When you should not talk to the police

Posted on May 23, 2013 by admin

Normally, I don’t handle criminal cases. Nonetheless, the topic of this blog is how to protect yourself; how to protect your assets, how to protect your estate, how to avoid scams. One thing that you need to consider is what to do if you find yourself the target of, or a suspect in, a criminal investigation.

If you think you may be the target or a suspect in a criminal case, the two things you need to do are first, shut up. Do not talk to the police. The second thing you need to do is talk to a lawyer, immediately. Do not think you can handle this on your own; do not think that you can talk your way out of it, do not think that if you simply explain your side of the story the police will take your word for it and drop the matter. You need to stop talking to the police immediately, and you need to talk to an attorney immediately; preferably an attorney who regularly handles criminal cases.

I handle primarily estate planning and probate cases, and some real estate and business matters. Nonetheless, occasionally I will get a phone call from an existing or past client to the effect that the police want to talk to the client; or that the police have asked the client to ‘come down to the station’ so they can interview them. This is a red flag; the client is probably a suspect in a criminal investigation at this point. My advice to the client is “do not talk to the police, do not cooperate with the police, if the police ask to search something, tell them no, if the police ask you to show them something, refuse, and you need to talk to a criminal attorney” at which point I will usually give the client the name and phone number of several attorneys who handle criminal matters.

How can you become the target of a criminal investigation? Several ways. First, someone lies to the police. They accuse you of doing something that you did not do. It may be an accusation that you assaulted them; it may be an accusation that you took something of theirs; it may be an accusation that you did something to them, and that they didn’t consent to it; specifically, some sort of sexual encounter.

Frequently, when contacted by the police, the suspect is willing, even eager, to ‘tell his side of the story’. To tell the police what ‘really’ happened. Frankly, this is usually a mistake. You cannot lie to the police, you cannot tell them that this didn’t happen at all if there is an element of truth in what you are accused of; but you can tell them, “I am not speaking to you and I want to contact an attorney”. And then call a lawyer.

Let me give a specific, if hypothetical example; one that I’ve seen in my own practice. Client meets someone and one thing leads to another; maybe there is some drinking involved, maybe not, but that person goes home with client and they have sexual relations. Sometime later, maybe the next day, maybe weeks or months later, the person decides that for whatever reason, the sexual encounter was not consensual; they were too drunk, too high, to consent, that they said no, and were taken advantage of, that they were forced into it. The details may vary, but they decide that they did not consent. And they make a police report. Now, the longer the period between the sexual encounter and the report, the less likely there is to be any sort of medical or physical evidence of this. At this point, all the police have is the say-so of the person reporting it.

The police go and talk to the other person, the client, about this; they’ll mention that so and so said that they had sex with the client, and that it was forced or they were too drunk to know what they were doing or they said no, essentially that it was rape. At that point the client should shut up. Period. They should tell the police that they are not talking to the police, and they are calling a lawyer right now, and they need to call a lawyer right then and there. Under no circumstances should they try to “tell their side of the story”.

Why shouldn’t the client try to ‘tell their side of the story’? If they’re innocent they have nothing to fear, they have nothing to worry about, they’re telling the truth and the police will believe them, right? No, this is wrong. The police can believe part of a story, and disbelieve another part of the story. In the example I use here, if the clients story is “yes, we met at a bar, we both had a couple of drinks, we went to my house, she was a little tipsy but not actually drunk, she knew what she was doing and we went to bed” then you have just given the police pretty much everything they need to send you to jail. How? Because prior to your talking to them, all the police had was the other persons word for it; that this happened at all; that she had met you, that you had gone anywhere, that you had any sort of sexual relations whatsoever. Remember, this may be days or weeks after it happened; there is likely no physical evidence available; all the police have, or had, is her word for it. You, by talking to them, have confirmed that 1) you met her, 2) that she had some drinks 3) that you went home with her and 4) that you had sexual relations with her. The only difference between your story and her story is that she said she was very drunk and said no; and you said she only had a couple of drinks and said yes: the police can take both your words on the parts that you agree on and take her word for it on the part where you disagree. You have just confirmed to the police most of what they need to arrest you and they can believe the other person for the part you haven’t confirmed.

This is essential to remember; where the police have two sides of a story, they can pick and choose whose side and what parts to believe; and once you’ve admitted to some of it, the police don’t have to prove that part of the story because you’ve just admitted it. This happens all the time, not just in sexual crimes; it can happen in assault and batteries; two people meet, one person later claims that the other person hit them, or tried to hit them, or threatened to hit them, or threatened harm to them, the police talk to the client, and they tell the police that’s not what happened, I met the person but I was polite, I didn’t hit them or threaten them, or, yes, I touched them but it was because they tripped and were going to fall and I grabbed their arm to help them; or, no, he grabbed me first and I went to remove his hand from my arm; they’ve just given the police half of what they need to arrest you; you’ve just admitted that you met the person and maybe even touched them. If you hadn’t admitted to that the police would have to prove it and all they would have is the word of the person making the complaint.

