Frequently Asked Questions
In an effort to provide additional resources to our clients, potential clients and the Tampa Bay Area, we have posted some Frequently Asked Questions and responses below. If you have a question that isn’t addressed on our site, send us an email or give us a call and someone will be in touch with you soon.
Probate
Probate is the Court supervised administration of a deceased (called the decedent) persons assets to his or her rightful beneficiaries pursuant to an estate plan or pursuant to the intestate rules of succession if there is no estate plan after payment of valid creditor claims and taxes.
Probate assets are those owned by the decedent at the time of his death that do not include specific beneficiary designations. This would include things like bank accounts held in the name of the decedent only or property held in the name of the decedent only.
Probate is required to distribute ownership of assets. Common examples include ownership of bank accounts, investments, properties, motor vehicles and mobile homes.
A Last Will and Testament or a “Will” is an instruction for distribution of assets after death. Importantly, if you go to the trouble of writing a will, you can achieve a distribution of your assets that is outside of the default rules contained in Florida’s rules of intestate succession. It also sets forth requirements for the person in charge of the estate, called the “Personal Representative” and can set restrictions or remove restrictions on that person’s actions.
Subject to certain limitations in Florida, any competent adult can serve as personal representative of an estate. Certain restrictions apply if the proposed personal representative has a felony record. If the deceased left a Will, typically the Will names a Personal Representative and that individual is given “preference of appointment.” For estates where the deceased had no will, the person with the closest lineal family relationship or if equal the person selected by a majority of interested heirs has preference of appointment.
A surviving spouse has rights referred to as an “elective share” that prevents complete disinheritance. The surviving spouse also has a large intestate share of an estate if the decedent did not have a will.
Probate fees can be determined by a Will but also through the contract you make with your probate attorney.
If the deceased owned property in multiple states than multiple proceedings will need to be established. Each state has the exclusive jurisdiction to transfer title to property contained within its borders. If dealing with a Florida resident who has died, Florida will open a primary proceeding and the foreign state will have a smaller ancillary proceeding opened for the specific and limited purpose of distributing property.
Florida Courts require the original last will and testament unless the photocopy can be proved by an affidavit to be a true and correct copy of the lost original will. Since that is the case, you can absolutely proceed with a copy of a Last Will and Testament and we recommend that our Clients make multiple copies, and keep electronic copies of their estate planning documents.
During the course of a probate administration the Personal Representative has an obligation to gather the assets and thereafter pay all valid creditor claims. Your probate attorney will instruct you regarding the validity of creditor claims and the timeliness of creditor claims. Invalid or untimely claims should not be paid. In the scenario where claims exceed assets, creditors are entitled to a pro-rate share of the remaining assets after costs of administration, attorney fees and personal representative fees pursuant to Florida Law.
The range for probate administration cases varies drastically. The small estate proceedings, called Summary Administrations are very shorty, typically between 3-5 weeks.
The larger estate proceedings, Formal Administrations, can vary widely depending on the size of the estate, creditor claims, whether the beneficiaries can easily been identified and located and various tax issues. All that being said, typically a formal administration is completed from between six months to a year.
Property Damage
Contact your insurance company immediately and report the loss. Typically your standard Homeowners policy will also require that you take steps to mitigate the damages. Those steps will vary on a case by case basis. Further, you are not required to be a professional remediator, however if it is possible to take simple steps to prevent the continued damage you should try to do so. Never ignore what could be a potential claim or you run the risk of losing coverage.
Most Homeowners Policies have a specific section entitled “Duties after loss” that will provide your obligations after an incident. Typically these requirements include that you immediately notify the carrier of the loss and take steps to mitigate damages.
A Proof of loss is a sworn form that is often required based on the subject policy of insurance. The Proof of Loss is a statement that must be notarized and sets forth some of the essential known facts about the loss.
An Examination Under Oath or EUO is a procedure where an insurance attorney is able to ask questions regarding a loss in a format almost identical to a deposition before the carrier makes a coverage determination. In Florida the EUO is not a voluntary matter, it is typically required upon the request of the insurance carrier and is typically a pre-condition to payment. If you have been required to sit through an Examination Under Oath, make sure you consult with an experienced property damage attorney.
Many Florida Homeowners insurance policies are written in what is known to as “legalize.” You may easily get confused when reading through the policy due to the way it is organized. In Florida, may carriers write “all risk” policies that provide coverage for direct physical loss to the property. Sounds easy, but then the policy will be full of hundreds of exclusions and carve outs for coverage. To make this even more confusing, after the specific exclusions your policy will contain endorsements that modify the main policy, and often then add coverage back into the policy.
You will also see Coverage A, B, C, and D etc.. Typically Coverage A is for the dwelling, Coverage B is for additional structures, Coverage C for loss of use. Each coverage section may have its own applicable deductibles and important language.
Foreclosure Defense
Answer is: The Note: the note (commonly referred to as a promissory note) is simply a promise to pay a set sum of money over a pre-defined schedule under specific terms. For example it may require a borrower to agree to make payments for a set schedule over the course of 30 years to a lender.
The Mortgage: The mortgage is a specific contract that allows a party in possession of the note to retake the property if its terms or conditions are violated (for example failing to pay according to the terms of the note).
Answer is: Maybe, although unlikely. Typically home loan modification packages extend the life of the loan in order to reduce payments.
Answer is: Filing a Bankruptcy will only delay a foreclosure action. It will not be a solution to permanently defend your foreclosure. Once you file, your creditors will be put on notice of the bankruptcy and an “automatic stay” provision kicks in. This stops all collection activity for a set period of time. Depending on your situation, a bankruptcy may allow you the time and money you need to obtain alternate shelter.
Answer is: Unfortunately there is no easy answer to this question. A lot depends on your judge and the lender’s attorney. Some contested foreclosures can occur in as little as six months while others may take years to progress. Remember that one key factor in extending the process is responding to the lawsuit and not letting your lender obtain a default judgment.
Answer is: Almost never. Believe it or not, your bank doesn’t want your property. Instead they want to service a loan and rake in the money from continual payments. If you move out, you may become automatically ineligible for many programs designed to help people in foreclosure. You will also create a vacant house in the neighborhood which is bad for you and your neighbors if vandalism or squatting occurs. Finally, and most importantly, your lender will be more inclined to work with you if you remain in the property. Even if you have no intention of staying in your property, its rarely a good idea to just pack up and leave.
