Frequently Asked Questions
Divorce & Family Law
The Divorce Process
Divorce can be a difficult process. Even in the best of circumstances, tempers may run high, and every decision can seem to be more stressful than the last. It is only human to find yourself reacting emotionally at certain stages of a divorce, but it is important to remember that your actions throughout the process can affect your familial, emotional, and financial situation for years to come. Following are some “do’s and don’ts” for the divorce process.
DO be reasonable and cooperate as much as possible with your soon-to-be-ex. Reasonable compromise yields quicker and easier results in divorce cases.
DO support your children through this process. It’s even tougher on them than on you. Don’t make them pick sides.
DO let your spouse know when and where you will spend time with your kids while you work out permanent custody arrangements. Your spouse might think you’ve made a run for the border — and if your soon-to-be-ex has to ask the police to track you down, that won’t look good during custody or visitation hearings.
DO fully disclose all your assets and property. A court can throw out a divorce decree based on financial deception, putting you back in court years after you thought everything was final.
DO ask your attorney if anything doesn’t make sense. Your attorney works for you, and should help you understand every part of the divorce process.
DON’T make big plans to take a job in another state or move out of the country until your divorce is final. Your new life could interfere with getting your divorce finalized.
DON’T violate any temporary custody or visitation arrangements. It could make it tougher for you to get the custody or visitation rights you prefer.
DON’T “give away” property to friends or relatives and arrange to get it back later. Hiding property can mean your spouse can take you back to court to settle those assets.
DON’T go it alone. Divorce is complicated, and an attorney can make sure that your interests are protected.
FIRST TIME OFFENDERS
You may be eligible to have your charges DISMISSED without pleading guilty or going to trial.
- If you are charged with a non-violent third degree felony or misdemeanor, and have no prior felony convictions, you may be eligible to have your charges DISMISSED by successfully completing a Pre Trial Intervention (P.T.I.) program for one year.
- If you are charged with a drug-related offense of possession, and have no felony convictions, you may be eligible to have your charges DISMISSED through the Drug Court Pre-Trial Intervention program.
DUI (Driving Under the Influence of Alcoholic Beverages, Chemical Substances or Controlled Substances). s. 316.193, F.S.
Under Florida law, DUI is one offense, proved by impairment of normal faculties or unlawful blood alcohol or breath alcohol level of .08 or above. The penalties upon conviction are the same, regardless of the manner in which the offense is proven.
Fine Schedule s. 316.193(2)(a)-(b), F.S.
- First Conviction: Not less than $500, or more than $1,000. With Blood/Breath Alcohol Level (BAL) of .15 or higher or minor in the vehicle: Not less than $1,000, or more than $2,000.
- Second Conviction: Not less than $1,000, or more than $2,000. With BAL of .15 or higher or minor in the vehicle: Not less than $2,000, or more than $4,000.
- Third Conviction More than 10 years from second: Not less than $2,000, or more than $5,000. With BAL of .15 or higher or minor in the vehicle: Not less than $4,000.
- Fourth or Subsequent Conviction: Not less than $2,000.
Community Service – s. 316.193 (6)(a), F.S.
First Conviction: Mandatory 50 hours of community service or additional fine of $10 for each hour of community service required.
Probation – s. 316.193 (5)(6), F.S.
First conviction, total period of probation and incarceration may not exceed 1 year.
Imprisonment- s. 316.193 (2)(a) 2, 4(b), (6)(j), F.S.
At court’s discretion, sentencing terms may be served in a residential alcoholism or drug abuse treatment program, credited toward term of imprisonment.
- First Conviction: Not more than 6 months. With BAL of .15 or higher or minor in the vehicle: Not more than 9 months.
- Second Conviction: Not more than 9 months. With BAL of .15 or higher or minor in the vehicle: Not more than 12 months. If second conviction within 5 years, mandatory imprisonment of at least 10 days. At least 48 hours of confinement must be consecutive.
- Third Conviction: If third conviction within 10 years, mandatory imprisonment of at least 30 days. At least 48 hours of confinement must be consecutive. If third conviction more than 10 years, imprisonment for not more than 12 months.
- Fourth or Subsequent Conviction: Not more than 5 years or as provided in s.775.084, Florida Statutes, as habitual/violent offender.
Impoundment of Immobilization of Vehicle – s. 316.193 (6), F.S.
Unless the family of the defendant has no other transportation: First conviction = 10 days; second conviction within 5 years = 30 days; third conviction within 10 years = 90 days. Impoundment or immobilization must not occur concurrently with incarceration. The court may dismiss the order of impoundment of any vehicles that are owned by the defendant if they are operated solely by the employees of the defendant or any business owned by the defendant.
