Florida does not register guns

Posted on October 19, 2012 by admin

Florida has no gun registration. Nor does Florida have any gun licensing requirements.  This issue comes up in one of three ways; either someone has moved to Florida and brought guns with them, or they’ve moved to Florida and want to purchase a gun, or, someone has died in Florida and the family has found a gun in the house.
I talk about the situation where a family member finds a gun and takes it to the police here:

My father died, I went into his house, and he has a gun. Should I turn the gun over to the police?
But I want to talk about firearms purchases in Florida. Essentially, the major restrictions on gun purchases in Florida are Federal; Florida has few additional requirements for gun purchases.  The federal requirements are set out in ATF Form 4473: which is available here:

ATF 4473

Florida does, however, prohibit gun purchases by anyone who was either adjudicated delinquent or had adjudication withheld for a felony as a juvenile until that person reaches 24; and bars the purchase of firearms by anyone who had adjudication withheld for any felony or a misdemeanor crime of domestic violence and three years has not yet lapsed since the completion of sentencing provisions
If you are a Florida Resident, so long as you can truthfully answer the questions on the first page of ATF 4473, do not fall under the delinquency or adjudication withheld provisions discussed above, and are not disqualified by the answers to those questions, and have an acceptable form of ID, you can buy or own a gun in Florida, provided you are over 21; if you are over 21 you can own a rifle or a shotgun, if you are over 21 you can own a handgun, assuming that the gun itself is not restricted, such as a sawed off shotgun or a machine gun.  Florida does impose a 3 business day ‘cooling off period’ for purchases of handguns, and at this point, a three day cooling off period for shotguns and rifles as well;  if you are buying a gun from a licensed dealer, under most circumstances you will not be able to pick the gun up until the third business day (not counting Saturdays, Sundays and some Holidays) after the  purchase, not including the day of the purchase. There are exceptions to this for those individuals who have a Florida Concealed Weapons license; they are not subject to the waiting period.  Additionally, a few counties have a mandatory 5 day waiting period; Broward and Palm Beach are two of them.
If you are purchasing a firearm from a licensed dealer, you will have to undergo a telephone  background check by the Florida Department of Law Enforcement; they will check their records to verify that you are not prohibited from owning a gun; the cost of this check is $5 and is usually passed along to the buyer in addition to the cost of the gun itself. If, for some reason,  you are prohibited from owning a gun, please understand that this background check will almost certainly pick up on that, and you may be subject to criminal prosecution for attempting to buy a firearm.  Typically the FDLE will contact law enforcement directly and the next person you see will be a police officer coming to arrest you at the store.  If  you are, for instance, a convicted felon or have a domestic violence conviction or are subject to a restraining order, if you attempt to buy a gun you are very likely to go jail for this, and to go to jail very quickly.  Also, please understand that  you must be the actual purchaser of the firearm; you can’t buy a gun for someone else who is not able to buy a gun and turn the gun over to that person.  That is a criminal offense and a very serious one.
Understand; I am not encouraging or discouraging anyone from owning a gun in Florida; this is a very personal decision and I am not advocating that any particular person buy a firearm; this is entirely up to you.  But I do want to make the law clear on who can buy a firearm under what circumstances in Florida.

