Posts

Should I Hire A Real Estate Attorney For Closing?

Buying and selling property is a major life event. Will your real estate agent advise you to hire a real estate attorney? Most likely the answer is no.

While Florida law may not require that an attorney is hired to complete a real estate closing, there are several benefits you receive when you bypass a title company and use an experienced real estate attorney like Overstreet Law, PA to handle your closing when buying or selling property.

The most important reason to use a real estate attorney to handle your closing instead of a title company is to protect your interests!

By avoiding costly mistakes, confirming contract compliance, and providing legal guidance a real estate attorney works for YOU whereas a title company works for the title insurer. This is an important distinction because that means your real estate attorney is there specifically to look out for your best interests and help YOU save money!

The contract between a buyer and seller can be complex. With the housing market seemingly on fire these days, homes are selling almost as fast as they are put on the market. Once a contract is signed and accepted by both parties it is legally binding, and neither party can simply change their mind.

One question we receive a lot is how do you know when to hire a real estate attorney if your real estate agent isn’t recommending one?

The answer is simple – you should engage a real estate attorney BEFORE you sign the Contract; buyers and sellers both benefit from having someone double-check all the fine print of the agreement to make sure it has their best interests in mind.

Today’s housing demand can result in contracts that leave out important protections for the buyer or include vague language for non-standard agreements between the parties that could have easily been fixed by having a real estate attorney involved.

Alexander Pope, the poet of enlightenment wrote a line in his poem An Essay on Criticism, Part II ‘To err is human; to forgive divine.’ More simply explained, it is natural for humans to make mistakes but that we should forgive when mistakes are made. This is a far easier concept to believe in and a much more difficult one to put into practice. Especially, when the mistake involves contractual obligations that can cost time and money.

There are many steps in a real estate transaction that can potentially cause delays or cost either the buyer or the seller additional resources. Attorneys can provide legal advice on the best way to handle the issue, as well as prepare necessary documents. When you work with Overstreet Law, P.A, they bring years of experience to the table with them that help avoid these issues before they become costly problems.

By hiring knowledgeable professional real estate attorneys, like the attorneys at Overstreet Law, P.A to protect your interests and investments you receive the added benefit of peace of mind! Call us or contact us online for a confidential consultation, and we’ll let you know what to expect and how we can help!

/0 Comments/by

If I Apply For Medicaid, Will The State Of Florida Take My Home?

For Medicaid applicants and families, losing their home is perhaps their biggest fear. Will they be forced to sell their home if their loved one goes on Medicaid? Will the proceeds go to the nursing home? If there is a well spouse, where will he/she go? And, what happens to the home after the applicant passes away? As a result, people frequently “quit-claim” their property to relatives in an attempt to gain Medicaid eligibility or to avoid Medicaid “taking” their home only to learn later that they could have kept their primary residence and by transferring it to a relative they triggered a period of Medicaid ineligibility! Read more about the pitfalls of a quit-claim deed here.

It is not surprising that many people are confused and have misconceptions about the rules related to primary residences in Florida and rules for obtaining Florida Medicaid benefits to pay for nursing home costs. The Medicaid program is vast, and its rules are complex and differ from state to state. Before clients seek our help, they have often spent many hours worrying about potentially losing the family home. And, that’s in addition to worrying about the family member who needs care and worrying about losing their life savings to pay for nursing home costs. A primary concern for clients we’ve counseled is that once the Medicaid recipient passes away, the state will take their home and other assets…a process called Medicaid recovery. It is true that federal law requires each state to recover funds expended on behalf of the Medicaid benefits recipient. However, with the guidance of our law firm, there is nothing to fear. To understand why, let’s look at the mechanics of the Medicaid recovery program, and how it actually applies to most people.

Understandably, the possibility of losing one’s house is frightening. The good news is that in Florida, the homestead residence is an exempt asset in most cases when a Medicaid applicant obtains Medicaid. You do not need to and should not transfer a Medicaid applicant’s home to a family member in order to qualify for Medicaid benefits. For Medicaid purposes, your Florida homestead is not counted among your assets so long as you have less than $603,000 in equity in it. Moreover, the home is also exempt from Medicaid recovery so long as the homestead is left to a “constitutional heir-at-law.” A constitutional heir at law could be your spouse, child, grandchild, cousin, niece, nephew or sibling. As long as you do not leave it to a non-relative (note that a charity is also defined as a non-relative), it will not be recovered upon the death of the Medicaid recipient.

