6 Things You Need to Know About Florida’s Last Will and Testament

Florida’s Last Will and Testament. 

One final nod to the deceased. One last chance to determine what happens to property accumulated over a lifetime. The closing chapter on a life and all it accomplished. 

The Will is one of the most fundamental tools in Florida’s Estate Planning toolbox. 

Yes, there are others. Trusts, Joint Accounts, Beneficiary Designations and Intestate Statutes to name a few. 

But the Will, if used correctly, can work to supplement the other tools and catch any assets that may have been missed during the Estate Planning process. Kind of a belts-and-suspenders approach.

Consider the following questions in determining whether all of your assets are properly accounted for in your estate plan:

4 Things You Need to Know About a New York Quitclaim Deed

New York quitclaim laws are similar to most other states with a few exceptions. 

1. Transfer of Interest

You can only use a quitclaim deed to transfer your interest in the property and nothing more.

If you own a life estate interest in a parcel of property you cannot transfer a fee simple absolute interest in the property. If you own a leasehold interest in a parcel of property you cannot transfer a life estate interest in the property.

At its core, the person granting a quitclaim deed is really only saying "I'm not representing that I have any interest in the property. I'm only representing that if I have any interest in the property I'm transferring that interest to the grantee."

In other words, if you are buying property and you want the seller to represent that he or she actually owns the property you will need to use a different form of deed (e.g. warranty deed).

2. Unclear Language
If the language in the quitclaim deed is clear and unambiguous, you cannot bring in outside evidence to prove the deed intended to transfer something other than what is stated in the document.

7 Things Florida Courts Presume About Real Property Deeds

Remember the 2007 real estate crash?  Who doesn’t, right?

Leading up to the crash my law firm was involved in 30 new closings a month.  Most of them involved beachfront investment property in Florida’s panhandle. 

After the crash many of our clients were left scrambling. The sellers scrambled to close their deals.  The buyers scrambled to get out of their deals.

In January, 2008, one of my clients approached me with an interesting question. 

He had purchased beachfront investment property in Pensacola, Florida.  The deal closed a year before the crash.

His property was valued at over $1 million before the crash.  Now it was worth $300,000.

His question: Can I reverse a real estate transaction a year after the closing? This question was on the minds of many Florida investors in the winter of 2008. As with most legal issues, the answer was: It depends.

Florida real property laws can be difficult to navigate.  As in most states, Florida statutes and case law create certain “presumptions” about the transfer of real property.

1. Florida law presumes a "fee simple" property transfer

Why Do I Need an Advance Healthcare Directive?

Right now you are the person in charge of deciding what type of medical care you receive. Well, you and your insurance company. But what will happen if (and likely when) you are no longer able to make medical decisions for yourself. That day may be twenty years from now, OR it could be tomorrow.

Consider the case of Terry Lynn Schiavo which ignited a firestorm of controversy when it pitted the Parental Rights of an adult living in a vegetative state against those of the adult’s Spouse.

Top Five Things People Regret at the End of Their Lives

A recent article spells out the Top Five things people regret having done or not done when they come to the end of their lives. The article is based on answers to questions an end of life nurse has posed to her patients over the years. The list includes:

1. Having been too concerned with what others wanted them to be and not what they wanted to be. Leaving dreams unfulfilled.

How to Transfer Ownership of Real Estate?

Transferring ownership of real estate requires the owner of the property to prepare and record a legal form known as a "Deed" with the Clerk of Court in the County where the real property is located. There are a number of different legal Deeds that can be used to transfer ownership. The two most common types of Deed are the "General Warranty Deed" and the "Quitclaim Deed." The General Warranty Deed gives the new owner a guarantee that there are no problems with the chain of title to the property, while the Quitclaim Deed makes no such guarantee.

How to Keep the State From Taking Real Estate When an Owner Dies With No Will

There are a number of popular tools for ensuring property does not end up in the possession of the state when someone passes away without a Will. Three of these tools include: (1) the state's particular "Intestate Statute," (2) naming an heir in the property deed, and (3) setting up a trust. Each of these tools is designed to allow a property owner to determine who will take ownership of his or her property upon passing away. It is important to note that one of these tools (Intestate Statute) will likely require a legal proceeding to determine ownership while the other two (property deed and trust) do not.

FHA Streamline Refinance Requirements

Although the real estate purchase sector in the United States as a whole is still struggling to return to where it was before the crash, one section of the real estate market has taken off in recent months: Mortgage Refinances.  This is due primarily to historically low interest rates and new FHA Streamline Refinance Requirements. 

Historically Low Interest Rates
There are several reasons for a recent spike in Mortgage Refinancing. First, interest rates on refinances are extremely low. Several years ago, refinancing your home at an interest rate lower than 4.5% meant buying down the rate using the points system. Now it is not uncommon to find interest rates in the 3.5% range without any points. It is, however, unclear how long interest rates will stay as low as they are now.

Transfer On Death Vehicle Registration

The biggest reason you don’t want a vehicle to go through probate is because they depreciate over time. The longer the probate process drags on the less the vehicle is worth. A car worth $15,000 this year might be worth $10,000 the next. The sooner your heirs can get the vehicle transferred into their names, the more they will be able to sell it for. It only makes sense to pass your vehicles to your heirs outside of probate.

