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Common Questions About Florida Law

It is natural to have many questions and worries when faced with a legal issue or litigation. The experienced lawyers at DeLoach, Hofstra & Cavonis, P.A., ask many common legal questions and provide useful answers to help get you in making the best decisions for you and your family.

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  • Buying and Selling a Home: The Difference Between a Real Estate Agent and a Real Estate Attorney

    house_for_saleYou have a lot of options when choosing a representative for your real estate transaction. Florida law doesn't require an attorney to be present when buying or selling a home, and you may legally perform the transaction without involving a real estate agent.

    If you want to have someone represent your interests, you don’t even have to choose between hiring a real estate agent or hiring an attorney—you can have both on your side.

    However, there are key differences between real estate lawyers and agents, and these can have a huge impact on the condition and value of your purchase.

    Differences Between Real Estate Lawyers and Real Estate Agents

    Good real estate agents have knowledge of Florida real estate laws and customs and can guide you through simple real estate transactions. It's their responsibility to:

    • Know about neighborhoods and surrounding areas
    • Perform market analysis of home values
    • Submit and negotiate offers between buyers and sellers
    • Look for potential defects in the property
    • Negotiate a price for repairs or upgrades
    • Draw up closing contracts for the final transaction

    However, buyers’ and sellers’ agents aren't lawyers, and cannot provide any legal advice during a real estate transaction.

    A real estate attorney can perform all of the duties of a real estate agent, but he or she can also:

    • Answer your questions. Every real estate transaction involves an overwhelming amount of complex legal documents that must be read and understood before signing. We can explain the legal terms and technical language used in the purchase contract, mortgage, and any other transaction documents, allowing you to sign with peace of mind. In addition, we review all documents and correct any ambiguous language before you sign them, reducing the chances of a problem after the transaction is complete.
    • Offer advice. A real estate attorney may have been hired for your purchase, but he or she can advise you on just about any legal issue. For example, there's more than one way to hold title to residential real estate in Florida. An attorney can tell you whether you would benefit more by holding title as sole ownership or joint tenancy, including how each affects taxes and inheritance after the life of the homeowner.
    • Explain your options. Each decision you make throughout the buying or selling process has the potential for you to gain or lose a significant amount of money. If you have offers from a variety of lenders but aren’t sure which to accept, your attorney can compare the offers to find out which one best suits your needs. If you decide against the purchase completely, an attorney can examine the terms under which your deposit is forfeited and get your money back from the seller.
    • Protect you at closing. Buyers and sellers may get all the way to closing without an attorney, then enlist the help of a lawyer to review closing paperwork before they sign. The fees that a real estate lawyer charges for a document review are often a fraction of the cost of the potential problems they identify and solve before the transaction is complete.
    • Take over from an estate agent. Many real estate transactions that begin with the help of an agent end with a lawyer being called in when legal issues arise. An agent could lose his real estate license by answering a legal question for a buyer or seller—even if he knows the right answer. Given these limitations, a real estate attorney is in a better position to protect all of your interests throughout the buying process.

    Ready to Help You

    If you experience or anticipate any legal problems with your home purchase, only a qualified real estate lawyer can give you the answers you need.

    Our attorneys provide as much or as little legal assistance as clients' need, allowing them to complete their sale or purchase with confidence. Simply fill out the quick contact form on this page to set up a consultation with one of our real estate attorneys.

     

  • Why do I need a real estate attorney when buying or selling property?

    house_for_saleFor many people, buying and selling real estate is the largest financial transaction they will ever make in their lifetimes. In addition to the pressure of inspections, negotiations, and closing, there's also the added pressure of setting a price that will meet your needs. The buyer and seller may attempt to make the transaction on their own, or each one can hire someone to act on their behalf—and hiring an attorney for the process can off many advantages.

    What Your Attorney Does During the Course of a Real Estate Transaction

    While Florida law doesn't require buyers and sellers to hire lawyers for real estate transactions, deals are usually brokered using either real estate agents or real estate attorneys. A real estate attorney can facilitate price negotiations, as well as help save you money and avoid legal liability or unforeseen costs.

