Advice to the New Law Student, or One L.

First, let me make clear this has absolutely nothing to do with my usual topics; estate planning, probate, or trust litigation.  And, this post is not directed at my usual markets; individuals seeking probates, wills, estate planning, I’m not going to get any clients out of this post.  This is directed towards people entering law school; if you’re not entering law school, then feel free to stop reading.  This is strictly advice offered by me to students entering law school, it is offered for free but I do think this is very good advice to a new 1L.

 

So, you got into law school.  Congratulations.  I am not going to address what your motives are in going to law school, or why you are going, or even if going to law school is a good idea.  And I am not going to address whether law school is a good value; it will depend upon what you are paying, and what your job prospects actually are , i.e, not what  you imagine them to be but what your chances are of getting a job that will pay off your loans.

 

There are a number of books detailing the ‘first year’ of law school. “One L” by Scott Turow; “Paper Chase” by John Jay Osborn, Jr. , which was turned into a film and subsequently a television program; both of which deal with the first year of law school at Harvard: One L is nonfiction; Paper Chase is fiction but both books deal with what happens when someone who was previously an academic superstar encounters law school.  I have never attended Harvard Law, I don’t think I have ever been within 50 miles of Harvard Law, I can not vouch for the accuracy of the depiction of Harvard Law in those books.

However, I can vouch for the accuracy of the depiction of some aspects of law school in general.

First, for probably the first time in your academic life, you will be competing with people who are roughly your equal in intellectual ability.  The first rule of law school is, there aren’t any dummies in law school.  Although this country arguably has more law schools than needed, in the sense that there is an excess of law school graduates over jobs, the fact is that entry into law school is still competitive, and for the higher ranked law schools, extraordinarily  competitive.  Everyone who goes to law school is a college graduate; virtually everyone who goes to law school did well to spectacularly well as an undergraduate; and virtually everyone who goes to law school has done well to extremely well on their LSAT test. You simply are not going to get some slacker who graduated at the bottom of the class who flubbed their LSAT entering an ABA accredited law school.  With the exception of a few “Conditional admittance” programs at lower ranked law schools, everyone there likely has both a very good undergraduate performance and reasonably high standardized test scores.  My point being that there is a ‘floor’ below which certain people simply are not going to get into any law school.

Second; law schools are highly stratified in their admission.  The very best students go to the very top law schools; Harvard, Stanford, what have you; the slightly less able students go to second tier schools; people of somewhat lesser ability go to somewhat lower ranked schools and so on until you wind up at your bottom tier schools.  What this means is, within a given school, you are unlikely to find very many people who are substantially more able than the average student, if they were of much greater ability they would almost certainly be at a higher ranked school.  There may be an occasional exception where someone was offered significantly more financial aid at the lower ranked school, but by and large everyone at a given law school are more or less equal in ability.  And of course, the potential students who are significantly less able are either at a lower ranked law school or not in law school at all.  If you review the various admissions data for law schools, you will see that the LSAT scores and GPA ranges usually fall within a fairly narrow range for any given law school and that law schools are highly stratified by median LSAT scores and GPA.

So, what does this mean to you? What it means is that, probably for the first time in  your life, you will be competing amongst your equals. The  average law student is used to being a superstar; they were top of their class in high school; they were top of their class as an undergraduate, they may have been teachers pet, they did well in college, and probably didn’t even have to work all that hard because they  are smart and on the ball.  The problem is, everyone else in your law school did well in high school, as an undergraduate, and were teachers pets, and are smart and on the ball.

 

If everyone is more or less equal in ability, what distinguishes students from each other?  Work.  The amount of work you are willing to put into it.  And, make no mistake, law school is a lot of work. It is a lot of reading; and reading probably unlike you have done before.  The rule of thumb is, you should figure on 2 hours of prep time for each hour of class time; if you’ve got a contract class that meets for 2 hours each two days a week, you should figure on preparing for 4 hours before each class meeting.  What does preparation mean?  Preparation means reading the cases; at least twice, maybe more.  And reading critically; you will be told how to ‘brief’ cases; it can vary a bit between professors and schools but at the least you will be expected to identify the relevant facts of the case, identify the issue in the case (the question the court is answering) identify the rule that the court is applying, (the holding) and what the court decided or concluded about the facts in light of the rule.  You may also be asked to identify the ‘procedural posture’ of the case as well as “dicta”; dicta is an important statement about the law that is not directly relevant to the issue in front of the court. It can be tough, initially to figure out what is the rule in the case and what is dicta; the court generally won’t say “this is the rule” (although sometimes they will say that and  you should be thankful for that) and “this is dicta”.  It is not easy reading cases; judges aren’t always the best writers and aren’t necessarily writing  to make it easy for lawyers or law students.

