Blog

By: Lauren Morales, Esq., Associate Attorney

When it comes to business ownership in Florida, the limited liability company (LLC) is a popular choice. Its appeal lies in its flexible structure, combining partnership-like flexibility with the asset protection of a corporation. Additionally, LLCs benefit from “pass-through” taxation, offering a unique blend of advantages.

One of the significant perks of an LLC is its adaptability. Members can modify default rules within the operating agreement, ensuring it aligns with their evolving needs. However, like any corporate structure, members and managers in an LLC have a responsibility to act in the company’s best interest, a legal obligation known as fiduciary duty.

Understanding Fiduciary Duties

In Florida, LLCs can be manager-managed or member-managed, which impacts decision-making processes but not fiduciary duties. Fiduciary duties are responsibilities that members, managers, or officials have toward the company. These include both the duty of loyalty and the duty of care.

Duty of Care

The duty of care means that members and managers must avoid gross negligence, reckless conduct, willful misconduct, or knowing violations of the law when making decisions on behalf of the LLC. In essence, they should act in good faith and in the LLC’s best interests, especially in significant transactions.

Duty of Loyalty

Alongside the duty of care, members and managers owe a duty of loyalty to the LLC and its members. This means putting the company’s success above personal interests and avoiding conflicts of interest. For instance, they cannot seize profitable opportunities for personal gain that arise through their association with the LLC. However, you can tailor your operating agreement to make the terms favorable to your business purpose.

Consequences of Breach

A breach of fiduciary duty can lead to personal liability claims against the party responsible. To succeed in such a claim, the plaintiff must prove the existence of a fiduciary relationship, demonstrate the breach, and show that the breach caused harm to them or the company. Remedies may include compensation for losses and corrective actions like unwinding transactions or removing the fiduciary.

Members and managers should be aware of their fiduciary duties, including obligations to creditors during financial difficulties. Seeking legal counsel with experience in fiduciary duty matters is essential to protect both your interests and your company’s obligations.

Our firm offers in-person and virtual consultations. If you have questions or concerns regarding fiduciary duties or corporate, please don’t hesitate to call our office at 305-823-2300 or schedule a consultation.

 

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YouTube link: https://www.youtube.com/watch?v=PhbCPBIiE5k

By: Lauren Morales, Esq., Attorney at The Elias Law Firm, PLLC, Miami Lakes

Losing a loved one can be one of the hardest things we can go through in our lives. Not only does the grieving process weigh on us, but the aftermath of dealing with the things left behind. One of the main ways we deal with this is through the probate process. The purpose of this article is to provide an overview of the probate process and explain the many intricacies involved when administering an estate.

What is Probate?

In simple terms, probate is a court-based process that allows for the transfer of assets owned by a decedent to a living person. The decedent refers to the individual who has passed away. One of the main questions the court always asks is whether the decedent died testate or intestate, which really means whether the decedent died with or without a will.

If the decedent died with a will, then the court requires the will be submitted with the decedent’s death certificate for review. When the decedent does not have a will, then the court turns to the Florida Statutes for what can be referred to as intestate succession. Its pertinent to note that regardless if the decedent had a will, the estate would still undergo the probate process. The main difference between the two routes is that one is created by the decedent during their life time and the other is determined by the Florida Statutes.

What Happens the Decedent Has a Will?

If the decedent had a will when they passed away, then his personal representative, who is an individual appointed in the will, would reach out to a probate attorney to begin the process. The court will check the validity of a will by ensuring it abides with the Florida Statutes. For example, Florida requires a will to be notarized, witnessed, and created when the decedent was sound of mind.

What Happens When the Decedent Did Not Leave a Will?

Although it’s great to be prepared and execute a will during one’s lifetime, there are many individuals who do not prepare one. It’s not entirely fatal to one’s estate, but it may cause delay and the result may not be the outcome the decedent would have desired.

Types of Probate

There are two main types of probate that can be done depending on the value of assets owned by the decedent. The most common type of probate is known as formal administration.

A formal administration is required when the decedent’s assets are more than $75,000.00 or the decedent has been deceased for less than two years. If the estate administration requires a personal representative, then a formal administration is also required. A personal representative is either appointed by the decedent via a will or appointed by the court. The main role personal representatives play is ensuring that the estate is distributed fairly to the decedent’s beneficiaries, heirs, and creditors are properly paid.

The second most common type of probate is a summary administration. A summary administration would be appropriate when the decedent’s assets are less than $75,000.00 in value OR the decedent has been deceased for more than two years. There are two critical things to keep in mind with a summary administration: (1) homestead property does not count towards the value of your estate and (2) if the decedent passed away more than two years ago, then there is no limit on the value of the estate for summary administration purposes. Nonetheless, a summary administration can often be cheaper and less time consuming than a formal administration.

What if the decedent had debts?

It is very common for a decedent to leave behind debts. Some common examples could be a mortgage, utilities, credit card debt, student loans, car loans, etc. The personal representative would be the one responsible for ensuring these creditors get paid. One of the main tasks a personal representative has is to serve a notice to creditors, which provides 90-day period for creditors to come forward and file a claim in order receive repayment. This type of notice is filed in a public media outlet, such as the Business Journal or Miami Herald. If the personal representative has knowledge of the decedent’s creditors, then the personal representative is obligated to send the creditor a copy of the notice of creditor posting and the creditor has 30 days to file a claim. This time period is essential for creditors to acknowledge because if they file too late, then their right of repayment will be deemed as waived.