Second, here’s another reason not to talk to the police; maybe you did in fact do something wrong, or maybe you did something that might have been wrong. The natural tendency of telling your side of the story is to ‘shade’ the truth; to put a ‘spin’ on it, to make you look good. Sometimes it involves what people would call ‘white lies’, little lies that really don’t matter; sometimes it may be what you believe to be true, but for whatever reason, you’re misremembering it, or your not being in full possession of the facts, you are simply wrong about it. This is human nature, this is human memory, how people remember things isn’t necessarily the way it happened. Under most circumstances, this is not a big deal; if a married couple has different memories about how they first met, it’s a funny story. Or if someone misremembers what the wife said to pick up at the grocery store, no one is going to go to jail over this. But if you misremember, or misstate, or tell a white lie to the police, you can be in really big trouble. This is the thing; people don’t understand that when you’re talking to the police, this is not a normal conversation. Even if the police haven’t Mirandized you, even if they haven’t told you that “anything you say can be used against you”, anything you say to them can still be used against you. The police may even emphasize that you are talking to them voluntarily or that ‘you’re free to leave’. This doesn’t mean that anything you say isn’t going to be used by them; it simply means that the police don’t have to warn you that anything you say can be used by them.

The police generally don’t have to tell you your Miranda rights unless you are in ‘custody’; what ‘custody’ means is very complicated, but very generally, unless the police have you in handcuffs, or in a squad car, or in a jail cell, or tell you that you can’t leave, you are not in custody. The way to tell if you are in custody is flat out ask them, “Am I free to leave?” If they say you are free to leave, then leave. If they tell you that you are not free to leave, or if they start hemming and hawing about why would you want to leave, or if they stop you from leaving, you are in custody. At which point you should shut up and tell them you want a lawyer. And you should tell them in just those words: I want a lawyer, and I want a lawyer now. And do not talk to them until you talk to a lawyer. If you say something like “maybe I need a lawyer” or “do you think I should get a lawyer” or “I want to think about getting a lawyer” then you haven’t told them you want a lawyer; and they can continue to question you. You need to tell them unambiguously, flat out, that you want a lawyer and that you want one now and that you are not talking to them until you get a lawyer.

So, the police want to talk to you, and you tell them your side of the story; in telling the police your side of the story, you tell them something wrong; either deliberately, a little lie, or even by mistake; you misremember, you are not in possession of all the facts, what is the worst that can happen?

Three bad things, from pretty bad to terrible.

First, once you tell them something it becomes almost impossible to change your story; If you later remember what actually happened, or if you remember some detail and try to change or add to your story, the police are likely to treat it as though you deliberately lied to them, whether or not you did. You are probably going to get a question about “were you lying then or are you lying now”?

Second; if you try to change your story, or if the police can show you were wrong, either in a deliberate lie or even an honest mistake, they do not have to believe that it was a small lie or an honest mistake; they are likely to use this to argue that if you lied about one thing, you lied about other things; those other things being more relevant, more serious facts that might send you to jail.

Third; even if you did nothing wrong; even if you committed no criminal act and the police wind up showing that you committed no underlying criminal act; you can be prosecuted, and sent to jail, for lying to the police; just for lying to the police. Remember, Martha Stewart was investigated and cleared for stock manipulation; but she was convicted and sentenced to prison for lying to investigators. If Martha Stewart hadn’t talked to the investigators, they could not have convicted her of lying to them.

Simply talking to the police can get you in trouble; and under the worst circumstances, you can go to jail for lying to them.

And, if the police ask you to “come down to the station”, voluntarily, then you should refuse to do so, call a lawyer then and there, and shut up. Do not explain to them why you do not want to talk to them, do not talk to them at all. Call a lawyer. This is a very good sign that they are just about ready to arrest you; they ask you to come down voluntarily; they ask you questions, and then when you’re ready to leave, they decide then to arrest you and give you your Miranda rights then, after you’re talked to them and told them everything they want.

If you are arrested, once again, do not talk to the police. People will be arrested, handcuffed and placed in the patrol car; at that point, shut up. Period. Do not argue with the police, do not protest that you are innocent, do not try to explain your side of the story; anything you say at that point can be used against you. If you are arrested, there is nothing you can say that will get you ‘unarrested’ at that point.

I mean this. Even though I don’t handle criminal cases, I will tell you that you should not talk to the police if you think you may be the target of a criminal investigation. Simply tell the police, politely, you are not talking to them; and shut up and call a lawyer. Immediately.

How can you tell if you are the ‘target’ of a criminal investigation? That can be tough; sometimes you are simply a witness, sometimes you are the person who initially called the police, and in some cases you might initially be a witness or a complainant, but turn into a suspect. If the police are coming to you and asking for “your side of the story” then you might be a suspect; they’re trying to confirm some aspects of what someone else told them. Once again, a talk with the police is not a normal conversation; everything, and anything, you say, may have legal consequences. Call an attorney and simply be quiet.

