Selling a house may be one of the biggest transactions you are ever involved in. In the current housing market, your house is likely worth much more than it was when you originally bought it. You want to make the best possible profit from selling your house, but you also must be careful about the liabilities associated with a real estate transaction.

Everything from using the right type of deed to reading the entire contract before selling is very important in a transaction this large. Contracts for real estate sales can be incredibly complex, and you will want to make sure that you understand exactly what you are agreeing to. Whether the house you are selling is your own personal single-family home or a duplex you have been renting out, having an attorney assist you with the sale could protect you from liability issues in the future. 

How an Attorney Can Help With Your Real Estate Sale

Most of what an attorney does in a real estate transaction involves thoroughly checking for any potential issues that could come back to bite you. Some ways a real estate lawyer can help when you are selling a house include: 

In our last blog, we discussed a few tips on choosing the right trustee. Administering a trust is a big responsibility that not everyone is prepared for. While many people choose a trusted family friend or even a business partner to manage their trusts, professional trustees are always an option. There are a few distinct advantages to hiring a professional trustee, but also a few drawbacks. Choosing a trustee can be a very personal decision. You will need to consider a number of factors including your family dynamics, the size of your trust, how you want trust principal to be managed, and the financial skills of everyone involved. An attorney may be able to help talk you through the decision-making process so that you can be even more confident in your ultimate choice. 

Who Might Benefit From a Professional Trustee?

One of the major advantages of using a professional trustee is that you are guaranteed skilled financial management. This may be a good option if you do not have anyone in your life who you consider both trustworthy and excellent with money. If your trust is sizeable and you would like its principal to be invested in the hopes of growing the trust, then a professional trustee might be the way to go. While no one can guarantee that any investment will succeed, a professional certainly has better odds of profiting through investment. 

Another thing to consider is your family dynamics. If everyone in your close family loves each other and gets along beautifully, you may be less afraid to let a relative manage the trust for your beneficiaries. However, if there is a rift in the family and some of your family members are estranged from others, or if there is frequent conflict, it may take an outside professional to ensure that distributions are made fairly and without bias. 

Your trust is only as good as your trustee. A mismanaged trust can lead to great financial loss and a significant reduction in the amount of trust resources available to your beneficiaries. An irresponsible trustee can quickly deplete trust funds, either by making reckless distributions or by making poor investments with the principal. It is important to make the right choice when it comes to appointing a trustee. An ideal trustee has strong financial management skills, but also has a good understanding of your family dynamics and each beneficiary. You will want to choose a trustee who is responsible, willing, and of course, trustworthy. If you are on the fence about naming someone, your estate planning attorney can help you work through your decision. 

Selecting a Trustee You Can Trust

Naming a trustee is perhaps the most important decision you will make regarding your trust. When you are not here anymore, your trustee will be solely responsible for managing the trust. Some tips that may help you choose the right trustee include: 

• Financial skill - If you will want your trustee to continue investing trust principal in the hopes of growing the trust, then financial management skills is the number one thing you should look for. Someone who has already been successful in making investments may be a good choice. 
• Knowing beneficiaries - It can help if your trustee is someone who is familiar with each of your beneficiaries. If you are leaving distributions to your trustee’s discretion, this factor is much more important. They need to know things like whether your son is capable of running the business he wants to use trust money to start. 
• Consider a professional - In some cases, it is better to hire a professional trustee than to rely on a family member or friend. This may be a good idea if the property contained in your trust is substantially valuable. High-asset trust may be better off managed by a professional. However, the downside is that this may be costly and the hired trustee will not know your beneficiaries. 
• Consider co-trustees - In some cases, two heads are better than one. You have the option of choosing two people to jointly serve as co-trustees. If your cousin knows your beneficiaries very well and can be trusted to be wise in making distributions to them, but your longtime friend is an excellent investor, the two of them together may be the perfect choice. 

You can also consider leaving a mechanism for the beneficiaries or another concerned party to remove and replace the trustee if things are not going well. This safeguard is recommended for most people using a trust, as the future is nothing if not unpredictable. 

In most cases, trusts offer a lot of benefits over wills. Trusts allow you to appoint a successor trustee who can exercise discretion in making distributions. Trusts can be administered immediately after the grantor passes away with no need for probate. They are not subject to many of the archaic formalities that come into play when making a will. Additionally, trusts can offer a greater degree of security than wills.

