Newsletter
-- Volume 7
|
July
2001
|
Fisher's
Law Office
|
Welcome
to the NEWSLETTER of Fisher's Law Office, providing you with legal information
you can use in your everyday life. If you have questions about what
you read in this newsletter, please call us today.
1.
WHAT IS AN ELECTIVE SHARE AND HOW HAS IT CHANGED RECENTLY?
An elective
share is the right of a married person to claim 30% of his or her spouse's
estate. The purpose of the elective share is to protect a spouse who
has been left out of a Will. For example, if your spouse disinherited
you and left you out of his Will, the elective share described in Florida
Statutes, Section 732.3035 would allow you to claim 30% of the decedent's
probate estate. In addition, under recent changes in the law, the elective
share also applies to jointly owned bank accounts and other property
held in joint tenancy. Lastly, the 30% elective share applies to most
properties held in trust.
This is
a new law and you should seek legal counsel if you feel that your spouse
has left you out of his or her Will. You must assert your claim on time.
In general, you are entitled to at least 30% of your spouse's holdings
at the time of their death even if the property is owned jointly with
others or held in trust.
2. WHAT
IS A CAVEAT?
A caveat
is a form filed in the probate court which puts the world on notice
that there is a claim against an estate of a dead person. If you have
a claim against someone who has died and you are afraid an estate will
be probated without you being paid, you can file a caveat with the clerk
of the probate court. If a probate is opened, you will be notified by
mail so that you can file a Statement of Claim.
3.
WHAT IS A STATEMENT OF CLAIM?
A Statement
of Claim is a form that you can file in a probate to assert a claim
against an estate. If the personal representative of the estate believes
that your claim is invalid, he can file an Objection to Claim and you
have 30 days to file a lawsuit. Moral to the story? If you have a claim
against an estate, see a lawyer to make sure that your claim is properly
filed. If you are assisting in probating an estate, be aware that Florida
law requires you to notify any creditors of the estate of the existence
of the probate proceeding. It's always best to pay claims before they
are asserted by creditors.
4.
WHAT ABOUT HOMESTEAD?
Homestead
property passes to the children of a decedent or the spouse of a decedent
without most creditors' claims attaching to the property. This is a
very valuable right contained in the Florida Constitution. Therefore,
if a loved one dies with debt but a homestead is involved, you should
still consider filing a "Petition to Determine Homestead Real Property"
in order to have the home of the decedent given to the children without
having to pay any of the debts of the decedent.
5.
WHAT ABOUT ESTATE TAXES?
In 2001
the estate tax (or "death tax") is assessed on estates greater
than $675,000.00. Beginning January 1, 2002, the death tax is levied
on estates over $1,000,000.00. This amount will increase to over $5,000,000.00
in 2010. Then, if the law is not changed, the exemption reverts to $675,000.00
on January 1, 2011.
6.
HOW DO YOU BECOME A FLORIDA RESIDENT?
Here are
a few points to remember in establishing your Florida domicile. All
of these are contained in Florida Statutes Section 222.17: Anyone who
wants to establish domicile in Florida may file with the office of the
clerk of the court a sworn statement showing that he or she resides
in and maintains a place of abode in the county where the statement
was filed. The statement should say that you intend to recognize and
maintain your permanent home in that county.
7.
WHAT ARE THE DIFFERENT TYPES OF CAR INSURANCE?
Many clients
come into our office after being involved in an automobile accident
and discover that they lack valuable automobile insurance that they
mistakenly waived at the time they purchased insurance. Here are some
of the key types of insurance available in Florida and a brief description
of each one.
* Bodily
Injury - Bodily injury protection provides coverage should you negligently
injure another person This type of insurance is often called "liability
insurance".
* Property
Damage Liability Insurance - This type of insurance covers you for
damage to other people's property. This type of insurance is required
under Florida law.
* Med-Pay
- Medical payments provide insurance for injuries that arise out of
the use, operation or maintenance of a motor vehicle. In general,
these payments are made without regard to fault and cover anyone who
may be injured as a result of the use or operation or maintenance
of your car.