As of February 2006
Jail if BAC is greater than .20 or minor in car
Fine if BAC is greater than .20 or minor in car
Ignition Interlock Device
|First Offense DUI||0-6 months||0-9 months||$250 to $500||$500 to $1,000||Up to 1 year, including DUI School , psychosocial evaluation and 50 hours of public service||One vehicle for 10 days||Not required, unless BAC is greater than .20||180 days to one year|
|Second Offense DUI within Five Years||10 day minimum, up to 9 months||10 day minimum, up to 12 months||$500 to $1,000||$1,000 to $2,000||Up to 1 year, including DUI School , psychosocial evaluation and 50 hours of public service||All defendant’s vehicles for at least 30 days||At least 1 year (2 years if .20 BAC or higher)||Not less than 5 years|
|Second Offense DUI
outside of Five Years
|0-9 months||0-12 months||$500 to $1,000||$1,000 to $2,000||Up to 1 year, including DUI School , psychosocial evaluation and 50 hours of public service||One vehicle for 10 days||At least 1 year (2 years if .20 BAC or higher)||180 days to one year|
|Third Offense within Ten Years||30 days to 12 months||Minimum of 30 days (at least 48 hours must be consecutive) up to 12 months||$1,000 to $2,500||$2,000 to $5,000||Up to 1 year, including DUI School , psychosocial evaluation and 50 hours of public service||All defendant’s vehicles for at least 90 days||At least 2 years||Ten Years|
outside of Ten Years
|0 to 12 months||0 to 12 months||$1,000 to $2,500||$2,000 to $5,000||Up to 1 year, including DUI School , psychosocial evaluation and 50 hours of public service||All defendant’s vehicles for at least 90 days||At least 2 years||180 days to one year|
Civil Litigation and Foreclosure Defense
What is foreclosure?
1. The legal process that banks and mortgage companies use to force the sale of your home to repay a debt; usually the mortgage on your home. Even if one payment is missed the lending institution can take the property back and then sell it to repay the money owed them. A foreclosure notice is typically filed after three or four payments are missed.
2. What is the foreclosure process and how long does it take?
Each state governs the foreclosure process differently. As a minimum, the law requires that the borrower receive sufficient warning or notice before the foreclosure can take place. Other rights and responsibilities may be outlined in the mortgage or loan documents you signed when you purchased the home.
3. Do I have any options and if so, how much time do I have to exercise my options?
You have several options available to you as long as you own your home. Once your house is sold, whether by you or through foreclosure, many of your options disappear.
Knowing what your options are, puts you in a much stronger position to deal effectively with the foreclosure process. Armed with the right information, you may be able to save your home from foreclosure and, in some instances, avoid the foreclosure process altogether.
4. I get letters and notices from people claiming they can help me save my home – are they for real?
When foreclosure documents are filed they become a matter of public record and many people review these records for various purposes such as compiling lists to sell to bankruptcy attorneys, investors, real estate professionals and other people interested in either purchasing your home or . . . helping you save it.
Some of these offers are probably legitimate but, none of them have your best interest at heart. Never forget that these offers come from people who are in the business of making a profit from your foreclosure situation!
5. So, how can I keep my home?
The best place to start is to familiarize yourself with your state of foreclsoure process and forebearance and otheroptions available to you, and then, contact your lending institution to discuss your options .
If your lender is unwilling to work with you then I highly recommend hiring a 3rd Party Foreclosure Specialists. These are experts who know the laws in your state and can quickly convince your lender to work out a repayment plan to save your home.
6. I would rather sell my home than lose it to foreclosure . . . is this possible?
Yes! It’s called the Compromise Sale or the “Short Sale” and a foreclosure notice does not prohibit you from selling your home as long as you own it. However, you must act quickly and select the right real estate professional, one well versed in these type of sales.
7. I don’t want to keep the house nor bother with trying to sell it. What would happen if I just walked away?
There is a legal process for walking away from your home or forfeiting your property. You should seek the advice of a and a real estate professional well versed in this area because you could face catastrophic consequences if you just walk away.
While the actual process may vary from state to state, typically a trustee is appointed and announces the sale by auction of your home by informing the public. The usual announcement includes the name of the lending institution, who the borrower(s) is/are, the amount of overdue debt, and your total indebtedness.
After a specific period of time, the trustee opens the bidding process, (in some states your lending institution may do this). Then, either someone purchases the property or it reverts back to the lending institution. Once the property is sold or reverts back to the lender, the eviction process begins!
9. What does “Short Payoff” mean?
Your lender agrees to accept less than the total owed in exchange for releasing the mortgage as a lien on the property. (it’s also called pre-foreclosure sale, short sale, pre-sale and compromise sale).
WARNING! There may be serious tax consequences
10. Can they sell my house for less than what I owe?
Yes! Banks are not in the business of owning or selling homes and they do not like to foreclose on property because it’s expensive and they usually lose money. They must prepare the home for sale, hire a real estate agent to sell it, and until it’s sold, it remains a non-producing asset on their books. The lending institution would rather take a loss on the home than have it remain on their books as a non-producing asset. (see next question on profit)
11. They sold my house for more than I owe, do I get any money?
Yes! Any amount over the total debt owed will be paid to you upon the transfer of ownership (closing).
However, if they sell it for less, the balance is called a deficiency and your bank can use whatever means they deem necessary to collect the outstanding balance. Most states treat this as an unsecured debt (just like credit card debt) and give the bank (or creditor) the same legal rights to pursue you, usually by suing you in court.
