida discretionary trust would protect a child's inheritance in the event of divorce, should a spouse or former spouse obtain a judgment in the form of support against such child as a result of a divorce, may be misguided.​

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• Barry Nelson on Berlinger v. Casselberry: Discretionary Trust Held to be Available to an Alimony Creditor, Steve Leimberg's Asset Protection Planning Email Newsletter - Archive #231, 12/10/13.​

  • “The first Florida appellate decision addressing whether a former spouse who has a judgment in the form of support resulting from a dissolution of marriage can obtain a continuing garnishment, since enactment of the Florida Trust Code, recently was rendered in the case of Berlinger v. Casselberry. Berlinger is a big win for former spouses and a nightmare for intended trust beneficiaries and trust settlors who may have created a discretionary trust anticipating that the funds were exclusively for the use of the intended family member and not the ex-spouse of the family member. The facts of Berlinger made it easy for the appellate judges to determine that the public policy reflected in Bacardi v. White should continue in Florida, despite subsequent enactment of Florida Statutes Section 736.0504.” 

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• 10 Steps to Take Now in Light of Estate Tax Legislation, Annual FICPA Accounting Show. Includes - Planning for Same Sex Couples in Light of the Defense of Marriage Act (“DOMA”). Sept. 2013.

  • PDF ARTICLE with exhibits​

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• Are Trust Funds Safe From Claims For Alimony or Child Support?, Trusts & Estates Magazine, April 2013.

  • Parents who want a child's inheritance to pass to a trust, rather than outright, often seek to prevent the child's former spouse from reaching such assets in the event of divorce. Unfortunately, under the laws of some states, regardless of whether a trust has a spendthrift provision or is a discretionary trust (or both), a beneficiary's children and/or a former spouse may have rights to reach trust assets that are otherwise protected from creditors. When clients are concerned about these issues, attorneys should consider creating the trust in a state where the law is clear that no creditor, including children, spouses and former spouses, will have access to trust assets.​

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• 2012 Gift Suitability Analysis, 07/26/12.​

  • 2012 provides a unique opportunity for making gifts using the federal estate, gift and generation skipping transfer (“GST”) tax exemption of $5,120,000 (reduced by any prior use of such exemption). Unless Congress takes action, the exemption decreases to $1 Million on January 1, 2013 and there is a possibility that those who miss the opportunity will have lost the ability to make significant tax free gifts. The Gift Suitability Analysis is a list of questions to facilitate discussions and assist you to make the best year end 2012 gifting decision based upon your unique facts. 

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• Bacardi on the Rocks, The Florida Bar Journal, March 2012.​

  • This article explores discretionary and spendthrift trusts under the Florida Trust Code and discusses the Florida Supreme Court case of Bacardi v. White, 463 So. 2d 218 (Fla. 1985). Those drafting estate planning documents frequently hear that one objective of a parent who wants all or a portion of a child's inheritance to pass into a trust, rather than outright, is to prevent the child's spouse from reaching such assets in the event of divorce. Beneficiaries of Florida trusts (as well as their lawyers) may be surprised that even when a discretionary trust is created to protect a child's inheritance, a former spouse may have rights as an exception creditor to reach trust assets that are protected from creditors, such as one holding a judgment resulting from a car accident, physician, or other professional malpractice or tort.​

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• Asset Protection & Estate Planning - Why Not Have Both?​ 03/25/11

  • Neither asset protection planning nor estate planning should be viewed as a discipline unto itself. In today’s litigious environment, practitioners should consider combining asset protection planning with each estate plan prepared for a client. After all, if our clients’ assets are lost to a catastrophic judgment, even the most sophisticated estate planning techniques are likely to be worthless.​

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• New §736.0505(3) Assures Tax/ Asset Protection of Inter Vivos QTIP Trusts, The Florida Bar Journal, December 2010.​