Lastly, if the police come to your door and ask to come in, you should refuse. If they have a warrant they are going to come in; and under some other circumstances they may come in anyway; but you should still politely, non violently, object to their entry and tell them they do not have your permission. And you should shut up at that point. And call a lawyer. Do not invite them in; and if they come in, do not talk to them; To be blunt, today’s news articles dealing with Ibragim Todashev, the martial arts expert shot by the FBI in Orlando yesterday, had the FBI and Massachusetts investigators in his house for two hours, and under questioning by them admitted to taking part in three murders; at which point Todashev attacked an FBI agent and was shot by the agent in self defense, illustrates this point. I have no sympathy for Todashev, he admitted to a triple murder and then tried to attack an FBI agent, nonetheless, from a lawyers perspective, Todashev did not have to allow the FBI agents in his house, and he did not have to talk to the police at all. From a legal perspective, Todashev would have been better off refusing them entry, refusing to talk to them, and calling a lawyer then and there. And he would have been within his rights doing so. Instead, he spent two hours talking to them and wound up confessing to a triple murder. Obviously, this is an extraordinarily serious case, but it illustrates the problem with talking to the police; at some point you may wind up confessing to something even if you didn’t intend to when the conversation started.

Once again, I do realize this is a bit different than my usual posts, but sometimes people get caught up in criminal investigations; and people get hurt in these things. You need to know what to do to try to protect yourself. I concentrate on estate planning and probate in The Villages, Florida, and do not usually handle criminal cases but I do think that people need to be aware of their basic rights in order to protect themselves.

Posted in Criminal | Tagged | 3 Comments

Living Trust Costs and Fees

Posted on April 30, 2013 by admin

I’ve been reviewing an estate and trust accounting prepared by another attorney, and in doing so, it occurs to me that I have not discussed trust administration fees in Florida.

One of the supposed advantages of a living trust is to avoid probate; as I note elsewhere a living trust can actually trigger a probate in Florida:


Why revocable living trusts usually won’t avoid probate in Florida

Aside from that fact, what is usually implied but unstated in the ” a living trust avoids probate” argument is that a living trust will avoid attorney’s fees in administering it after the grantor dies. Or, at least, that there will be a significant savings in lawyers fees.

Maybe, but probably not; at least in Florida. The relevant statute on attorneys fees for trust administration, Florida Statutes § 736.107 sets the ‘reasonable’ attorney fee for administering a trust after death of the grantor at 75% of the preemptively reasonable fee for handling an estate of the same size. Is 25% a ‘significant’ savings? I don’t know; but I suspect it is not nearly as much of a savings as many people expect; the point being that sometimes people seem to expect that there won’t be any costs or expenses associated with a trust; that is not necessarily the case. And, given that a trust might actually trigger a probate, it is possible that you could incur both probate and trust administration fees. What is this going to cost? To be honest, it will depend on the exact facts. But be aware that having a trust may not result in the savings that you expect after your death.

Posted in Estate Planning, Probate | Tagged , , | Leave a comment

Living Wills

Posted on April 16, 2013 by admin

Today, April 16, is National Healthcare Decisions Day.

I just received a visit from the local Hospice organization, Hospice of Marion County.

Hospice of Marion County

Which is a very good organization.

I strongly encourage clients to set up some sort of preplanning for their healthcare; as I note here

Living Wills and End of Life Care

And here


What you can do when a loved one is near death

A health care surrogacy and living will are very good ideas.

To be blunt: I charge for these documents; I do think my charges are modest, and affordable by most people. And my documents are specific to Florida.

Nonetheless, I do recognize that some people may not be able to afford documents, they may not be willing to spend money on documents, or they simply are not willing to come in and see a lawyer.

Here is a link to a very popular “national” living will, the Five Wishes will.


Five Wishes Online

I personally, don’t use this as it is a national form, and I like to tailor mine to Florida; nonetheless, if you are unable or unwilling to see an attorney to have a comprehensive plan put in place, I would strongly encourage you to consider at least completing a Five Wishes living will and providing copies of it to your physicans and family.  I would still suggest that if you want a living will or health care surrogacy and you are in or around The Villages Florida that you should call my office.

Not having these documents in place can lead to tears down the line. Please, by all means, even if you aren’t willing to see a lawyer, consider what this may mean to your family.

Posted in Health Care Surrogacies, Uncategorized | Tagged | Leave a comment

Another reason to move your financial accounts to Florida

Posted on April 8, 2013 by admin

I’ve suggested in the past, if you move to Florida from out of state, you should move bank accounts, investment accounts, retirement accounts to a Florida institution, or at least to a Florida Branch of a national institution. By doing so, you are clearly establishing Florida residency, and make it more difficult for another state to claim that you have income in that state that may be subject to income tax, assets that may be subject to either an inheritance or estate tax in that state, or assets that might be subject to a lawsuit in a state other than Florida.

Here is another reason to move your assets to Florida, particularly if your assets are in a bank or institution that does not have a Florida branch; an out of state bank or institution might not honor your Florida power of attorney. As I discuss here

When Powers of Attorney are Rejected
Florida law is clear; a bank or other business runs the risk of having to pay costs and attorney fees if they improperly refuse to accept a valid power of attorney. However, if the bank or business is located out of state, and has no Florida branches, they may very well decide to ignore Florida law on the matter. And having to sue them in Florida may present problems.

At least with either a Florida based business or a nationwide business that has branches in Florida, they are much more likely to look to and honor Florida law on powers of attorney; and if they do not, then they can be sued relatively easily in a Florida court.

Once again, if you move to Florida, if this is your residence, then you should move financial accounts here if at all possible.