    We can protect your interests in a real estate transaction involving:

    • Negotiations. First-time buyers are often not sure how to negotiate a fair price for the home or space they want, leading to overpayment or the offer falling through. A good real estate attorney will advise you on the worth of the property and how much you can afford, and will know how to negotiate with a seller or seller’s agent.
    • Financing and lease agreements. When buyers need a lender to provide the funds for the sale, attorneys can explain the details and terms in the mortgage contract and communicate with the residential or commercial lender on your behalf. If you're purchasing commercial property, an attorney can help you draft and enforce a lease agreement with your future tenants.
    • Commercial transactions. If you're buying commercial property, there are special considerations and additional legal issues that may not arise in a home buying transaction. Buyers must consider environmental issues, easements, federal and state zoning requirements, tenant claims, and other issues. Our attorneys can help you file applications for land use permits, address your current and future liability, and take action to secure the investment on your behalf.
    • Document drafting and interpretation. Real estate sales involve the signing of many different documents, any one of which contains ambiguous language that leads to future legal battles. We can draft purchase and sale contracts, transfer deeds, leases, tax withholding documents, closing statements, and other documents in a way that clearly establishes liability and associated deadlines.
    • Out-of-town buyers. A seller or buyer from out-of-state may not be aware of Florida’s requirements and regulations for real estate transactions. A local real estate attorney is in a better position to investigate and negotiate tax and transfer requirements that may apply to the property.
    • Short sales. Bank-owned properties such as foreclosures and short sales involve specialized buying processed and requirements that can place an undue burden on the buyer. Your attorney can negotiate with the bank on your behalf and review the title to make sure you're paying a fair price.
    • Seller disclosures. Sellers have a duty under Florida law to tell potential buyers about known hazards on the property before the land, home, or structure is sold. We'll draft a seller disclosure statement that identifies any potential problems, whose responsibility it is to fix them, and who can be held liable in the future.

    It can be difficult to know when to involve an attorney in the real estate process. Some people prefer to have an attorney at their side from the beginning, while others will go it alone until a problem arises.

    Even if you don't need a lawyer at the start, you shouldn't hesitate to ask an attorney to examine the closing documents before signing. At the very least, an attorney’s guidance gives you peace of mind that all documents are in order—and if they aren’t, you could avoid paying thousands of dollars in unforeseen costs or living with a bad business deal for the rest of your life.

    We're Here for You

    Whether you're buying a home, a lot of land, or a commercial space, your purchase is a significant investment. Our attorneys tailor services to your specific needs, allowing you to get the right price, financing, and location that works for you.

    In addition, we take the time to explain your options in a way you can understand, allowing you to make choices about the future with confidence. Simply fill out the quick contact form on this page to set up a consultation with one of our real estate attorneys.

     

  • When are housing associations allowed to take action against a resident?

    HOAA homeowners' community association (HOA) has the right to levy fines against a member who commits a violation of the governing agreement. Examples might be failure to comply with aesthetic regulations, or failure to pay for agreed-upon services.

    However, Florida homeowners’ association laws set statues about the type of action and amount of fines that can be levied against a community member.

    Adverse Actions That May Be Taken Against Florida HOA Members

    A refusal to comply with governing documents of the community or the rules of the association is grounds for action by the association, or a member against another member. The other member must own a parcel within the community, or be a member’s tenants or guests who use the common areas.

    Under state law, an HOA can take the following actions against members:

    • Fines. An association is allowed to charge reasonable fines of up to $100 per violation against a member—or any member’s tenant, guest, or invitee—for the violation of provisions in the association bylaws or regulations in the governing documents. Fines may continue to be levied by the board for each day that the violation continues, as long as the total assessed for the violation doesn't exceed $1,000.
    • Use of common areas. If a member hasn't paid a fee, fine, or other monetary obligation to the association within 90 days of assessment, the association may suspend the member or guest’s right to visit common areas or use facilities until the fee is paid in full.
    • Voting rights. The HOA may suspend the voting rights of a member who hasn't paid fees or fines that are over 90 days delinquent. A suspended member won't have the right to participate in voting during an election to the board, approve an action, or form a quorum until he or she has remitted full payment of all financial obligations due to the association.
    • Liens. A housing association typically has a right of lien on each parcel within the property to secure the payment of fines and assessments. Associations cannot file a claim of lien for fines or outstanding debts of less than $1,000. Once the claim is filed, the lien may be used to secure any unpaid assessments as well as interest, late charges, and reasonable costs incurred in the collection process.

