Landlords: Don’t take partial payments when you’re evicting someone.

Posted on August 20, 2012 by admin

Just got off the phone with potential client; landlord, who gave three day notice on commercial lease for nonpayment of rent; but then they told me that they had accepted a ‘partial payment’ for the month; in other words, less money than what they were owed and less than they had demanded.  And they still wanted to evict for nonpayment. I understand the desire to get as much money as you can, but really, even if the lease provides that partial payments will not waive the rights of the landlord to terminate the lease, most judges are going to have a problem with this. The law is a bit complicated on this point, but in my experience, most judges in Florida are going to look askance at a landlord taking money from a tenant and then trying to evict them for the remainder of the unpaid rent.
If you want to evict a tenant, it’s all or nothing; they pay you all of the money you are owed, or none of it. If the tenant insists that they should be allowed to make a partial payment, then tell the tenant to pay it to the clerk of the court once the eviction is served.

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Thomas Kinkade and his hand written will(s)

Posted on August 7, 2012 by admin

The artist Thomas Kinkade, the fellow who did all of those paintings of cute little cottages, died this spring.
Now, it appears as though his estate is in an absolute mess.

http://www.contracostatimes.com/california/ci_21158511Artist Thomas Kinkades Lawyers File Appeal Against Girlfriend

Long story short, he left two handwritten (Holographic) wills; which left significant assets, including the mansion, a studio, and ten million dollars to his girlfriend.  His wife is contesting the wills.
This is going to be messy; it’s going to be long, and it’s going to be expensive.
And bear in mind, this is a guy who left an estate of, probably, over a hundred million dollars.
And his estate planning apparently consisted of a couple of handwritten wills.
The lesson here is, don’t do your estate planning by yourself.  Kinkade could have afforded absolutely top legal talent; and he’d have had an absolutely bulletproof estate.  Instead, for whatever reason, and I can’t imagine it was to save money, his estate is going to wind up in litigation, probably for years, incur what will probably be millions, maybe tens of millions, of dollars in legal fees on both sides, and whatever the result is, chances are very slim that it will wind up anywhere near what he actually wanted.
Remember, folks, do-it-yourself  estate planning just winds up creating a mess; and it is very likely that any possible savings is going to be more than overshadowed by increased legal fees; plus what winds up happening is probably not going to bear much resemblance to what you actually wanted.  If  you want to do an estate plan, talk to a lawyer, the lawyer can set things up just as  you like.

Posted in Asset Protection, Divorce, Estate Planning, Probate, Will Contest, Wills | Tagged , , , | Leave a comment

Dividing up the property

Posted on August 2, 2012 by admin

Maybe you are divorced and you and the ex spouse are co-owners of some real property. Or maybe you and your brother both inherited Dads house.  And now, one of you wants out; one of you wants to sell and cash out, and maybe the other one wants to keep the house, or disagrees with you on the sales price. Or one of you is bearing all the expenses, the taxes, the insurance, the homeowners association fees, and the other one refuses to contribute.
What can you do?  You basically have two choices.  You can cut a deal with the other guy, or you can file a “partition” suit.
Partition suits involve two steps; one, an accounting; where the money is tracked; who spent what on the property, and who benefited from the property; who lived there, who collected rent on it.  Then, the property is ordered sold by a judge; and after the sale, the judge orders a split of the money, taking into account and adjusting the figures for  who paid what over the years and who used the property.
The rules regarding the accounting are really complicated and depend on a lot of factors, which I am not going to get into here, but the point is, this is a very technical, detailed type of suit; it involves a lot of accounting and frankly, it can get expensive very quickly.  If you are at all able to strike a deal, you should consider it; on the other hand, if the other side is simply refusing to negotiate or to be reasonable, you need to talk to a lawyer about your rights and how to handle the lawsuit.

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You Snooze, You Lose; Failing to Object in Time in a Will Contest.