Our firm will ensure that the applicant’s estate plan is properly structured to protect the homestead from Medicaid recovery which may include that the applicant’s last will and testament NOT direct the homestead be sold and the proceeds divided among the children. Doing so means that the home is not left to the constitutional heirs at law; it effectively sells the property, which will trigger Medicaid recovery of the sale proceeds upon the Medicaid recipient’s passing.

Don’t worry that you will lose everything if you family member qualifies for Medicaid benefits or after the recipient passes away. Also do not assume that you are not eligible, or that you cannot be made eligible. Your conclusions may be based on incorrect or incomplete information. We are here to help; call our office at 407-847-5151 to schedule a consultation with one of our experienced Elder Law attorneys.

/0 Comments/by
,

If I Don’t Have Any Assets, Why Do I Need A Will?

Estate planning may sound like something wealthy people do to make sure their businesses, mansions, and money go to the people they wish after they die. In fact, it goes far beyond making a will, and it’s something every adult, at every stage of life, ought to do, whether or not they have financially significant assets. Estate planning, especially establishing advance directives and establishing power of attorney is vital to take care of now.

Advance Directives

An advance directive is a legal document that allows you to make choices about your health care before that care is needed. For example, you can set out your instructions for your care circumstances like an accident that leaves you unconscious; whether or not you want to be sustained on life support, and in what circumstances; your desires in case you become terminally ill or mentally ill. You can also establish your wishes for what is to be done with your body in case of your death. Do you want to be an organ donor? Would you want your body donated to a medical school or for research? Most commonly, advance directives for health care are handled through a living will or a health care proxy, which is a specific type of power of attorney, granted for making health care decisions.

Power of Attorney

In addition to health care decisions, you can designate someone to make financial or business decisions on your behalf, if you are not capable. That person you grant power of attorney is called an attorney-in-fact. By planning ahead, you have the opportunity to make considered choices. You can designate different attorneys-in-fact for health care and financial decisions, or choose one person to handle both.

Florida enacted new legislation in 2011 that made changes to the ways power of attorney documents are established and implemented. One important change is that power of attorney documents must now include a much more comprehensive list of authorities granted to the attorney-in-fact. Where the law once assumed that authorities not specifically excluded in a power of attorney document were included, it is now assumed that authorities not specifically included are excluded.

Providing For Children 

If you have minor children, and especially if you’re a single parent, you need to include provisions for those children in your will. You need to make sure you’ve named the people you want to become their legal guardian after your passing, and that you’ve done so in a legally binding way. Likewise, you’ll need to ensure that any life insurance benefits are used as you wish for the support of your children. If you don’t already have life insurance, getting covered will be an important part of planning for the future care of your children.

Estate Planning Is For Everyone

 Estate planning should cover all aspects of your current life, whatever that looks like. In addition to leaving instructions for your own care and finances, it covers issues like care of your pets if something happens to you, and access to your home and distribution of your personal property. That property may not have high monetary value, but there are likely items that hold high sentimental value, and you should be able to decide who should have them by designating beneficiaries and a trusted executor to carry your wishes out. The trust and estate planning attorneys at Overstreet Law, P.A. can guide you through the process of making an estate plan that covers the important matters in your life today, and into the future. Call or contact us online for a consultation and to learn more about estate planning for your specific stage of life.

/by
,

Estate Planning Is Twice As Important In A Second Marriage

Preparing a will is important for Florida residents of all ages. When you’re planning to enter into a second marriage, or you’re already married for the second or subsequent time, thorough estate planning goes well beyond leaving a simple will, and it’s a critical step in ensuring that your assets are ultimately distributed as you intend.

Your Will May Not Be The Final Word Under Florida Law

While you may have given a great deal of thought and care in preparing your Last Will and Testament, and most people assume that that will be the end of any questions about distributing their assets after they die, there are some situations in which the law overrides your decisions. It’s critical to be aware of those potential issues and create a comprehensive estate plan that takes them into account.