* Personal
Injury Protection Benefits - PIP covers you for injuries that you
sustain in an automobile accident. Since there are many uninsured
drivers in Florida, PIP benefits are valuable in that they can provide
you with 60% of your lost wages and 80% of your medical expenses up
to the maximum amount of PIP coverage that you have. Adequate PIP
coverage is critical for anyone who drives in Florida and is required
under Florida law.
* Uninsured
Motorist Insurance - Uninsured motorist insurance protects you against
injury caused by negligent uninsured drivers. For example, if an uninsured
driver causes an accident and injures you permanently, uninsured motorist
protection provides you with coverage.
* Comprehensive
Coverage - This type of insurance covers loss or damage to your car.
It is similar to collision coverage. Rental reimbursement is another
type of insurance that allows for reimbursement of the cost of renting
a car during the time your car is being repaired.
When you
meet with your insurance agent, make sure that you have at least liability,
personal injury protection and uninsured motorist protection. Don't
short change yourself when it comes to insurance. When you are renewing
your automobile policy, make sure you have renter's insurance if you
rent your house or homeowner's insurance if you own your own home. A
valuable component of insurance coverage is the provision of a lawyer
to defend you should you be sued for injury or negligence caused by
you or others using your property.
Other types
of insurance you should always consider include health insurance, disability
insurance, life insurance and long-term care insurance. You should sit
down with a competent insurance agent to discuss your insurance needs.
8.
WHAT ARE THE DIFFERENT TYPES OF DEEDS IN FLORIDA?
In general,
there are two types of deeds used in Florida.
* The
most common type of deed is a Warranty Deed. This is a deed transferring
property by which the person making the transfer promises to defend
the property should there be any claim against your title.
* Another
type of deed is a Quit Claim Deed. A Quit Claim Deed simply conveys
whatever interest the seller may have in the property but no guarantee
or promise is made as to the quality of title.
* Whatever
type of deed you receive for your property, make sure you buy title
insurance to insure that there are no other claims, liens or "wild
deeds" that would make it difficult for you to sell the property.
9.
WHAT ARE THE DIFFERENT TYPES OF JOINT TENANCY?
Joint tenancy
describes how you hold the title with another person. The most common
tenancy is tenancy by the entireties. Tenancy by the entireties is often
the way that husbands and wives own houses together. Under this tenancy,
both the parties' interests are bound as one. Upon the death of one
of the spouses, the recording of the death certificate automatically
means that the other spouse owns the property solely.
Another
type of joint ownership is joint tenancy with right of survivorship.
This is similar to tenancy by the entireties except that the parties
are generally not married. Under this tenancy, upon the recording of
a death certificate in the public records, the remaining joint tenants
are co-owners of the property.
The third
type is joint tenancy in common. A joint tenant's heirs inherit the
common tenant's share upon death. For example, if you owned a house
with your neighbor and your neighbor dies, you now own the property
with your neighbor's heirs.
Sometimes
a tenancy type can change. After a divorce case, if a marital home held
by the entirety is not distributed or sold, the two parties' entireties
interest becomes a "tenancy in common" under Florida law.
Joint tenancies can apply to bank accounts, real property and personal
property. Whenever you own property with someone else, verify what type
of tenancy you have with that person and make sure that's what you want
before you buy or acquire your interest in the property.
10.
BIBLICAL LAW AND MODERN FLORIDA LAW. HERE ARE SOME COMPARISONS.
Biblical
law: If a man dies, and has no son, then his inheritance shall pass
to his daughter. And if he has no daughter, then his inheritance shall
pass to his brothers; and if he has no brothers, then his inheritance
goes to his father's kin. And if his father has no brothers, then his
inheritance shall go to his kinsman that is next to him of his family.
( See Numbers 27:5)
Florida
Law: If a man dies without a will he dies "intestate" (F.S.