12. Who can bid on my home at the auction?
Anyone, including yourself can bid at the auction. However, some states require a cashiers check in the amount of the purchase price or bid, some states require a deposit and the ability to fund within a specified period of time as required under the terms of the contract.
13. What happens if no one bids on my property?
The bank simply takes possession of your property, through eviction if necessary, and then hires a real estate agent to sell the property.
14. How does a Sheriff’s Sale work?
If you fail to pay your property taxes the city to whom the taxes are due can foreclose through a Sheriffs Sale. Some cities will use this option after one year of non paid taxes while other cities may wait 3 years or more. Additionally, any creditor or lien holder can use this option once you default on a loan. However, any overdue taxes are paid first, then first, second, etc. mortgages are paid before any other leins or judgments can be paid.
15. If I’m evicted, how many days notice do I get?
Typically you’ll get 3 days notice! Most banks will start the eviction process immediately after the foreclosure process but the FHA, HUD and VA are usually much slower. If you own rental property, your tenants will normally be given 30 days notice. If you need more time than given, contact your lending institution immediately to ask for an extension.
16. Do I really stand a chance of saving my home from foreclosure?
Yes! If your willing to fight for it. Knowing and understanding what options are available to you is the first step. The most utilized option is Bankruptcy. Other options include refinancing and reinstatement of the loan using one of these options.
Your success depends on you implementing the proper option in a timely manner.
17. I’ve missed a few mortgage payments, now what happens?
Foreclosure may occur. This is the legal means that your lender can use to repossess (take over) your home.
When the actual foreclosure happens you must move or you’ll be evicted anyway. Also, you may still owe the lender if they sell the house for less than you owe. You do have several options but because foreclosure or a deficiency judgment could seriously affect your ability to qualify for credit in the future, you should avoid foreclosure it if all possible!
18. I received a foreclosure notice, what should I do?
- Contact your lender immediately; explain your situation and why you are having trouble making your payments. Provide them with your monthly income and expenses . . . be honest! Do not not ignore the letter!
- Do not move out of your home! If you do, it may be considered abandoned and cause you to not qualify for assistance.
- Contact a HUD-approved housing counseling agency. Call (800) 569-4287 or TDD (800) 877-8339 or go online for the housing counseling agency nearest you. These services are usually free of charge.
- If you bought your home with a Veterans Administration (VA) guaranteed loan, see Veterans Services for more information or call the VA office nearest you.
Up 19. What options do I have once I’ve received a foreclosure notice?
The most popular options are:
Your lender may be able to arrange a repayment plan based on your financial situation. Your lender may even provide for a temporary reduction or suspension of your payments. You may qualify for this if:
- You have recently lost your job or source of income or;
- You had an unexpected increase in living expenses.
You must furnish information to your lender to show that you would be able to meet the requirements of the new payment plan.
You may be able to refinance the debt and/or extend the term of your mortgage loan. This may help you catch up by reducing the monthly payments to a more affordable level. You may qualify if you have recovered from a financial problem but your net income is less than it was before the default (failure to pay).
Your lender may be able to work with you to obtain an interest-free loan from HUD to bring your mortgage current.
You may qualify if:
- your loan is at least 4 months delinquent but no more than 12 months delinquent;
- your mortgage is not in foreclosure; and
- you are able to begin making full mortgage payments.
When your lender files a Partial claim, HUD will pay your lender the amount necessary to bring your mortgage current. You must execute a promissory note, and a Lien will be placed on your property until the promissory note is paid in full. The promissory note is interest-free and will be due if you sell or leave your property, or when your mortgage matures.
This will allow you to sell your property and pay off your mortgage loan to avoid foreclosure and damage to your credit rating.
You may qualify if:
- the “as is” appraised value is at least 70% of the amount you owe and the sales price is 95% of the appraised value;
- the loan is at least 2 months delinquent prior to the pre- foreclosure sale closing date; and
- you are able to sell your house within 3 to 5 months (depending on what your lender agrees to).
An additional benefit to this option is the assistance you will receive with the seller-paid closing costs.
Deed-in-lieu of foreclosure.
As a last resort, you may be able to voluntarily “give back” your property to the lender. This won’t save your house, but it will help your chances of getting another mortgage loan in the future.
You can qualify if:
- you are in default and don’t qualify for any of the other options;
- your attempts at selling the house before foreclosure were unsuccessful; and
- you don’t have another FHA mortgage in default.
Consider this option carefully. Bankruptcy Information
20. How do I know if I qualify for any foreclosure alternatives?
A housing counseling agency can help you determine which, if any, of these options may meet your needs. You should also discuss the situation with your lender.
21. What about foreclosure scams?
You can usually spot a scam because it sounds too simple or too good to be true.
If you’re selling your home without professional guidance, beware of buyers who try to rush you through the process. Unfortunately, there are people who may try to take advantage of your financial difficulty.
Be especially alert for the following:
Equity skimming. In this type of scam, a “buyer” approaches you, offering to get you out of financial trouble by promising to pay off your mortgage or give you a sum of money when the property is sold. The “buyer” may suggest that you move out quickly and deed the property to him or her. The “buyer” then collects rent for a time, does not make any mortgage payments, and allows the lender to foreclose. Remember that signing over your deed to someone else does not necessarily relieve you of your obligation on your loan.