Posted in Asset Protection, Powers of Attorney, Uncategorized | Leave a comment

Avoiding Probate on the House

Posted on April 2, 2013 by admin

Frequently, clients think that a revocable living trust will avoid probate in Florida. As I discuss here:

Why revocable living trusts usually won’t avoid probate in Florida
A revocable living trust can actually trigger a probate in Florida; particularly if Florida real estate, such as a house, is part of the trust.

There are things that can be done to avoid probate in the case of most financial type accounts; stocks, bonds, CD’s savings and checking accounts; and I explain what can be done here

Living Trust Alternatives

But I want to address the question of real estate, particularly the family home. The home may be a single family residence, it might be a condo. But for many people this is their single most valuable asset; and frequently they want to leave it to their children and avoid probate on the home.

Depending on the situation, there may be several different ways to avoid probate; all of these methods involve drafting a deed and naming someone else as a co-owner; the key is, though, what type of deed and what type of co-ownership can make a big difference.

First, if the person is married, they can name their spouse, their husband or wife, as a co-owner of the house. In fact, in many cases, spouses typically co-own the family home in Florida; the most common deed to a married couple in this state involves what is called tenancy by the entirety, which has to identify the couple as being married. Typical language may be “Bob Smith and Mary Smith, a married couple”, or “Bob Smith and his Wife, Mary Smith” or “Bob Smith and his Spouse, Mary Smith”, but it has to be apparent from the language of the deed that the two people are married, to each other. And, they do have to be, in fact, married to each other; if they are not married to each other but the deed recites that they are, the deed does not create a tenancy by the entirety.

What’s the significance of a tenancy by the entirety? Without going into a technical explanation, it does two things: first, it creates what is essentially a ‘right of survivorship’ between the parties; whichever of the spouses dies first, the surviving spouse gets all of the property upon the death of the deceased spouse. In this aspect it is very similar to a “Joint Tenancy with Right of Survivorship” which can be used between two or more people who are not married to each other. However, there is an additional benefit; in Florida, property held as Tenants by the Entirety is exempt from, that means, not available to, creditors of one spouse; in order for someone to force the sale of property held as tenants by the entirety, the creditor has to have a judgment against both spouses , both the Husband and the Wife. If only one spouse owes money to the creditor, the creditor cannot force the sale of the property. Note that this is in addition to any other exemptions on the property; such as any Homestead exemptions. Also, be aware that the tenancy by the entirety will be broken, or ended when either 1) one spouse dies or 2) the parties are divorced. If the parties are divorced then the ownership is converted to a Tenancy in Common, typically with each ex-spouse owning half of the property. If the marriage is terminated by death of one of the parties, the creditors exemption also ends; but it will depend on which spouse died; if the spouse who owed the money dies, the surviving spouse who did not owe the money takes the property outright, free of any claims by the creditor. On the other hand, if the spouse who did not owe the money dies, then the surviving spouse loses the protection of the tenancy by entirety and the house may be available to the creditors to satisfy any judgments; this is assuming that there are no other exemptions, such as homestead, available to the surviving spouse.

What about parties who are not married to each other? This is where things can get tricky. Frequently I’ll have clients suggest that they want to put a child on the deed as a co-owner; usually as a Joint Tenant with Right of Survivorship. This may not be a good idea; for several reasons. First, whether they know or not, there may be tax implications; by naming someone who is not a spouse as co-owner, they are making a gift to them and under most circumstances, a Federal Gift Tax Return is due. Frankly, a lot of times this doesn’t get filed, but technically, it is supposed to be filed. Depending on the value of the property and depending on how many types of these transfers are made, it is possible that money may be owed to the government for a Gift Tax.

Second, by naming a child as a Joint owner with right of survivorship, that child now owns a piece of the property, right now. The problem with that is what happens if someone gets in financial trouble? This can happen in two different ways. Most commonly, the child gets in some sort of financial trouble; they get in a car wreck, they run up some medical bills, they run up some credit card bills. Or child support. Or, for that matter, they get divorced and the lawyer for the child’s former spouse goes sniffing around to see if there’s any assets they can go after. And, lo and behold, it looks like they own some property in Florida. Under some circumstances, they may be able to force a sale of the house and all of the sudden, the parent or parents are looking at losing their house. This is not a happy place to be.

Or, sometimes it’s the flip side of the coin; someone comes onto the property in Florida, gets hurt, and sues. Assuming that the house is the homestead of the parent, the person can’t take the parents portion of the house under most circumstances; but if the child who is the co-owner doesn’t live there, they are still liable for any accidents that happen on the property; all of the sudden they wind up being sued for an accident that happened in the parents property in Florida and their own assets are at risk. Additionally, if the child who is a co-owner doesn’t live in the house in Florida, the person who wins the lawsuit can still force a sale of the house, even though it is the parents homestead; the parent will get their share of the value of the house out of the sale, but they will lose the portion of the value that goes to their child or children. One again, not a happy time

And there’s another wrinkle in this; say, at some point, after the parent puts the child on the deed, the parent decides they want or need to sell the property; or they want to get a reverse mortgage to pay bills. Whether they know it or not, the child is a present co-owner of the property; the child can refuse the sale, refuse to cooperate with the mortgage, or insist on getting some of the money from the sale. And, the way most reverse mortgages work you can’t get one unless all of co-owners actually live there. And sometimes, parents and children fall out; if the child decides they don’t want to cooperate, you are looking at a fairly expensive, complicated lawsuit.