732.101). Under Florida's intestate statute, section 732.102 and 732.103,
the spouse inherits the first $20,000 and the balance is split between
the spouse and the children. If there are no children or spouse, then
the parents of the decedent split the estate. If the parents are dead,
then the brothers and sisters and children of brothers and sisters inherit
the estate. If there are no siblings or children of siblings, then half
goes to the paternal and the other half to the maternal kindred of the
decedent. (Grandparent, aunts and uncles and children of aunts and uncles,
then to the kindred of the last spouse of the decedent.)
Biblical
law: If brothers dwell together, and one of them dies and has no son,
the wife of the dead brother shall not be married outside the family
to a stranger; her husband's brother shall go in to her and take her
as his wife, and perform the duty of a husband's brother to her. The
first son born shall succeed to the name of his brother who is dead.
(See Deuteronomy 25:5)
Florida
Law: Upon the death of a spouse, a woman may marry whomever she chooses.
If the parents are married and both have custody they can chose any
surname they wish for the child. If they can't agree the child shall
have both parents' last names, separated by a hyphen. If the child is
born out of wedlock, the custodial parent shall chose the name. (F.S.
382.013)
Biblical
Law: At the end of every seven years every creditor shall release what
he has lent to his neighbor. If the neighbor is a foreigner a creditor
may collect the money even after seven years but loans to brothers must
be released after seven years. You may lend to other nations, but never
borrow. (See Deuteronomy 15:1 through 3)
Florida
and U.S. Law: A judgment becomes a lien on real estate when a certified
copy of it is recorded and it shall be a lien for a period of 7 years
from the date of the recording. The lien can be re-recorded to extend
the time. The government of the United States of America owes trillions
of dollars to foreigners and foreign governments.
11.
WHAT SCARES PEOPLE THE MOST ABOUT THEIR PENDING DIVORCE?
Here's
a list of issues that frighten most clients about divorce and what to
do about the problem.
Fear: Will
my credit rating be ruined?
Reality:
When money is an issue in a marriage, chances are the couples' credit
is already bad. The good news is that credit is a changing thing. Fisher's
Law Office, PA has clients whose credit has IMPROVED after a divorce.
Don't worry too much about your credit.
Fear: Where
will I live?
Reality:
It's hard to find another place to live. But it might be better than
living in a violent place, or in a home you don't want and can't afford.
If you feel unsafe, go to a "safe house" and get an Injunction.
Most people are happier once they live away from violent or vexatious
people, no matter where they end up living.
Fear: Who
will get custody of our child?
Reality:
Florida Law recognizes parental rights. Generally, both parents are
entitled to share in the raising of their children. Children aren't
property either, and both parents must always look out for a child's
interest first. If custody is in dispute, the circuit court can decide
custody and other issues concerning the child.
Fear: How
much child support must I pay?
Reality:
Child support in Florida is based upon income. For example, a man with
income of $2000 a month next income would pay $442 per month for the
one child and $686 for two children. Fisher's Law Office, P.A., offers
a free child support calculation on our web page. The address is http://www.fisherlawoffice.com
Fear: What
property will I receive in a divorce settlement?
Reality:
Each spouse can ask for and receive an "equitable share" of
all property acquired during the marriage. Usually this means half.
Fear: I
saved money in a 401(k) plan at work. It's in my name only. Will I get
to keep these savings?
Reality:
No, your spouse can ask for a share. You might settle however by giving
up something else (agreeing to pay a credit card in exchange for keeping
the 401(k) intact). Under Florida Statute 61.075, both spouses can ask
for their share of all money saved during the marriage, even money not
in their names.
Fear: I
inherited money during the marriage that's in an account in my name
only. My spouse is threatening to take me to court and take the money
away from me!
Reality:
Don't worry. Inherited money is not considered marital property under
Florida law. Just don't put your spouse's name on the account and you
should get to keep your inheritance.
Fear: My
spouse says he'll kill me if I leave him.
Reality: Your
life is in jeopardy. Go to a safe house and obtain an injunction to prevent
domestic violence. These injunctions are free. Go to the Clerk of the
Court and pick up the forms. Don't be a victim of violence. |