  • Effective July 1, 2010, new F.S. §736.0505(3) allows married couples to take advantage more easily of one another's estate tax exemptions and, at the same time, to enhance asset protection planning. Before enactment of the new statutory provision, it was unclear whether assets contributed to an inter vivos QTIP trust by one spouse that pass in trust for the benefit of the initial donor upon the death of the donor's spouse would be subject to the claims of the donor spouse's creditors, and, therefore, includible in the donor spouse's estate under I.R.C. §2041. The new statute clarifies the asset protection and estate tax benefits of inter vivos QTIP trust planning. As described in this article, inter vivos QTIP trust planning can be enhanced if trusts are created by both the husband and wife, but only if the two trusts are not reciprocal.​

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• Olmstead: Right Result, Wrong Reasons, BNA, Estates, Gifts and Trusts Journal, 09/09/10.​

  • Florida’s Supreme Court held in Olmstead v. FTC, that a court may order a judgment debtor to surrender all right, title and interest in the debtor's single-member limited liability company (“LLC”), organized under Florida law, to satisfy an outstanding judgment. The Florida Supreme Court said: “[s]pecifically, we conclude that there is no reasonable basis for inferring that the provision authorizing the use of charging orders under section 608.433 (4) establishes the sole remedy for a judgment creditor against a judgment debtor’s interest in single-member LLC.”​

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• Throw Me From the Train, Trusts & Estates Magazine, Oct. 2008.​

  • Tell your family whether, if the occasion arises, they should take you off life support before the death tax repeal sunsets in 2011. ​

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• Intra-Family Loan and AFRs, 07/20/08​

  • Intra-Family Loans are an effective way to shift wealth between family members. For those who routinely take advantage of annual exclusion gifts and want to convey additional tax-free wealth to family members, Intra-Family Loans should be considered.​

  • IRA AFR RULINGS

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• You Already May Be An Asset Protection Lawyer. Take the Quiz, Trusts & Estates Magazine, July 2008. ​

  • The mere words "asset protection" make some lawyers wince. They think asset protection is dirty and those engaged in it are the ambulance chasers of the estate planning bar. Truth is, many lawyers already are engaging in asset protection without even knowing it. Don't believe me? Take this quiz yourself, give it to your estate-planning lawyer friends, and see.​

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• Florida Surprise, Trusts & Estates Magazine, May 2008.​

  • Recent cases help keep the state's status as a haven - despite the 2005 Bankruptcy Act. This article addresses how you should hold title to your real property and financial investments to maximize asset protection.​

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• Custom Bond Valuations Can Save Clients Money​, Trusts & Estates Magazine, May 2008.

  • Institutions get higher prices for bonds than individuals - yet standard bond valuations are based on the institutional prices. The result: individuals can pay unnecessarily high estate taxes. Time to stop that. Filing a 706 with using standard valuations services where clients own a significant bond portfolio could possibly result in overpayment of estate taxes. Using a custom bond valuation may result in significant estate tax savings. ​

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• Pension Law Update for 2006/2007 Charitable Giving, Client Letter dated 8/9/06.

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• How Does the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 Affect Florida Homestead, Trusts & Estates Magazine, November 2005.

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• Homestead Protected, Trusts & Estates Magazine, August 2005.

  • Rorie M. Sherman Briefing. Article by Barry A. Nelson.

  • The 2005 bankruptcy act is likely to generate much uncertainty in the homestead arena. But In re Robin Bruce McNabb, 2005 Bankr. LEXIS 12341, suggests the act may not be as encompassing as Congress seems to have intended.

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• Repeal Could Really Happen, Trusts & Estates Magazine, June 2005.

  • If you're curious why the lower and middle class seem to approve of permanently repealing a tax on the wealthy, then read Yale University professors Michael J. Graetz's and Ian Shapiro's Death by a Thousand Cuts. Barry A. Nelson reviews the recently published book and concludes that, after years of a well-financed misinformation campaign, the fight to preserve the estate tax may already be lost.​

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• Family Limited Partnership Memo, Barry A. Nelson, 4/12/05.