Phony counseling agencies. Some groups calling themselves “counseling agencies” may approach you and offer to perform certain services for a fee. Most of the time these services are things you can do such negotiating a new payment plan with your lender, or pursuing a pre-foreclosure sale.
22. How can I avoid foreclosure scams?
Follow these precautions:
- Don’t sign any papers you don’t fully understand.
- Make sure you get all “promises” in writing.
- Beware of any loan assumption where you are not formally released from liability for your mortgage debt and contracts of sale.
- Check with an attorney and a real estate professional or your lender before entering into any deal involving your home.
- If you’re selling the house yourself to avoid foreclosure, check to see if there are any complaints against the prospective buyer. You can contact your state’s Attorney General, the State Real Estate Commission, or the local District Attorney’s Consumer Fraud Unit for this type of information.
23. So, what are the main points I should know about Foreclosure?
- Don’t lose your home and damage your credit history if you can help it.
- Call or write your mortgage lender immediately.
- Stay in your home to make sure you qualify for assistance.
- Arrange an appointment with a HUD-approved housing counselor to explore your options.
- Cooperate with the counselor or lender trying to help you.
- Explore every alternative to losing your home.
- Beware of scams.
- Do not sign anything you don’t understand.
- Remember that signing over the deed to someone else does not necessarily relieve you of your loan obligation.
24. Can the bank just kick me out of my house?
No. Only a court order, called eviction, can force you to leave your home. The lender must file a foreclosure notice first, and then, only after the foreclosure process is complete, can the bank start eviction proceedings.
25. What is the actual foreclosure process?
It’s a two-step process: pre-foreclosure and formal foreclosure. The process is basically the same for every state. See State Foreclosure Process for your state’s specific procedures.
- You miss a payment (it usually takes 3 or 4 missed payments to kick off a foreclosure process)
- The bank sends you late notices and, if you fail to respond, they attempt to contact you (in writing or by phone) to resolve situation.
- You continue to miss payments and, you and the bank, fail to agree upon payment arrangements.
- The bank invokes the acceleration clause and demands the mortgage or lien be paid in full. Now you are legally obligated to immediately pay the full amount plus back interest, late fees, and any legal fees incurred by the lender.
- You have made no payments or arrangements acceptable to the bank.
Note: Once you reach this stage, the bank will not accept your regular monthly payments but will instead, demand much higher payments to bring your loan current.
Formal Foreclosure Process
- You receive a formal foreclosure notice, either by certified mail, or in many states, by the local sheriff.
- The lender begins foreclosure action in court.
- Legal notices are published in local papers.
- You still have not been able to reach a payment or settlement arrangement with the lender.
- Your notice and waiting periods expire.
- The court holds a hearing regarding the bank’s claim.
- The court issues a foreclosure order. This gives the bank the legal right to sell the home.
- Legal notice of actual foreclosure sale and advertisements published in local papers.
- You still have not been able to reach a payment or settlement agreement with the lender.
10. The house is sold at auction to the highest bidder or not sold and the bank takes possession of the home.
11. You move out or the bank or new owner evicts you.
12. You are notified of any debt still outstanding as a result of the sale. (i.e. the home is sold for less than you owe)
26. How long does the foreclosure process usually take?
It depends on your state and how aggressive the lender is. It could be as quick as 60 days or longer than six months. See your state’s foreclosure processing times.
27. What actually happens during an eviction?
This varies by state but generally it follows one of two paths . . .
- You receive a notice to vacate the premises within 72 hours.
- You leave within the time limit.
- You receive a notice to vacate the premises within 72 hours.
- You fail to leave
- The bank or new owner goes to court to ask for a hearing to decide if and when you should be evicted.
- At the hearing the judge decides whether or not you should be evicted and if evicted, how long you can stay before moving out. (offering to pay rent will often sway the judge to grant you more time)
- If the judge decides you are to be evicted, most states allow you 10 days to appeal the decision.
- Once the court orders your eviction and you have not moved out by the court designated date, the bank or new owner may obtain an execution of the eviction judgment which gives the sheriff the right to physically remove you from the premises.
- The sheriff gives you between 24 to 72 hours (depending on your state) notice to move.
- You still refuse to move so, the sheriff physically moves you. (resist now and you face being arrested)
- Anything left in the house is packed and moved into storage. (to get your stuff back you’ll have to pay the storage fees and any additional associated fees)
10. The locks on your former home are changed.
28. How long does the eviction process take?
The national average is 8 weeks from the day you are given the eviction notice until a sheriff shows up to move you. It could take six months or more but . . . be prepared because it could be as soon as a week!
29. How many people actually lose their home to foreclosure?
About 5% to 7% are unable to save their homes! Most people either refinance or file a Chapter 13 Bankruptcy. About 20% are able to reinstate their existing mortgage.
30. What is the Soldiers and Sailors Act?
This was an law passed during World War II to protect active duty military members from financial difficulty. One portion of the law may be able to stop foreclosure for anyone on active duty if they meet certain requirements outlined in the Soldiers and Sailors Act.