One major benefit of trusts is that they can be kept private, while a will submitted to a probate court instantly becomes a public record. This makes it harder for disgruntled non-beneficiaries to cause problems for the people you have chosen to leave your estate to. Our attorneys can help you better understand how a trust can protect you and your beneficiaries given your own unique personal situation. 

How the Privacy Afforded by Trusts Protects Everyone Involved

For a will to take effect, it must be turned over to a probate court. Like most other court proceedings, anything that happens in probate court is likely to become public record. This means that anyone who feels like examining your will is free to do so. Unfortunately, this also means that it is very easy for any disgruntled relatives who were left out of the will to try poking holes in it. 

If you have looked into the difference between trusts and wills, you have probably seen “avoiding probate” as one of the major benefits of using a trust. Probate can be time-consuming, legally complicated, and generally a pain in the neck. It can also be pricey. Probating an entire estate is not cheap. Unfortunately, testators and their survivors alike often underestimate the costs associated with probate. You probably do not want your loved ones to experience “sticker shock” when they try to submit your will to a probate court.

Preserving estate assets is one of the main reasons people choose to use trusts. Before you consider using a will to control your estate property, you should look into what probate might cost for your surviving loved ones. An attorney can help provide you with a personalized estimate based on your own individual situation. 

Costs Associated With Probate in Broward County

Some of the expenses that can arise from probate include: 

If you have an aging loved one who has not yet made an estate plan, you may be wondering whether it is still possible for them to do so. There are strict rules in law about what constitutes the requisite mental capacity to make a will or trust. If your loved one is beginning to show signs of age-related senility or confusion, it is very important to establish that they have the capacity for estate planning before they are allowed to sign any documents.

In Florida, there is a list of specific criteria that a person must meet to be considered competent to make an estate plan. The bar is lower than you might expect, as a bit of forgetfulness is generally not enough to prevent someone from making a will. A more significant disability like dementia, however, may be a bar to unaided estate planning. Only a well-qualified attorney should make this type of determination. 

What Is the Capacity Test for Executing a Will in Florida?

To have the capacity to make a will in Florida, your loved one must be able to understand: 

When a person passes away, their family members will need to determine how their assets will be distributed to their heirs. These issues will be addressed in probate court, and the executor or personal representative of the estate will follow the instructions provided in the decedent’s will. The probate process can be complicated, but in some cases, full probate may not be necessary, and a family may be able to complete a summary administration to more quickly and easily distribute their loved one’s assets. By understanding how these cases will be handled, family members can complete the probate process efficiently while ensuring that their loved one’s wishes will be followed.

The Summary Administration Process

Summary administration may be available in cases where the total value of the deceased person’s assets is less than $75,000 or when at least two years have passed since the person’s death. Notably, any assets that are exempt from claims by creditors will not count toward the $75,000 limit. Exempt assets include household furnishings valued up to $25,000, two motor vehicles, and college savings accounts. Non-probate assets, such as assets held in a trust, will also be exempt.

While full probate will require the executor of the estate to file the person’s will in probate court, summary administration may be completed without the need for a personal representative. A beneficiary may file a petition for summary administration, or this process may also be initiated by the personal representative of the estate. 

After a person’s death, their loved ones and/or the personal representative of their estate will need to address multiple issues related to the disposition of their property and assets. During the estate administration process, the executor that was named in the person’s will or another person who is appointed as the personal representative will need to complete the probate process, which involves filing the will in probate court, notifying the decedent’s heirs and creditors, paying taxes and other expenses, and distributing assets to beneficiaries.

While many different types of assets will need to be addressed during the probate process, there are some assets that may be passed directly to beneficiaries outside of probate. Understanding how to address non-probate assets will ensure that the process of administering an estate can be completed correctly.

Types of Non-Probate Assets

During the full probate process, the personal representative will need to take a complete inventory of the assets owned by the decedent and make an accounting to the court for how these assets were distributed to beneficiaries. However, assets that are not considered to be part of the probate estate will not need to be included in the inventory. Non-probate assets can be more quickly and easily distributed to beneficiaries, and they may include:

For seniors or others who need assistance with various areas of their lives, a power of attorney can often be a good solution. A person who creates this type of legal agreement is known as the “principal” of a power of attorney, and they will designate one or more “agents” who will have the authority to make certain types of decisions. Powers of attorney may be used to address multiple types of decisions, but they will often focus on the management of the principal’s property, assets, and financial affairs. For decisions related to medical treatment and personal care, a health care surrogate may be appointed, although a power of attorney may also be used to address these issues. Those who are named as agents in powers of attorney will need to understand their requirements and responsibilities.