  • Latest IRS Court case reflects tax court's most recent application of Code Section 2036(a)(1) to Family Limited Partnerships.​

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• Current Trends & Traps in Estate Planning 2004/2005. Updated through 9/1/04.

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• The Frozen T-CLAT, Trusts & Estates Magazine, July 2004.

  • By Donald R. Tescher & Barry A. Nelson​

  • An innovative technique gives clients use of their assets even as they reduce transfer taxes and leave money to charity. How would you like to offer your well-to-do clients an estate plan that eliminates or significantly reduces estate taxes and generation skipping taxes (GST) while providing the family with immediate use of the assets and creating a significant charitable legacy? This is not a pie-in-the-sky goal. It can be achieved by meshing disparate planning techniques.

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• Florida Homestead Traps, Trusts & Estates Magazine, July 2004.

  • By Barry A. Nelson & Kevin E. Packman​

  • Think twice before flying south to exploit favorable homestead and bankruptcy laws. Case law and proposed bankruptcy reforms may clip a few wings.

  • People should think carefully before deciding to move to Florida to take advantage of the state's favorable asset protection laws. Attorneys and advisors need to have some understanding of the potential traps clients may fall into as they try to benefit from the Florida homestead exemption.

  • Creditors have been successful in forcing the sale of a homestead, with the sales proceeds allocated between the debtor homeowner and his creditors as well as in attaching a homestead through a lien.

  • To uproot a family during a time of financial stress is difficult, but to do so only to discover the anticipated benefits are nonexistent is devastating. So carefully plan and consider all risks before making the move to this so-called "debtor's haven."

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• Florida's Unlimited Homestead Exemption Does Have Some Limits: Homestead Article Part I & II, The Florida Bar Journal, Jan. 2003 and Feb. 2003. Barry A. Nelson & Kevin E. Packman​.

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• Florida's Homestead Laws: Pitfalls and Traps for the Non-Florida Practitioner, David Pratt and Barry A. Nelson, 2003.

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• 2002 Bankruptcy Reform & Asset Protection Update, Barry A. Nelson, client Letter dated 5/21/02. 

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• Rasmussen Court Allows Both Spouses $125,000 Exemptions and Protects Appreciation Within 1,215 Days of Bankruptcy, The Florida Bar Journal, January 2001.​

  • Since the enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), courts have interpreted the limitations that BAPCPA placed on homestead protection. With the exception of the Bankruptcy Court for the Arizona District, the courts have uniformly held that, even for residents of states that have chosen to "opt out" of the federal bankruptcy exemptions, debtors may not exempt any amount of homestead property exceeding $125,000 in value if the property was acquired by the debtor during the 1, 215-day period preceding the date the bankruptcy petition was filed.​

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• Family Limited Partnerships Proper Maintenance Must Follow Initial Formation Beyond the Headlines—12 Issues to Consider (1999), Presented to The Florida Institute of CPAs and Estate Planning Conference, Barry A. Nelson, Rosario Ferrero Carr, Marcia E. Levine.​​

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• You've Won the Lottery! Now What?, Aventura Times, 1998. 

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• Litigation in the Joe Robbie Estate Illustrates Elective Share Revocable Trust Traps, The Florida Bar Journal, Jan. 1992. Barry A. Nelson

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• How to Plan for the Peaceful Passing of Your Family Business from One Generation to the Next, Aventura Lifestyles, Summer 1990. Barry A. Nelson.

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Disclaimer: This information has been prepared for educational purposes only and is not offered, nor should be construed, as legal advice. Use of this information without careful analysis and review by your attorney, CPA, and/or financial advisor may cause serious adverse consequences. Absolutely no warranty or representation of any kind, whether express or implied, concerning the appropriateness or legal sufficiency of this information as to any individual’s tax and related planning.

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The following notice is required by the IRS: Any U.S. federal tax advice contained in the articles and information in this web site is not intended to be written or used, and cannot be used or relied upon, to avoid tax-related penalties under the Internal Revenue Code, or to promote, market or recommend to another any tax-related matter addressed herein.