How Will Your Heirs Find Your Assets?

As recently as a few years ago, a probate attorney’s best advice after someone passed away was for the heirs to start checking the deceased person’s mail (after we offered our condolences, of course.) Over the course of a month, statements from all the accounts where the person kept their assets would flow in, so we would know how much the person had and where it was deposited.

Today, most banks, stock brokers, insurance policies, and other places where you keep your money send statements by email. It has therefore become much more challenging to corral a deceased person’s assets. Read more

What is Homestead

What is a Homestead?

Think of the word homestead and pioneering families heading west to settle the land likely come to mind. But in real estate, the word has a different meaning.

A homestead is your primary residence, which in many states is given an exemption from a portion of property taxes, or is even shielded from some liability. In the state of Florida, your homestead is also granted special treatment under probate law.

For your home to be designated as a homestead, it must be your primary residence. That means if you live in Florida only during the winter months, it can not be a homestead property.

A homestead designation doesn’t happen automatically. To qualify in any given year, you have to own the home as of January 1st of that year. Then you have to apply within the first few months to the county where you live, offering proof that you own the home and are a Florida resident. In Broward County, you can apply here. In Palm Beach county, apply here.

Here’s what having your home designated as a homestead in Florida will do for you:

  • Protects you from creditors. If someone sues you for a money judgment and you lose, you can be forced to sell your assets to pay the judgement. If your home has the designation of homestead, you cannot be forced to sell it. You also can’t be required to sell a homestead property to pay off other outstanding debts.
  • Gives you a break from a portion of your real estate taxes. A complicated formula is used to exempt a portion of your home’s value from property taxes, but most homeowners save hundreds or thousands of dollars each year.
  • Allows surviving spouse and minor children to have special treatment. When the person who owns a homestead dies in the state of Florida, the surviving spouse has legal rights to remain in the home, regardless of  what’s in the person’s will.
  • Shields the home from creditors during probate. After the homestead homeowner dies, creditors owed money by the estate cannot put a lien on the home.

Once you have a homestead designation, the county will continue to apply it each year. In the event you no longer quality for a homestead–say you buy another primary residence and use your former home as a rental unit–the law requires you to notify the property appraiser’s office by March 1st of that year to remove the exemption. If you don’t do that, you can be subjected to hefty penalties.

If you move from one Florida residence to another, it is crucial that you apply for a homestead exemption, if not immediately, at least within two years of buying the new home. That’s because Florida’s Portability Law allows owners to transfer savings from the state’s property-tax-lowering “Save Our Homes” benefit from one homestead property to another within a two-year-period. To qualify for that benefit, you have to submit a portability application along with your homestead application.

Having the Law Offices of Gary M. Landau by your side during each step in a real estate or probate matter helps insure that the process goes as smoothly as possible. The Law Office Of Gary Landau is rated 10 out of 10 by the legal website AVVO. For more information, call 954-979-6566 or email for a free consultation.

Florida Estate Planning Checklist

Florida Estate Planning Checklist

The new year is always a good time to take stock of your estate plans and be sure they are up to date. You’ll want to leave your affairs in the best shape possible so when the time inevitably comes (hopefully many years from now), your family will be financially protected.

Here is a quick estate planning checklist to get you started:

 

  1. Be sure you have all necessary documents, including a will, living will, healthcare power of attorney, and more. These items were discussed in my blog last new year’s, so I won’t go into detail about them here.

 

  1.  Look into buying life insurance. If you have a spouse, young children, or elderly parents you support, life insurance may be a good idea. Contact an agent or get quotes online from Esurance or other sites.

 

  1. Update your beneficiary forms. Some assets, including bank accounts and retirement plans, allow you to bypass the probate process after your death if you name a beneficiary on these accounts. The money then goes immediately to the person you have designated. You can similarly tell your broker to list a beneficiary on your stocks, bonds, or brokerage accounts.

 

  1. Consider how you want to die. Most Americans don’t give that enough thought—leaving their loved ones to figure out how you want to spend your last months and days, and what type of ceremony you want after you’re gone. That’s why, in consultation with hospice experts, my firm created the free document My Last Emotional Wishes. This form does not replace a will or living will and is not a legally binding document. But it gives your family peace of mind that they’re acting as you would want them to. Download this free form at the bottom of the home page of my website.