Posted on August 1, 2012 by admin

Michael Jacksons’ siblings are trying to challenge his will.

Michael Jackson Family Feud: Lessons for Wills and Trusts

The problem is, they waited too long.  They had notice of the will, they had notice of the probate, and they didn’t object within 120 days.
I don’t know whether the will is a forgery; but this case illustrates two things about will contests.
First, they waited too long; they had notice of the will and simply didn’t act fast enough.  Florida law can give as little as 20 days notice to people to contest a will; if you don’t file your objection, you are out of luck.
Second, even if  the siblings were to  win, and have the will thrown out,  and declared invalid, unless there was another, earlier will admitted to probate, Jackson’s children would get the estate outright; none of this money would go to Jackson’s siblings, his brothers or sisters.  The point is, it looks like they may not have thought this through; they are taking on a very expensive fight that they have a slim chance of winning, and even if they do win in the sense of getting the will thrown out,  even then, they might not benefit if all of the money goes to Jacksons’ children and not to his siblings.

If you are involved in, or might be involved in, a will contest,  or might want to challenge a will in The Villages, Florida, it is very important to speak to an attorney; please call my office and I will be happy to speak with you.

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New Florida law on “Pay on Death” accounts after divorce

Posted on July 31, 2012 by admin

Florida has long had a law partially revoking a will upon divorce; if someone has a will naming a spouse as beneficiary, and they get divorced, Florida treats the ex spouse as though they died before the other spouse.  Florida has a similar law regarding revocable trusts; it cuts the ex spouse out of the trust.  And this is a very good idea; sometimes people forget to revise their wills and trusts after they get divorced and otherwise the ex spouse would inherit property. Up until now, though, Florida did not have such a law for Pay on Death Accounts; bank accounts, investment accounts, retirement accounts, where the ex spouse was named as beneficiary.  And I’ve seen that happen, a lot; someone gets divorced, maybe they change their will, but they forget they named the ex-spouse on a retirement account, or a CD, or an investment account or, frequently, a life insurance policy; some time later they die and the children, or the new spouse, are outraged that the ex-spouse winds up getting a chunk of money.   Now, new Florida Statute 732.703 does that.  Florida Statutes 732.703 However, bear in mind that this only allows the bank or the insurance company or the investment company to say “no” to the ex-spouse; it does NOT impose any liability on the company if they pay the money over to the ex-spouse. In other words, it’s up to the surviving family to contact the company and let them know that the person named as beneficiary is now an ‘ex’ spouse.  Otherwise, the family is stuck suing the ex spouse. And, this does not appear to apply to “joint” accounts; where the spouses set up an account in both their names and then got divorced; if one of them dies, it looks like the account will go to the survivor, even if they weren’t married at the time. And, this does not apply to any court ordered accounts or policies; it does not apply to any accounts governed by the laws of another state and it does not apply to all types of accounts, only those specific types set out in the statute.  And, this only applies to people dying after July 1, 2012; if someone died before that date, this law doesn’t apply. The point is, while this is a step in the right direction, you still need to review your estate plan and accounts, preferably with a lawyer, after you divorce.  If you don’t, and you wind up dying, this new law at least gives your heirs a chance at keeping money out of the hands of the now-ex-spouse, but it isn’t perfect; the best thing you can do is your homework ahead of time, change beneficiary designations and close out joint accounts and open up new ones, if you can.

Posted in Asset Protection, Divorce, Estate Planning | Tagged , , | 4 Comments

Asset Protection for New Florida Residents

Posted on July 30, 2012 by admin

Florida has very strong protection for debtors; debtors are people who owe money.