The Florida Elective Share law says the surviving spouse is entitled to at least 30 percent of the estate of their deceased spouse, including their individually owned property, revocable trust, and share of any property jointly owned with a third party. The provisions of this law supersede any contradictory terms the decedent’s will may have included. While you may trust your spouse to set their right to make such a claim aside, and comply with the terms of your will, you should consider the fact that your surviving spouse may not be the one making the decisions in the future. If he or she is or becomes incapacitated, another person may be authorized to make an elective share claim against your estate on your surviving spouse’s behalf, even against that spouse’s wishes.

Florida law pertaining to homesteads may also override the terms of your will, in certain cases. Homestead law allows the homestead to be willed to a surviving spouse or minor child, but not to anyone else, if a spouse or minor child is still living. If your wish is to leave your homestead property to a parent, sibling, or anyone else, you’ll need additional estate planning measures to allow that bequest under the law.

Pre- And Post-Marital Agreements

Both pre-marital agreements and post-marital agreements are signed by both parties, and they provide a way for each spouse to arrange distribution of their estate assets as agreed, without running into situations where state law overrides their plans. It’s a common misconception that this type of arrangement and contract is only for wealthy people with large, complicated estates, but in fact, a pre- or post-marital agreement can make planning modest estates smoother and more secure, too.

Trusts And Mutual Wills

By coordinating the terms of their wills, and placing assets in a trust, couples can create a situation where each is assured that any children from previous marriages will be provided for as intended. This type of preparation reduces the chance that a surviving spouse might change their will after the first spouse dies, or that a situation might arise where state law would apply in a way that violates the terms the spouses agreed to.

Establish And Review Your Estate Plan 

Estate planning is not a one-and-done matter. If you’ve already begun your estate planning, it’s wise to have those plans reviewed periodically, and any time your desired bequests change. The attorneys at Overstreet Law, P.A. have decades of experience helping people with estates of all sizes plan for the future. Call or contact us online to schedule a consultation to get started on your estate planning, or a review of the plans you’ve already made.

/by

Locating Paperwork: Important Documents To Find Upon The Death Of A Loved One

Once the shock and surprise of a loved ones death eases, there is work to do. Namely, paperwork. It’s important to locate all of the important documents your loved one had in order to expedite the closing of the estate, but many people have no idea where to even begin. To help make the process easier for you, we’ve created this list of important papers that you’ll need to find after the death of a loved one.

Checklist of Important Papers

Death Certificates. You will need multiple original copies of the death certificate to submit to the Probate court, financial institutions, and life insurance companies, etc.

Estate Planning Documents.

  • Last Will and Testament and Codicil(s). Must be originals.
  • Living Trust and Amendment(s).

Asset Information.

  • Financial Account Statements
  • Life Insurance Policies
  • Real Estate Deeds
  • Auto and Boat Titles
  • Stock and Bond Certificates

Business Documents. These documents only apply to business owners.

  • Corporate, LLC, or Partnership Documents
  • Financial Account Statements
  • Vehicle Titles
  • Contracts such as leases, loans, and employment agreements.
  • Income Tax Returns

 Contracts and Agreements.

  • Pre- and Postnuptial Agreements and amendments
  • Mortgage/ Promissory Notes owed to the deceased person
  • Property Leases

 Bills.

  • Mortgages, Loans, and Lines of Credit
  • Real Estate Tax Bills
  • Medical Bills
  • Funeral Bill
  • Credit Card Statements
  • Utility bills

 Tax Returns.

  • Personal Income Tax Returns.
  • Business Tax Returns (if applicable)
  • Gift Tax Returns

Consult An Estate Planning Attorney For Assistance After The Death Of A Loved One

Planning ahead is one of the best ways to stay ahead when a death occurs in the family. We strongly encourage all families to create a file of important documents, passwords, and/or where to find this information upon their deaths. Doing so will make the passing easier on loved one who are left behind to manage the estate and will greatly ease an already stressful situation.

For help developing an estate plan, creating a will or trust, or managing probate, contact the estate planning attorneys at Overstreet Law, P.A, online or by calling 407.847.5151.

/by