Posted in Criminal | Tagged , | 10 Comments

Real Estate Closings in Florida

Posted on October 16, 2012 by admin

The Villages is ever expanding, and is still selling new homes at an incredible rate. And of course as retirees die, or move out of The Villages, those homes come onto the market.
And, very frequently, those houses are being snapped up by out of state buyers. Who, typically, have some questions about real estate closings in Florida.
Depending on the state from which the buyer is from, they may be used to lawyers being involved in real estate closings for both the buyer and the seller.  New Jersey comes to mind: I’m from New Jersey and every real estate transaction I ever saw in New Jersey involved lawyers on both the buyer and sellers end.
I am not about to tell you that having a lawyer is a bad idea; at the very least, having a lawyer review a contract and explain the ramifications is a good idea. Nonetheless, the overwhelming majority of residential real estate closings in Florida are held at “Title Companies”.  These title companies are licensed by the state; some of them are owned or associated with a lawyers’ office, but not necessarily so; and usually the title companies are selected by the seller, or the real estate agent, if one is involved, or sometimes, the bank who is financing the purchase. More often than not, the buyer is not represented by an attorney, unless the buyer specifically seeks a lawyer out and pays the lawyer to be involved.
The title company will usually handle all aspects of the closing; they will do a title search, they will prepare the deeds and sometimes other documents such as the mortgages, they will handle the money, they will prepare the closing statement, or HUD-1, they will issue the title insurance if paid to do so, and they will handle the actual mechanics of the closing; provide the notary and witnesses, oversee the signings of the various documents, record and return the deeds and mortgages.
There are several points to consider, though.  First, title insurance. Title insurance protects someone in the event that there is a problem with the title to the property. However, it only protects the person who is paying for it; and it does not protect against certain things relating to the boundary lines unless there is a survey is done.  If the sale is financed, normally the bank or finance company will pay for title insurance. Sometimes buyers will not buy title insurance even though the bank is purchasing it. This is a rather risky move. Even though the title company has done a title search, there is always the possibility that either the title company missed something in the public record, such as a wrong legal description, or that there may be something not obvious from the public record, which could be a forged deed.  I’ve seen both of these things happen; they don’t happen often, but they have happened.  If the title company issues a policy and it later turns out that there is a problem with the title, the title company will either fix the problem or pay the policy holder up to the value of the policy.
I also mentioned that title policies normally don’t protect against certain things relating to boundary lines unless there is a survey. Examples would include encroachments, which could be a fence line, a swimming pool or in some cases, all or part of a building that crosses a boundary line onto a neighbors property, or easement problems, where someone is using part of your property without permission to access their own property.  If a survey would have shown the problem and a survey was not done, the title company will not cover the problem.
I strongly recommend that all buyers get title insurance, and I recommend that all buyers get a survey as part of the title insurance. This stuff is relatively cheap; title insurance usually costs 1% or less of the sales price; and most surveys are going to cost a few hundred dollars unless it is a very large piece of property such as a farm or a ranch.  You don’t have to do either of these, and I am not suggesting that problems are frequent; but problems happen from time to time and title insurance can make a huge difference in fixing it.  This is insurance; you hope you never need it but if you do it can be a lifesaver.
Another point has to do with deed restrictions and homeowners association rules.  In many subdivisions, and very definitely in The Villages, there are restrictions on what you can do with the property. Some of these restrictions are common sense; you can’t keep livestock like cows or goats in a community. Some of these go to where you have to park your car; or what type, style and color of paint or siding or roofing you can have on your house. Or what you can mount on  your house or in  your yard; clotheslines and flags. Or they may have to do with who can live there; particularly in an age restricted community.  The point is, you need to look at these for yourself, before closing; you if you have questions about the restrictions you need to contact an attorney.
There are a number of issues raised when buying a house and I can’t possibly address all of them here, but if you are buying a house in The Villages,  you may want to have an attorney review the contract and advise you regarding the process.  Prior to signing the contract.  Once you sign it may be difficult, expensive, or impossible to easily back out.

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Why a Corporation Might Not Protect Your Assets