      Before an HOA can file a record of lien, it must provide the parcel owner with a written demand that totals the amount of past due assessments; the reason for the assessments; and notify the owner of intent to assert a claim of lien. The notice must be mailed or handed to the owner at least 45 days before the lien may be foreclosed to allow the owner an opportunity to make payment for all amounts due.

    Options for Members in Financial Disputes With an HOA

    While the HOA has a right to collect unpaid assessments from members, members also have rights in disputes with the association. For instance, a member can take action against an association—even if he or she hasn't paid an assessment—for:

    • Failing to provide notice. In most cases, a member cannot be assessed a fine or denied rights unless he or she was given at least 14 days’ notice to address and correct the problem.
    • Failing to convene a hearing. Florida law requires members to have an opportunity for a hearing before a committee of at least three impartial members of the HOA board. If the majority of the committee doesn't approve a proposed fine or suspension, it may not be imposed on the member.
    • Imposing or enforcing the fine. If a member takes the HOA to court over a fine or lien and prevails, the member is entitled to recover court costs, reasonable attorney fees, and other litigation expenses from the association.

    Our Expertise Can Help You

    If you're involved in a dispute between a homeowners' association and a member, please give us a call today. Our attorneys have over 30 years of experience representing homeowners and their associations through all aspect of their business operations. Simply fill out the quick contact form on this page to set up a consultation.

     

  • Why would a community association need a lawyer?

    A community association does much more for homeowners than perform lawn maintenance and collect rent checks. Members of associations governing condominiums, neighborhoods, cooperatives, or other communities have a number of fiduciary duties and responsibilities set forth by the law.

    No matter what kind of community association you belong to, you should have qualified legal counsel to represent your interests.

    housing_communityHow Attorneys Protect Homeowners’ and Community Associations

    A homeowners’ association allows members to take an active role in maintaining a high standard for the community.
     

    Associations are required to comply with construction standards and laws governing the soundness of the buildings and structures in the community, thus ensuring the safety of owners and children who live on the property. In addition to taking part in the community development process, associations must set forth the governing principles of the community and clearly outline the duties of both the association and the homeowner.

    The contract between homeowners and associations can provide protection to each party, but it can also give rise to disagreements. An experienced homeowners’ association attorney can perform a number of services that both solve and prevent problems in the community, including:

    • Document drafting. Your association is built on the enforceability of its contracts, and we ensure that all documentation is legally sound and drafted in a language that leaves little room for interpretation to minimize potential problems. Our attorneys take a personal approach to the creation of association rules and bylaws, allowing clients to implement regulations and restrictions that establish the character of the community without encroaching on the legal rights of the owners.
    • Assessment collection. If an owner fails to make payment, an association has to enforce its rights to impose fines carefully in order to avoid liability for legal action. Under Florida law, there are specific procedures that must be followed before an association can take action against a homeowner. An attorney can guide the association through this process without exposing the association to litigation.
    • Statutory interpretation. Association statutes and bylaws that were created decades ago may contain vague or ambiguous language, making it difficult to know when and how they can be enforced. Our attorneys can help interpret the language in governing documents to help each party understand its rights, as well as prepare amendments to governing documents to avoid future confusion.
    • Protection and enforcement. Some associations may require occasional legal advice for disputes, while others rely regularly on counsel for day-to-day operations. Our law firm provides as much assistance as each client requires, advising association members on the use of their enforcement options—including fines, evictions, and suspension of voting rights; reviewing governing documents and articles of incorporation for potential errors or liability; or preparing to resolve a matter in court. We also take over the responsibility of informing owners of alleged violations, requesting payment or response from an owner who has committed a violation, and assume the duty of securing the owner’s corrective action.
    • Dispute resolution. As the trusted legal representation for nearly 100 different homeowners' associations, we know that it's not always possible to avoid disputes among association members. Our attorneys work to resolve these conflicts with a minimum of interruption in the community while ensuring that the association’s guiding principles are respected.
    • Litigation and mediation. If a conflict arises and an owner is threatening legal action, our attorneys can step in to provide mediation and arbitration services to avoid the necessity of going to court. If an owner has already filed a lawsuit against the association, our law firm can aggressively represent the association during settlement negotiations and in the courtroom.

