For Couples Only ALL ABOUT TENANCY BY THE

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—For Couples Only— ALL ABOUT TENANCY BY THE ENTIRETIES How to Use It – How to Lose It Alan S. Gassman, J. D. , LL. M. Thursday, July 28, 2011 5: 30 p. m. agassman@gassmanpa. com Additional materials available at: www. gassmanresourcecenter. com/previously. recorded. webinars. html

“My wife and I were happy for 20 years…then we met. ” - Rodney Dangerfield “The secret of a happy marriage remains a secret. ” - Harry Youngman “I love being married. It's so great to find that one special person you want to annoy for the rest of your life. ” - Rita Rudner “Marriage is a great institution, but I'm not ready for an institution. ” - Mae West “Anyone who acts as his own lawyer has a fool for a client. ” - F. Lee Bailey © 2011 – Gassman Law Associates, P. A. 2

WE WROTE THE BOOK ON THE NEW ESTATE TAX LAWS FOR 2011 AND 2012 To order a copy of the book please visit BNA Tax & Accounting at: http: //www. bna. com/estate-tax-planning-2011 -2012/ © 2011 Gassman Law Associates, P. A. 3

Introduction • • Tenancy by the Entireties TBE “immunity” & English Common Law Hold property as an indivisible unit Joint tenant presumed to have an equal share that is severable by either spouse Not divisible on behalf of one spouse alone Creditors owed monies by both spouses have access to TBE property Recognized (at least to some extent) by: Florida, Arkansas, Delaware, Michigan, Pennsylvania, Rhode Island, Washington, D. C. , Missouri, Tennessee, Hawaii & Vermont If spouse lives outside of Florida, treatment subject to law of where the other spouse resides © 2011 – Gassman Law Associates, P. A. 4

Definition of TBE • Law requires “the 6 unities”: 1. Unity of possession • 2. Joint ownership and control Unity of interest • 3. Same interest in the account Unity of time • 4. Interests of both spouses originate simultaneously in the same instrument Unity of Title • 5. Ownership under the same title Survivorship • 6. With one spouse left one sole owner Unity of marriage • Must be legally married under Florida law © 2011 – Gassman Law Associates, P. A. 5

Joint Accounts • Beal Bank, SSB v. Almand Associates – Florida Supreme Court: “What has been termed a morass in the common law… We hope to bring greater predictability and uniformity to the common law governing accounts held at financial institutions and to eliminate the confusion that has arisen from our prior decisions. ” … “Not only must the form of the estate be consistent with entireties requirements, but the intention of the parties must be proven. ” – The burden will be on the creditor to prove by a preponderance of evidence that a tenancy by the entireties is not created Clients should be careful in simultaneously establishing TBE accounts and labeling them as such © 2011 – Gassman Law Associates, P. A. 6

© 2011 – Gassman Law Associates, P. A. 7

8 COMMON LLC PLANNING ERRORS By: Alan S. Gassman, J. D. , LL. M. Steve Leimberg's Asset Protection Planning Email Newsletter - Archive Message #83 Date: 16 -May-06 From: Steve Leimberg's Asset Protection Planning Newsletter Subject: 8 Common LLC Planning Errors Alan Gassman of Gassman, Bates & Associates in Clearwater Florida is a frequent LISI contributor. Alan is on the Board of Advisors of the Research Institute of America, Journal of Asset Protection. Alan warns LISI members of 8 common asset protection planning mistakes made when setting up and running LLCs. EXECUTIVE SUMMARY: Limited liability companies are quite often the entity of choice for investment and business holdings. Problems can arise, however, where structuring does not take important risks and federal and state law requirements into account. FACTS: Some of the most common problems we encounter in reviewing LLC arrangements for clients are: 1. TENANCY BY THE ENTIRETIES" DESIGNATION THAT WILL NOT QUALIFY AS TENANCY BY THE ENTIRETIES. Many married couples in states that protect tenancy by the entireties assets from the creditors of one spouse or the other have their LLC interests titled jointly as tenants by the entireties. But they don't realize that there are provisions in the operative documents which are inconsistent and would thus annul tenancy by the entireties characterization and protection. . Common examples of this are: (a) By the rules of tenancy by the entireties, the joint interest must pass outright solely by the surviving spouse in the event of the death of the surviving spouse. Oftentimes an operational document will provide that on the death of a member, the interest of that member must be sold. Agreements are commonly not drafted to explicitly provide that on the death of a spouse, the other spouse will be the owner of the joint interests, without any inconsistent member agreement provisions. © 2011 – Gassman Law Associates, P. A. 8