Posted on October 12, 2012 by admin

I listen to satellite radio, and there’s all sorts of advertisements for “incorporation services”.  Invariably, one of the selling points is that by incorporating you can “protect your assets”.
There are several types of “limited liability entities”, basically setting up some sort of entity that holds title to a business, that are supposed to provide protection to the owner of the entity.  Common examples include Corporations, Limited Liability Partnerships, Limited Liability Companies, and some specialized business models, such as Illinois Land Trusts and Professional Associations or Professional Corporations.   I’m going to refer to all of these, generically, as Corporations.  While there are significant differences between them, the basic theory is this: the Corporation or LLC owns the assets of the business; real estate, vehicles, inventory, equipment, whatever, and the corporation is the legal entity that is in the business; the corporation has its’ own EIN, files taxes, issues the paychecks, enters into contracts and otherwise has an independent existence.  The people who own the corporation cannot be sued for something that the corporation does wrong; if the corporation damages someone, the corporation has to be sued and not the individual owners of the corporation.  And I’ve seen some fairly elaborate tiered structures; one corporation owned by another corporation, which is owned by another, and after several layers of corporate ownership, then you get to real, live, human, owners.  In theory this provides multiple layers of protection, and the most anyone can lose is what they have invested in the corporation.
That’s fine in theory.   And, to the extent that you have a large corporation, with multiple owners and multiple operating locations, that’s accurate.  If Ford Motor Company does something wrong, you sue Ford Motor Company, not the individual stockholders of Ford. The problem is, for most small businesses, the owner or owners are involved in the day to day running of the business.  And even if you have a corporation, if  you are involved in running it, then you can always be sued for what you, personally, did or did not do.
The clearest example I can give is the owner of a corporation driving a corporate owned truck, who gets into an accident and hurts or kills someone.  It doesn’t matter that the truck was owned by the corporation; the owner was driving the truck and can be sued because they were driving the truck.  You were driving the truck, you failed to yield at a stop sign or blew through the red light, or whatever, and caused the accident and hurt someone. You’re going to be sued; saying that the truck was owned by the corporation and you were on corporate business simply isn’t going to help you.
Even if you were not the person who actually caused the damage, if you were involved in the running of the business, there’s a good chance that you could still be sued, personally.  If one of the employees of the business hurts or kills someone, you are likely to be sued under a theory such as “negligent hiring” “negligent supervision” or “negligent retention”, Basically, these theories say that you, as the manager, president or CEO of the corporation hired this person, gave them the keys to the truck, or put them in a position to do damage to someone else. If you’re running a bar that is owned by the corporation, and your bouncer beats someone up in the parking lot, you’re going to be sued on the theory that you were the guy who hired the bad bouncer and didn’t make sure that the bouncer didn’t get out of hand.
Understand, I’m not saying that a corporation doesn’t provide any protection; it provides some; but too many people have the impression that limited liability entities are bulletproof in terms of providing personal protection; they are not bulletproof.  If you are involved in the business, and something happens that causes enough damage, there’s a good chance you are going to wind up being sued.
So, what can you do about this?  You can get insurance.  I do not like to sound like shill for the insurance industry, but for most types of businesses, insurance is relatively cheap.  If you own or operate motor vehicles, you need automobile insurance; with a sufficiently high policy limit.  How much is that?  Talk to your agent, typically high limit coverage is not that much more expensive than lower limit coverage.  I don’t think that a million dollars coverage is too high.  And, you need liability coverage for your business; this is a separate policy from the auto insurance. This should cover anything that happens outside of a motor vehicle; if someone slips and falls at  your office, if one of the employees punches out a customer, liability coverage should step in and cover you for this.  Once again, how much coverage?  Talk to your agent.  And, you might want to talk to your agent about something called an “umbrella policy” which basically steps in and covers you if the damages exceed your  limits under your ‘regular’ insurance.  Umbrella coverage is relatively cheap as well.

Posted in Asset Protection, Business Law, Insurance | 1 Comment

How to Contest a Will in Florida

Posted on October 10, 2012 by admin

I get contacts from potential clients from time to time about “contesting a will”.  Someone does not like what a will says and wants to hire a lawyer to fight the will.
There are three basic lines of attack on a will in Florida.
First, ‘execution’, or how the will was signed and witnessed.
Florida law has very specific requirements for a will; available here:

http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0732/Sections/0732.502.html
While the requirements are not that complicated,  they have to be complied with exactly.  If they are not, then a will is simply invalid. In essence, the testator has to sign the will at the end, the witnesses have to sign the will in front of the testator and in front of each other. Note, the testator does not have to sign the will in front of the witnesses, all the testator has to do is sign the will and tell the witnesses that he signed this document and it is his will. Nonetheless, usually the testator   signs the will in front of the witnesses.  If  lawyer is involved in the will signing, usually the lawyer will make sure that the law is complied with; he will have the testator in the same room, sitting around the same table, with the witnesses and have everyone sign as part of one ceremony; have the testator sign, have the witnesses sign right after.  The problem usually comes in where there is not a lawyer present at the signing.  This is one reason to hire a lawyer to draft your will and not do it  yourself or via some sort of software or Internet legal service.
Second, whether the testator was competent, of sound mind, or knew what he was doing.   The law presumes everyone to be competent; in the absence of evidence, people are presumed to know what they are doing. The problem is, the will contest usually takes place some time after the will was signed and of course, the person who signed it is dead at that point.  They aren’t available to be examined by the court and testify as to whether they knew what they were doing.   The point is, unless there is substantial, real, evidence that the person did not know what they were doing, the will is likely  to be upheld on competency.  Usually the only evidence available is at best, indirect; people who knew the testator, maybe the testators doctor, the lawyer who drew up the will; you have to interview them and find out whether they seemed to know what they were doing.  Sometimes medical records can help; if someone was quite ill and under a great deal of medication, you might be able to show that they were so drugged up that they couldn’t know what they were doing at the time. Nonetheless, this can be a very uphill battle.
The third way you can attack a will is by showing what is called “undue influence”.  This is a three step process. First,  you have to show that someone was in a ‘confidential relationship’ with the testator, the person who died.  Second, you have to show that the person in the confidential relationship “procured” the will.   Third, you have to show that the person got something under the will that you would normally not expect them to get, more than they would normally get, that they got a ‘substantial benefit’ under the will.
This gets very complicated.  A confidential relationship is not well defined; it can be a child, a friend, a neighbor, a spouse, a relative, or a lawyer; basically, though it is someone that that testator trusts, and trusts to do the right thing. The cases speak of someone who the testator expects  to put the testators interest above their own; in other words that the person who was in a confidential relationship told the testator that “you can trust me, I’ll do the right thing, and I’ll make sure that what you want happens”.
As far as procuring the will,  you need to show that the person in the confidential relationship was active in getting the will drafted and signed.  There are a number of factors, and they include, but are not limited to, whether the person selected the lawyer, made the appointment with the lawyer, drove the testator to the lawyer, whether the person was present during the lawyers interview, whether they knew what was in the will, whether they selected the witnesses to the will and whether they kept the will.  Basically you have to show that the person in the confidential relationship had a lot to do with the drafting of the will.
As far what was a ‘substantial benefit’,  you have to compare what the person got under the will with what they would have gotten without that will; either if the person died without a will, or possibly under a prior will.  If the only child of a widowed mother does all these things, sets up the appointment, drives mom to the lawyer, knows what’s in the will, and gets everything  under the will, normally you would not expect that to be a substantial benefit.  Because, normally, you would expect a parent to leave their only child everything and if the mother had died without a will, the only child would normally get everything as well.  If, on the other hand, the guy  who comes once a week to  look after Moms pool does this, and the will cuts out Mom’s only child and leaves everything to the Pool Boy, you have a problem. Normally you would not expect a parent to cut out an only child out of a will and leave everything to someone who is, in effect, a stranger.  Sometimes there’s’ a fuzzy line here; if mom leaves the pool boy a few hundred or a couple thousand dollars, it’s probably not a ‘substantial benefit’ if the estate has other money. If mom leaves the pool boy the car, but leaves everything else to the only child, it might be might be a close call depending on the value of the car and how much other money there is.
The point is, just because someone does not like a will does not mean that it will necessarily be easy to get the will thrown out.  These cases tend to take a fair amount of discovery, subpoenaing of records, depositions of witnesses and people who knew the testator, and ultimately, it is  up to a judge.
If the will is thrown out, then chances are that the estate will pass via intestacy, or according to what is set out in the state laws.  Sometimes, though, if there is a prior will known it may be possible to get the prior will admitted, either because the will that was thrown out was ineffective to revoke the previous will, if, for instance, the will that was thrown out was not executed with the formalities required for a will (in Florida a revocation of a will by writing needs to be executed with the formalities of a will; if the will that was thrown out was not properly executed to constitute a will,  then it was not properly executed to revoke the prior will)  see:

http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0732/Sections/0732.505.html
or under a theory of “dependent relative revocation”.   Whether dependent relative revocation is a viable theory is going to depend very heavily on the facts of the case.

Posted in Probate, Will Contest, Wills | Tagged | Leave a comment

How much is this going to cost?