    If you belong to a homeowner's association or a condominium association and have questions about contracts, association by-laws, or compliance issues, please give us a call today. Our attorneys have over 30 years of experience representing homeowners and their associations through all aspects of their business operations. Simply fill out the quick contact form on this page to set up a consultation.

     

  • How is VA Pension counted for Medicaid purposes?

    This is not an easy answer as you may think!

    When someone is on Medicaid in Florida, there is both an income and asset limit for eligibility. The financial guidelines are provided at this link. Medicaid counts the applicant's gross income for qualification purposes. When income exceeds the income cap, a qualifed income trust is necessary in order to qualify for Medicaid. 

    But what about when the Medicaid applicant is receiving VA Pension?  VA Pension can be very helpful for paying for an elder's assisted living or in-home care. VA Pension Benefits are outlined here.  The highest Pension benefit is known as "aid and attendance," with monthly benefits as follows (2020):

    • Married Veteran:              $2,266/m
    • Single Veteran:                 $1,912/m
    • Surviving Spouse:            $1,228/m

    But if someone is applying for Medicaid, how much of the Pension income is countable for gross income purposes? The answer is NOT ALL!  Medicaid excludes "aid and attendance" income from the gross income calculation.  But the answer does not even stop there!  Aid and Attendance is only the highest level of VA pension benefits.  Lower levels are "base pension" and "housebound."  Interestingly, the very base pension amount is countable as income for Medicaid purposes. For 2020, base pension levels are as follows:

    • Married Veteran:             $1,501/m
    • Single Veteran:                $1,146/m
    • Surviving Spouse:           $   767/m

    An example is as follows:

    Surviving spouse of a wartime veteran is receiving $1,228/m in VA Pension Aid and Attendance (the maximum). Her Social Security income is $1,500/gross per month. Her income for Medicaid purposes towards the income cap ($2,349/m in 2020) is $2,267/m. This means that she does not need a QIT to obtain or keep Medicaid benefits. ($1,500 plus $767 (the base pension amount) = $2,267/month, which is lower than the Medicaid income limit). Notice that only the $767/m counted as income for Medicaid purposes, not the full $1,228/m that she receives from the VA.

    When you are applying for Florida Medicaid and VA Pension benefits are already coming in (mostly meaning Aid and Attendance) then these calculations will be very important.

    It is also important to note is that if the elder receives Medicaid in the nursing home, the VA will need to be notified and then his/her VA Pension (including Aid and Attendance) will eventually be reduced to $90/month, which is not countable as income for Medicaid purposes.

    VA Pension income does not include any VA Disability payments. VA disability payments (based upon an injury while serving our country) is all countable income for Medicaid purposes, so it is important to know what type of VA income is being received.

    If you want to learn more about VA or Medicaid benefits, please feel free to attend one of my free monthly seminars.

    If you want to learn more about Medicaid benefits in Florida, please look here.

     

  • If I am on Medicaid, will Florida take my home upon death?

    The basic answer is "no."  If you die and your home goes to your heirs-at-law (i.e., family members) then the state of Florida cannot take your homestead property.  It is true that Florida has a claim in the decedent's estate as part of estate recovery laws, but in Florida, your homestead property is exempt from your creditors, even upon death. There are a few caveats here:

    1. Your last will and testament must not direct that your home be sold; and
    2. Your home must not have been rented during your lifetime, which would cause it to lose its homestead status.

    The homestead property can be sold and the proceeds can be protected, importantly.  Another issue is that the home may be sitting there for a long time, which creates more issues. It may be best to protect your homestead property in advance with an irrevocable asset protection trust.