In addition to protecting your personal residence from being taken, Florida has no estate tax or inheritance tax, provides heightened protection for property held by a married couple under some circumstances, generally protects most retirement accounts and pensions as well.
However, if you’ve recently moved to Florida, one thing you may need to think about is whether you have transferred your assets to Florida from the state that you moved from.  While each state has their own laws, in order to take full advantage of Florida protections, all of your assets, or at least as many as you can transfer, should be moved to Florida. Some states have income taxes; estate and inheritance taxes. And some states will try to levy those taxes on any assets that are located in that state even if the owner does not live in that state.  Likewise, if you are unlucky enough to get sued and lose the case, if you own assets outside of Florida it is entirely possible that the creditor could try to use out of state laws to seize out of state assets.
So; to the extent that you can, you should move your assets to Florida after you move to Florida. While I understand that you may have a long time relationship with the broker in your home state, to the extent that the account remains with that broker, there is an argument that the account remains out of state and not subject to Florida laws. Likewise, when dealing with a nationwide bank, if you leave your bank accounts in a non-Florida branch, there may be an argument that the accounts are still subject to that states laws.  If you have accounts out of state, transfer them to a Florida branch or broker, and if necessary, close the accounts out of state and open entirely new ones in Florida. Likewise, transfer your auto registration to Florida; register to vote in Florida; in other words, do the best that you can to show that you are now a Florida resident and are no longer subject to the other state.

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Protecting your Assets from the Other Guy: Uninsured Motorist Coverage in Florida

Posted on July 27, 2012 by admin

Car accidents are a fact of life.  No matter how good or careful a driver someone may be, there is always a chance that they’ll be involved in an auto accident.  And while cars are much safer nowadays than in years past, with stability control, front and side airbags and even collision avoidance technology, it’s entirely possible to be severely hurt or killed in an instant in a car accident.
And if you are involved in a car accident, it can ruin you financially.  Leaving aside medical bills, someone who was earning a good living can lose those earnings; if you are in the hospital for months, or if you wind up disabled, you may not be able to run your business or work at your profession. Even if you are on a salary or hourly wage, if you’re out of work because of injuries you’re not making money.
And, theoretically, you can sue the guy who caused the accident for your lost wages and earnings; the problem with that is the guy who caused the accident may be carrying minimal, or no, insurance, and may not have anything. In other words, you may wind up with a piece of paper saying he owes you all this money and no way to collect it.
Understand, all Florida requires of drivers is $10,000 in Personal Injury Protection, which covers the owner, driver and passengers of the owner of the car, and another $10,000 in property damage, which covers any property damage, such as damage to the other guy’s car. Florida does not require any bodily injury coverage; or insurance that will cover the people that you hurt in an accident, unless they are in your car when they are hurt.  In plain language, if you are hit by another driver, that driver does not have to have insurance that covers any injuries to you; all he has to have is insurance that covers himself and his passengers and insurance that covers damage to your car, up to $10,000.
So,  this is the situation in Florida; if  you are involved in an accident, and the other guy is at fault, and  you are severely hurt or killed, you or your estate can sue the guy who hit you, get a judgment for all your medical expenses, all your lost income and wages, and basically be left holding a worthless piece of paper that is uncollectible; if the guy who hit you doesn’t have insurance, or doesn’t have insurance in an amount to cover  your damages, you’re probably out of luck and out of money.
And, if you think about it, who is least likely to carry insurance?  A responsible, safe, driver or the guy with a bunch of tickets, with a history of bad driving?  The guy with the history of bad driving, that’s who; precisely because his record is bad enough that he can’t get insurance or the insurance will cost him an arm and a leg.
That’s a problem; you can do everything right, be the safest driver in the world, be driving the safest car in the world, and some fool comes along and T-bones you and  you wind up in the hospital, out of work, maybe even disabled and unable to work for the rest of your life.
What can you do to protect yourself?  You can get Uninsured/Underinsured motorist coverage.  What lawyers, and your insurance agent call “UM” coverage. UM coverage is available in Florida to anyone who has Bodily Injury coverage; and it is available up to in the same amount as  you have Bodily Injury coverage. In other words, if you have $100,000 in Bodily Injury coverage, you can get up to $100,000 in UM coverage; if you have a half million in Bodily Injury,  you can get up to a half million in UM coverage.
UM coverage covers you; if the guy who hits you doesn’t have insurance, or if he doesn’t have enough insurance to cover your damages, your UM coverage will step in and cover your damages and losses up to the limits of your policy.  In other words, you look to your own insurance company to make you whole.
Also: I am not going to get into a technical discussion of UM coverage, but you should choose “stacking” coverage, even if  you only own one car.
So: in a nutshell, if you are interested in protecting yourself; you should contact your insurance agent and make sure that  you have Uninsured Motorist coverage;  you should have Uninsured Motorist coverage in an amount equal to whatever you are carrying for Bodily Injury; and frankly, if your Bodily Injury coverage is low,  you should probably consider raising it, and raise the Uninsured Motorist coverage as well.  How high?  Ask your agent what limits  you can get and what it will cost; if you are a good driver higher limits of Bodily Injury and Uninsured Motorist are not usually that much more expensive.  And you should choose “stacking” coverage; particularly if you own more than one vehicle, but even if you only own one, choose the stacking.
Remember, Uninsured Motorist coverage protects you from the other guy.  Bodily Injury protect the other guy from you; but you can only get Uninsured Motorist coverage up to the limit of what you have for Bodily Injury.  So, it makes sense to protect the other guy if you can protect yourself at the same time.

