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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.

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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…)

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…)

The general duty of a Personal Representative to faithfully gather the assets of the decedent also includes an obligation to make a determination regarding litigation on the decedent’s behalf after death and the continuation of litigation that the decedent initiated prior to his or her passing. These enumerated powers are set forth in Florida Statute 733.612(20) as follows:

Except as otherwise provided by the will or court order, and subject to the priorities stated in s. 733.805, without court order, a personal representative, acting reasonably for the benefit of the interested persons, may properly (more…)

One of the common themes that we encounter in dealing with probate litigation in Florida is an unsupervised family member in charge of a probate administration.  Through the course of the typical probate administration in Florida, as an heir or beneficiary you may be presented with several documents collectively known as “waivers” that allow for the expeditious administration of the Florida Probate but in turn allows the designated Personal Representative to avoid the otherwise required accounting disclosures.  Remember, to close out a Probate Administration the Personal Representative will submit a document known as a “Petition for Discharge” alleging that under penalty of perjury the estate was properly administered.  What we have frequently seen in Florida is a Personal Representative who has filed this final petition but has not fairly distributed all of the probate assets to the proper heirs and beneficiaries.  Then, at some point thereafter, by dealing with the third party institution, through hearsay or otherwise, the beneficiaries or heirs learn that they didn’t receive their full distributive share of the total assets.  (more…)

General Considerations common to most Florida Homeowners Insurance Policies :

In Florida, the policy of insurance covering your home or commercial building is a contract, even though the terms and conditions are not really bargained for.  This type of contract, where the drafter provides it to the insured on a take it or leave it basis is known as a contract of adhesion.  Importantly, what that means is that under Florida law, an ambiguous term in your insurance policy will be construed in the manner favoring you, the insured, in order to afford coverage.  This is important for a myriad of different types of cases that will ultimately turn on the interpretation of undefined, ambiguous terms in your policy. (more…)

Florida law allows owners of property to hold title to real property in various ways.  Each type of ownership has varying characteristics that impact succession and rights to Florida Property.  When deciding how to hold title consider asset protection, taxation and succession.

Fee Simple/ Sole Ownership:

Holding title in an individual’s name only.  You can sell, gift or devise in your estate plan through a will or other estate planning mechanism. (more…)

Dealing with probate litigation and administration, we frequently observe how poor estate planning and/or unscrupulous family members destroy the intentions of a decedent and ultimately cause fall out among the remaining family members.  One tool we commonly see abused in Florida is the power of attorney document.  This article is meant to provide a brief overview of the power of attorney document and the statutory mechanisms by which an injured beneficiary or estate may bring a cause of action to recover from unlawful deeds.  (more…)

One of the primary sources of property damage claims in Florida includes damage to a roof system caused by windstorm or hail.  Hurricanes and storms are prevalent in Florida, so you might find your residential structure or commercial building in need of filing an insurance claim to repair your damaged roof and/or the resulting water damage on your ceiling or structure. One of the problems you may encounter deals with a common insurance company practice of limiting repair of the roof structure to only those damaged areas.  (more…)