    You may also ask:

    If you want to learn more about asset protection in Florida, download a free copy of my book, Don't Lose Your Nest Egg to a Florida Nursing Home.  This book will explain ways to protect your assets and pay for your long-term care, among other important aspects.

  • What happens to my home if I go on Medicaid?

    The rules for Medicaid and homestead in Florida have different rules depending on if you are single or married.

    If you are married, the spouse can live there and there are no potential problems or hitches for the homestead property. There is not asset limit here and the cost of the home may help the community spouse keep more income. We may be concerned if the spouse at home - the community spouse - were to predecease the Medicaid recipient, but that is another issue.

    If the Medicaid applicant is single and needs Medicaid in the nursing home or assisted living facility, the applicant is allowed to own a home of up to $572,000 in value (2018). Even if the applicant never returns to the home, the homestead is protected and will never be made a countable asset for Medicaid purposes (unless rented!).  Upon the applicant's death, the homestead is protected from creditors, including the state of Florida, if it descends to your heirs at law. We have more on Medicaid estate recovery here. Problems occur though because all of your income goes to the nursing home as part of your patient's responsibility.  This means that your family will have to pay for the home's mortgage, upkeep, insurance, taxes, etc., as your assets have been depleted and your income goes to the nursing home!  Renting the home is possible but this removes the homestead protection, so that can be an issue as well.

    If you want to learn more, please read our Free Guide to Protecting Your Florida Homestead.

    Also, we have more on selling your homestead in the event you are in the nursing home.

  • If my spouse is in on Medicaid, how much of my income can I keep?

    If your spouse is in the nursing home on Medicaid (the "institutionalized spouse"), you are allowed to keep ALL of your income. Medicaid allows the spouse at home (the "community spouse") to keep all of their income.

    The next question is what income can the community spouse keep of the institutionalized spouse?  The big picture is that the community spouse can divert up to $2,030/month (2018) from the institutionalized spouse's income with a maximum amount diverted up to $3,020.50/month. The amount diverted depents upon the community spouse's own income and the amount of housing costs the community spouse has.

    When your spouse is in the nursing home, it can be a very stressful time. Find our more about the Florida Medicaid and Spousal Diversion on this webpage.

    If you are reading this, you may want to read:

  • What is the difference between Medicare and Medicaid?

    When you or your loved one has gone to the nursing home for rehab, which frequently occurs after a three day hospital stay, the family has to learn the difference between Medicare and Medicaid!

    Simply put, Medicare is a form of health insurance for those over age 65 and the disabled. Medicare pays for someone's doctors, hospital stay, medical supplies, etc.  No health insurance is long-term care insurance and Medicare is no exception. Medicare can pay for up to 100 days of rehabilitation in a skilled nursing facility after the patient had a three-day qualifying stay in the hospital. The point of the rehab is to get the patient stronger through therapy. When the patient is no longer getting stronger, Medicare will typically end.  Medicare completely covers days 1-20 while co-pays of $176 (2020) are for days 21-100. If the patient has a Medicare supplement (i.e., a Medigap policy), the policy may pay for the co-pays during the patient's stay.  Most people who work during their lifetimes will get Medicare.

    If the elder has to stay in the nursing home after Medicare ends, the patient may need to apply for Medicaid.  Medicaid is the government program that helps the indigent pay for their care in a long-term care facility, such as the nursing home or assisted living facility.  In order to qualify for Medicaid, the applicant must pass a strict test looking at the applicant's income and assets.  We have the most recent Medicaid income and asset numbers for Florida here. When the elder is in a nursing home, now may be the time to protect assets for his or her care, which is done through a good elder law attorney.

    If your loved one just entered the nursing home, or may not be safe at home, you may also want to read:

    Finally, we have a free book that may be be able to help. Please download Protect Your Nest Egg from a Florida Nursing Home today.

  • My Elder is receiving VA Benefits - can we sell or rent the homestead?

    If your elder is receiving VA pension benefits, which typically means Aid and Attendance, he or she is allowed to own a home as a non-countable asset. A problem may occur if the elder is not living and home and the family wants to sell or rent it. Selling or renting the home will most likely stop the VA pension benefits as you would be converting a non-countable asset into a countable asset. The VA cross-references with the IRS and they will find out about the home sale, so you should do something to help.