Duties of an Agent in a Florida Power of Attorney

The state statutes in Florida detail the requirements that apply to agents. To be an agent, a person must be at least 18 years old. Their authority may take effect immediately after a power of attorney is signed in the presence of two witnesses, or an agreement may specify the date or circumstances in which they will assume authority. If the principal chooses to do so, multiple individuals or financial institutions may be named as co-agents, or a successor agent may be named who will assume authority if the original agent dies, becomes incapacitated, resigns, or declines to be an agent. An agent is entitled to reimbursement for any expenses incurred as they carry out their duties.

A power of attorney may give an agent broad authority to handle financial matters on behalf of the principal, or the agent may be limited to certain types of decisions. An agent may manage different types of income, pay any necessary expenses, conduct transactions, apply for benefits, access the principal's accounts or safe deposit boxes, and address multiple other financial concerns.

Family members will often take steps to provide for their loved ones, especially those who have disabilities or other special needs. When doing so, it may be necessary to use estate planning tools rather than giving money directly to a person or making purchases on their behalf. 

Adults with disabilities may qualify for different types of public benefits, including Medicaid coverage or Supplemental Security Income (SSI) through Social Security. Since these benefits are needs-based, a recipient must have limited financial resources. A gift or donation of money or property could make a person ineligible for public assistance. To avoid this, family members may create a special needs trust. A person may also create a self-settled special needs trust on their own behalf to ensure that assets such as a payout from a personal injury lawsuit will not affect their public benefits. It is important to ensure that assets in a special needs trust will be used correctly to cover specific types of expenses.

Allowed Disbursements From Special Needs Trusts

Special needs trusts will need to meet certain legal requirements to ensure that they will not be counted as resources for the beneficiary. Distributions from the trust must be used for specific purposes. Since SSI is meant to provide for a person’s food and shelter, trust distributions generally cannot be used to cover expenses such as groceries, rent, or mortgage payments. Instead, they may be used to pay for other needs, such as:

If you have a family member you would rather leave out of your estate plan, you are not alone. Maybe your relative is a drug addict, or has trouble with the law, or has abused another family member. Maybe you just plain do not like them. You have every right to disinherit a family member, with a few exceptions. You should be aware that simply omitting the family member’s name from your estate plan may not be enough.

Challenges to wills and trusts by disgruntled and disinherited relatives whose names were merely left out of the will have succeeded. It is far better to leave no doubt that the omission was intentional. If there is a particular family member you explicitly do not want to inherit anything from you, you should inform your attorney so that they can help you employ the appropriate strategy for blocking a disfavored relative from inheriting. 

Is There Anyone I Cannot Disinherit?

You can generally disinherit anyone you want, with two notable exceptions. If you have minor children, you cannot completely disinherit them. Parents have a duty to provide for their minor children, even if the parent passes away before the child reaches adulthood. 

Probate is notorious for being difficult. In fact, one of the driving factors that is pushing people en masse towards using trusts rather than wills is the desire to avoid probate entirely. Even when it goes smoothly, probate can sometimes take months or even years. The probate process is designed so that the court can make absolutely certain that administration is handled properly and all possible claimants - including the decedent’s creditors - have a chance to make a claim.

During this time, there are a few common issues that may arise. If you know that you are going to need to go through this process, you should be aware of a few potential complications you may face. While it may be possible to probate simple, unchallenged wills without the assistance of an attorney, if you encounter any bumps in the road, finding a probate lawyer may be your best option. 

What Are Some Issues That May Arise During Probate?

Any number of surprises can pop up while you are trying to get through probate. Some common issues people face during the probate process include: 

A strong estate plan involves much more than just a will. Comprehensive estate plans cover not only the disposition of your property after you pass away, but also your address your what your wishes would be in the event that you become incapacitated. Testamentary planning and incapacity planning are both extremely important for everyone, regardless of age, health, or familial status.

There is a lot of ground to cover while you are doing your estate planning. You may find that you need four or more different types of documents in order to build a comprehensive estate plan. The best way to make sure that you have all your bases covered in your estate plan is to work with an experienced attorney. 

What Documents Might a Good Estate Plan Contain?