Posted on October 9, 2012 by admin

Frequently, I get phone calls asking about the price to do a particular type of work.  Sometimes I can quote a price, usually subject to some sort of caveat.  If the question is what do you charge for a will, I’ll ask whether it is for one person or for a husband and wife, and depending on the answer I can quote a price for a ‘simple’ will, which means outright devise to named beneficiaries and no trusts and no tax planning. And normally I will stick to that price unless something comes up in the interview that makes me think that maybe the client needs something more complicated  than a truly ‘simple’ will.
On the other hand, sometimes I will get asked what it costs to ‘change a trust’ or to sue someone. The best answer I can give in those types of cases is “it depends”.  Until and unless I have sat down with the client and reviewed the documents, talked to the client and found out the exact facts and what the client wants, I really can’t quote a price over the phone.  And, honestly, I doubt any lawyer could; the best a lawyer could tell you is that the prices ‘start’ at a particular level, but no one can tell you exactly what something is going to cost until they know exactly what is involved.
The best analogy I can give is that of a car mechanic. You can call up a mechanic and ask what a specific procedure will cost; in many cases they can quote an accurate figure, depending on the nature of the repair. What will it cost to rotate tires? To do an oil change?  To fix a flat?  Most mechanics will be able to tell you what it will cost to do these things. On the other hand, if you call up a mechanic and say, “My car is making this noise, it goes ‘thumpa-thumpa-thumpa’ when I do this” the mechanic is going to tell  you that they can’t diagnose it over the phone, they don’t know what is wrong with the car and that  you would have to bring it in and let them look at it. And that’s a perfectly reasonable answer. A mechanic can’t tell what is wrong with a car until they see the car.  And, of course, there is always the danger that the customer has misdiagnosed what is wrong with the car; if you ask the mechanic what it will cost to change the brake pads and you get into the shop and the mechanic says, you need brake line work and it will cost more than a simple brake pad change.  Likewise, sometimes what clients think they need and what they actually need are different; just because a client thinks they need something doesn’t mean they do need that.  And what it will cost depends on what they actually need.
The point is, most lawyers will be up front about what something may cost, but until the lawyer finds out exactly what is involved and what has to be done, any estimate is just that; an estimate.  The good news is, many lawyers will offer either free or low cost initial consultations for lots of matters; and ultimately, you are almost always better off talking to a lawyer and finding out what you need rather than guessing.

Posted in Fees and Costs | Tagged | Leave a comment

How to “Undo” a Deed

Posted on October 5, 2012 by admin

Sometimes a person will make a deed and transfer ownership of property to a family member. This is usually in a misguided attempt to do some ‘estate planning’; instead of talking to a lawyer about their options, the person simply decides to put a child’s, grandchild’s, or other relative on the deed.  Sometimes they even deed the property over entirely.
They do it in the expectation that the child or nephew will allow the parent to live there until they die.
This is usually a very bad idea; under some circumstances this sort of transfer can have gift tax consequences, lead to loss of homestead tax exemption, lead to loss of the home if the child gets in financial trouble. And sometimes, it’s even worse; the child will decide to sell the house or try to force the parent to move out.
What can be done?  Basically, a suit to ‘vacate a deed’, sometimes called a suit to ‘set aside a deed’.  Essentially what happens is, you take this in front of judge.  Judges have what are called ‘equitable’ powers; under some circumstances they can decide that a transaction or a deal is simply so unfair that they can undo the deal.  The specific legal theories include “failure of consideration”, and fraud; depending on the exact facts either one or both theories could be included in the law suit.  And the details can get very complicated, what has to be pled, what has to be proven, but generally judges will not sit by and let a child simply rip-off a parent.  This is a very technical type suit, and you definitely need a lawyer for this sort of thing. Nonetheless, the option is available.