    It is likely that the best solution to selling or renting the home when an elder is on VA benefits is to place the property into an irrevocable trust. This trust has a lot of potentially positive benefits in the right situation, such as:

    • Avoiding probate upon the elder's death;
    • Allowing the property to be sold tax free (if it has appreciated less than $250,000);
    • Allowing rental or the property while the elder is in a nursing home/assisted living;
    • Allowing a step-up in basis upon the elder's death so heirs can sell it tax free;
    • Starting the Medicaid five year "look-back" period;
    • And more . . .

    If your elder is looking to apply for VA benefits, or if you just want to consider protecting the homestead property from the nursing home, please fee free to download a copy of my free report on protecting your Florida homestead property.

  • Can I receive damages for pain and suffering after a Florida car crash?

    Florida car accident with pain and suffering injuriesUnder the state’s injury laws, Florida victims may be awarded payment for their medical bills as part of their economic losses. However, this isn't what is meant by “pain and suffering.”

    Pain and suffering is the legal term for an additional amount of damages that are paid on top of medical and disability costs, and it's up to a jury to decide how much should be awarded in each case.

    When Can Florida Victims Be Compensated for Pain and Suffering?

    Florida has rules regarding who may and may not be awarded pain and suffering damages in an injury case. As Florida is a no-fault insurance state, drivers are required to file claims with their insurers to collect the costs of an accident, regardless of who caused the crash. If these claims aren't sufficient to cover the costs of injury, an accident victim may sue the at-fault driver or another negligent party whose actions led to the injury.

    Under Florida law, victims who seek pain and suffering damages in car accident cases must meet the state’s “injury threshold.” Simply put, in Florida, if you have been in a car accident, you cannot sue for pain and suffering damages unless the crash has resulted in one or more of the following:

    • Significant loss of ability to perform a necessary bodily function
    • Permanent injury or a permanent aggravation of a pre-existing condition
    • Significant and irreversible scarring or disfigurement
    • Death

    Types of Pain and Suffering Damages That Can Be Recovered After a Crash

    Victims may be awarded two kinds of damages in car accident cases: economic damages and non-economic damages.

    Economic losses are costs that can be totaled, such as medical bills and lost wages. Pain and suffering awards are a form of non-economic damages, and aren't easy to quantify. Depending on the degree and severity of the injury, the extent of medical treatment, and the impact of the accident on the victim’s life, non-economic damages may range from a few thousand to several million dollars.

    Pain and suffering damages may be awarded to compensate a victim for:

    • Physical suffering. This is meant to compensate a victim for the trauma at the time of the injury; the pain throughout the recovery process; and any discomfort he or she will suffer in the future.
    • Mental anguish. Victims suffer a wide range of psychological effects after an accident. The stress of paying medical bills, the fear and embarrassment of living with physical restrictions, the anger of having to deal with a new problem every day, anxiety and depression throughout recovery, and lingering symptoms of post-traumatic stress disorder (PTSD), can all qualify as emotional pain and suffering.
    • Other non-economic loss. Accident victims may sue for the injustice of the accident and inconvenience of having portions of their lives taken away. Common effects of a sudden and traumatic crash include disability, loss of fertility, loss of a family member, and lost enjoyment of life.

    A jury has to consider many different factors to determine how much should be paid to an accident victim for his or her suffering. Two people injured in the same crash can be awarded vastly different amounts, depending on their personal circumstances.

    For example, a victim who is retired to a wheelchair after the crash, may be awarded a significant sum, if he or she was very active before the accident. On the other hand, a victim who had suffered a pre-existing injury to the same part of the body, may see a reduced award, unless his or her attorney can prove that the damage from the accident played a significant role in her suffering.

    We Help Minimize the Difficulties

    At DeLoach, Hofstra & Cavonis, P.A., we can examine all of the details of your case to maximize the amount of your pain and suffering award. We'll carefully review the change in your activities, career path, medical treatments, family situation, and future prospects, securing the rightful compensation fo you, to put the accident behind you. And we don't collect any fees until your case is won.

    Simply fill out the quick contact form on this page to set up your consultation.