 

But, this is the key; you need to read the cases, to spend the time briefing them, in order to succeed in law school and as a lawyer. This is what lawyers do; they spend their time reading cases and trying to apply those cases to their own cases.  This is the single essential skill you need as a lawyer; to learn to read cases; to be able to understand when a case would apply to your case and when it shouldn’t; there is no shortcut learning this skill other than practice, doing it; reading the cases, critically, and picking them apart.  It sounds simple enough; but you are going to have to spend a lot of time reading a lot of cases, usually more than once.  You may be assigned 60, 70 pages of cases for a one hour class meeting; figure on reading, actually reading, not skimming, those 60 pages at least twice.  Even if you’re a fast reader, that’s probably a couple of hours. In addition to which you need to extract the information to do your brief and write it. This is where some law students fall down; they don’t spend enough time really critically reading the cases;  they’ll skim the cases, they’ll ‘book brief’ (make notes in the cases in the text), they’ll buy or download pre-prepared briefs.  The problem with that is, they’re not learning to read the cases and they are not developing skills in reading cases.  You need to figure out what are relevant facts and what are not relevant facts; frequently judges like to tell stories in their opinions and like most storytellers they like to keep the readers interest by putting in some background, but not necessarily relevant facts.  If you’re reading a case about a dog bite, and the opinion mentions that it involved a white German Shepard, the fact that the dog was white probably isn’t relevant; the fact that it was a German Shepard probably is.

The first year of law school you are going to taking 15 hours of class per semester; 3 hours of that is going to be legal research and writing and probably 3 substantive courses of 4 hours each; maybe contracts, torts and property, or what have you. That’s 12 hours of substantive courses; figuring 2 hours of prep time for each hour of substantive course you’re looking at 36 hours a week between class and reading cases for class; plus 3 hours on legal writing plus whatever time you spend out of class on your writing assignments; figure another 5 hours there. So, do the math: 15+24+5=44 hours a week.  That’s a full time job; that’s about 9 hours a day 5 days a week in class or actually working.

And, frankly, this is where a lot of law students fall down; time management.  They have to spend a minimum of  44 hours a week on this stuff; that can be done reasonably efficiently if you are willing to get up, get breakfast, shower, and hit the books before you go to class; once you get out of class you hit the books, eat lunch, hit the books again, go to your afternoon class, hit the books until dinner and them maybe you have some free time in the evening.  By hit the books, I mean, cloister yourself in the library, or in your dorm room on campus, and read and brief. I don’t mean, hang out with your buddies in the lounge, watch TV there, play on the internet, go out and have a two hour lunch, or watch Netflix. I mean, walk out of class, find some quiet place and read and brief the cases.  If you don’t take advantage of your down time out of class in the daytime, this means you have to spend all of your evening doing the work; and I mean all of the evening; don’t think you can crack your books at 9 pm while keeping an eye on TV or whatever for a couple of hours; It’s not going to work, unless you are up till 3 AM.  If you do this, you should have most of most of your weekends reasonably free; to do chores, to socialize, to relax.

Another piece of advice; live in the dorms.  On campus. First, it is likely less expensive than off campus housing; but even if it isn’t, it’s faster to get to and from class.  And, it’s cheaper to cook and eat in your dorm than buy breakfast and lunch and lattes at the student union; law school is expensive enough without having to buy your meals.   Law school tuition is horrible; but what’s even worse is, consumer spending in law school; unless you have parents who are floating you, you’re not likely to have much income; that consumer debt will kill you.  It’s bad enough to pay $4 for a latte; it’s even worse to have to pay 25% interest on that for years because you can’t pay off the credit card you charged it to.

Don’t even think of skipping class; I don’t know what you are paying for tuition but when I was in law school I worked it out and it came out to something like $100 in tuition for an hour and a half class meeting, every meeting.  If I skipped class it was the equivalent of burning a $100 bill.  You can do the math yourself but I can guarantee you skipping class is quite expensive; remember you’re paying for this stuff. In addition to the fact that you’re skipping class and missing out on stuff you need to know.

 

Law school classes; One L and Paper Chase are pretty accurate about how law school classes are conducted.  They are taught by the socratic method; the teacher asks questions of the students. It is very disconcerting the first time you encounter it.  The teacher expects that you have read and understood the cases. If you haven’t read the cases and the teacher calls on you, it is going to be painfully obvious that you haven’t read the cases thoroughly.  The first questions will be pretty straight forward; factual; what are the facts of the case, what are the issues, what is the holding or the rule? If you’ve read the case,  you can answer them; but even there; you need to read the cases with an eye to relevance.   Just because it’s in the case doesn’t make it relevant. True story; we were discussing a dog bite case, professor asked what the facts were, the student parroted back about a paragraph about the dog directly from the case; it was a white long haired German Shepard who had escaped from yard with a red fence and ran down Main Street; the look the professor gave the student was withering.  What’s relevant? German Shepard? Yes. White, long haired?  No.  Escaped from fenced yard? Yes. Red fence? No.  Name of the street? Probably not absent some other facts.  The point is, you need to think about whether the fact is relevant before including it in your brief.

So, the professor will initially talk about the case as decided. Facts, holding, reasoning, whatever. Then the professor will ask questions about what if the facts changed? Would you have the same result of the yard had been unfenced? A 6 foot fence?  If the dog had been a little Maltese instead of a Shepard? What if this was in the country instead of in town?