(b) Similarly, provisions under an operative document which restrict transfers may actually be read to prevent one spouse from owning the entire member interest on the death of another spouse. (c) While the certificate of ownership may be issued to both spouses as tenants by the entireties, oftentimes the Operating Agreements or Articles of Organization will provide for only one spouse or the other to be an owner. 2. ENTITY DOCUMENTS CAN DISQUALIFY S ELECTION. Limited liability companies may be treated as S Corporations under the federal income tax law if certain very strict requirements are met and an S election is made. If the S election is made but the S Corporation requirements are not met, then the company will be taxed as a "C Corporation, " therefore exposing properties and income to double tax. Common causes of this catastrophic treatment are as follows: (a) An operating agreement does not provide for all income to be distributed pro rata to ownership. Commonly "partnership style" clauses assure members that they will recapture their original investment or have some sort of an income sharing that would reflect a "second class of stock, " which is not permitted under the S Corporation Rules. (b) Although state law permits a limited liability company to have non-citizens, corporations, and other entities own LLC interests, these and certain other entities are not permitted owners of S Corporation stock, and will thus cause disqualification. (c) Too high of a debt equity ratio could cause disqualification from S Corporation status. © 2011 – Gassman Law Associates, P. A. 9

Stock Certificates • Cacciatore v. Fisherman’s Wharf Realty Ltd. Partnership, 2002 – Presumption of TBE extends to shares of stock held in certificate form titled in the joint names of spouses • What if the choices are: q Tenants By The Entireties q Joint With Right of Survivorship q Other • In re Matthews, 2009 • The choices were: q q q Individual Tenants in Common Other Joint Tenants with Rights of Survivorship Uniform Gift to Minor © 2011 – Gassman Law Associates, P. A. 10

Tax Reporting Consistency • Ownership of entities often reflected for federal and state tax reporting purposes – Often inadvertent inconsistencies – Ex. IRS instruction: TBE owners of a partnership interest should receive 2 separate K-1 forms. • No harm in issuing a single K-1 form to the spouses as TBE, and listing one of their SSNs, particularly where the spouses file a joint return © 2011 – Gassman Law Associates, P. A. 11

Contracts to Purchase Real Estate • Husbands and Wives often put their names on contracts with deposits without clearly designating TBE • Safest to have contract explicitly state it is held by spouses as TBE © 2011 – Gassman Law Associates, P. A. 12

US Treasury Bonds • US treasury bonds cannot be placed in TBE. • May

Tax Refunds • In re Kossow: A federal tax refund resulting from a joint tax return would be considered TBE property, unless affirmatively disclaimed as such by the spouses • Refund must be deposited into a TBE account! © 2011 – Gassman Law Associates, P. A. 14

Tangible Personal Property (Physical Non-Real Estate Assets) • In re Matthews: “If all the unities are present, a presumption should arise that a married couple owns personal property as tenants by the entireties. ” • Appears that tangible personal property is not protected as TBE assets if physically located outside a non-recognizing jurisdiction © 2011 – Gassman Law Associates, P. A. 15

Automobiles and Other Registered Vehicles • In Florida, automobile titles can be held under “AND” or “OR” – AND: both signatures required to transfer TBE applies – OR: either spouse can sign TBE does not apply • DMV will require a probate when one spouse dies with an “AND” title • Vehicles that don’t require a title are titled to TBE by a formal bill of sale, or intent • Federally documented vessels can be held as TBE • Dangerous instrumentalities (attack dogs, probably automobiles) should not be owned or controlled jointly in most cases © 2011 – Gassman Law Associates, P. A. 16