31. Who gets the money when the house is sold at auction?
First, all real estate taxes are paid. Then first, second, third etc., mortgages are paid. Next comes any lien holders or attaching creditors. Finally, you’ll get any money left over after all debts are satisfied.
32. What does merged debts mean?
This applies only if you have a second, third, or more mortgages! If the lender holding your first mortgage forecloses then the second, third and so forth lenders no longer hold any right or title to your home. Although, you will probably still owe them money, they have no security interest in the home nor any right to foreclose on the home.
However, if you buy your own home back at the foreclosure auction, the debt may “merge” back (reattach) to the property, as if the foreclosure never happened.
Note: If you file chapter 7 bankruptcy prior to the foreclosure sale and receive a discharge (released from all debts) you will not owe any money and the lenders will no longer hold a security interest in your home.
33. What is the redemption period for buying my house back?
This varies by state. Many do not have a redemption period except when your house is sold at a sheriff’s sale or for back real estate taxes. See State Foreclosure Process for redemption periods.
34. What’s the difference between a foreclosure and a sheriff’s sale?
Foreclosure sales are auctions held by the mortgage holder while a sheriff’s sale is held by a lien holder or attaching creditor.
Estate Planning, Wills & Trusts, & Probate
1. What Is Estate Planning?
Put in its most simple terms, estate planning involves putting your affairs in order so as to maximize the benefits that your assets can provide to you during your life and to those you desire to benefit from it after your death.
Estate planning is a process that has three objectives in mind:
» To insure that your assets will pass at your demise to those persons you designate in a manner which will give them the maximum benefits;
» To reduce or eliminate the tax burden on your estate;
» To provide for the passing of your assets at your demise to your chosen beneficiaries without the necessity of probate and without its costs, time delays, and inconveniences.
2. What Does A Proper Estate Plan Include?
A proper estate plan to provide for the needs of your family may include:
» An adequate Will or Trust;
» A written agreement concerning the status of your assets;
» A directive to your physician or a Durable Power of Attorney;
» Final instructions of your preference.
3. When Should An Estate Plan Be Reviewed?
If you already have an estate plan, it should not be considered permanent. Conditions, as well as your desires, may change. Estate plans should be reviewed at least every two-three years but, additionally, any important change in your life demands immediate review. These changes might include:
» Birth, death, marriage, divorce or disability of you or a beneficiary;
» Large increase or decrease in the net worth of you or a beneficiary;
» Substantial change in the type of your assets;
» Purchase or sale of a business;
» Change of residence to another state;
» Change in tax law.
4. Trusts-What Are They?
A trust document is an agreement between three people dealing with assets.
» The Trustor is the creator of the arrangement who appoints a
» Trustee to hold the legal title to the subject assets for the benefit of
» the Beneficiary.
Although there are certain legal limitations, it is possible for the Trustor and Beneficiary to be the same person and is even possible for the trustor to serve as his own Trustee. In some situations, Trustors may wish a bank or other entity to serve as the Trustee.
5. What Benefits Does A Trust Offer?
Trusts offer a number of important benefits:
» Probate Avoidance;
» Capital Gain Tax Savings;
» Retention of privacy of family assets and finances;
» Avoidance of conservatorship;
» Creditor protection for your beneficiaries;
» Control of distribution and management of assets during life and after death;
» Death tax avoidance or reduction.
6. Who Can Benefit From A Trust?
In larger estates where tax savings are an important consideration, the use of trusts may play a paramount role. Even relatively small estates can usually benefit from the probate avoidance offered by a Trust. Oftentimes, individuals do not realize just how large their estate is. This is especially true since all assets owned or in which one has an interest is included, such as:
» Life insurance;
» Joint tenancy or community property holdings;
» Business interests.
A Trust can be designed to meet the needs of a large or small estate. Its cost is a fraction of what the avoided probate expense or estate tax would have been.
7. What Happens If You Do Not Have A Will Or A Trust?
If you do not have a Will or a Trust and have not used other probate-avoiding techniques, upon your death your assets will pass according to the laws of the state which has jurisdiction over your assets. The “state plan” may not provide for those you desire to obtain your assets, and if it does, often presents several of the following problems:
» Higher estate taxes;
» Additional inconvenience and expense (probate expenses run from 2 1/2% to 5% and more of the value of the assets-
» Necessity of guardianship for assets inherited by minor children with rules probably not designed to accomplish your goals.
8. If a Person Has a Living Trust, Are There Still Loose Ends to Tie Up When He or She Dies and Does it Still Take Time to Settle the Estate?
Despite what you may have heard elsewhere, the truth is there are always at least some loose ends to tie up when a person dies. No matter how simple the estate, there are always some loose ends to tie up. This is what we call “Estate Administration.” If the person’s assets are worth more than $1,500,000 at death there are substantial loose ends to tie up including the filing of a Federal Estate Tax Return and the possible payment of an estate (death) tax. Estates of this size generally take at least 10-12 months to settle (assuming a friendly family situation and no significant complications). If the person’s assets are worth less than $1,500,000 at death, there are usually substantially less loose ends and settlement often times takes 4-8 weeks (but see FAQ # 9 below.)