Lastly, putting a child on deed as a co-owner may have implications if the parent has to go to a nursing home; without getting into detail, one of the things that the state looks at when someone comes in to apply for nursing home assistance is whether the person has transferred anything of value to their children; if they have, then they can deny assistance for a period of time.

Simply transferring the property to the child or children outright, usually by a quitclaim deed, is even worse; you run the risks of all I have discussed above, i.e., the gift tax implications, seeing the property go to someone the child owes money to, seeing the property get lost if the child gets a divorce, and making the parent ineligible for nursing home assistance from the state; on top of the parent not owning the house at all, and losing any homestead protection.

The point is, transferring a house outright to a child or other person who is not a spouse is usually a bad idea; a very bad idea. Having said that, there may be some very specific circumstances where it makes sense, but you need to talk to a lawyer about the specifics.

So, coming back to where we started out, what can you do to avoid probate on the house?

There is a specific type of Florida deed, called a “Ladybird Deed”, sometimes called an “Enhanced Life Estate Deed” which allows the parent, or parents, to own the house during their lifetime; to retain full rights to sell, mortgage, transfer, give away, or otherwise deal with the property during their lifetime, to keep all money from the sale or mortgage, and to revoke the deed if need be, during their lifetime; but, if they don’t transfer the house or revoke the deed, the house will go to who they want after the parent dies, all the children need to do is record the death certificate on the parent and the property passes to them outside of probate.

The Ladybird Deed is a fairly technical type of deed, and needs to be properly drafted; but properly used it can accomplish what the parent wants; they retain full ownership and freedom to deal with the house during their lifetime; but passes the house to the children upon their death while avoiding probate.

My fees start at $200 for preparing a Ladybird Deed. If you have a question about transferring a house outside of probate or avoiding probate on a house  in Wildwood, or The Villages, Florida, please contact my office.

Posted in Asset Protection, Estate Planning, Probate, Uncategorized | Tagged , , , , | 4 Comments

What if someone who died out of state owned property in Florida?

Posted on March 21, 2013 by admin

A lot of people who do not live in Florida own property in Florida. Sometimes it is a vacant lot bought in anticipation of building a home when they retire; sometimes it is an actual house or mobile home or a vacation condo or even a timeshare. And sometimes people who live out of state have bank accounts or other types of investments in Florida.

When someone who is not a Florida resident dies leaving property in Florida, there may or may not need to be a probate in Florida to handle that property.

The first question that needs to be asked is, how was the property titled and was there any sort of beneficiary designation? If another person was a joint owner, in other words, if the property was titled with some sort of survivorship rights, then typically all that needs to be done is to provide a death certificate to the bank or other institution holding the account, or in the case of real estate, to record the death certificate in the county in which the property is located. This also applies where the property was held as tenants by the entirety; where the co-owners were married and the deed or account identifies them as a married couple. And, in the case of many financial accounts, sometimes the person who died named a “pay on death” beneficiary; which means that the bank will simply pay the money over to whoever is named. In all of the above cases, normally there is no need for a Florida probate; the assets pass outside of probate.

If the property does not pass to a joint owner or by beneficiary designation, then you need to determine whether an out of state probate court can transfer the property in Florida. This is going to depend on the nature of the property; very generally, the rule in this country is that ‘intangible’ personal property, which would include such things as bank accounts, CD’s, stocks, and investment accounts are considered to ‘follow’ the owner; if the owner is a Kansas resident who has an account in a Florida bank, then normally a Kansas probate judge can exercise jurisdiction over the Florida bank account even though the bank has no branches or dealings in Kansas; the Kansas judge would appoint an executor in Kansas, the Kansas executor would present paperwork to the Florida bank and the Florida bank should allow access to the Florida bank account. Normally this should not be a problem.

The rule is very different, though, when real estate is involved. The general rule is that a judge in a particular state can only do something with real estate that is located in the state where the judge sits; in the case above, a Kansas judge would not be able to ‘affect title’ or probate any real estate in Florida; you would need some sort of paperwork from a Florida judge to transfer the real property to any heirs. Now, there are some exceptions; this is one area where a living trust can be useful; if the property is held in a living trust there may be a way to avoid probate in Florida; but normally, if the person who died owned the real property in Florida in their own name, you are probably going to have to take this to probate in front of a Florida judge.

What needs to be done is going to depend on how much the property is worth, how long the person has been dead, and what, if anything, has been done in a probate out of state.

If a probate has been opened outside of Florida, then you may need to bring an ‘ancillary’ probate; showing the Florida judge that someone has been appointed executor out of state, getting a Florida personal representative appointed, who may or may not be the same person who is the out-of-state executor, file a Florida inventory, and generally run what amounts to a full blown probate in Florida.

There is also a special procedure for transferring property in Florida for non resident decedents where 1) an out of state executor has been appointed and 2) the property in Florida is worth less than $50,000. To be honest, this is not a method that I favor, for reasons that I will discuss below.