Real Estate Owned Outside of Florida • If state does not recognize TBE, ownership of real property should be converted to an intangible asset so Florida law applies – Most States (including Georgia, Colorado and Washington) do not recognize TBE – Some States recognize TBE, but don’t provide “full protection” for those assets (Alaska, Tennessee) – Some states recognize TBE law (Delaware, North Carolina) and in these states the creditors of one spouse cannot touch TBE property owned by the other spouse • Make sure organizational documents are consistent with the law of TBE © 2011 – Gassman Law Associates, P. A. 17

Other TBE Notes • Three-way account cannot be TBE • TBE property can be freely transferred from a debtor spouse to a non-debtor spouse • Transfers to non-resident alien spouses • IRS can invade TBE assets where only one spouse owes taxes • Fraudulent transfers and using money borrowed on TBE property to purchase more TBE property • Consider the Alaska Community Property Trust © 2011 – Gassman Law Associates, P. A. 18

Joint Debt and Bankruptcy • If investing in real estate or other leveraged assets, do so under a business entity which becomes the obligor, rather then personal joint debt • Strategies: 1. Maintain sufficient liquidity or access to liquidity 2. Investment assets other than homestead to be secured by debt may be purchased under an LALC or FLP 3. Before one spouse files for bankruptcy, transfer TBE assets to the other spouse – eliminates joint debt at the time of filing © 2011 – Gassman Law Associates, P. A. 19

Joint Revocable Trusts • Possible to establish a TBE trust with careful drafting • Each spouse must be given the right to disinherit the other spouse of all the joint assets without notice, effective upon the moment of their death – Using this will “mess it up” © 2011 – Gassman Law Associates, P. A. 20

PROTECTIVE TRUST LOGISTICAL CHART During both spouse’s lifetimes: Upon first death in 2011: During surviving spouse’s remaining lifetime: Upon second death: After deaths of both spouses: First Dying Spouse’s Revocable Trust $5, 000* (Adjusted upward for inflation after 1/1/2011) Family (By-Pass) Generation Skipping Trust (Not taxed in surviving spouse’s estate) Remaining Assets QTIP Non. GST Trust (Marital Deduction Trust that is not generation skipping) Surviving spouse can have the right to redirect how assets are distributed on second death. Generation Skipping Trusts for Children Benefits children and grandchildren. Not estate taxable in their estates. Surviving Spouse’s Revocable Trust (Will include assets owned jointly on first death) $5, 000* (Adjusted upward after 1/1/2011) Children’s Trust (or outright distributions) Benefits children. Taxable in their estates. Generation Skipping Trusts for Children (Can merge with first dying spouse’s Generation Skipping Trusts shown on left) Benefits children and grandchildren. Not estate taxable in their estates. Remaining Assets Children’s Trust (or outright distributions) Benefits children. Taxable in their estates. *Assumes first spouse dies in 2011 and that the surviving spouse dies in a later year when the estate tax exemption is still $5, 000. *The Unified Credit Exemption is $5, 000 in 2011 and 2012, and is scheduled to go back to $1, 000 in 2013. © 2011 – Gassman Law Associates, P. A.

Funding a By-Pass Trust with TBE Property • First dying spouse able to fund assets to a By-Pass trust to benefit surviving spouse – Not subject to federal estate tax on their estate – Present allowance is $1, 000 • IRS regulations allow surviving tenant to disclaim survivorship interest in joint tenancy property if certain steps are followed and in compliance with state and tax rules © 2011 – Gassman Law Associates, P. A. 22

BUYING CONVERTIBLE TERM INSURANCE • You can ask an independent agent who writes for many carriers to have the client take the physical so that they can get quotes from several carriers. • You can ask that all results and quotes be confidential and not given to the bureau that all carriers belong to and share information with. Once a carrier turns the client down or "rates" the client all other carriers know. • This is called an "informal application" and then the carriers can each give informal quotes for term coverage. If the client likes the quote then he or she can buy it. • You might spread this among 2 or 3 carriers in case one goes under. • Sample term rates for "preferred", "standard" and "standard smoker" individuals at ages 35, 40, 45, 50 and 55 are as follows: © 2011 – Gassman Law Associates, P. A. 23