Posted in Co-Owners, Estate Planning, Real Estate | Leave a comment

Probate Costs in Florida

Posted on October 1, 2012 by admin

Probably the most frequently asked question I get is “what will it cost to probate an estate” in Florida?
The answer depends on what is involved.
There’s basically two areas that affect how much probate costs; the actual costs and the lawyers’ bill.  At the very least, there is going to be a filing fee; a fee paid to the court in order to open the case. Depending on the type of case, it would usually run either $345 for a summary administration or $400 for most other types of probate (Full administration, Ancillary administration).  If the person has been dead for less than 2 years, then the estate would normally be advertised; how much it costs to advertise the estate depends on the county the probate is in and which newspaper is selected; very generally publication runs somewhere in the $100- $250 range.  Other costs that may come up are certified copies of paperwork, and if there is real estate in more than one county, recording certified copies of that paperwork; this can add up very quickly.
The other aspect is, of course, the attorney fees for the probate. This depends on what needs to be done and what the lawyer is charging; very generally, more complicated estates will cost more. What makes an estate more or less complicated?  Is there real estate involved?  Is there a problem finding heirs? Is someone challenging the will?  Is there in fact a will or is the estate intestate (it is generally easier and quicker to run a testate estate; Florida law provides that a Personal Representative can be granted certain powers in a will; if there is no will the Personal Representative may have to run to the judge for approval of certain actions).  Are there a lot of creditors, people owed money by the estate?  Is there an elective share or family allowance filed? Is there a Trust?  If there is a Trust then the lawyers time may increase, as it may mean more ‘handling’ of the estate.  Does the lawyer have to attend hearings or can the lawyer do this mostly by mail?   How is the lawyer charging? Is the lawyer charging as a percentage of the value of the estate?  By the hour?  On a fixed fee schedule? Or a combination of more than one of these factors?  All of these are permissible under certain circumstances under Florida law.

All of these factors can influence what the cost of probate in Florida is.
If you have questions about the cost of probate in Florida, contact a Florida attorney.  If you are in or near The Villages, Florida feel free to contact my office with your questions about the cost of probate.

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What if I can’t find a will?

Posted on September 27, 2012 by admin

Sometimes, for whatever reason, after someone dies the family can’t find a will.  In some cases there may be a copy of a prior will; in some cases it may simply be a belief that the person had a will or someone was told at one point that there was a will.
This is a problem. It is a problem because, under Florida law, even if  you have a copy of a will, Florida law presumes that the original will was destroyed with the intent to revoke it.  This is governed by Florida Statute 733.207, available here:
Florida Statutes 733.207
While this presumption can be overcome, it is not necessarily easy or cheap.  As this case discusses, you need to file a separate proceeding to establish a lost will and to present live testimony; sometimes probate lawyers will try to ‘short circuit’ the process either by use of affidavits or by simply filing a copy of a will and asking the judge to admit the copy as an original.  This is a very definite no-no; there needs to be full notice and disclosure to all potentially affected parties. See this case,  Estate of Brennan, for an example, available here:

Estate of Brennan
Then, on top of this, you need to convince a judge that the will was destroyed or lost by accident or deliberately by a wrongdoer; it is not as easy as simply saying “We can’t find the will, it must have been misplaced or destroyed by someone”.  As this case discusses, you need more than just a theory; you need actual evidence;

Balboni v. LaRocque

No evidence, the lost will is not admitted to probate.
If you can’t find a will, what can  you do?  Several things; first, look through bank statements and such; see if the person had a safe deposit box.  If there was one, Florida has a procedure for going to a judge and getting a court order to open the box solely for the purpose of looking for a will.  Second, contact one or more local attorneys; while most attorneys do not keep original wills, some attorneys still do; even if the local attorney you contact does not have a record of a will for that person, the lawyer may be willing either to give  you the names of some other local attorneys who draft a lot of wills, or he may be willing to contact other attorneys asking if they know anything about a will for that person.  Otherwise, you simply need to keep looking. One case I was involved with, it took nearly a month to find the will; the deceased testator had put the original will in the box with the Christmas ornaments.  Why did he do that?  I don’t know but that’s where the will was found.
The point is, while  it is possible to get a lost will admitted, it is a very rough road.  If you have questions regarding what to do if you can’t find a will, contact a Florida attorney, preferably a Probate Lawyer. If you have questions about Probate in The Villages, Florida, please feel free to contact my office.

Posted in Probate, Will Contest, Wills | Tagged , | Leave a comment

What if my Husband left the house to his children?