If you run into problems, if you become stuck on an area of law, you might want to look at a “hornbook”.  Hornbooks are one volume scholarly summaries of the law, typically caselaw; these are available at your law school bookstore but tend to be pricey; they should also be available at your law school library for free.  If you are having trouble understanding a particular area, maybe you have read two cases coming to contradictory conclusions, and you can’t make sense of them; or if you have a long case discussing multiple issues and are having trouble figuring out what rule applies to what situation; take a look at a hornbook; they are indexed by case name, odds are you can find the case in it and find relevant commentary and explanation.  My first two law school classes were Negotiable Instruments and Criminal Procedure; the Criminal Procedure class was taught entirely out of United States Supreme Court constitutional cases; lightly edited but with no explanatory material; about 1200 pages of cases, and both 3 credit classes lasting 6 weeks. The point is, I was swamped, overwhelmed, not only did I have to learn how to learn to read and brief cases but I had to make sense of the cases themselves.  In my case, I sprang for a copy of Lafave and Israel “Criminal Procedure” which discussed many of the cases I was studying; and frankly it helped me make a lot of sense of what I was reading.  My point is, don’t be a stranger to the law library; if you are floundering on something an hour or two spent in the law library reading hornbooks can clarify a lot of things and help you make sense of stuff.

Be prepared to participate and discuss cases the first day of class. Some professors will spend the first day doing introduction, talking about law school, their expectations, maybe giving an outline or very broad overview of the subject. Don’t count on that.  If the professor has emailed or otherwise provided you with a syllabus and it lists reading, do the readings.  They will be discussing those readings. Right off the bat.

Which brings me to my next point: your class participation.  Don’t speak just for the sake of speaking but if you have something relevant to say, speak up.  And I do mean speak up; don’t mumble, law professors hate that, they’re training you to be a lawyer and you should learn to speak up in front of a judge.  Why should you voluntarily contribute, if you have something to contribute?  Because of the “bump”.

Depending on the school and the professor, most professors have the discretionary authority to increase selected students grades a half a letter grade.  Law schools grade A to F, with “+” gradations; i.e, A, B+, B, C+, C, D+, D, F.  A half grade bump will get you from a C+ to a B or a B to a B+.  The professor will let you know if they do this the first day of class.  If they offer it, go for it; the professor will likely grant about 10% or so of the class the half letter bump; it will be based on consistent, intelligent discussion and comments.  It may seem unfair but it counts.

Law school exams are anonymous.  You will be assigned a random number and you will write the number on your final exam; when the professor grades the exam the professor will not know whose exam they are grading; disclosing or attempting to disclose your name on an exam will usually get you automatically failed and maybe suspended or expelled; this is always an honor code violation and is considered very serious.

 

The exam will almost certainly be largely, or exclusively, essay; some professors and some courses may have additional multiple choice and/or fill in the blank questions; my property professor had some fill in the blank questions for definitions  of property terms, but most of the exam was essay.  Count on an essay exam.

How to take a law school essay exam:  Typical law school exams will present a fact pattern; probably fairly complicated with multiple issues and multiple parties.   There may be multiple questions.   The instructions will say something like discuss all reasonably raised issues and defenses.  They will almost certainly show next to each question what it is worth in terms of overall points or percentage of grade, for instance, questions 1, 2, and 3 are worth 20 points each, question 4 is worth 40 points (for 100 point total).

The very first thing you need to do is determine how much time you can spend, maximum, on each question for the time allotted.  You will have 1 hour of exam time for each hour of class credit time; if it is a 3 credit hour class; it will be a 3 hour exam; 4 credits; 4 hours.  In the case above, assuming a 4 hour exam time and three questions worth 20 points each and one worth 40 points, that’s 2.4 minutes per point or 48 minutes each for the 20 point and 96 minutes for the 40 point question; I’d figure 45   minutes for the 20 point questions and 90 minutes for the 40 point question, which would leave you 15 minutes for checking your work at the end. Write that down; watch the clock; and start writing; pay attention to the clock; once your time runs out on one question move on to the next question.  I mean that. If you run out of question before you run out of time, you can always come back to a question you had more to write on.  But it sucks to run out of time and not at least address all of the questions; you’ll lose points.  Bear in mind how law school professors typically write and grade exams; it is usually impossible to get 100% of the points in the time allotted; the professor will likely have major issues, minor issues, possible defenses and maybe mitigations.  Even if you are aware of every single issue, defense and mitigation, it is very unlikely that you will have the time to fully address each and every one of these in the time allotted to you.  But that’s fine; no one else is likely to do so either.

Law school exams are not baseball games; they are not about making home runs; they are more analogous to Pinball, for those of you who have ever played that game.  It is about how many times you hit the bumpers; racking up a few points each time; and the cumulative points you manage to earn.  So, your key is, to recognize as many issues as you can and address them in the time allotted.