BUYING TERM INSURANCE AGE 30 PREFERRED MALE STANDARD FEMALE STANDARD SMOKER MALE FEMALE 10 Year Term $378 $328 $658 $518 $1, 548 $1, 218 15 Year Term $458 $398 $768 $688 $1, 918 $1, 438 20 Year Term $608 $478 $968 $738 $2, 278 $1, 638 30 Year Term $938 $768 $1, 518 $1, 218 $3, 908 $3, 018 AGE 35 PREFERRED MALE FEMALE STANDARD SMOKER MALE FEMALE 10 Year Term $375 $345 $735 $565 $1, 685 $1, 345 15 Year Term $515 $415 $915 $805 $2, 135 $1, 775 20 Year Term $665 $565 $1, 105 $945 $2, 885 $2, 265 30 Year Term $1, 015 $825 $1, 735 $1, 375 $4, 705 $3, 555 © 2011 – Gassman Law Associates, P. A. 24

BUYING TERM INSURANCE AGE 40 PREFERRED MALE STANDARD FEMALE STANDARD SMOKER MALE FEMALE 10 Year Term $505 $435 $925 $785 $2, 405 $2, 005 15 Year Term $655 $575 $1, 215 $1, 035 $3, 125 $2, 485 20 Year Term $865 $745 $1, 505 $1, 255 $4, 345 $3, 185 30 Year Term $1, 495 $1, 135 $2, 465 $1, 985 $7, 175 $5, 275 AGE 45 PREFERRED MALE FEMALE STANDARD SMOKER MALE FEMALE 10 Year Term $805 $705 $1, 405 $1, 095 $8, 935 $3, 055 15 Year Term $1, 065 $875 $1, 985 $1, 445 $5, 275 $3, 815 20 Year Term $1, 415 $1, 105 $2, 355 $1, 755 $7, 195 $4, 895 30 Year Term $2, 355 $1, 765 $2, 845 $2, 825 $11, 625 $7, 555 © 2011 – Gassman Law Associates, P. A. 25

BUYING TERM INSURANCE AGE 50 PREFERRED MALE STANDARD FEMALE STANDARD SMOKER MALE FEMALE 10 Year Term $1, 235 $1, 025 $2, 145 $1, 625 $6, 435 $4, 295 15 Year Term $1, 785 $1, 235 $2, 805 $2, 065 $7, 825 $5, 725 20 Year Term $2, 225 $1, 625 $3, 425 $2, 715 $10, 425 $6, 865 30 Year Term $4, 025 $2, 645 $6, 245 $4, 785 $13, 719 $10, 109 AGE 55 PREFERRED MALE STANDARD FEMALE STANDARD SMOKER MALE FEMALE 10 Year Term $2, 025 $1, 495 $3, 315 $2, 235 $8, 935 $5, 905 15 Year Term $2, 895 $1, 835 $4, 655 $2, 985 $12, 055 $7, 995 20 Year Term $3, 505 $2, 465 $5, 955 $3, 985 $14, 875 $9, 985 30 Year Term Not Available Not available Not Available AGE 60 PREFERRED MALE FEMALE STANDARD SMOKER MALE FEMALE 10 Year Term $3, 098 $2, 198 $4, 808 $3, 278 $13, 028 $8, 308 15 Year Term $4, 488 $3, 048 $7, 088 $5, 218 $17, 658 $12, 978 20 Year Term $5, 798 $4, 078 $9, 488 $6, 668 $22, 048 $15, 058 30 Year Term Not Available Not Available 26

Practical Considerations • Practical considerations with respect to TBE 1. What if both spouses get sued? 2. What if the non-debtor spouse dies while the debtor spouse is waiting for the jury to come in? 3. What if the spouses are divorced and the debtor spouse receives an outright disposition? 4. What if the law changes? – Common solution: Establish a Family Limited Partnership or Limited Liability Company to own the TBE assets © 2011 – Gassman Law Associates, P. A. 27