 

  1. Protect your business. If you are the sole proprietor of a business, be sure to make a succession plan. Even if you have partners, a buyout agreement for them to pay your heirs for your portion should be in place.

 

  1. Make your final arrangements. Purchase a burial plot or cremation package, so that expense won’t fall to your heirs.

 

  1. Store all your documents carefully. Legal documents, from wills to funeral prepayment plans, should be carefully stored in a lock box or fireproof safe in your home. Your attorney can also store your legal documents in the office vault. Either way, it’s critical that you tell your close relatives where they can find all these important papers. Never store them in your bank’s safety deposit box; your heirs will not be able to access that box without a court order.

Contact the Law Offices of Gary M. Landau for a free consultation about your probate, real estate, or estate planning matters, by calling 954-979-6566 or emailing.

How to Revoke a Revocable Trust

How to Revoke a Revocable Trust

Maybe you set up your revocable trust as a married couple before you got divorced. Perhaps you’ve decided to change who the successor trustee will be. Or maybe you’ve decided it’s too much work to keep putting newly acquired assets into the revocable trust (also called a living trust).

Whatever your reason, if you decide to revoke the revocable trust, it is possible (which is why it’s named as it is).

To do that, first, see if inside the trust itself is a procedure for how to dissolve it. If not, you’ll need to follow these basic steps:

  1. Remove all of your assets from the revocable trust. This includes having your attorney change the title of your real estate and transferring ownership of other assets from the trust back into your name.
  2. Have your attorney draft a “dissolution document,” which must be signed and notarized and have two witnesses. As with the original trust documents when they were created, this document must be stored carefully, since in most cases it is not filed with the court.
  3. Draft a new will or create a new trust. Now that you don’t have that trust ensuring the distribution of your assets, you’ll need to draft a new will. Alternatively, if you want to create another trust with different assets or successor trustees than your former trust, that should be done right away.

Having the Law Offices of Gary M. Landau by your side during each step in a real estate or probate matter helps insure that the process goes as smoothly as possible. For more information, call 954-979-6566 or email for a free consultation.

Selling Real Estate in the Middle of a Probate

Selling Real Estate in the Middle of a Probate

You might think that when a loved one passes away, you have to wait until the probate process is complete to sell their home, but you actually don’t. Florida law generally allows heirs to sell a home before the rest of the probate is finished.

Here are the steps involved:

The personal representative can hire a Realtor.  Once the personal representative (PR) has been named by the court, that person is legally entitled to sign a listing agreement with a Realtor.  Alternatively, if they don’t want to use a professional agent (typically not a good idea, in my opinion), they can put the property up for sale themselves.

The property should be professionally appraised. If there is more than one beneficiary, it is a good idea to have the property professionally appraised, so everyone feels comfortable that they will be getting a fair price. In some probates, the court must oversee the sale (see below). In those cases, the judge will want to see comparably priced homes provided by a Realtor or appraiser, to be sure the home is being sold at market value.

Once a buyer is found, the personal representative signs the contract. The PR is the legal representative for the sale, even if the proceeds will be split among other heirs. (If the property falls under Florida “homestead law,” all beneficiaries will need to sign the contract.)

Unlike with a traditional sale, though, once the contract is signed and the deposit tendered, in some cases, the deal is not yet complete.

The court verifies the deal. A person can stipulate in their will that the personal representative has the authority to sell the home. Although some judges still require their approval in those deals, typically the court does not need to get involved in these cases. However, if there is no stipulation, the PR, working with their attorney, submits paperwork to the court to get their okay to finalize the sale. All heirs must agree with the terms of the deal.

The proceeds are held temporarily. While the rest of the probate is ongoing, the proceeds from the sale of the property are held in escrow by the probate attorney through the creditors’ claims period (typically 90 days). Once that time has passed, the proceeds are distributed according to the will or Florida law. (Even if it’s during the 90 days, the buyer takes possession of the property with a clear title.)

Having the Law Offices of Gary M. Landau by your side during each step in a real estate or probate matter helps insure that the process goes as smoothly as possible. For more information about your real estate or probate matter in South Florida, call 954-979-6566 or email for a free consultation.