If someone has not been appointed executor out of state, either because there are no out of state assets, or because all of the out of state assets have passed outside of probate, then a Florida probate, i.e., a full administration, can be opened and a Florida personal representative appointed; this is pretty close to a standard probate and largely parallels what would be done in a ‘regular’ probate.

The other alternative is to bring a ‘summary’ administration; this is going to depend upon the value of the estate and how long the person has been dead. A summary administration is available if the total assets of the estate are less than $75,000 and there are no outstanding bills, or if the person has been dead for more than 2 years; in which case there is no limit to the size of the estate that can be brought in a summary administration. This may make a great deal of sense; particularly where there is a relatively low value property in Florida; say, a vacant lot, a lot with an older mobile home, a timeshare or even a lower value home or condo; so long as the property is worth less than $75,000, this may be the way to go. Or, in some cases, where the person has been dead for more than 2 years; sometimes out of state decedents will have their out of state probate started, run, and completed and then after everything is wrapped up, someone realizes that no one did anything with the property in Florida that was owned; if the person has been dead for more than 2 years, a summary administration is almost always the easiest and quickest way to transfer the property.

And this is why I tend not to like the ‘nonresident decedent’ transfer of property I discuss above; if the property is worth less than $50,000 then it is certainly worth less than $75,000 and frequently, it is just as easy to bring a summary administration as to do the non resident decedent transfer.

If you have inherited property in Lake, Marion or Sumter County Florida, and have a question, please call my office which is conveniently located near The Villages, and Summerfield, Lady Lake, Fruitland Park and Belleview, Florida

The exact facts matter; and there are exceptions to everything I’ve discussed, but if you have a question about a probate in Florida, particularly in or near The Villages, Florida, feel free to contact my office.

Posted in Probate, Real Estate | Tagged , , , , | 2 Comments

When powers of attorney are rejected

Posted on March 6, 2013 by admin

Sometimes, banks, and other businesses, will question a power of attorney; most frequently they will insist that “their” power of attorney be used; and sometimes, they question the authority of the agent and simply refuse to accept the power of attorney. In either case, they refuse to honor a power of attorney.

Florida law has long provided that if a business accepts a power of attorney that the appears to be valid, so long as they business does not know that the power of attorney has been revoked, that the business is not liable for accepting the power of attorney; Florida law has also long provided that a business that ‘unreasonably’ rejects a power of attorney can be sued and costs and attorney fees awarded to the agent who is seeking to enforce the power of attorney. The exact language and numbering of the statute has changed over the years, but the point is that a business who rejects a power of attorney does so at its’ own peril.

A recent case in Florida discusses what can happen when a business, in this case an insurance company, rejects a power of attorney:


Albelo v. Southern Oak Insurance Company

It is a bit of a mystery to me why the insurance company rejected the power of attorney; but in a nutshell the court said that the insurance company was wrong, and awarded attorney fees and costs to the son for having to bring a court case to get the insurance company to accept the power of attorney.

The other lesson of this case is, Florida courts will encourage the “least restrictive” means to provide for someone who cannot manage their own affairs; in this case the insurance company was trying to insist that a incapacity petition be filed and that the woman be declared incompetent and have a guardian appointed; if there is a power of attorney in effect, not only will the power of attorney be sufficient to manage her affairs, but could lead a court to reject an incapacity determination as not being needed.
This is one reason why having a power of attorney can be very useful.
As I discuss here:


The Importance of Having Documents in Place Ahead of Time

It can be very important to have these documents. In the case above, because she had a power of attorney, she was able to avoid a guardianship case. If you don’t have a power of attorney, you should seriously consider it. If you have questions about whether you need a power of attorney, please contact my office, which is near the North end of The Villages, conveniently located near Lady Lake, Belleview, Stonecrest and Del Webb Spruce Creek.

If you have a power of attorney and someone is refusing to honor it, you need to contact an attorney. If you are in or around The Villages, Florida, and need a lawyer to review a power of attorney, please feel free to contact my office.

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Contracts to Make a will

Posted on February 28, 2013 by admin

Sometimes I am contacted by potential clients who are upset about how a will was drafted; and they want to challenge it on the basis that the person who died had made a promise at some point to leave a particular property, or share, or money, to them or to someone else.

What they are usually talking about is a “contract to make a will”. Understand, this is somewhat different than challenging a will based on how it was drafted, which I discuss here:

How To Contest a Will in Florida

This challenge is saying, basically, not that there was anything wrong with the way that the will was drafted, but that the will was not what the person promised.

Florida’s statute on agreements to make a will is here:

FS 732.701

It essentially provides that in order to be enforceable, a promise to make a will must be in writing, and signed with the formalities of a will, i.e., that it must be signed by the person making the promise, and signed by two witnesses, and that the witnesses must sign in the presence of each other and the person making the promise.

There is an exception for contracts to make a will that were entered into by someone who was not a Florida resident at the time they made the promise; basically Florida will look to the law of the state they were residents in at the time; this usually applies to out of state prenuptial agreements, but theoretically could apply to other types of contracts to make a will.