Because no one is likely to get 100% of the possible points, professors typically grade on a curve; after they have scored all the exams, determined how many points each student has earned, then they draw the lines for letter grades.  The top 10% of the grades, maybe 4 or 5 grades in a 50 person class, that’s where they will draw the A line. A bit below that, the B+ line, and so on and so forth.  The key being, you don’t need to score every possible point; you simply need to score more points than most of the other students.  And, remember what I said about the “bump”; if your professor offers grade bumps, and if you receive one, that’s a half letter grade improvement. That’s the difference between a B and a B+ or a B+ and an A.

When the professor grades your exam they are going to be looking to see how you analyzed this stuff.  They are not interested in the right answer,  they want to see you walk thru the analysis.  You will hear about IRAC in law school; I’m not going to discuss how to IRAC, but I will say, the reason most students get marked down is they did insufficient, or no, analysis.  They didn’t’ explain the “why”.  Now I will pass along the best advice I ever got in law school; it was from a Harvard Law trained professor.  He said, IRAC is fine, but “Because” is essential.  Every single sentence you write in a law school exam should contain the word “Because”.  It doesn’t lead to beautiful writing but it does lead to high marks; because it forces you to explain the ‘why” which is what the professor is looking for.  “The defendant did not commit murder because he did not know the mug he was holding was actually a gun;  the rule is that a criminal defendant must have mens rea or a certain state of mind to hold him criminally liable because criminal law normally only punishes deliberate acts; thus, when the defendant pulled on the handle of the mug unaware that it was actually a trigger to a concealed gun, and killed his friend, because he did not intend to pull the trigger to a gun and  shoot his friend by pulling on the handle of the mug he did not commit murder”.  It’s kludgy but it forces you to explain your reasoning. Every single sentence needs because in it.

 

Studying for exams.  Nearly everyone uses “outlines”.  The two keys to outlines are 1) you should do them yourself because the process of making the outline will teach you the material and 2) all other things being equal, shorter outlines are better.  You need to be able to memorize this stuff.  It simply is not possible for most people to memorize a 50 or 60 page outline; it is simply too much material.  My outlines in law school generally ran somewhere around 20 pages or so; however, I will say that the courses that I did best in, I managed to boil down those outlines to 10 to 12 pages.

 

The main thing you want in your outline are rules, or holdings; something succinct, something memorizable.  Keep copies of all the briefs you do; on your computer; if you go to class and it turns out you have the wrong holding or rule, make a note of that and when you get home, fix that holding and save the file.  Halfway thru the semester is not too early to start outlining; open your brief, copy and paste the holding to the outline; do this in date sequence;  You should wind up with a rough outline consisting of holdings from the beginning of class.  Then, try to harmonize those holdings; those rules.  Try to reduce several holdings, maybe, to one longer rule, i.e, if X then Y, but If W, then Z.  This takes time, it takes thought, this is why you need to start this early; so you can work those rules into an outline.  Simply working on the outline will help you to learn the material.

Working with other people, study groups and using other peoples outlines;  Be nice to your fellow students. They are as stressed as you are. If someone is stuck on a point, help them out (the exception to his is legal writing; generally you are responsible for your own writing and are prohibited from helping others).  On the other hand, I, personally, was never a fan of study groups; they always struck me as trying to reduce work; and frankly you need to work on this stuff yourself to learn it. Likewise, using someone else’s outline, you don’t know if they are right; and you didn’t learn anything if someone else developed it. Now, if, near the end of the semester, you want to have a meeting with a small group and compare outlines and maybe discuss hypothetical questions, that’s fine; sometimes someone else will see something you missed; but the primary work should be your own.

Law school exam time is stressful; I know this is going to sound strange, but you should relax before an exam.  Go and see a movie; go get a pizza or Chinese dinner.  If you’ve been doing as I suggest, you’ve been working and studying all semester; you know this stuff, or should. Another 3 or 4 hours of obsessing and memorizing the night before an exam isn’t going to make a difference one way or another.

Lastly, once again; key to law school is time management. You are going to have to commit to what amounts to a full time job, 40+ hours a week, during law school.  Put your time in, but remember to take time off on the weekends or nights as you can.  Manage your time on essay exams; remember, you’ve got a finite period of time to answer questions; allocate your time wisely; do not spend more time on one question so that it causes you to not address other questions.

Good luck.  Have fun.  I mean that; I know I am in a minority but I actually enjoyed law school; basically all you have to do is read; and a bit of writing.  It beats all heck out of working in a factory or most offices.  Trust me, I’ve done both.  Law school is far, far preferable to loading trucks or being a welfare caseworker.

 

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LLC’s and Asset Protection in Florida.