9. Does it Really Take less Time to Settle an Estate in Which a Living Trust Was Used Rather than Just a Will?
As stated in the previous question, estates of more than $1,500,000 with a Living Trust typically take 10-12 months to settle. If just a Will were used, Probate is very often required to settle the estate and this court process will typically take 15-20 months. In smaller estates with a Living Trust, 4-8 weeks used to be typical. Unfortunately (or fortunately), depending upon how you look at it, the California legislature recently passed a law requiring all trust beneficiaries and heirs of a decedent to be sent a specific notice and giving them four months (but in certain cases 6 months) to contest the trust. So now, it still generally takes 4-8 weeks to complete the substantive efforts to settle the estate, but the estate must stay open until the contest period has run its course. If Probate is required 10-14 months is fairly standard. All of this process is referred to as “Estate Administration.”
10. Does it Really Cost less to Settle an Estate in Which a Living Trust Was Used Rather than Just a Will?
If just a Will was used, Probate Court proceedings are often necessary to settle the estate. Probate is a very formal and organized process. The more formal and organized a process, the more complicated it typically becomes and the expense usually increases accordingly. Probate fees in California are governed by statute. Statutory fees for the Attorney and the Executor are computed by formula, but for estates up to $1 million can be approximated as 2% of the gross value of the Probate estate plus $3000 for each of them. In Probate estates where estate tax returns must be filed or where A-B Trusts were used, court approved extraordinary fees in addition to the statutory fees are common. If a Living Trust is used, Probate is usually avoided and attorney fees are typically less than they would be in Probate. Estimates of the national average for settling estates larger than $1 million outside the Probate Court system run in the 1.5% range of the estate value. All of this process is referred to as “Estate Administration.”
11. What Other Probate Avoiding Techniques Are There in Addition to Living Trusts?
The following methods are often used to avoid probate (sometimes this is useful, and sometimes it is counterproductive): joint tenancy title, community property title, bank account trusts, pay on death accounts, life insurance proceeds, retirement proceeds (IRA’S, TSA’S, 401K’s, etc.), retirement plans, gifts made during life, revocable grant deeds. Each technique has its own ramifications for tax and other issues. As with everything else, there can be no “one right way” in all situations.
12. Should I Do It Myself Without An Attorney or:�
What’s The Difference Between A Valid Trust and An Effective One?
A valid Trust is one which the law will recognize. It is not particularly difficult to write a valid trust. You can probably obtain one at the local bookstore as they generally have many paperback books dealing with the subject of Trusts. Some of these usually have tear out fill-in-the-blank forms. The cost of these books is often in the range of $19.95. Although I’ve never really checked, there’s a good probability that at least some of these forms would be valid, once completed and signed. Of course, there is also computer software available for relatively low prices that promise to help you complete your own trust and I’ve often seen ads in magazines for the “mail-order” trust at approximately $24.95. The latter is often touted as valid in all 50 states! (I don’t know about you, but I only live in one state and the legislature here is constantly changing it’s laws. I’d guess the legislatures in the other 49 states are doing pretty much the same thing. So whatever document is “valid” today may need to be changed tomorrow!) And then, in this geographic area, we have a mobile paralegal who will actually come to your home to do a Living Trust for you for approximately $250. Or the attorney who advertises “Why pay more?” and will do a Living Trust for approximately $395. Again, I’ve really never checked, but let’s give all of them the benefit of the doubt and say they are all valid trusts.
On the other hand, an “effective” trust is far different. It is not only valid but it also has the goal of being designed to get done in your particular situation what needs to be done in as efficient and effective manner as possible.�
In other words, although the ultimate output you obtain from your estate planning attorney is often what appears to be just paperwork and forms, what you are really getting is his advice and recommendations to use this particular technique or that alternative. His value may not be as obvious as that of the attorney who fights for you in the court room, but it is just as real. For example, he may recommend that instead of leaving your eldest child his inheritance outright it might be better to give him his inheritance in the form of a lifetime trust for creditor protection or a myriad of other reasons. Or he might suggest that you transfer ownership (not just the beneficiary designation of your life insurance) to your children now rather than waiting until you die because such a transfer could save as much as 48% of the insurance death proceeds from death tax. (That’s right; life insurance is generally free from income tax, but not death tax.) And all of these recommendations will be made based not only on his education but, also, on his past experience of dealing with other families and individuals and seeing thousands of other situations. So the more experienced and competent your attorney is, generally the better his questions to you will be, the better his follow up questions to your initial answers will be, and the better his recommendations to you will be.
13. My Child Is Married and I Don’t Trust His Spouse. How Can He Keep His Inheritance Out of Her Grasp Just In Case They Get a Divorce?
Under California law, inheritances are the separate property of your child and not community property. ( Please note that if your child does not live in California, often times the law of the state where your child resides would control this issue.) So his spouse has no rights in or to the inheritance. Of course, what your child does after he receives the inheritance can change what was once his separate property into community property. The most typical example is where the child who receives the inheritance places the assets into a joint bank account. Once he does that, it may not be his separate property anymore. So the best approach is to make sure he doesn’t commingle these newly received assets with the joint assets of he and his spouse. Certain types of Living Trusts can help greatly in preserving these inherited assets as separate property.
