Who Can Be a Personal Representative?

Date
Posted by
Comments0

Generally, a personal representative can be a person, bank, or trust company. To qualify as personal representative, an individual must be a Florida resident or a close relative of the decedent. An individual who is not a Florida resident, and is not a close relative of the decedent, is not qualified to serve as a personal representative.

Additionally, an individual must be at least eighteen (18) years of age, mentally and physically able to perform the duties, and not a convicted felon.

Florida Statutes Section 733.302 addresses who may be appointed as a personal representative.

Florida Statutes Section 733.303 addresses persons not qualified to serve as personal representative.

Florida Statues Section 733.304 addresses the qualifications for nonresidents to serve as personal representative.

Florida Statutes Section 733.305 states that “All trust companies incorporated under the laws of Florida, all state banking corporations and state savings associations authorized and qualified to exercise fiduciary powers in Florida, and all national banking associations and federal savings and loan associations authorized and qualified to exercise fiduciary powers in Florida shall be entitled to act as personal representatives and curators of estates.”

Our law firm routinely represents clients in probate administration proceedings throughout the state of Florida. Please call (407) 862-9449, email abigail@edelsteinlawoffice.com, or complete our contact form to speak to attorney Edelstein if you have any questions or would like to discuss a probate matter.

What is a Personal Representative and What Does a Personal Representative Do?

Date
Posted by
Comments0

A personal representative is in charge of administering the decedent’s probate estate. A personal representative can be a person, bank, or trust company and is appointed by the judge. Florida uses the term personal representative instead of other terms such as executor and administrator.

Part VI of Chapter 733 of the Florida Probate Code describes the duties and power of personal representatives. The following are some duties of personal representatives.

  • Identify, marshal, value, and safeguard the decedent’s probate assets.
  • Conduct a diligent search to locate “known or reasonably ascertainable” creditors.
  • Hire professionals to assist in the administration of the probate estate. For example, attorneys, certified public accountants, and appraisers.
  • Pay expenses associated with administering the probate estate.
  • Notify creditors of the time limit to file their claim.
  • Pay valid claims.
  • Object to improper claims.
  • File tax returns and pay any taxes that are due.
  • Publish a “Notice to Creditors” in a local newspaper to give notice to potential creditors to file their claims.

Our law firm represents clients in probate administration proceedings throughout the state of Florida. Please call (407) 862-9449, email abigail@edelsteinlawoffice.com, or complete our contact form to speak to attorney Edelstein if you have any questions or would like to discuss a probate matter.

 

What Property is Not Included in Probate?

Date
Posted by
Comments0

Probate only applies to assets that were owned in the decedent’s sole name at death. The following are examples of probate assets and assets that pass outside of probate.

  • A bank account in the sole name of the decedent is a probate asset. However, a bank account owned by the decedent that is payable on death, transfer on death, or held jointly with rights of survivorship is not a probate asset and will pass outside of probate.
  • A life insurance policy or individual retirement account that is payable to a beneficiary is not a probate asset and will pass outside of probate. However, a life insurance policy or individual retirement account that is payable to the decedent’s estate is a probate asset.
  • Real estate titled in the sole name of the decedent is a probate asset. However, real estate titled in the name of the decedent and other persons as joint tenants with rights of survivorship is not a probate asset and will pass outside of probate.
  • Property owned by spouses as tenants by the entirety is not a probate asset when the first spouse passes away. Property held as tenants by the entirety automatically passes to the surviving spouse.

These examples are intended to be illustrative and do not include all situations.

Our law firm routinely represents clients in probate administration proceedings throughout the state of Florida and creates estate plans to carry out your wishes. Please call (407) 862-9449, email abigail@edelsteinlawoffice.com, or complete our contact form to speak to attorney Edelstein if you have any questions or would like to schedule a free consultation.

 

Three Day Notice to Pay Rent or Vacate in Florida

Date
Posted by
Comments0

A three-day notice is a prerequisite to evict a tenant or recover past due rent. If the tenant fails to pay rent when due and the default continues for three (3) days, excluding Saturday, Sunday, and legal holidays, after delivery of written demand by the landlord for payment of the rent or possession of the premises, the landlord may terminate the rental agreement. Legal holidays are court-observed holidays only. Section 83.56, Florida Statutes (2018).