Determining Best How To Allocate Assets As Between A Married Couple Part I General Rules: -Typically want each trust funded with at least $3, 500, 000 worth of assets on death for estate tax planning. - May be funded from ½ of tenancy by the entireties assets via disclaimer and probate or by life insurance/pension/IRA assets. Husband Protected life insurance and annuity contracts “owned by the insured. ” 1. 2. Wife Husband’s Revocable Trust Wife could be Trustee if Husband is sole grantor (or vice versa) Trustee other than Husband or Wife’s Revocable Trust Gifting Trust (Irrevocable) Lifetime By. Pass Trust (Irrevocable) TBE (Tenancy by the Entireties) 1. Assets held directly by revocable trust are subject to husband’s creditor claims. Direct ownership of limited partnership or LLC not in TBE may have charging order protection (meaning that if a creditor obtains a lien on the 2. limited partnership or LLC, the husband cannot receive monies from the limited partnership or LLC without the creditor being paid). Only exposed to creditors if 1. both spouses owe the creditor or if one spouse dies and the surviving spouse has a creditor, the spouses divorce, or state 2. law or the state of residence changes. On death of one spouse, surviving spouse may disclaim up to ½ (if no creditor is pursuing the deceased spouse) to fund By-Pass Trust on first death. Safe from creditors of husband but exposed to creditors of wife (Maintain large umbrella liability insurance coverage to protect these assets. ) On wife’s death, can be held under a protective trust, which will continue to be safe from creditors of husband subsequent spouses and “future new family” 1. 2. 3. Safe from creditors of both spouses. If divorce occurs, should not be subject to rules for division of property between spouses. May be controlled by the “entrepreneurial spouse” by using a Family Limited Partnership. 1. 2. 3. Safe from the creditors of the Grantor’s spouse. If funded by one spouse, may benefit other spouse and children during the lifetime of both spouses. Otherwise can be identical to gifting trust pictured to the left. SEE NEXT PAGE FOR SECOND TIER PLANNING A COMMON SOLUTION - to use a limited partnership or similar mechanisms and have no assets directly in the “high risk” spouse’s trust, half to two-thirds of the assets held as tenants by the entireties, and half to two-thirds of the assets directly in the “low risk” spouse’s trust. © 2011 – Gassman Law Associates, P. A. 28

Determining Best How To Allocate Assets As Between A Married Couple Part II Subsidiary Entity Techniques: -Limited partnerships can be used to facilitate discounts, for estate tax purposes, and for charging order protection. -Limited partnerships and LLCs can also be used to provide “firewall protection” from activities or properties owned. Husband Wife Husband’s Revocable Trust 1. 2. 1. Assets held directly by revocable trust are subject to husband’s creditor claims. Direct ownership of limited partnership or LLC not in TBE may have charging order protection (meaning that if a creditor obtains a lien on the limited partnership or LLC, 2. the husband cannot receive monies from the limited partnership or LLC without the creditor being paid). SECOND TIER PLANNING: 97% FLP Wife’s Revocable Trust TBE (Tenancy by the Entireties) Only exposed to creditors if 1. both spouses owe the creditor or if one spouse dies and the surviving spouse has a creditor, the spouses divorce, or state 2. law or the state of residence changes. On death of one spouse, surviving spouse may disclaim up to ½ (if no creditor is pursuing the deceased spouse) to fund By-Pass Trust on first death. 3% 1% Lifetime By. Pass Trust (Irrevocable) Gifting Trust (Irrevocable) Safe from creditors of husband 1. but exposed to creditors of wife (Maintain large umbrella liability 2. insurance coverage to protect these assets. ) On wife’s death, can be held under a protective trust, which will continue to be safe 3. from creditors of husband subsequent spouses and “future new family” 96% Wife could be Trustee if Husband is sole grantor (or vice versa) Trustee other than Husband or Wife Safe from creditors of both spouses. If divorce occurs, should not be subject to rules for division of property between spouses. May be controlled by the “entrepreneurial spouse” by using a Family Limited Partnership. 3% 1. 2. 3. Safe from the creditors of the Grantor’s spouse. If funded by one spouse, may benefit other spouse and children during the lifetime of both spouses. Otherwise can be identical to gifting trust pictured to the left. 100% Husband, Manager FLP LLC FIREWALL LLC Leveraged Investment Property or activity A COMMON SOLUTION - to use a limited partnership or similar mechanisms and have no assets directly in the “high risk” spouse’s trust, half to two-thirds of 29 the assets held as tenants by the entireties, and half to two-thirds of the assets directly in the “low risk” spouse’s trust.

