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Estate Planning

Baskin Eisel Rightmyer prides itself on its unique ability to handle all aspects of wills and trusts, including St. Petersburg estate planning as well as Clearwater and Tampa estate planning. Estate planning and private wealth transfer may sometimes involve complex tax planning, requiring the assistance of skilled and knowledgeable legal counsel. Wills, trusts and estate planning for most individuals, however, involves making decisions about who is to receive their property after death.

Baskin Eisel Rightmyer has the expertise to assist in estate planning for high-wealth individuals as well as for modest estates requiring only simple wills. The estate planning process should always include a thorough examination of not only the tax implications, but also the non-tax ramifications, which might include asset protection, and provisions for long-term healthcare needs. The typical “will conference” includes a discussion of Florida’s new power of attorney laws, which are now very comprehensive and complex, as well as the advance directives for living wills, selection of a pre-need guardian, and very importantly, a healthcare surrogate.

Contested Guardianships

Baskin Eisel Rightmyer handles all aspects of contested guardianship litigation in Clearwater, St. Petersburg, Tampa, Pinellas County, Hillsborough County and throughout the state of Florida. Contested guardianships are those which involve either the establishment of a guardianship where various parties may petition the court to be appointed guardian or situations where the alleged incapacitated person may not, in fact, be incapacitated, or reasonable alternatives to a guardianship may exist.

Petitions to determine incapacity, in many cases, are filed to prevent the exploitation or further exploitation of an individual, often a loved one, by someone who has taken over the financial, medical and social affairs of an individual who is incapacitated and unable to resist the undue influence of others. Cases may range from the financial exploitation of the alleged incapacitated person to protecting their physical or mental health and safety.

The Order Determining Incapacity may result in the loss of substantial Civil Rights, including:

• the right to vote
• to determine one’s own medical treatment
• to handle one’s own financial affairs
• to make a will, change a will, gift or disposition of property
• to determine one’s own residence
• to travel unsupervised
• and more.

The filing of a guardianship, while unfortunate, is often the only means to stop the financial exploitation and wrest control away from the exploiter, who can be a stranger, but who may also be a neighbor, caregiver, friend, or even a family member. These cases are wrought with emotion and an experienced attorney can help you navigate the potential pitfalls one can find themselves in during these stressful situations.

Business Law

Baskin Eisel Rightmyer attorneys have the experience to help with your business law matter. Selecting the right structure for your new business is essential to help maximize your chances of financial and operational success.

The most common business structures include:

• Corporations
• Partnerships
• Limited Liability Corporations
• Limited Liability Partnerships
• Sole Proprietorships

Your choice of business structure will impact the amount you pay in taxes, the paperwork your business is required to prepare, and the personal liability you may face. The attorneys at Baskin Eisel Rightmyer can help you understand the advantages and disadvantages of all business structures, as well as assist with business acquisitions, reorganizations, and business litigation.

Fiduciary Litigation

Fiduciary litigation usually involves actions with trustees, personal representatives and agents holding a power of attorney for a principal. A fiduciary is a position of trust held to the highest standard of care. A fiduciary has many duties including the duty of loyalty and a duty of impartiality. A fiduciary is prohibited from putting his own personal interest ahead of the person to whom he owes a duty. Conflicts of interest and self-dealing are often areas of contention between the fiduciaries and the persons with whom they owe the duty. Fiduciary litigation in Florida can also arise in many other contexts including business relationships, partnership relationships and any other manner in which a fiduciary relationship is established.

Guardianships

Baskin Eisel Rightmyer handles all aspects of guardianships, including uncontested guardianships and guardianship administration. Guardianships, in general, involve the appointment of a Court-supervised guardian, who is sometimes a professional guardian and other times a family member. A professional guardian must pass a rigorous testing process to become a registered guardian, and all guardians are bonded for 100% of the value of the ward’s liquid assets. A family guardian must pass an eight-hour course and undergo a thorough background screening. The guardian is a true fiduciary who is delegated the rights of an incapacitated individual. This delegation is subsequent to entry of the Order Determining Incapacity and issuance of Letters of Guardianship. A guardianship may be a plenary guardianship, where the court removes all of the enumerated statutory rights of an individual, or a limited guardianship, where only some of the rights are removed.

Probate Administration

Baskin Eisel Rightmyer handles all aspects of probate and trust administration. Probate administration is the process whereby a will is admitted to probate (and thereby deemed to be the “last will”) by the probate judge, who supervises the administration.