     

  • Why use an attorney to change your estate planning documents?

    You should use an attorney to change or amend your estate planning documents (last will and testament, power of attorney, revocable living trust) because you want to be able to rely upon these documents upon your death or incapacity.

    First, you should go to an attorney to create your estate plan because only an experienced estate planning attorney can apply your specific situation to the facts. No on-line form can give you advice based upon your own situation. We generally think that estate planning is much more than just "document preparation." While some familial situations may be simple, we want to make sure the documentation, goals and assets all align, and an estate planning attorney is the best person to make this happen.

    Next, changes to the documents must all be done with care and should be done with an attorney as well. Any changes to your documents must be made in the same way your original documents were created. This typically means witnessing and notarizing the changes, among other matters. You do not know what you do not know.

    True Story: We created a last will and testament for a client who left money to his girlfriend. Before he died, he crossed his girlfriend off the will and initialed the change. When he died, the change he made had no legal effect - his ex-girlfriend inherited the money from the will.

    Another True Story: I received a frantic phone call from a daughter. Her father just had a stroke. The father created a living trust through an on-line company only months before, but he did not even create a last will and testament, durable power of attorney or other incapacity documents. Dad died shortly after our conversation and we are probating his assets, among other matters, while dad could have just gone to see an attorney and saved his family a lot of grief, heartache and money with going to a good attorney for his estate plan.

    This is the point - your life, your family, your wishes are all too important to leave to chance, so you should see an attorney to help make sure your wishes are followed. Estate planning is difficult enough as there are many things that can go wrong, but leaving things to chance and not seeking professional advice in order to save money just should not be a priority.  Your end-of-life wishes, and your family, are just too important to take the cheap way out to avoid attorneys.

    Want to learn more about creating a good estate plan?

    Come to one of my free monthly seminars to learn more!  Follow this link to learn more and register to attend our no-obligation seminar.

    Download my Free Book!

    Besides my free monthly seminar, I also wrote a book, the Top 20 Ways to Protect Your Florida Estate. Download your free copy today!

  • What do I have to prove to get compensation for a pedestrian accident in Florida?

    ped_crossingIt may seem relatively straightforward who is at fault in a pedestrian accident. The driver of a car travels much faster and is far less likely to be injured in a crash, so there's often no question in the victim’s mind that the driver of the car will be seen as responsible for the accident.

    Unfortunately, these injury claims are rarely open-and-shut cases that offer quick compensation to pedestrians.

    In order to get payment for medical bills and lost income, pedestrians are required to prove that someone else’s actions directly led to their injuries and losses.

    What Injured Pedestrians Have to Prove to Recover Damages

    In all injury cases, the victim is responsible for providing clear evidence of negligence. Negligence is a legal term that describes an action that a reasonable person in a similar situation wouldn't have done. If someone's negligence caused or contributed to an accident, he or she can be held liable for the costs.

    The injury victim must prove four elements to legally establish negligence in a pedestrian crash case:

    • The person at fault owed the victim a duty of care. This tenant of an injury case establishes that the negligent party was responsible for acting as safely as possible under the circumstances. If the person at fault is a driver, proof of this duty is contained in state traffic laws that require drivers to be capable and alert at all times.
    • The person at fault breached the duty of care. Many actions that fail to uphold the duty of care constitutes negligence, such as driving distracted, speeding, ignoring traffic signs or signals, and driving while intoxicated.
    • The at-fault party’s negligence caused the victim’s injuries. Negligence in itself isn't enough to win a claim. The breach of care must have directly led to the injuries the pedestrian suffered. For example, texting at the time of the crash may be a direct cause, but sending a text three minutes before the accident is likely not a cause of the crash.
    • The victim suffered actual harm. Victims must provide evidence of the economic losses they suffered as a result of their injuries, such as financial hardship, increased medical bills, permanent disability, and other costs.

    Who Should Be Held Liable for a Pedestrian’s Injuries?