Posted on September 27, 2012 by admin

One issue that comes up occasionally is where a spouse, usually a husband, owns a house by themselves and their will tries to leave the house to someone other than their spouse.  Under most circumstances, you can’t do that in Florida.
Without going into an extended discussion of the finer points of the law, essentially the problem is this. If the house was the homestead, that is, the primary residence of the deceased spouse or was the residence of the surviving spouse or the residence of a minor child, in other words, this was where they lived in Florida and they were Florida residents, that house is homestead.
Florida law limits how homestead can be devised where someone dies with either a spouse or a minor child.
If someone has a minor child, the house cannot be devised.  Period. End of discussion.
If there is a surviving spouse, and no minor child,  then the only way the homestead can be devised is to the surviving spouse.  However, all of the house must be devised to the surviving spouse; the house cannot be left half to the surviving spouse and half to someone else; or leave the surviving spouse a life estate and the remainder to someone else.  If the will attempts to leave the less than all of the house to the surviving spouse, then the attempted devise fails.  In plain language, it is no good; the estate is intestate with respect to the homestead.  This trips up even experienced probate lawyers; I’ve been involved in probate litigation over this, and in some cases, even some very smart probate attorneys do not ‘get’ this point. Where a married decedent who is survived by a spouse and no minor children attempts to devise a homestead to someone other than the surviving spouse, the attempted devise fails entirely and the homestead descends via intestacy under the Florida constitution, viz. with a life estate in the homestead to the surviving spouse and a remainder interest to the descendants of the decedent. Viz., Estate of Cleeves, 509 So. 2d 1256, (Fla. 2nd DCA, 1987) (Devise of less than whole homestead to surviving spouse fails); In re Finch, 383 So. 2d 755, (Fla. 4th DCA 1980) (Devise of life estate to surviving spouse, remainder to daughter, failed; entire fee simple estate must be devised to surviving spouse).  What does not happen is the spouse getting a life estate and whoever is in the will getting the rest, unless whoever is in the will would take the identical share under intestacy.  In other words, if the will leaves half of the house to the wife, and half to one of three children, the wife does not get a life estate in the house and a remainder to the one child; the entire devise fails and the wife gets a life estate and all three of the children take equal shares in the remainder; even if the other two were explicitly cut of the will.
This is black letter law in Florida. The only exception to this is where the surviving spouse has given up her homestead rights in writing; usually in a prenuptial agreement.
If you are in this sort of situation, if your spouse owned the home  you live in and tried to leave the house to someone else,  you need to contact an attorney to review your rights.  This is one of those things that needs to be brought to the attention of a judge; not all lawyers and not all judges may realize that this is the case.  If you have questions about your rights regarding homestead in The Villages, Florida, please feel free to contact my office.

Posted in Homestead, Probate, Real Estate, Will Contest | Tagged , , , , | 6 Comments

Do I have to pay my fathers’ or husbands’ bills from the life insurance?

Posted on September 27, 2012 by admin

I get phone calls from people asking about “pay on death” or “transfer on death” accounts.  Usually, a parent has died, and named one or more children as a beneficiary on a bank account or an investment account or life insurance.  The question is, does the child have to use that money to pay the bills of the parent?  The answer, usually, is “No”.  Under most circumstances, money passing outside of probate by POD or TOD or Beneficiary designation does not have to be used to pay creditors of the parent.  Likewise, to the extent that this money passes to a surviving spouse, it does not have to be used to pay bills of the person who died.  The major exception to this is where the money is being held at the same institution where the bill is owed; if First National Bank has a CD payable on death to a child or wife, and the person who died had a credit card at First National Bank, then the bank may be able to ‘set off’ the CD against the bill; to take the money and apply it to the bill and not give it to the child or the spouse.

A related matter is where the dead person owed medical or hospital bills and the hospital will try to get the surviving spouse to pay the bills, under a theory of “doctrine of necessities” or “doctrine of necessaries”.  Florida did  have a law on Doctrine of Necessities, but it was overturned by the Florida Supreme Court in  Connor v. Southwest Fla. Regional Med. Ctr., 668 So. 2d 175  (Fla 1995).  At this point about the only way that a hospital or doctor can force a surviving spouse to pay medical bills for a deceased spouse is if the surviving spouse signed a contract or otherwise agreed to do so, and did so in their own name, not as agent or health care surrogate for the deceased spouse; and Florida courts tend to be very rigid about this requirement.

If you have questions about  your probate rights as a surviving spouse or child in The Villages, Florida, feel free to contact my office.

 

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