Nonetheless, generally, in Florida, if you want to enforce a contract to make a will, usually that contract must be in writing, signed by the person making the promise, and signed by two witnesses who signed in front of each other and the person making the promise. Understand this is a very high standard; very few letters, notes, or casual agreements will meet this standard. In fact, in 15 years of law practice, the only time I have seen this was in a case involving a divorce agreement; the soon to be ex-husband had agreed to leave something to the soon to be ex-wife; it was signed by him, and was witnessed by the his lawyer and his wife’s lawyer. That agreement would be enforceable.

Which leads me to my next point: what can be done if you have an enforceable agreement to make a will? Frequently, clients, and sometimes even lawyers, will try to intervene, or participate, in the probate proceeding; they will object to the probate of the will, or try to get a judge to ‘reform’ or change the terms of the will. While that may seem the logical thing to do, it is absolutely incorrect. As this case discusses

Johnson v. Girtman

What needs to be done is to file a claim in the probate case, and if necessary, litigate the claim in an independent action in Circuit Court. Typically, you seek damages; you may be able to seek specific performance as in the case above. If the claim is not objected to, or if you prevail in your lawsuit against the estate, then you stand as a judgment creditor against the estate. The estate owes you money or owes you a certain type of performance, i.e., transferring a specific piece of realty to you. Unfortunately, even if you are judgment creditor of the estate, your judgment is enforceable only against estate assets; and only those assets that are not exempt; i.e., if the decedents home passes either by intestacy or by will to either a spouse or ‘protected heirs’, the homestead cannot be sold to satisfy your judgment. Likewise, certain other property is considered exempt in Florida, that is unavailable to satisfy creditors; this property can include household goods and furnishings up to $20,000 in value, and in some circumstances, all motor vehicles owned by the person who died. Understand that normally, a contract to make a will is not binding on someone, particularly a spouse, who did not sign the contract; as this case notes

Via v. Putnam

the ‘new’ spouses rights took precedence over the rights of the children under their mother’s will.

If the property that is the subject of the contract is not in the estate at the time of probate, then you would have to file a suit against the person who received the property;

Boyle v. Schmitt

however, bear in mind that this case dealt with an allegation of fraud; i.e., that the testator transferred the property to defeat the contract to make a will. If, on the other hand, the property is simply not in the estate because the decedent sold the property for value and spent the money, you probably are not going to be able to recover the property.

The point is, if you have a question about someone who agreed to make a will leaving you something, you need to talk to lawyer; and you probably need to talk to them promptly; your failure to take immediate action could prejudice your rights. If you have questions regarding will contracts in or around The Villages, Florida, feel free to contact my office.

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Liquidated Damages Clauses

Posted on February 22, 2013 by admin

When someone breaches a contract, the contract may provide for “liquidated damages” in a set amount or to be calculated in a certain way.

The most common example of a liquidated damages clause is in many real estate contracts; the contract will provide that if the buyer breaches the contract, the seller can keep the deposit as liquidated damages.

The law in Florida favors liquidated damage clauses. The reason is, both parties have agreed at the time of the contract what the damages are; this minimizes problems of proof and calculating damages.

Liquidated damages clauses, though, are subject to some limitations; they can’t be ‘punitive’ or punish the breaching party; they must be ‘reasonable’. What is reasonable or punitive can be tricky; the Florida Supreme Court has considered a liquidated damages provision of ten percent of the sales price as reasonable, here:

Lefemine v. Baron
Nonetheless, the court did disallow the liquidated damages provision. Why? Because the contract allowed the seller the choice of either liquidated damages or suing under the contract for actual damages. The court stated:

The reason why the forfeiture clause must fail in this case is that the option granted to Baron either to choose liquidated damages or to sue for actual damages indicates an intent to penalize the defaulting buyer and negates the intent to liquidate damages in the event of a breach. The buyer under a liquidated damages provision with such an option is always at risk for damages greater than the liquidated sum. On the other hand, if the actual damages are less than the liquidated sum, the buyer is nevertheless obligated by the liquidated damages clause because the seller will take the deposit under that clause. Because neither party intends the stipulated sum to be the agreed-upon measure of damages, the provision cannot be a valid liquidated damages clause

What’s the lesson here? If you are going to have a liquidated damages clause, do not provide an alternative remedy of bringing suit for actual damages.

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Contracts, and what to do when they blow up

Posted on February 21, 2013 by admin

Today, I’m talking about contracts, and remedies for breach of contracts. This may be a bit arcane and seem outside the scope of my usual posts; but I’m planning on a couple of posts regarding breach of contract; specifically, contracts to make a will and long term leases. In the interest of keeping those posts to a digestible length I want a separate post on remedies for breach of contract.

Essentially, if someone enters into a contract and then does not deliver what was promised, there are three basic remedies, or ways to fix, the breach.

First, recision. Recision of a contract is where the contract is invalidated, and a court will try to restore both sides to the same position they were in prior to the contract or rescind the contract. This can’t always be done perfectly, and in some cases it can’t be done at all; but theoretically, both parties should wind up where they were before the contract. Recession is a relatively rare remedy, and the most common reasons for recession are either fraud or misrepresentation or impossibility of performance. Misrepresentation can be either deliberate or negligent, that is by mistake. I am not going to go into the details of what constitutes fraud or misrepresentation, this can be a very technical area and the details matter a lot. But, at least under some circumstances, if someone has misrepresented something in a contract, then a court may be able to set aside or vacate the contract. Be aware though, that in order to rescind a contract, the side asking that the contract be undone must normally offer whatever they received back; if they received money, they need to offer the money back; if they received property, they would be expected to return the property.