As I’ve noted elsewhere, limited liability entities, including Corporations, Limited Liability Partnerships and Limited Liability Corporations may not provide as much protection as people think.  While all of these entities theoretically provide individual protection from corporate acts for individuals owning an interest in the corporation or partnership, in many cases that protection can be illusory, particularly for small companies where the owner or owners are involved in the day to day operation of the business. Specifically, if you are involved in the day to day running of any business, and some operation of the business winds up hurting someone, chances are that you, individually, will wind up being sued.  The classic example is that of a truck that is owned by a corporation, being driven by one of the owners of the corporation, which gets into an accident and winds up killing someone. Notwithstanding that the truck was owned by the corporation, the driver is going to get sued as well; and in this case the driver was one of the owners of the corporation.  Likewise, if the truck was being driven by an employee of the corporation, but someone who was not an owner, and it turns out that the driver had a bad driving record, or had previous DUI’s, then whoever hired the employee is likely to be sued and, frankly, if that person was the owner of the corporation, you are going to be sued.  In other words, although a corporation, an LLC, or a Limited Partnership can shield you from corporate acts, to some extent, it can’t shield you from your own acts or omissions.  And most small businesses have their owners managing and running  or overseeing the day to day operations of the business.

As I’ve also noted, the best way to protect yourself is getting insurance.

 

However, there is another consideration; can a business entity act as a shield to prevent someone from taking your interest in the business?  LLC’s have gained in popularity over the years because under some circumstances, if someone sues and gets a judgment against one of the owners, it can be difficult for that creditor to try to take that persons interest in an LLC.

But, this is the thing;  First, in Florida, a creditor can force the foreclosure sale of a single member LLC; where only one person owns that LLC; so if you are running a small business and form an LLC owned by only yourself, the LLC will provide very little protection against someone suing you for an unrelated debt and then seeing the LLC sold to pay that debt.

A multimember LLC, however, would prevent them from doing that; the most that they could seek is what is called a ‘charging order’ which would only allow them to take distributions owed to you in order to pay the debt; they could not seek the sale of the LLC or take LLC assets.

 

This is the wrinkle in that, though; what assets does the LLC protect?  It protects assets owned by the LLC.  And what type of business you are running in the LLC is going to determine whether those assets are worth protecting.  If you have a multi unit commercial building, then placing it in a multi member LLC may make a lot of sense; if one member has a judgment against them, the creditor can’t force the sale of the LLC to satisfy that judgment; and the commercial property is probably worth a lot of money.

 

If, on the other hand, you are running some sort of personal service business; with maybe a leased premises, maybe a leased vehicle, some equipment, and a bank account that has enough money in it to pay a few months of bills, there really isn’t that much to protect.  The LLC doesn’t own any real estate, either doesn’t own a vehicle or is making payments on a truck, and has some office equipment and tools.  What are you protecting?  Not much.

 

Understand, I’m not saying that forming an LLC is a bad idea; it will provide some protection. However, an LLC, just like a corporation, is not a magic bullet.  If you have questions about corporate formation in The Villages, Florida, please call my office.

 

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Florida does not recognize “No Contest” clauses in wills.

Florida does not recognize “No Contest” clauses in wills.

Sometimes people want to put in a “no contest” or “in terrorem” clause in a Florida will. A no contest clause says that if someone who is a beneficiary under the will challenges the will or challenges some provision of a will, that person gets nothing; it is designed to intimidate someone into accepting a will.
Florida does not recognize these provisions in a will and explicitly declares them unenforceable.
Florida Statutes 732.517
Likewise, for those trusts created on or after Oct 1 1993, any clause penalizing someone for contesting the trust is likewise unenforceable; and the statute defines a revocable trust as being “created” on the date that it becomes irrevocable, so even if a revocable trust was created before that date, if it was still revocable on or after that date, it is still subject to the provision. Florida Statutes 736.1108
Nonetheless, I do occasionally see these clauses in Florida wills; usually the wills are drafted by a non lawyer; typically either a do it yourself will, or created by some sort of software , or a paralegal; very occasionally by a Florida attorney. I would suppose there might be an advantage to using such a clause, if the beneficiary doesn’t know enough to consult a lawyer they might be sufficiently intimidated by it to not question the clause, but personally I do not like putting what I know to be unenforceable clauses in a will.
Really, if you want to prevent someone from challenging a will in Florida, the only real way of doing it is to make sure you leave them enough money so they don’t feel compelled to challenge it.

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Planning for a second (or later) marriage

Very frequently, retirees moving to Florida are either single, or at some point, wind up single, whether through divorce or widowhood. And then they meet someone new. And sometimes the other person is formerly married as well; having been through a divorce or their own widowhood.
And they decide to get married. That’s absolutely wonderful, but you need to be aware of issues that may come up; some legal issues, and some non legal issues.

First, does either party have children by the previous marriage? If so, then they need to think about what they may owe their children versus what is owed to the new spouse. I am not suggesting that anything is necessarily owed to the children; this is your personal decision; some people take the attitude that adult children have their own life and are fully financially independent; and that’s fine; but some parents think otherwise and feel that they may owe their children something. And even if the parent doesn’t feel that they owe their children anything, to be blunt, their children may feel otherwise. And those children may be somewhat hostile towards the new spouse.
Even if you don’t have children, you need to take a moment and think about what may happen to your property in the event of a marriage. A very common scenario is where both spouses own their own house, and when they get married, one of them sells their house and moves in with the other. That actually makes a great deal of sense in most cases; but you still need to consider what may happen down the line. If the spouse whose house is being moved into should die in the near future, should the new spouse get the house? Or have the right to live there for their lifetime? Or should they have to move out? What about the money they got from their own house? Is it fair that they should both keep the money from their own house sale and keep the house of the new spouse? What if the money that bought the house of the deceased spouse came from that deceased spouses previously deceased spouse or the house came outright from the previously deceased spouse (for instance, Wife owns house, marries husband, they have children together, or wife had children from prior relationship, Wife dies, husband gets house, husband remarries, husband dies and house goes to new wife?). Is that fair?
What if you get divorced? How much is the ‘new’ spouse entitled to?
All of these things can be addressed in a prenuptial agreement which I discuss here:

Prenuptial Agreements in Florida

But my broader point is, this sort of thing needs to be thought about, talked about, prior to the marriage. And each person’s answer may be very different; as I’ve noted, not everyone thinks they owe anything to their children; and if someone doesn’t have children they may have a very different attitude towards this than someone who does have children. And, you should realize, notwithstanding a prenuptial agreement, if you give something to your new spouse, it becomes theirs. If you add their name to a deed, they now own half the property; if you put their name on an investment account or a Certificate of Deposit, they now own that money just as much as you do; even if there is a prenuptial agreement, they will likely take that property at your death or if you get divorced; a judge is likely to say that you made them a gift of that property and you can’t ‘take it back’.
I’m not trying to dissuade anyone from getting married, but I am saying that people need to think this through; make some plans and they may need the advice of a lawyer.

If you have questions concerning your rights upon marriage in or around The Villages, Florida, please feel free to contact my office.

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Selling the Collection

A recurring situation in probate is where the parent had some sort of “collection” and the children want to sell the items. A lot of times, the parent would talk about the collection and raise the children’s expectation of the value of the collection- the children believe that the collection is “valuable”. Frequently, they are disappointed in the value of the collection.
First, the fact is, nearly all items that are mass produced for the “collectible” market aren’t going to be worth any more than what was paid for them, and frequently, considerably less. What do I mean by “mass produced for the collectible market”? I mean items that are made and marketed to collectors. This would include such things as Hummel figures, anything from the Franklin Mint or companies such as that, almost any “commemorative” item, including commemorative firearms, Beanie Babies, and nearly all modern U.S. Mint coin sets. With respect to US mint coin sets, the ‘higher’ grades of sets, i.e., true “Proof” sets may be worth a significant amount of money, but only if they are rare. Most modern proof sets were made by literally hundreds of thousands or millions and the only variations that are truly valuable are those that have errors. And the ‘ordinary’ uncirculated sets are rarely worth what they sold for. If you have such a collection, by all means, check a reliable source for specific values, but generally these things are worth not much more than the face value of the coins.
And, when dealing with collectibles, condition is everything; if a coin set has been taken out of the holder and handled, chances are it is not worth anything beyond face value; other sorts of collectibles, if there is any visible handling or damage, even slight damage, the collectible value has almost certainly been destroyed; in some cases, anything other than “New in Box”, which means just that; just as it came from the store, in the original packaging, with all the original paperwork, is essentially non collectible. I see this particularly with firearms; there are all sorts of “commemorative” firearms, typically with engraving and special gold filling and maybe special packaging; if the gun has been shot, or even visibly handled, the gun is likely worth no more than what a non-commemorative firearm of the same type would be worth. The collector value can be easily destroyed by an heir picking up and handling the firearm.
Additionally, it truly depends on what the item is; in the case of firearms, an older, rarer Winchester or Colt may be worth some money, even if it is in less than pristine condition; a Mossberg 500 shotgun, however, is likely to have only “shooter” value; and an Iver Johnson revolver, even if absolutely pristine, in box, is not likely to be worth much money at all, unless it is truly rare.
Likewise, artwork is very dependent on the item; a Salvador Dali or Picasso or Andy Warhol print may be worth significant money; once again, depending on condition; a Thomas Kinkade print or painting, on the other hand, typically is worth little more than what it originally sold for, unless it was truly a limited edition or very rare item.
And, then there is the problem of selling the item. If the item is taken to a dealer, the rule of thumb is you will be lucky to get around half of the “book” value, or less. Certainly, one can try to sell it directly; Ebay and other sites allow you to reach a truly global market, however it may take time, you may incur costs in selling the item and the same global market that you reach allows anyone else with a similar item to reach the same market and possibly underprice you. If there is a truly significant collection, 50, or 100 items, it may be worth hiring an auctioneer and advertising the items.

My point is, simply be aware that what your parent said was a ‘valuable collection’ may not, in fact, have much monetary value.