Surviving Spouse as Sole Beneficiary of Retirement Accounts

More often than not, spouses choose to leave their assets to each other when they die.  When it comes to retirement accounts this decision makes good financial sense as there are specific state and federal rules that favor leaving the account to a spouse.

Benefits of Naming Spouse as Sole Beneficiary of Retirement Account
For instance, a surviving spouse who is named as the sole beneficiary of a retirement account is not required to withdraw the money right after the deceased spouse's death.  This allows the surviving spouse to keep the tax deferred status of the money and not begin making withdrawals until the later of (1) the year the deceased spouse would have turned 70 1/2; or (2) December 31 of the year following the deceased spouse's death.

Tax Advantages of IRA's (Traditional and Roth) and 401(k)'s

I remember working in the banking industry over a decade ago when the Roth IRA was first introduced. For months after the Roth came out I was approached by clients about how the Roth worked and whether they should roll their money into the Roth from their traditional IRA's. Although brand new at the time, it was clear to me that the Roth might work well for my younger clients, but not necessarily for those nearing retirement age.

As the Roth v. Traditional IRA issue has recently come up with a client of mine, I thought I would take a moment to briefly outline the tax advantages of each.

Traditional IRA Tax Advantages
The real benefit to a Traditional IRA is that any money you deposit into the IRA each year (up to the legal limit) can be deducted from your taxes.

Five Methods for Avoiding Probate

There are numerous ways a person can avoid having his or her property probated.  The following are some of the most common methods for avoiding probate:

POD Accounts and the Uniform Transfers to Minors Act (UTMA)

It is common for adults to want minor children to inherit money from a bank account without having to go through the probate process.  The most common way to do this is by using a Pay on Death bank account and naming a "P.O.D. Payee" to receive the money once the account owner passes away.  If the minor child is about to turn 18 or the amount of money in the bank account is never intended to be more than a few thousand dollars, the account owner may just name the minor child as the P.O.D. Payee. 

But when the minor child is not yet ready to assume responsiblity for his or her finances it would be better for an adult to be appointed to manage the minor child's finances.

Four Reasons To Avoid Probate

Probate proceedings consist of five basic steps: 

(1) submitting a deceased person's will to probate court, 

(2) proving the will is authentic and properly executed, 

(3) inventorying and appraising the deceased's assets, 

(4) notifying creditors and relatives of the probate proceedings, and 

(5) publishing notice of the proceedings in a local newspaper.

While these steps may appear simple and easy, the following are four reasons to avoid having your estate probated:

Bankruptcy For The Individual Under The Newly Revised Bankruptcy Code

An individual person can currently file bankruptcy under one of two Federal Bankruptcy Chapters: Chapter 7 (clean slate/start over) and Chapter 13 (restructure of indebtedness). Chapter 7 Bankruptcy is used to discharge the individual from his or her debts. Chapter 13 Bankruptcy is used to restructure a person’s debts and allow him or her to keep certain assets under a revised payment plan.

Recent Changes in the Bankruptcy Code
Until a few years ago just about everyone who had not filed bankruptcy within the preceding six years and had no disposable income to pay the bills was eligible for Chapter 7 bankruptcy.

Special Warranty Deeds on Foreclosed Homes

In a standard “arms-length” real estate purchase, the Seller of the property executes a General Warranty Deed to the Buyer. The General Warranty Deed warrants (or insures) that title to the property is clear and unencumbered and that if a problem with the title arises in the future the Seller will pay the attorneys fees or other costs required to clear up the title problems. The General Warranty Deed insures the title going back to the beginning of time.

An “arms-length” purchase is a purchase where there are no special deals between the two parties like those that often occur between relatives or other close friends where the “quit claim deed” is often the deed of choice.

What is a Short Sale?

A Short Sale is when the owner of a home sells the home for less than what he owes on his mortgage.  To do this, the owner is required to get permission from the mortgage holder (usually a bank) to sell the home at a loss to the bank.  Since 2008, Short Sales have become more common as the value of houses have dropped in the United States.

Why Would a Bank Agree to a Short Sale?
Banks have a strong incentive to agree to a Short Sale when (1) it has become clear to the bank that the current owner of the home can no longer make his mortgage payments; and (2) foreclosing on the home and selling it at auction will likely bring less for the home than the proposed Short Sale.

DUI and Illegal Police Searches

If you have been arrested for DUI as a result of a DUI checkpoint stop, you may be able to attack the resulting DUI charges based on your Fourth Amendment rights against illegal searches and seizures.  Under the Fourth Amendment, any evidence seized as a result of an illegal search may not be used against you.  The reasoning behind this is that police should not be able to benefit from violating your Constitutional rights.

Deed of Trust

A "Deed of Trust" is a legal instrument that grants a Lender a Security Interest in real estate.  The Security Interest creates a lien on the property on behalf of the Lender and gives the Lender the right to foreclose on the property should the Grantor of the Deed of Trust fail to satisfy the terms of the loan.  A Deed of Trust and a Mortgage are similar in the rights they grant the Lender.

Deed of Release

A Deed of Release (also known as a Deed of Reconveyance) is a legal instrument executed by a lien holder (Lender) to release a lien on real property. A Lender holding a lien on real property in the form of a Mortgage or Deed of Trust must execute a Deed of Release once the Lender has been paid in full by the Grantor of the Deed of Trust. In most states, Lenders are required to execute a Deed of Release within a certain time period after the loan is paid off.