The delivery of the three-day notice must be by mailing or delivery or, if the tenant is absent from the premises, by leaving a copy at the residence. This notice requirement cannot be waived in the lease. Three-day notices cannot be sent as an email or text message.

Our law firm routinely represents landlords in eviction proceedings throughout the state of Florida. We offer flat rates (plus expenses) for uncontested evictions for possession. Please call (407) 862-9449, email abigail@edelsteinlawoffice.com, or complete our contact form to speak to attorney Edelstein if you have any questions or would like to discuss your matter.

What is Probate?

Date
Posted by
Comments0

In short, probate is the legal process that distributes your property after you pass away. If you executed a last will and testament, your property will be distributed according to your wishes. If you do not have a will, your property will be distributed per Florida’s intestacy laws found in Chapter 732 of the Florida Probate Code.

A Florida court supervises the probate process. During the probate process, the decedent’s assets are identified and gathered, the decedent’s debts are paid, and assets are distributed to the decedent’s beneficiaries.

The Florida Probate Code is found in Chapters 731 through 735 of the Florida Statutes, and the rules governing Florida probate proceedings are found in the Florida Probate Rules, Part I and Part II (Rules 5.010-5.530).

Our law firm represents clients in probate administration proceedings throughout the state of Florida. Please call (407) 862-9449, email abigail@edelsteinlawoffice.com, or complete our contact form to speak to attorney Edelstein if you have any questions or would like to schedule a free consultation.

Probate of Florida Timeshares

Date
Posted by
Comments0

If you own a Florida timeshare in your individual name it will be subject to probate if you pass away. A Florida probate action is required to transfer the Florida timeshare to your heirs or beneficiaries. Since timeshares are considered real property, the probate must be administered by a Florida Court in the county or judicial circuit where the timeshare is located. If you own a Florida timeshare and are not a resident of Florida, an ancillary probate administration can be commenced if a domiciliary estate administration has been commenced in the decedent’s home state.

Our law firm represents clients in probate administration proceedings throughout the state of Florida. We frequently represent non-Florida residents who need to probate a Florida timeshare they inherited. Please call (407) 862-9449, email abigail@edelsteinlawoffice.com, or complete our contact form to speak to attorney Edelstein if you have any questions or would like to schedule a free consultation.

Happy Independence Day!

Happy Independence Day from all of us at The Law Office of Abigail Edelstein, P.A.! As we celebrate this Fourth of July, it is good to remember how our country was started. Here is a link to some good reading for this July Fourth holiday as we celebrate our Founding Fathers, the sacrifices made for us, and the battles that were fought for our independence.

We wish you a safe and happy holiday!

Florida Law: Statute of Limitations for Breach of Contract

Date
Posted by
Comments0
Florida Law: Statute of Limitations for Breach of Contract

What is the Statute of Limitations?

The Statute of Limitations is the deadline or time limit for when a suit must be filed. If you do not bring suit within the prescribed time limit, the lawsuit is banned and could be dismissed. In Florida, a lawsuit based on a written contract must be brought within five (5) years. § 95.11(2)(b), Fla. Stat. (2014). A lawsuit based on an unwritten (verbal or oral) contract is four (4) years. § 95.11(3)(k), Fla. Stat. (2014).

What is the Purpose of the Statute of Limitations?

One purpose of the Statute of Limitations is it creates predictability and fairness in regard to filing lawsuits. Potential defendants who may be liable to another party could be put on notice of a lawsuit but will not have it hanging over their heads forever. Also, plaintiffs must decide whether or not to bring a lawsuit in a timely manner.

When Does the Statute of Limitations Period Start?

Generally, the statute of limitations period begins to run from the time the cause of action accrues. § 95.031, Fla. Stat (2014). For causes of action on a contract, the action accrues and the statute of limitations period begins to run at the time of the breach.

However, all contracts are not created equal. Contract law is complex and some contain severe consequences. It is vital that you have an attorney draft and/or review all of your contracts to ensure that your rights are protected. I have helped numerous clients who have lost money because they did not understand the contracts they agreed to or did not know what to do when the other party breached the agreement. In most of these cases, the advice of a contract lawyer could have prevented their monetary loss.

Before you enter an agreement that requires giving or paying valuable consideration, schedule a free thirty minute case assessment with me. It is always wise to consult with an experienced contract lawyer to review the agreement, advise you on your obligations under it, and the consequences of breaching the agreement. You should always make sure you read and understand anything you sign. Seeking the advice of an experienced contract attorney can help you avoid costly mistakes.