14. Does an A-B Living Trust Have Any Disadvantages?
A-B trusts are a type of Living Trust set up by someone who is married (in California, typically one trust for both spouses) and is designed to reduce or eliminate the Federal Estate (Death) Tax that would normally be incurred upon the death of the second spouse to die. Keep in mind that everything has disadvantages, including A-B Trusts. Initial cost, complexity, and maintenance costs after the first spouse dies are some of these. So whether it is worthwhile or not depends upon your circumstances. A good estate planning attorney can help you decide.
15. If I Have More than the Federal Estate Tax Equivalent�
($675,000 in 2000), is an A-B Trust Utopia?
I am embarrassed to say that there have been many people who have spoken before groups of consumers (and some of these speakers were attorneys) who left the false impression that if you have an A-B Trust all of your problems were solved and you had reached “tax Utopia.” Unfortunately, there is no tax Utopia. For example, if a husband and wife have a net worth for Federal Estate Tax purposes of $2 million and we assume that 1) it is 1999, 2) the first spouse dies in 2000, 3) the second spouse dies seven years later 4) their estate appreciates at five percent per year and the first spouse to die leaves everything outright to the other (i.e. they do not have an A-B Trust), then upon the second death there would be a death tax of approx. $921,000. On the other hand, if they have an A-B Trust the death tax would be approx. $437,500. This is an improvement of approximately $485,000. That’s good. But I know of no one who would say that a tax bill of almost $500,000 is utopia.
What are Attorney’s Fees
Attorneys’ fees are the amount of money that the attorneys, staff, and law firm are paid for the legal services they provide. In most personal injury and wrongful death cases, attorneys’ fees are on a contingency bases. Under this arrangement, the attorneys’ fees are based on a percentage of what you are awarded in the case. If the case is lost, the attorneys do not typically recover a fee, although you may have to pay some expenses or costs. The contingency fee percentage varies and some lawyers offer a sliding scale based on how far along the case is when it is resolved. A one-third fee (33.33%) is common if your case is not litigated. If your case is litigated, the attorneys’ fees may increase and are subject to the amount recovered at trial.
What are attorneys’ costs?
Attorneys’ costs are expenses incurred by the law firm in litigating the case. Those costs typically include filing fees, investigation costs, copies of records (medical, accident reports, etc.), expert witness fees (not in every case), costs for the production of evidence, costs associated with subpoenas and the taking of depositions, and finally traveling and lodging costs. Typically, our firm will recover these costs at the conclusion of the case. As a general rule, costs tend to be higher in complex cases or when injuries are very serious
What is a deposition?
Depositions are a way for the parties of a lawsuit to ask question to each other and to witnesses through their attorneys. The person being deposed takes an oath to answer the questions truthfully. Each word spoken by the deponent is recorded by a court reporter to create a deposition transcript. Often times, depositions are videotaped. Depositions are used by attorneys to get more information about a case and to impeach a witness at trial
What is mediation?
Mediation is a process during which all parties of a lawsuit are present. In the presence of a neutral person, the mediator, the parties present their side of the case. The mediator will then attempt to help the parties find common ground and ultimately settle the case for a dollar amount. The role of the mediator is to facilitate communication between the parties, assist them in focusing on the real issues of the dispute. The state of Florida requires that cases be mediated prior to trial
Who Will Pay for My Medical Expenses?
If you are injured in an auto accident, your own car insurance, under its Personal Injury Protection (PIP) provision is the first to pay for your medical expenses, up to $10,000. PIP payments do not affect your insurance premiums. Once your PIP is depleted, your health insurance will be responsible to cover for your medical expenses. Some health care provider may agree to place a hold on your bill until the resolution of litigation. These are matters that we will assist you with
What is uninsured or under-insured motorist coverage
Uninsured motorist coverage protects injured drivers if the at‑fault driver has no insurance. Uninsured motorist coverage can also apply when someone is injured in an accident with an unidentified hit‑and‑run vehicle. If a person has uninsured motorist coverage and is in an accident with an uninsured motorist, he or she can collect from his or her insurance company to recoup damages.
Under-insured motorist coverage provides compensation for injured drivers when the at‑fault driver does not have enough insurance coverage to compensate the injured party in full for his or her injuries. An “under-insured motorist” is generally a person who is responsible for the injuries, but who has opted to purchase only the minimum policy required by law. If a person who has purchased under-insured motorist coverage is in an accident with an under-insured motorist, he or she may be able to collect from his or her own insurance company to recoup damages that are greater than the responsible party’s limits
How much does it cost to hire you?
Nothing. It does not cost you anything to hire us as your attorneys. Our attorneys earn their fees on a contingency basis. Under this arrangement, the attorney’s fee is based on a percentage of what you are awarded in the case. If the case is not successful, the attorney does not recover a fee.
Is everything I tell you confidential, even if I don’t hire you?
Yes. The rules under which attorneys practice in the State of Florida are very clear. Any communication about a case or a potential case, even if the attorney is not retained, between the client or potential client, and an attorney is confidential under the lawyer/client confidentiality provision.