    The legal process for proving negligence can go a long way to determining who's at fault for the accident. In the majority of cases, pedestrians file injury claims against the driver of the car that struck them. However, there are many other parties who could have played a role in the accident, including:

    • The local municipality. In some cases, a city government may share responsibility for a crash. Public entities may be liable for accidents involving poorly-placed crosswalks, malfunctioning traffic control devices, ineffective sidewalk or parking lot maintenance, and other safety hazards.
    • A product manufacturer. You may be able to file a product liability claim if a malfunctioning device caused you to veer into the path of oncoming traffic, such as a scooter or skateboard.
    • Insurance companies. Victims often rely on their insurance providers to pay for medical bills after a pedestrian accident. As Florida is a no-fault insurance state, the pedestrian may exhaust his or her policy and pursue a claim on the driver’s insurance policy. These claims are often met with resistance, and may require a lawsuit to get proper compensation.
    • Another person or entity. A pedestrian usually doesn't have a right to enter the street outside of a crosswalk. If someone was struck because he or she couldn't use the crosswalk, the case may name additional parties that made safe sidewalk travel impossible. For example, you may take action against a driver or passing cyclist that forced you off the curb, a restaurant owner whose tables blocked the sidewalk and forced you to walk in the road, or a construction company that didn't reroute pedestrian traffic during road repairs.
    • The pedestrian. Pedestrians who contribute in some way to their injuries may be assigned a portion of negligence. In Florida, victims can share negligence and still win the injury case, but their damages will be reduced by their percentage of blame for the crash.

    If you're struggling after a pedestrian accident, we can help you get the justice and compensation you deserve—and we don't collect any fees until your case is won. Simply fill out the quick contact form on this page to set up your consultation with an attorney.

     

  • Are my out-of-state estate planning documents good in Florida?

    If you just moved to Florida and have estate planning documents done in another state, the documents themselves may be valid, but you would want to have a Florida attorney review the documents to make sure.

    Florida law says that if your estate planning document was valid in your original state, it will be valid in Florida. This is due to the full faith and credit clause of the United States Constitution. So your existing document is "valid", but will it be as "good" as it should be?  Mileage will vary, but your out-of-state estate planning documents could likely be updated to make sure:

    • Applicable Homestead laws are correct - these rules are very Florida specific
    • Durable powers of attorney are very state specific, so it should likely be updated. If you became incapacitated, you would not want to rely upon an out-of-state power of attorney, under most circumstances
    • Advance directives (your health care surrogate and living will) are fairly state specific, so they would likely need updating
    • Revocable living trusts are generally interpreted according to their state of origin, so it would likely need to be changed to correspond with Florida law

    One of the first things we think about is that most of the time, most of us procrastinate making changes to estate planning documents, so it is likely that your estate planning documents are old and need to be updated, regardless.

    The point to all of this is that your documents are likely valid, but a good estate planning/elder law attorney should review them to make sure you and your family should rely upon them.

    If you want to learn more about your Florida estate plan, you are welcome to download our free book on Florida estate planning.

    If you live in the area, we invite you to attend one of our free monthly seminars on estate planning.

  • What Should You Do When Making a Hurricane Damage Claim Under Your Insurance Policy?

    Document all the damage to your property with pictures and video. Preserve any items of personal property that have been damaged so they are available for inspection by the insurance adjuster. Don’t throw out the damaged property. Report the claim to your insurance company by phone and in writing. Keep a log of all your phone calls with your insurance company and save all your written communications (letters and emails). Keeping accurate records of your contacts with the insurance company will be very helpful if there is a dispute later.

    What Should You do if Your Insurance Company Either Isn’t Responding or Has Made a Low Offer?

    Hurricane and flood damaged houseIf you are not getting a response, give your insurance company a deadline, in writing, to respond. Tell them that if they do not respond by the deadline, you will hire an attorney. If they do respond and they give you a low offer, get additional estimates to repair or replace your property so you are prepared to support your damage claim. Never accept the first offer from your insurance company. You will get your best offer through negotiations.

    How Can We Help?

    Call us immediately if you are not satisfied with the response from your insurance company. We can discuss your options. We may be able to take your case on a contingency fee. This means that we would collect our fees and costs from your insurance company and you don’t have to pay them out of your pocket. We are here to help you, so don’t hesitate to call us.

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