If you have any questions, or to make an appointment for a free thirty minute case assessment, contact attorney Abigail D. Edelstein at (407) 862-9449.

Florida Statute of Frauds: Contracts that Must be in Writing to be Legally Valid

Date
Posted by
Comments1

Contracts are part of our everyday personal and business lives. Most daily business transactions take place without a formal written contract. For example, a clothing store does not require each customer to sign a written contract each time they purchase something. They usually give customers a receipt or ask them to sign a credit card receipt.

The statute of frauds bars the enforcement of certain types of contracts unless they are in writing and signed by the party (or legally authorized representative of party) against whom enforcement is sought. § 725.01, Fla. Stat. (2014).

The purpose of the statute of frauds is to prevent harm that results from fraudulent conduct. Since oral promises are difficult to prove, requiring a signed writing is a way to reduce fraud and litigation. The requirement that important transactions, such as the sale of real estate or agreements with longer time periods, be in writing has been an effective tool against fraud. By requiring parties to put certain agreements in writing makes the parties review the agreement’s terms and conditions before finalizing the transaction.

Under Florida Law, some common contracts where the statute of frauds applies are as follows:

  • Contracts involving real estate transactions. 725.01, Fla. Stat. (2014).
    • This includes the sale of land, easements, and mortgages.
  • Contracts that cannot be performed within a one (1) year time period. 725.01, Fla. Stat. (2014).
    • The one (1) year time period refers to the time required for performance of the contract. This does not apply to contracts with an infinite duration.
  • Contracts to pay the debts of another. 725.01, Fla. Stat. (2014).
  • Leases with a time period greater than one (1) year. 725.01, Fla. Stat. (2014).
  • Guarantees by health care providers for any guarantee, warranty, or assurance as to the results of certain medical procedures. 725.01, Fla. Stat. (2014).
  • Contracts for the sale of goods valued at $500.00 or more. 672.201, Fla. Stat. (2014).

The lesson from this blog post is that some commonplace transactions, such as leases for a period more than one (1) year or contracts involving real estate, are subject to the statute of frauds and all terms must be in writing. This rule applies to the original agreement and any subsequent amendments or modifications. In order to avoid a statute of frauds issue, you should always work with an experienced Florida business attorney to ensure all agreements comply with the Statute of Frauds and all other requirements of state law. Even if the statute of frauds does not apply to a transaction, it is better to have a written contract just in case any disagreement arises in the future. If you have any questions, feel free to contact Abigail D. Edelstein at (407) 862-9449.

 

Elements of a Valid Contract

Date
Posted by
Comments0

A contract is formed when certain requirements are met. The law will consider a contract to be valid if the agreement contains all of the following elements:

1. Offer and Acceptance;

  • Example offer: Joe offers to sell his car to Sally for $5,000.
  • Example acceptance: Sally agrees to buy Joe’s car for $5,000.
  • Can be done orally or in writing. Certain contracts must be in writing. See our Blog post “Florida Statute of Frauds: Contracts that Must be in Writing.”

2. An intention between the parties to create binding relations;

  • offer + acceptance = “meeting of the minds.” Meeting of the minds means the parties intend to be bound by their agreement.

3. Consideration;

  • Each party must promise or provide something of value to the other party. A bargained for exchange.
  • Example: Joe’s consideration is his promise to sell his car to Sally. In exchange, Sally’s consideration is her promise to pay Joe $5,000.

4. Legal capacity of the parties to act; and

  • The parties must understand what they are doing.
  • Example: Insane individuals lack capacity to enter into legally valid contracts because they cannot understand what you are doing. Minors do not generally have the capacity to enter into a contract (with some exceptions).

5. Legality of the agreement.

  • The purpose of the agreement cannot violate the law.
  • Example: A contract hiring someone to rob a bank or kill a person is invalid because it violates the law.

An agreement that lacks one or more of the elements listed above is not a valid contract.

Most contracts only need the above listed elements to be legally valid. In certain transactions, contracts must be in writing to be legally enforceable. See our Blog post “Florida Statute of Frauds: Contracts that Must be in Writing.”

A Florida business attorney will ensure that your contracts comply with Florida law. If you have any questions, feel free to contact Abigail D. Edelstein at (407) 862-9449 or make an appointment for a free thirty minute case assessment.