Is everything I write in the online free evaluation confidential, even if I don’t hire you?
Yes. The rules under which attorneys practice in the State of Florida are very clear. Any communication about a case or a potential case, even if the attorney is not retained, between the client or potential client, and an attorney is confidential under the lawyer/client confidentiality provision.
How do you decide whether you will take my case?
Our attorneys look very carefully at many cases. Each case is discussed among several attorneys and given heavy consideration. It sometimes occurs that we will not be able to take on a case, and while we may refer your case to one of our referral attorneys, we will always encourage you to seek a second legal opinion.
I do not live in Florida, but I was injured in Florida, will you take my case?
Yes. Whether you live in Florida or anywhere else in the United States or outside of the country, our trial attorneys will give your case the same careful and professional attention. Our firm has represented thousands of clients who are out-of-state residents injured in the State of Florida. We will litigate your cases anywhere in the country. If you do not reside in Florida, and have been injured in Florida, it is in your best interest to hire a local attorney who knows the Courts and has a stellar reputation in the legal community where you sustained your injuries.
What is an out-of-court settlement?
An out-of-court settlement is a settlement that occurs before trial and that is not a verdict. There will be multiple opportunities during your case to settle your claim with the defendant.
How long does it take to settle a case?
It depends on a number of legal and factual issues. Our experience has proven to be a great asset in moving our clients’ cases along quickly, but in some instances, we may feel that attempting to settle your case too early may hurt your case or may not bring you the best recovery possible. At every step of the way, our attorneys will discuss with you the factors that may affect the timing of the case’s settlement
How long before we go to trial?
It depends on several elements. The jurisdiction where your lawsuit is filed is an important factor. Some courts are run more efficiently and more quickly than others. Another factor is the type of case you have, the nature of the defendant, or the complexity of issues of your case. We strive to provide the best legal representative by any standard, including best results in a reasonable period of time.
Will I need to be present at trial?
Yes. You must be present in court during trial
If we settle, when will I get my check?
It varies. In some cases, you may get your check within days of the settlement, in other cases, it may take several weeks. Once your check is received, Florida Law mandates us to place your settlement funds in our Trust Account for a short period of time, after which we will be able to disburse to you as quickly as we can.
What are medical liens?
A medical lien is a claim placed by a medical provider (hospital, clinic, doctor’s office) or an insurance (health insurance, car insurance) against any recovery from a lawsuit. By law, a person who is injured by the negligence of another, and who is medically treated for those injuries, must pay the expenses of such medical treatment before he/she can legally recover from his or her lawsuit. Once our attorneys have successfully settled your case or obtained a verdict in court, we will actively work with the lien holders to reduce and pay their liens on your behalf.
Will my case require an expert?
It depends on the nature of your case. Experts are costly, but they are necessary in some cases. If your case involves a medical malpractice claim, or a highly technical issue, we not only hire experts to advance your case, but we hire the best experts in the field in question. After all, your case may depend upon the quality of the expert on your side.
Who will decide to settle my case?
Only you, the client will make the decision to settle your case. When settlement negotiations are under way, as your attorneys, we will advise you and let you know our legal and professional opinion, however, we will leave the ultimate decision to you.
What is a statute of limitation?
A statute of limitations is a law that sets forth the period of time for you to make your claim. In most personal injury cases in Florida, the statute of limitation is 4 years. It is 2 years for wrongful death cases or for medical malpractice claims. However, the statute of limitation may vary depending on the nature of your case, if you have a contract with the defendant, and if the defendant is a private or public entity.
What are compensatory damages?
Payment made by the defendant for damages or injury to a person or property that has actually occurred. It has to be legally proved that the damages have occurred.
What are punitive damages?
Damages awarded by a court in excess of compensatory damages against a defendant as a deterrent or punishment to redress an egregious wrong perpetrated by the defendant.
What does the term insurance “bad faith” mean?
In Florida, the term “bad faith” pertains to the unreasonable or unfair conduct of an insurance company. Typically, these cases stem from an insurance company denying a valid claim, or delaying payments on a valid claim. Our attorneys have been extremely successful in dealing with insurance companies who have committed bad faith.
Who can bring a wrongful death claim?
In Florida, the survivors of the decedent may bring a wrongful death claim against the responsible party. A survivor includes the decedent’s spouse, children, parents, and, when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters. It includes the child born out of wedlock of a mother, but not the child born out of wedlock of the father unless the father has recognized a responsibility for the child’s support.
What is a structured settlement?
A structured settlement is a financial or insurance arrangement, including periodic payments, that a client accepts to resolve a personal injury tort claim or to compromise a statutory periodic payment obligation. Structured settlements may include income tax and spendthrift requirements as well as benefits.
I just signed a contract for you to represent me, what is the next step?
At that point, our investigation is in full mode. We actively seek copies of your medical records and medical bills. We investigate your claim and gather evidence. Once our initial investigation is complete, we will determine whether the best course of action is to attempt to facilitate out of court negotiations or move forward with filing a lawsuit and going to trial on your claim.