FISHER'S LAW OFFICE NEWSLETTERS
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.
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.
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.
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.
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.