Regardless of the timeliness of the creditor(s), there is still property which may be considered as “exempt” from creditors. The Florida Statute states that if a decedent has a spouse or children, then the homestead property, two cars, household furnishing and personal property up to $1,000.00 in value are exempt from creditors and will pass to the spouse or children.

How Does Homestead Play a Role in Probate?

One of the many perks of residing in Florida is homestead exemption. Similar to homestead protections during one’s life, these protections also extend through after their death. It’s important to keep in mind that Florida defines homestead as real property of no more than 160 contiguous acres outside a municipality, or no more than one-half of an acre of contiguous land in a municipality, owned by a natural person, and the improvements on it. In order to qualify for homestead, the real property must be the decedent’s permanent residence before their death and it must be held in their individual capacity.

Another task the personal representative must do is file a petition to determine homestead. The three main reasons for filing this petition are: (1) to protect the property from creditors; (2) to protect the spouse and/or minor children of the decedent; and (3) to clear title. Protecting the property from creditors is definitely of top importance because without the petition, then the personal representative may be forced to sale the property in order to satisfy creditor claims. Secondly, it’s important to consider whether the decedent had a spouse and/or minor children because a Florida homestead property is not devisable either a spouse and/or minor child outlives the deceased. Clearing title is also important when the surviving spouse and/or minor child wants to sell the property. Typically, a title underwriter would want proof that the heirs are able to sell the property with this determination of homestead. Additionally, it provides a clear chain of title showing the validity of the title holders.

Conclusion:

As you can see, we have highlighted some important factors when it comes to administering one’s estate. However, we have barely skimmed the surface. Probating a loved one’s estate can be extremely challenging and even daunting. If you need help with the process, please contact our office for a consultation today.

By: Lauren Morales, Esq. at The Elias Law Firm, PLLC, Miami Lakes, Florida

Following the Surfside collapse in June 2021, Governor Ron DeSantis signed the Senate Bill 4D, otherwise known as The Building Safety Act (the “Act”). The Act has brought a sweeping effect on Florida’s current building safety laws and we are likely to see how impactful it will be in the upcoming years. There are three major components to the Act to be aware of: (1) milestone inspections consisting of two phases for buildings that are three or more stories in height, (2) association mandated reserves, and (3) sheer transparency between associations and unit owners.

First and foremost, all existing condominium associations must divulge the following information to the Department of Business and Professional Regulation, Division of Condominium, Timeshares, and Mobile Homes by January 1, 2023:

1. The name of the association;
2. The number of buildings with three stories and higher;
3. The number of units in each building; and
4. The physical address and county where each building is located.

After the association provides this information, they will have to consider the milestone inspections. The first milestone inspection will occur when the building either reaches 30 years of age and every 10 years thereafter, or 25 years of age and every 10 years thereafter if the building is located within three miles of a coastline.

The purpose of the milestone inspection is to test the structure of building and it can be broken down into two phases. Phase one would entail an engineer or architect to conduct a visual inspection of habitable and non-habitable areas of the building and provide an assessment. Based the results of these findings, a phase two inspection may be required. A phase two inspection would be required if the inspector believes there are substantial structural deterioration to any part of building. Ultimately, the test is to find whether any portion of the building has substantial structural distress that could negatively impact the building’s integrity.

Once the milestone inspection(s) are completed, the inspector must submit a fully completed report to the local building official stating whether: (1) there was substantial structural deterioration and recommendations for repairs; (2) whether any unsafe or dangerous conditions were observed; and (3) recommendations for any remedial or preventative repairs for items not substantially deteriorated.

Potential unit owners or renters, would be entitled the right to receive a copy of the inspector’s report. Not only do unit owners receive a copy by mail, but the association is obligated to post the report on the association’s website and publish it in a common area of the building(s). As a potential buyer and/or current unit owner, it would be important to know what is going on with likely one of your biggest assets.

Now, here is the part where you, as potential buyer or current unit owner, may not like as it’s going to cost you at your next association’s annual budget meeting. The Act mandates that by December 31, 2024, all associations (with three stories and higher) must have a Structural Integrity Reserve Study, which allows for the association to include a reserve account specifically for the expenses that come with future major repairs, replacements, and maintenance of the building(s). The Structural Integrity Reserve Study must address the following:

1. Roofs;
2. Load bearing walls or other primary structural members;
3. Floors;
4. Foundations;
5. Fireproofing and fire protection systems;
6. Plumbing; electrical systems; waterproofing and exterior paint; windows; and
7. Any other item which exceeds $10,000.00 in deferred maintenance cost and was identified by the engineer or architect performing the inspection portion of the structural integrity reserve study.

As a result, condominium associations are going to see a major shift in the dynamics of their budgeting and governing practices. Despite what may seem as overtly cumbersome on associations, engineers, and architects, these laws were enacted for the safety and wellbeing of condominium occupants throughout the state. While the potential for special assessments may cause some concern for future buyers and renters, the amenities that come with condominium living may offset those concerns.