Estate planning may seem like a daunting task when you realize how many documents are involved and how many choices you will be asked to make. However, with the help of an attorney, the process is not as difficult as you might think. Some documents that you may need in your estate plan include: 

Nowadays, you can DIY just about any project with a little help from instructional guides and videos on the internet. People can do anything from installing new flooring to designing custom home decor after a quick google search. However, there are some things that should really be left to a professional. Just like you would not attempt a DIY surgery at home, you probably should not try to create your own estate plan either.

A good, strong estate plan involves a lot of moving parts and a lot of different documents. Even one mistake can defeat the entire goal of estate planning - and the odds that a DIY estate plan will contain at least one mistake are incredibly high. Kits sold online are very one-size-fits-all and may not suit your own personal needs. This type of complex legal concern is best left to a professional estate planning attorney. 

3 Risks Associated With DIY Estate Plans

If the instructions on a DIY estate planning kit seem simple enough, that is usually because they represent an extreme oversimplification of a very intricate field of law. The standard language contained in these documents is rarely enough to allow you to meet all of your estate planning goals. Risks associated with DIY estate planning include: 

More than half of American families are blended in some way. People divorce and remarry, often with children involved. Estate planning can become just a little more complicated for blended families. When you and your spouse have children not in common, you may want to take a few extra steps to make sure that all the children in your family are protected. Making a strong estate plan when you or your spouse is a stepparent can require a lot of open and honest communication. How you go about estate planning will depend on a number of factors. It is best to have an attorney help you determine the right course of action. 

Tips for Protecting Your Blended Family in an Estate Plan

Choosing who to leave your estate property to - and how - can be slightly more complex for those with blended families. If you are a parent, protecting your children is likely an important goal for you. Some ideas your estate planning attorney may discuss with you include: 

• Trusts - Using a trust rather than a will is often the right answer for those with blended families. With a trust, you can appoint a trustee who can exercise discretion in making distributions. This is especially important if you suspect that there may be conflict between your spouse and your children. 
• Structure - Every family is different. Consider how your family fits together. If you have been married to your current spouse for a long time, and they consider themselves a parent to your children, this is different than if you married your current spouse later in life when all your children were already adults. 
• Beneficiaries - You may want to strongly consider leaving estate property directly to your children rather than counting on your spouse to use your estate property to benefit your children. There is always the possibility that your spouse will remarry after you pass away and separate from your children. 
• Contest prevention - If you are concerned about your children and your spouse fighting over your estate, you may want to speak with your lawyer about some strategies for preventing a legal estate contest. 
• Frank communication - To form the estate plan that is right for your situation, you may need to have a very open and honest conversation with your spouse about what may happen to your family should one of you pass away. 

While estate planning may involve a few extra steps for blended families, it can be very worth it in many ways. 

While business succession planning is important for every single company, however big or small, it can be of particular importance for those who intend to keep their family business in the family. There are several strategies for succession planning including buy-sell agreements and retention plans. Family businesses most commonly use a retention plan in order to allow the next generation or another relative to take over leadership of the company when the main owner or operator is no longer able to fulfill their duties. The best time to start succession planning is when you start the business, but it can be done at a later time. If you are starting a family business, or have a family business but do not yet have a solid succession plan, an attorney can help you take this important step. 

What is the Difference Between a Buy-Sell Agreement and a Retention Plan?

Buy-sell agreements are usually used in traditional businesses, where there are multiple unrelated owners or key staff members. This type of succession plan allows a named individual or group first right of refusal to purchase a business leader’s ownership interests when the time comes that the current leader leaves his role. Often, the individual or entity with first right of refusal is a key staff member or a co-owner. 

Retention plans are more often used by family businesses, where a current leader would rather pass on their ownership interest without necessarily selling it. This type of planning can result in a very seamless transition, as it allows the successor to immediately step into the current leader’s role with little other formalities. 

The good news is that Americans are living longer than in previous generations. The average life expectancy for a female is 81.2 years and 76.2 years for males. The bad news is that because we are living longer, we may also face serious health conditions in our senior years that leaves us incapacitated in some way and unable to make or communicate responsible personal or financial choices. When this happens, then it is often necessary for some member of the family to become the legal guardian of that adult if no power of attorney documents have ever been put in place.

However, it is not just the elderly who may need an adult guardianship. Some families must make that decision if their loved one is struggling with a serious mental illness, physical incapacity, or impairment due to a severe substance abuse issue.