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Peace on Earth and Goodwill towards Man

We’ve got just over a week before Christmas and this is my annual Christmas thoughts post.
Sometimes, just after the holidays, I get phone calls from potential clients who want to make changes in their wills. This is usually caused by visits by their children or grandchildren. The parent or grandparent is upset with their descendants, and typically want to cut one or more of them out of a will or reduce what they get.
You might think that this comes from disapproval of the childs’ politics or lifestyle or beliefs. More often than not, though, it’s about material possessions; the phrase that I hear over and over again is “They don’t appreciate what I want to leave to them”. In other words, the parent has some possessions, maybe a house, maybe an antique car, maybe some sort of collection- a gun collection, a Hummel collection, or what have you- that they’ve invested a lot of time, money, and emotion in. They want the child to make a fuss over the item; sometimes they want to place restrictions on what happens to the property after they die, to preserve it in the family; usually, but not always, dealing with real estate- a farm, a vacation property. And it becomes apparent that the children don’t share the passion for the item that the parent has.
Several years ago, one particular priest at our Parish in The Villages, noticed this and addressed it in his Homily. He essentially said, there’s nothing wrong with enjoying material things; he used the example of antique cars; but don’t expect anyone else, particularly your children, to place the same value on particular material goods as you do. Enjoy your antique car, drive it, take it to the shows, but your children probably aren’t going to be as passionate about this as you are, and to them, it’s just an old car.
And in my own practice, I’ve seen this; people who’ve amassed quite significant collections, such as a gun collection, who’s children hate guns and have no intention of keeping them after their parents death. Frequently the parent becomes upset over this and wants to disinherit the child.
Obviously, people should make provision for their things after they die; and in some cases, particularly where the “things” are living beings, such as pets or livestock, it is in fact very important to leave the possession to someone who will take care of it. But as far as inanimate objects go, things are simply things; and your children have different priorities than you do; they don’t value particular material goods as you do, and that’s fine. Your children are not you; they have different values, they have different interests and different passions. Don’t let material possessions, particularly your own feelings for inanimate objects, come between you and your children; if you really want to insure that a particular item goes to someone who will value it, talk to your lawyer; maybe it can be arranged to leave it to a museum or a particular individual with a similar passion; but to disinherit a child entirely because they don’t appreciate a particular thing really may not be a good idea. Relationships with your children and grandchildren are more important than things.
Just remember, this Christmas season, your family is more important than things, don’t let things come between you and your family.

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Unwitnessed wills are not valid in Florida, even if the will is valid out of state.

As I’ve noted in the past, Florida prohibits “Holographic” wills; wills that are handwritten by the testator but fail to meet Florida requirements for execution, usually for failure to have two witnesses.

A recent case, here:
Lee v. Estate of Payne
discusses this rule; in this case, a Colorado resident executed a Colorado will; it was unwitnessed but met the requirements for admission to probate in Colorado. However, the will also attempted to dispose of Florida real property.
Essentially, the will was sought to be admitted in Florida on the basis of “Full faith and credit”, i.e. that Florida should respect Colorado’s determination that it was a valid will.
Unfortunately for the beneficiary, the Florida court rejected that argument; Florida does not recognize unwitnessed wills, even if the will is valid in the state it was executed.
From a practical viewpoint, if you own property in Florida, whether you are a Florida resident or a resident of another state, and wish to leave property via a will, it is essential that your will at least be reviewed by a Florida attorney, particularly if your will was not drawn up by an attorney in the state in which you live. If you have questions about the validity of your will and live in or own property in The Villages, Florida, please feel free to contact my office to review your will.

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Why a Landlord might be better off without a written lease

Normally, I encourage people to use written contracts for legal matters; some transactions, in fact, are unenforceable without written contracts; such as agreements for sale of property, and sales of goods for more than $500. In most circumstances, written contracts are good; they set out the terms, by having the parties sign the contracts they show that they understand and agree to the terms.
However, when it comes to leases, particularly for residential premises, written contracts, written leases, can lead to problems; particularly where the tenant becomes undesireable. Maybe they’re paying the rent, but late; maybe they’re disturbing other tenants, maybe they’re not keeping the property up. In order to terminate a written lease, you need to show that problem they are causing is either something that is so egregious that they should not be given an ‘opportunity to cure’, which is a fairly high standard, or that you’ve given them prior notice of the exact same problem and they’ve either failed to cure it within 7 days or they’ve cured and let the problem recur.
This is the thing; landlords want two things; they want the rent paid, in full, on time, and they don’t want to deal with complaints, either from the tenant or other tenants or the city or the county. They don’t want to be constantly nagging tenants to pay the rent on time, to clean up the yard, to turn down the music at night, to stop flushing diapers down the septic system, or what have you.
The problem is, if there is a written lease, the tenant has certain rights under that lease and it becomes very difficult to terminate the lease early.
Likewise, sometimes landlords decide to sell property during a lease; under most circumstances, the new owner of the property is going to take subject to the existing written lease; and they may not be satisfied with the rental payments or the tenant. Essentially, though, that’s tough luck; a written lease is going to bind the tenant and the landlord and any successors to the landlord.
So, what’s the alternative?
An oral lease or a “month to month” tenancy; the renter pays the rent each month and they get to stay there for the next month. If they don’t pay, then eviction proceedings are brought. And if the tenant becomes a problem, or if the property is sold, then the landlord can terminate the lease; and can usually terminate the lease with as little as 15 days notice up to a maximum of about 45 days notice; depending on where in the month you are (Florida requires 15 days written notice, but it must be delivered not less than 15 days before the rent is due; so if the rent is due on the 1st and today is the 20th, you don’t have 15 days to give them notice; you would have to give them notice for the FOLLOWING month, i.e, the beginning of not next month but the month after that).
What’s the disadvantage to not having a written lease? You could get into trouble if you try to collect either more than one months rent (first and last months rent) and you could get into trouble if you try to collect a security deposit. Florida has specific laws on security deposits; the Florida statute requires that the landlord disclose certain things in writing to the tenant if the landlord holds a security deposit, and frankly, most Florida landlords don’t comply with the statute.
Additionally, if the tenant decides to ‘break’ the lease it becomes difficult to claim very many damages for a month to month lease.
Whether you use a written lease for residential tenancies requires some thought; additionally, if you do use a residential lease it is important to use a proper one; a lot of them floating around on the internet and on legal software and at office supply stores aren’t very good. If you are going to use a written lease than I would strongly suggest you get one drafted by a Florida attorney; there are certain items that should be in it.
If you have residential property for lease in or around The Villages, Florida, please contact me prior to renting the property; we can discuss whether a written lease is best for you and if so, I can provide one tailored to your situation.