 

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Prenuptial Agreements In Florida

Posted on July 24, 2012 by admin

So, you’re getting married.  You’re in love, your spouse-to-be and you have set the date, sent out the invitations, selected the menu and you are all set.
Maybe not.
Depending on your assets and that of your soon-to-be-spouse, you might want to consider a Prenuptial Agreement, or what Florida usually calls an Antenuptial agreement. They’re the same thing; Pre and Ante both mean “Before”; and nuptial means marriage.  Some people also call them “Prenups”.
I know, talking about money and who gets what in the event of divorce or death is not particularly romantic; and might seem to put a damper on the wedding celebration.
But, for more ‘senior’ clients, who’ve got significant assets and pensions and, more than likely, children by a previous marriage, talking about and agreeing who gets what when one partner dies matters; it matters a lot.
Florida allows a couple to decide before marriage who will get what and who has the right to what if the couple gets divorced or when one partner dies.  If  you don’t have such an agreement, then in the event of a divorce a judge will decide who gets what. If you are married when you die, Florida law sets out certain rights that the other partner has; including the right to own the homestead as long as they live, the right to up to almost a third of what the other partner owned, the right to act as executor or personal representative under some circumstances, and the right to up to $18,000 from the assets of the estate as a family allowance. All of which may come at the expense of the deceased spouses children or other heirs.
You can contract out of these rights prior to marriage; you can strike almost any sort of deal that you like; you can agree that what is one spouses stays with that spouse and what is the other spouses stays with that spouse; or you can agree that certain property and certain rights will pass to the surviving spouse at death but other things won’t.
There are certain requirements for these agreements to be enforceable; they must be in writing, they must be properly executed (signed, witnessed and notarized in particular manner); there should be ‘full and fair’ disclosure of what each party owns at the time of signing the agreement, and, ideally, the agreement should be signed well before the wedding so that one spouse can’t claim that they were forced into the deal at the last minute.
And, you do need to hire a lawyer to draft these; there are a lot of technical details and specific requirements that need to be met; in fact, it is a very good idea of both the husband and the wife hire their own attorney and both lawyers review the contract.
If  you have significant assets, and are getting married, you should at least talk to a lawyer about a prenuptial agreement well before the wedding date.  If you need a Prenup agreement in The Villages, Florida, please contact my office.

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Why go to a Lawyer for Estate Planning?