Process for Filing for Adult Guardianship

Once a person has filed a petition for guardianship for their loved one, the court will appoint a three-member committee to determine whether there is enough evidence to warrant a guardianship appointment. This is done through a mental health examination, a physical examination, and a functional assessment. There are usually two doctors and another professional who are all familiar with the type of condition the petitioner’s loved one is suffering from.

Whether you are buying or selling real estate, it is extremely important that you and the other party are both on the same page entirely. Litigation often results when the buyer and seller inadvertently fail to come to a complete agreement about who has which rights, responsibilities, and liabilities. Real estate agents may not have a full and complete understanding of all the legal nuances of a contract for the sale of real property. Having your own attorney represent you during the due diligence period and sales process can help protect you from unforeseen liabilities or contract disputes in the future. Working with a real estate attorney rather than just a real estate agent offers a number of benefits when you are entering into this type of major agreement. 

What Should be Included in Real Estate Sale Documents?

An experienced real estate lawyer will understand the complete checklist of items, terms, and concerns that need to be addressed before or at closing. A real estate sale contract should cover issues like: 

• Included property - When the buyer moves in, which major appliances will be there? Are the refrigerator and laundry machines included in the sale, or will the seller be taking them with him? A good contract should clearly specify which items attached to the home are or are not included. You should both also be aware of any potential sales tax burdens associated with these items. 
• Financing concerns - As a seller, you do not want to agree to a sale only for the buyer to spend the next six months trying to get a mortgage loan. Your contract should include requirements for the buyer to make reasonable efforts to secure a loan within a reasonable timetable. As a buyer, you do not want to commit to purchasing a property only to realize that you will not be able to get a reasonable loan. 
• HOAs and other associations - If the property is under the control of a Homeowners’ Association, a condominium association, or any other type of civil control, this should be explicitly discussed in the contract. 
• Disclosures - Under Florida state law, the seller of real estate has an affirmative duty to disclose any defects that they know about or reasonably should know about. An attorney should review the contract to ensure that any mandatory disclosures are included so the buyer has full awareness of any issues, and the seller is protected from future liability based on a failure to disclose information. 

These are just a few of the intricate details that should be encompassed in a contract for the sale of real property. Buyers and sellers alike can benefit from legal representation. 

Choosing to use a trust over a will as your main testamentary estate planning document is often a wise decision. Using a trust can allow your surviving beneficiaries to bypass probate, make for a more seamless transfer, reduce your estate’s tax burdens, and guard your estate property against creditors. It is clear why many people are choosing trusts today. However, there are some cases where using a will in addition to a trust might be a good idea. A well-used will can strengthen or supplement a trust. If this is the case, it is important to have an attorney help you create your will. The legal requirements for creating a valid will can be finicky. 

Who Should Supplement Their Trust With a Will?

The short answer is, “probably most people.” The issue with trusts is that they can only control property that has been deliberately placed in the trust. If you have acquired new property since you created your trust, you have to take steps to add that property to your trust. If there is some asset out there that did not make it into the trust, it cannot be distributed according to the terms of the trust. If you forgot that you owned something, did not tell the lawyer who created your trust that you owned something, or did not know that you owned something, it might not be controlled by your trust. 

If you pass away and have a trust but no will, any property that did not land in the trust would have to go through the intestate probate process. In that case, state law - not you - would decide who should receive what. 

When you have been tasked with administrating a trust, you have an enormous responsibility. If you were named as successor trustee and the original trustee has just passed away or become incapacitated, you may be having a difficult time as well. Successor trustees are often people close to the original trustee. The duties you are now required to fulfill are significant and may be overwhelming. An attorney can provide you with the necessary assistance and guidance. Having a qualified lawyer working with you can help make sure that your legal responsibilities are being met and help to prevent any liability on your part. 

What Are the Duties of a Trustee?

First, you need to understand what your legal responsibilities are. As a successor trustee, you are a fiduciary. A fiduciary is someone who is required to put aside their own personal interest and act strictly in the best interests of the trust and its beneficiaries. You are accountable to the beneficiaries and must remain impartial, treating each beneficiary fairly. Beneficiaries can ask for an accounting of the trust funds, which you must provide. 

You are responsible for administering the trust properly and prudently and could be liable for any mismanagement. This includes making mistakes in handling or administering the trust, or failing to administer the trust in a timely manner.