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How to disinherit someone.

I’ve discussed this before; but I think the point needs repeating. With the exception of a spouse, and minor children, Florida doesn’t place any limitations on who you can disinherit. The exception for spouses falls into two categories; under most circumstances you can’t disinherit the spouse from receiving your homestead, and while Florida law allows you to disinherit a spouse from all other assets, Florida allows the spouse an “Elective Share” of 30% of the gross estate, subject to some setoffs for property they receive outside of probate. And if you have minor children, you usually can’t disinherit them from receiving the homestead. Other than that, though, normally you are not obligated to leave anyone anything, you can freely disinherit children, step children, siblings, parents, whoever.
You are not obligated to leave most people anything, including “A dollar”. And, in fact, if you want to disinherit someone, you are better off leaving them nothing, and not “A Dollar”. The reason for this is that if you do leave them a dollar in the will, they become an ‘interested party’ under Florida law; they are entitled to notice of the probate and they may be in a position to at least slow things down, by refusing to sign consents, receipts and waivers.
If you want to cut someone out of a will, the better practice is to mention them by name, and then explicitly state that you are not leaving them anything. Typically I use language to the effect of “I leave X nothing under this will but leave him my love and affection”.
The reason for this is if you simply fail to mention the person, there is a chance that they could use this to challenge the will; the basic premise would be that the parent was so senile, or so far gone mentally, that he forgot that he had a particular child or relative; I’m not suggesting that this would necessarily be a strong case, but it could slow things down, take time and money to resolve. By specifically naming them, and then explicitly stating that you leave them nothing, it shows that you knew what you were doing.
And, you shouldn’t discuss the reasons for why you are cutting them out in the will, such as “My son stole from me and I leave him nothing”. This could lead to two problems; first, there is a type of lawsuit called “testamentary libel”, where someone who is slandered in a will can sue the estate; obviously, lawsuits are going to slow down the probate and cost money to defend, even if the person cut out of the will doesn’t win the suit. And, you run the risk of opening the door to probate litigation; to use the example above, that “my son stole from me”, the son may be tempted to try to overturn the will on the basis that he hadn’t stolen from you; that you were either under some sort of delusion, mistake of fact, or that someone else poisoned your mind against him by telling lies. Once again, this could take time and money to fight.
If you insist on leaving a nominal amount, I would suggest that you leave enough to encourage them to sign off on paperwork; maybe $1000 or so; while that is not a fortune, it is enough that most people are going to be willing to sign paperwork and follow through on cashing a check. Nobody is going to cooperate to receive $1; most people will cooperate, even if grudgingly, to receive $1000.

If you want to disinherit someone, I strongly suggest you talk to an attorney; If you are in The Villages, Florida and need estate planning, please feel free to call my office and schedule an appointment.

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What can happen when you die without a will

Here’s a link to an article discussing a recently deceased New York real estate developer, Roman Blum, who (apparently) died without a will and without any relatives to inherit his estate:


Holocaust Survivor left an estate worth almost $40 Million but no heirs

Bear in mind, that’s a $40 million estate.
Now, this is actually rather unusual; most people have relatives; even if they don’t have close family, they have cousins, typically descendants of common grandparents, who stand to inherit on an intestate basis. And in Florida, IF someone dies without any ‘collateral descendants’ then the law looks to see if they were married, and if they were, if their spouse predeceased them; if their spouse predeceased them then in Florida the estate could go to ‘collateral descendants’ of the deceased spouse. So, normally, this does not happen very often; in the case of this particular gentleman, he was a Holocaust survivor and essentially all of his family was wiped out, and he had no children.

A somewhat later development; a disbarred lawyer has come forward claiming he has a valid will:

A will for Staten Island developer

I will try to keep up on this story as it develops.
The point, though, is this; if you die without a will, the state will set out who gets your property. And it might not be who you wanted to get it. If you are in or near The Villages, Florida, or Belleview, Lady Lake, or Wildwood, Florida, please feel free to contact my office to discuss your estate plan.

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