Power of Attorney Litigation in Florida

11298453 - power of attorneyOne of the most common tools used to take advantage of the elderly in Florida is the Power of Attorney document. This document, once executed by an individual (the Principal) gives either specific or general powers to another (the Agent) to act on behalf of him or her.  These documents are excellent tools for estate planning purposes. Like it or not, most of us may experience some mental capacity issues that would prevent us from diligently maintaining financial investments, property management or simply paying bills as we age.  Unfortunately, over the years we have also seen these power transfers substantially abused.   (more…)

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Florida Powers and Duties of an Executor (Personal Representative)

will-and-testamentFlorida law provides a procedural and statutory guide which sets for the rights/powers and obligations of an Executor in the State of Florida. In the State of Florida, an Executor is referred to as a “Personal Representative”—this is the same as an “Executor” as the term is used in other states for all practical purposes.

What is an Executor (Personal Representative)? (more…)

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What is Probate Court?

court-roomOne of the most common questions I receive from folks is simply “What is probate court?”  Probate is the court-supervised process of distributing the assets of an individual, referred to as his or her “estate” after they pass away.  Probate in Florida is handled by the Circuit Court of Appeals, probate division.  This means that there will be a judge specialized in probate procedures to assist with the process of administering the estate assigned to your case.   In Florida, probate procedure is governed by the Florida Rules of Probate and the substantive law or statutes contained in Florida Statutes Chapters 731 through 735.   (more…)

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Florida Disclaimer of Property Interests Act

Often times in Florida we see heirs or beneficiaries who realize that they have a share of a probate estate but for their own estate planning purposes, for taxes or for continued qualifications for medical benefits or other reasons don’t want to take the probate assets.  Instead, they seek to simply pass those assets to their own heirs or other beneficiaries.   Florida has a mechanism for taking a pass on Probate assets and its called the “Florida Uniform Disclaimer of Property Interests Act.”  The relevent law is codified in Florida Statute Chapter, 739 and begins with section 101.  (more…)

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Title Considerations for a Florida Mobile Home Purchase

Florida law requires that the transfer of mobile homes in most cases be done through transfer of a certificate of title.  The applicable Florida statute, Fla. Stat. 319.So22(1) provides:

(1)Except as provided in ss. 319.21 and 319.28, a person acquiring a motor vehicle or mobile home from the owner thereof, whether or not the owner is a licensed dealer, shall not acquire marketable title to the motor vehicle or mobile home until he or she has had issued to him or her a certificate of title to the motor vehicle or mobile home; nor shall any waiver or estoppel operate in favor of such person against a person having possession of such certificate of title or an assignment of such certificate for such motor vehicle or mobile home for a valuable consideration. Except as otherwise provided herein, no court shall recognize the right, title, claim, or interest of any person in or to any motor vehicle or mobile home sold, disposed of, mortgaged, or encumbered, unless evidenced by a certificate of title duly issued to that person, in accordance with the provisions of this chapter.

In most circumstances (unless title transferred by a manufacturer or by operation of law) you will want to see the certificate of title and get a transfer of such certificate so that you can obtain marketable title to the mobile home.  The Florida Supreme Court has provided a strict interpretation on the above referenced statute, with the only notable carve out coming from a scenario where a bona fide purchaser in good faith purchases from a dealer of mobile homes and takes possession but cannot obtain transfer of the actual title.  For more see In Re Orange Rose LLC 8: 10 -bk-24856-MGW. (more…)

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Florida Homestead Property

One of the more frequently encountered areas of confusion in Florida Probate and real property disputes revolves around Florida’s state constitutional protections for homestead property.  The Florida constitution Article 10, section 4 of the Florida constitution provides:

SECTION 4. Homestead; exemptions.—

(a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the following property owned by a natural person:

(1) a homestead, if located outside a municipality, to the extent of one hundred sixty acres of contiguous land and improvements thereon, which shall not be reduced without the owner’s consent by reason of subsequent inclusion in a municipality; or if located within a municipality, to the extent of one-half acre of contiguous land, upon which the exemption shall be limited to the residence of the owner or the owner’s family;

(2) personal property to the value of one thousand dollars.

(b) These exemptions shall inure to the surviving spouse or heirs of the owner.

(c) The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child. The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift and, if married, may by deed transfer the title to an estate by the entirety with the spouse. If the owner or spouse is incompetent, the method of alienation or encumbrance shall be as provided by law.

(more…)

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What is a Personal Representative and What are their Responsibilities in a Florida Probate?

Importantly, in a Formal Administration a Personal Representative is nominated.  Often referred to as an “executor” in other states, Florida requires that a person be appointed as the Personal Representative to administer a Formal Administration probate proceeding.  Whether you are being nominated as the potential future Personal Representative in a Last Will and Testament or if you are about to open a Florida Probate proceeding, you should understand the role of a Personal Representative and the responsibilities required of you. (more…)

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Dealing with Denied Insurance Claims Based on an Allegation of Late Notice in Florida

One of the primary justifications used for the blanket denial of coverage for many insurance claims stems from a general policy requirement contained in most Florida Homeowners’ Insurance policies that an insured must provide the carrier with prompt notice of the loss.  “Prompt notice” as you would probably guess is an undefined term and not specifically identified within your policy.  Two years? Three years? More? The answer is unclear but in part shaped by the specifics of the loss and in part by the general guideposts laid out by our Florida Courts.  (more…)

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