Impossibility is where the contract is impossible to perform as written. Once again, I’m not going to go into the details, what constitutes impossibility, who can raise the defense, what has to be shown, etc., is rather technical; but overall, it is relatively rare for courts to rescind contracts; very generally courts will try to find a way to uphold contracts, particularly where one party has already performed. In addition, recision is one of those things that usually has to be asked for very early in the contract; once parties have ‘changed position’ courts can be reluctant to trying to undo the deal. Nonetheless, under certain circumstances, recision may be available.

More commonly, if someone has breached a contract one of two remedies are likely; damages, or specific performance.

Damages are to compensate the party that did not breach the contract for what that party lost. The most common measure of damages is what is called “cover” , or the difference in cost or money between what the contract called for and what the person actually received or paid, depending on the nature of the transaction. Two examples:

A) Say you sign a contract to buy 50,000 6d nails from someone who sells nails. You’re a builder, you need those nails in order to build houses for sale. And, say, for the sake of argument, that the price quoted for those nails is $5,000. After you sign the contract and make arrangements to receive the nails, the seller tells you that he can’t deliver them at that price. Either he can’t deliver those nails at all, or that the price is $10,000. In the case where the seller says he can’t deliver them at all; you go out and buy the nails from someone else, but they cost you $8,000.

Your damages in this case are going to be the difference in price between what was agreed and what you actually paid; either $5,000 in the case where the supplier raised the price, or $3,000 in the case where you had to buy them from a different supplier. That difference is what is called “cover”; or your damages.

B) Say you’re the seller of something; you agree to sell and the buyer agrees to buy something at a price; the buyer then cancels the contract and does not complete the sale; your cover is likely to be the difference between what the buyer agreed to and what you actually sold it for. As an example, you agree to sell your house to someone for $100,000. You’re happy, that’s top dollar, you are getting what you want. But before the buyer completes the transaction, the bottom drops out of the real estate market; all of the sudden that $100,000 doesn’t look like such a good deal to the buyer. The buyer refuses to close on the deal. You go looking for a new buyer and eventually find someone to buy the property at $75,000. You lost $25,000 on the deal; your ‘cover’ is $25,000. That’s your damages.

Now, to complicate this just a bit; there may or may not be ‘incidental’ damages available; incidental damages are those damages beyond the difference in price; in the case of the builder and the nails, maybe the builder lost the sale of a house because he didn’t have the nails to build it; the loss of profit on the sale of the house is an incidental damage. In the case of the homeowner, say the homeowner had to pay additional insurance and taxes on the property until it was sold; that would be an incidental damage.

Are incidental damages recoverable in a contract dispute? This can get tricky; once again, details matter, but very generally, only those damages that were “foreseeable” at the time of making the contract are recoverable. Courts can draw some very fine lines regarding what was foreseeable, but frequently courts will find that most incidental damages are not recoverable in many contract disputes; but the facts matter very much. In addition, some contracts specifically disclaim incidental damages; most consumer contracts, contracts that people sign when buying things, or service agreements, either disclaim incidental damages entirely or limit them. Lastly, some statutes either allow or disallow incidental damages in certain circumstances. This can get complicated, and each individual case needs to be reviewed in light of the facts, the contract and the law.

Additionally, some contracts limit or set a level of damages at the outset, called
Liquidated Damages. This also can get very complicated.

The other remedy that people sometimes seek in a contract dispute is specific performance. Specific performance is where one party is asking a judge to order the other side to do what was promised.

Specific performance is considered an extraordinary remedy; it is not available in all cases. Very generally, in order to get specific performance, you need to show that there is something special, something unique, about what you are seeking; if what you are seeking is available from other sources, specific performance is not usually going to be available. In the case of the nails I discussed above, nails are considered “fungible”; one nail is pretty much like any other nail; if one supplier can’t or won’t honor their contract to deliver nails at a set price, you can go out and buy other nails; the price may be more, but the nails themselves are pretty much the same. Specific performance is normally not available where the item is fungible, where the same or substantially similar thing is available on the open market.

What is specific performance available for? Unique things. The most common thing specific performance is available for is real estate; the law presumes that each piece of real estate is unique and a court will, under some circumstances, order the performance of a real estate contract. If I sign a contract for a particular house that I fell in love with, and the seller backs out of the deal, a court will likely order that the seller sell me the house at the price the seller agreed to.

A contract dealing with a one of a kind item, a painting, a custom made item, may be subject to specific performance. Additionally, certain types of contracts may give rise to specific performance; usually those contracts where someone agrees not to do something; typically a non-compete contract; if I sell you a business, and I agree not to compete with you for a certain period of time within a certain area, and then I go out and open up a competing business in violation of the contract, a judge may order me to specifically perform the non compete contract, usually by issuing an injunction prohibiting me from competing.

The availability of specific performance may also be governed by the contract itself; many real estate contracts provide for specific performance if the seller tries to back out; and many non compete contracts also provide for specific performance as a remedy.

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