7. Wills and Trusts: The Administration of an Estate

wills trusts

The death of a spouse is a difficult time in our lives. There are many things that must be done, including the administration of the decedent’s estate. This must be done regardless of whether the decedent had a will or not. Hiring an attorney to guide the probate process is essential. In fact, an attorney can handle most aspects of the probate process, allowing the personal representative (usually you), to focus on other important things.

There are different types of probate administration. This is the process by which a person’s estate is resolved. A qualified attorney will be able to determine which type is right for the decedent’s estate based on the estate’s value considering certain available exemptions. The exemptions include homestead property, exempt personal property up to a certain amount, and a statutory allowance for the surviving spouse (what the survivor automatically gets).

The standard probate administration is known as formal administration. Formal administration is the most lengthy probate process and is required for estates in excess of $75,000.00. This type of administration typically takes 5 or 6 months to complete. However, creditor claims (people the decedent owed money to) or will contests can lengthen this time period.

For estates worth less than $75,000.00, summary administration is available. Summary administration is a much quicker process and can typically be accomplished in 60 days or less. Many of the requirements of a formal administration are not required in a summary proceeding.

The administration of an estate can be tricky. There are requirements that must be followed throughout the process. Failure to follow the law could result in financial liability for the personal representative or the beneficiaries. However, a lawyer will be able to efficiently and effectively get the job done. Always contact an attorney for guidance in the probate process. What you will save in time and money will more than make it worthwhile to have an attorney’s assistance.

By: T.R. Smith, Esq.

Peter Mackey, Esq.

5. Splitting-Up Property

People, even husbands, wives, and relatives, often own property with others; whether it is a home or a vehicle. And it is typical that one owner pays more of the expenses than the other or other disagreements arise between the owners. When two property owners cannot agree, this can create a stalemate where they no longer want to continue in co-ownership. If you find yourself in this situation, Florida law provides you withhow-a-property-can-be-partitioned-between-co-owners a way out: force the sale of the property and receive your portion of the sale proceeds. This is a legal remedy known as partition.

To commence a partition action, you must file a complaint, requesting a partition of the property. The lawsuit must be filed in the county where the property is located. Each person with an interest in the property must be included as a party to the lawsuit and the complaint must identify certain information about the parties and the property involved.

Each owner has an opportunity to make claims for expenses that he or she has incurred (contribution claims). Each co-owner is responsible for their portion of the property related expenses. For example, if two owners each own 50% of the property, then each party is responsible one-half of the expenses. Therefore, if one of the co-owners pays more than 50% of the expenses, he or she will receive a credit against the other co-owners portion of the sale proceeds. The reimbursable expenses include mortgage payments, insurance, taxes and necessary repairs.

Typically, the court will determine the rights of the parties and decide how it is best to divide up the property. If the property cannot be physically divided amongst the parties, the court will require that the property be sold and the proceeds divided between the parties. Keep in mind though that mortgages/liens and attorney’s fees and costs will be paid from the sale proceeds prior to distribution to the owners/sellers. This is a benefit to the petitioner because it essentially splits the attorney’s fees and costs between the former co-owners.

We have handled many partition cases in land and property ownership, business breakups and divorce proceedings. Call Mackey Law Group for this and all your real property needs.

By: Catherine Mackey, Esq.

T.R. Smith, Esq.

2. You Need to Hire a Lawyer if You are Buying or Selling Real Estate

Whether you are Buying or Selling real estate in Florida, you should hire an attorney to represent you.  In the standard Florida real estate contract, the party paying for title insuranceHire a Lawyer at Closing services has the right to select the title agent and closing agent. Did you know hiring an attorney to issue title insurance and provide closing services normally costs no more than hiring a non-lawyer title company?  But, a title company, like a real estate agent, is prohibited from giving you legal advice and is not trained or skilled at even recognizing problematic legal issues.   If given the choice, why not hire an attorney who is working for you, to protect your interests?

If you’re really smart, you will also want an attorney involved in the negotiation stages of the deal before the contract is signed by you. Real estate contracts contain many complex provisions that can be negotiated and which may have a real impact on you. An experienced real estate attorney who is looking out for your interests can make sure the contract is drafted with terms most favorable to you. This is why we always recommend hiring an attorney before signing a contract or making an offer.  After that, it may be too late to affect the deal.

Although you may not think so, there are many legal issues which surface even during the simplest of closings. Just some of them are:

  • Have you protected yourself and your personal assets? If you are buying rental property, you should seriously consider forming a legal entity, like an LLC or a corporation, to make the purchase. Holding the property in a legal entity can limit your personal exposure, if done correctly.
  • Has the property been in foreclosure? This is especially common now in Florida and Manatee County and we have seen many title and other problems with properties having a foreclosure history. Having an experienced real estate attorney review the prior foreclosure will ensure that you are receiving good title.
  • Are there possible encroachments of a fence or driveway? If so, that could impact your ability to resell the property in the future or could cost you a lot of money to resolve.
  • Are there any hidden recorded exceptions that will affect how you use the property? As attorneys, we have are able to review the documents that affect your property and determine if there are any provisions that may be detrimental to you or your use of the property.
  • Does the seller or their tenant want to stay in the possession of the property after closing? If someone remains in the property after closing, they become your tenant and are protected by Florida’s tenant-friendly landlord/tenant laws. This is something that must be addressed in the purchase and sale contract before you sign it.

Mackey Law Group, P.A. has been representing Buyers and Sellers in Commercial and Residential closings from the simplest to the most complex transactions and from contract to closing.   We have been a title insurance agent with Attorneys’ Title Fund Services, Florida’s largest attorney agent title insurance company, for 25 years. Contact us when you are even thinking of Buying or Selling property and we’ll make sure your entire experience is a smooth one.

By: Catherine Mackey, Esq.

T.R. Smith, Esq.