Moving More Value Out Of Taxable Estates by Using Discounted Limited Partnership Or LLC Annual Gifting © 2011 – Gassman Law Associates, P. A. 10 Year Gifting Period $26, 000 Annual Exclusion Allowance 35% Valuation Discount 30

Multiple Owned Doctor Medical Practice © 2011 – Gassman Law Associates, P. A. 31

CHART #1 PROFESSIONAL PRACTICE LIEN STRUCTURE LOGISTICS Gives Lien © 2011 – Gassman Law

CHART #2 PROFESSIONAL PRACTICE LIEN STRUCTURE LOGISTICS © 2011 – Gassman Law Associates, P.

TO: CLIENTS AND ADVISORS DATE: JUNE 3, 2011 RE: CHARGING ORDER REPAIR BILL SIGNED BY GOVERNOR *************************************** Concerns over the Florida LLC charging order law have been resolved in favor of multiple member LLCs and their owners. On Tuesday, Governor Scott signed the new bill which took into account the Florida Supreme Court Olmstead case, which will no longer be pertinent for multiple member LLCs. It will still be important that LLC Operating Agreements and other documents be appropriately worded and structured. Single member LLCs will not have charging order protection. Our 18 page article on the new law and matters associated therewith will appear in the LISI financial advisor system shortly, but if you would like an advance copy, please let us know. © 2011 – Gassman Law Associates, P. A. 34

By way of background, Charging order protection means that upon receiving a judgement against an LLC member a creditor cannot take over part ownership or take assets out of the LLC, but is instead limited to being paid as and when the LLC makes distributions, with the LLC not having any obligation to make any distributions at any time. Last summer, the Florida Supreme Court held in the case of Olmstead v. Federal Trade Commission that a charging order was not the sole remedy for a judgment creditor of the sole member of a single member LLC. The Court’s reasoning also indicated that charging order protection may not apply for multiple-member LLCs. The new legislation makes it clear that charging order protection will apply in a properly structured multiple-member LLC situation. The legislation is retroactive to the initial passing of the LLC statute in the 1990 s. Single member LLCs will not be accorded any substantial treatment, although the new legislation provides that a creditor of a single member LLC owner will not be able to seize assets or control of the LLC if the Court is convinced that the creditor will be paid in full within a reasonable time. It is important to note that an improperly drafted or structured multiple-member LLC arrangement may not qualify for charging order protection. Many LLC members and managers may, therefore, want to have their LLC operating agreements reviewed to be certain that the legislative fix will be beneficial to them. © 2010 - Gassman, Bates & Associates, P. A. 35

“It wasn’t raining when Noah built the ark. ” © 2011 – Gassman Law

Biography Alan S. Gassman is an attorney practicing in Clearwater, Florida with the firm of Gassman Law Associates, P. A. Mr. Gassman’s primary practice focus over the past 26 years has been the representation of high net worth individuals, physicians and business owners in estate planning, taxation, and business and personal asset structuring. Mr. Gassman speaks often for national and state sponsored continuing education programs and publishes several articles each year in publications such as BNA, Estates and Trusts Magazine, Estate Planning Magazine, The Florida Bar Journal, Leimberg Estate Planning Network (LISI), and Medical Economics, and has presented dozens of Webinars for professionals on a variety of topics. Mr. Gassman has a law degree and a Masters of Law degree (LL. M. ) in Taxation from the University of Florida, and a business degree from Rollins College. He is board certified by the Florida Bar Association in Estate Planning and Trust Law, has the Accredited Estate Planner designation for the National Association of Estate Planners & Councils, has been and is a commentator for the Leimberg LISI Estate Planning Network, past President of the Pinellas County Estate Planning Counsel, and co-chair and lecturer for two annual Florida Bar Tax Section conferences (Wealth Conservation and Physician Representation). Mr. Gassman holds a prestigious AV rating from his peers on the Martindale Hubbell attorney listing. Mr. Gassman can be contacted at agassman@gassmanpa. com, or by phone at 727 -442 -1200. The Gassman Law Associates, P. A. website is www. gassmanlaw. com. © 2010 - Gassman, Bates & Associates, P. A. 37

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