During the probate of the decedent’s estate, creditors are paid by the personal representative, who is appointed by the judge and is normally someone nominated as personal representative in a will. If there is no will, a family member is given priority to serve as personal representative. The personal representative then marshals/gathers all assets belonging to the decedent known to exist, and after paying all creditors, federal and state taxes owed and administrative expenses, the estate assets, including cash, are distributed to the beneficiaries. This process is automatically scheduled for one year by Florida law for a non-taxable estate and two years in the event a Form 706 Federal Estate Tax Return is required. Many times the estate administration of a will can be effected from start to finish in much less time.

Probate Estate Litigation

Probate estate litigation encompasses all forms of contested matters arising in a probate matter. Some of the contested issues in Florida probate law resulting in litigation, include:

• the validity of the decedent’s last will and testament
• construing the terms of an ambiguous will
• spousal share election under the elective share statute
• pretermitted spouse and child issues
• excessive fiduciary or attorneys’ fees
• creditor claims
• breach of fiduciary duty by the personal representative
• improper accountings
• recovery of estate assets and a plethora of other potential issues involving wills and trusts

Real Estate Law

We understand the needs for professionalism and privacy

Trust Administration

Baskin Eisel Rightmyer handles all aspects of trust administration. Trust administration is the process whereby assets and cash which were funded into a revocable or irrevocable trust during the decedent’s lifetime or “poured into the trust after his or her passing”, are marshaled and made ready for distribution to the beneficiaries named in the trust. Trust administration also requires the filing of a notice of trust with the probate court which is the process whereby creditors may be paid. After all state and federal tax returns are filed and all creditors and other administrative expenses are paid, the trustee makes a final distribution of the trust assets and cash to the beneficiaries as stated in the trust.

The process is similar to Florida probate administration, but there is no circuit judge supervising the administration, nor is a fiduciary bond usually posted, and many times it can be accomplished more efficiently, and thereby cheaper and faster, than a full probate administration.

Trust Litigation

Many of the same contested issues in a probate estate also exist in trust matters. The main difference is that an independent civil action needs to be filed in order to invoke the jurisdiction of the court and have summonses issued to the Defendants. As Florida trust administration is not court-supervised, it is up to the beneficiaries, rather than the probate judge, to make sure the trustee is discharging his duties in accordance with the trust terms and with the law. For the most part, the only way a beneficiary can review what the trustee has done is through the annual accounting which the trustee must provide each qualified beneficiary every year, as required by Florida law. If the accounting is not provided, the trustee has breached his fiduciary duty to keep beneficiaries informed, which could result in the trustee being held liable or even removed.

Duty to Account: A trustee has broad discretion in dealing with trust property, subject to the duty of loyalty, duty of impartiality and the other fiduciary duties imposed on the trustee by Florida law. The trustee operates with very little oversight by anyone over the trust’s assets. The trustee is not under court supervision unless the court’s jurisdiction is invoked and is only accountable to the beneficiaries of the trust. Practically, the only time a beneficiary can review what the trustee has done and have an opportunity to challenge those actions is when the trustee provides an accounting to the beneficiary. Once an accounting had been properly provided to the beneficiaries, certain time frames may begin to run for the beneficiary to challenge the accounting.

As the equitable owner of the trust property, the beneficiary has a vested interest in the management and administration of the trust, and has an enforceable right to an accounting from a trustee. Furthermore, because the trustee has a fiduciary obligation to the beneficiary, the beneficiary must be accurately informed as to what the trust property consists and how it is being managed. The beneficiary must be accurately informed about the administration of the trust in order to hold the trustee to the proper standard of care and honesty, and to enforce his [the beneficiary’s] rights in the trust.

A trustee has a duty to maintain clear, complete and accurate books and records regarding the trust administration and at reasonable intervals must provide beneficiaries with reports or accountings. It is important for the trustee to keep accurate records so that the beneficiary can tell whether the trustee has acted with prudence, loyalty, and impartiality and whether the costs of administration have been reasonable and appropriate.

Our lawyers have extensive experience with trust litigation having handled many cases on behalf of beneficiaries seeking to hold the trustee accountable in Pinellas, Hillsborough, Pasco, Hernando, Citrus, Manatee, Sarasota, Charlotte, Lee, Monroe and Palm Beach Counties and throughout Florida.