Posted on July 19, 2012 by admin

Why go to a lawyer for estate planning?
There are certain people who advertise estate planning services, who claim to do estate planning and some who, even though they don’t openly advertise estate planning, do what amounts to estate planning, even though they are not lawyers.  If someone is giving you advice on your estate plan, they’re doing estate planning.  Examples may include your stockbroker, your investment counselor, your accountant, or someone in the investment department of your bank.
Now, I’m not saying that an accountant might not have some valid input regarding your estate plan; accountants generally know about taxes and may be able to point something out regarding taxes. Likewise,  someone at the bank may point out that you can name a beneficiary on account so that account will pass outside of probate at your death. That’s a perfectly valid and useful point. However, where the line gets crossed sometimes is when the accountant then tells you that “you should do this because it will avoid taxes” or the person at the bank says “you should do this because you want to avoid probate”.  Well, maybe you should but maybe you shouldn’t.  It’s possible that the taxes you will be avoiding are non existent or minimal at best; and doing something to avoid taxes will wind up with an unwanted result, such as depriving someone who you want to get something not getting it. Likewise, while you might want to avoid probate, naming a person as beneficiary might result in their getting the property outright, and you would really rather they get it in trust.

A lot of the people who may be giving you estate planning advice are doing so from their own perspective; that of an accountant, an investment counselor, a bank employee. All of which are valid perspectives but they don’t take into consideration other perspectives. And, to be honest, depending on their position, their perspective might be colored by what they have to sell; if an investment counselor does not sell a particular type of product, that investment counselor is unlikely to tell  you to buy a product that they don’t sell.
A lawyer is selling his advice; a lawyer is not selling real estate, a type of investment, or a particular product. A lawyer is usually going to be charging for his time and he makes money off of selling his time.  A lawyers’ advice, and how much money he makes,  should not be colored by what you wind up buying.
Additionally, a good lawyer will look at a problem from more than one perspective; what the law is, what the tax implications should be, what the impact on family harmony will be.  A lawyer should take into consideration what all of the objectives of the client are; not just tax questions or what will give the highest rate of return.
This is why you need to talk to lawyer for your estate planning; because a lawyer will put your interest above the lawyer own interest; and  a lawyer is in the best position to evaluate what is best for you.

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Estate Planning for Unmarried Couples, Part 3

Posted on December 7, 2011 by Ron Jones

So, if you’re wanting to allow someone who you are not married to access to make decisions for  you and to run your life if you are unable to do so, what are the options?

Basically, there’s three documents you may want to consider.

First, a durable power of attorney. A power of attorney will allow someone else to deal with your business affairs; deal with banks, lawyers, accountants, sign contracts in your name, file tax returns and otherwise do what you could do with respect to business, with a few exceptions.

Second, a health care surrogacy, sometimes called a health care power of attorney or health care proxy.  This would allow the other person to deal with physicians, hospitals, medical insurers, and to make medical decisions for you if you were unable to make those medical decisions yourself.

Third, a pre need guardian designation.  If you were ever unable to care for yourself, it is possible that an incapacity and guardianship application could be filed; where a judge would decide whether  you were competent to look after  yourself, and if you were not, the judge would appoint a guardian, or someone to make decisions on your behalf. A pre need guardian designation is where you make a decision ahead of time and say to the judge, if I am unable to handle my own affairs, I want this person to be my guardian.

The reason all of these are particularly important for unmarried couples is precisely because you are not married to them; the law grants married couples the ability to make decisions for each other under some circumstances, and allows other to share information with spouses under some circumstance. Most medical providers will share information with spouses, and may very well look to the spouse to make medical decisions if the other one is unable to do so. Likewise, the law presumes that a spouse is entitled to be guardian of the other spouse. But if you are not married, the law does not presume this and the other partner may very well find themselves frozen out of the decision making process unless they have documentation in place allowing them to do this sort of thing.

 

Posted in Asset Protection, Guardianships, Health Care Surrogacies, Insurance, Powers of Attorney | Tagged , , , , | Leave a comment