Lunch With A Lawyer - Sep 21, 2017

 

 

Video Summary

 

Welcome to Lunch With A Lawyer. Well this isn't the second Tuesday of the month ...

Hurricane Irma. And so before I get into the topic I ...

As a result of the hurricane.

Speaker 2: We've lost connection.

Sorry.

Speaker 1: Well we're back, we didn't have Hurricane Irma here in the room but any event we did have a little glitch here. So I was saying that I've received several questions as a result of Hurricane Irma coming through, and most of those questions related to trees, and that particularly in our area here and in and around the Tampa Bay area, New Port Richey and all that, the biggest inconvenience we had was the loss of power and down trees. And so any number of people have called me or several people have called me and said, "Well my neighbor's tree has fallen on my property and I got a mess in my backyard or a mess in my property, so is he responsible for clearing out the debris because it can be quite costly, such as a big oak tree?" The answer to the question is no, he is not responsible because it was an act of god, it's nothing that ... He was not negligent as far as this tree standing there and then all Hurricane Irma's wind or any storm blowing a tree over into your neighbor's yard.

 

Now what happens if the neighbor's tree not only falls into your back yard but it falls on your house or other property and does damage? Well then he's still not responsible for it because he didn't blow down the tree, Hurricane Irma did, which is an act of god. So you need to call your insurance company to see if they won't take care of the damage. Unfortunately your insurance or your home owners insurance policy has a hurricane deductible of say three to five percent of whatever your coverage is, and so unless you have extensive damages well your deductible is gonna wipe out whatever the cost is, particularly as far as any damage to your property unless it was severe.

 

Furthermore your insurance would not cover the debris removal on your yard unless there was damage to your property, because they only insure the structure, and so unless the tree fell on your house, that wouldn't help you as far as getting the great big oak tree or whatever that's leaning across your fence or has fallen in your back yard, as far as getting all the debris removed. And likewise, if you have trees and they have gone onto your neighbors property well you don't have any liability. What is heartening though is to see as a result of this storm is how people come together and try and help out each other as far as clearing debris or whatever they need to do to help out their fellow man as far as that's concerned, helping them getting ready as far as boarding up, as far as gas and gas cans or whatever else they can do to help friends and family to be prepared for the storm.


And so hopefully that information will answer your questions although it may not help your pocketbook when you have to pay a tree surgeon thousands of dollars to remove a great big tree that's fallen on your property. Hopefully you can your neighbor can get your [inaudible 00:04:42] up there and get the debris removed.

 

So I wanted to touch on that and if you have some questions about that I'm certainly no insurance expert other than to sort of cover the who's responsible for trees that are falling. The topic that I was going to talk about before Hurricane Irma had us postponed and we were without power for several days was what happens when someone dies owning real estate? And so get this question quite often and many times it's years after someone passes away and the title is still in the decedent's name.

 

Well in order to ... You're going to have to go through a probate proceeding in order to have the title come out of decedent's name. Now if he had a will or hopefully he or she had a will when they passed away, it should have been filed with the clerk of the court, however if it isn't you need to locate it because if you can't find a will it's presumed revoked. Many times or any number of times people don't have wills, so that's another problem. I think only about 30% of the people that are eligible to have wills or trust are ... That's the only percentage we have, so about 70% of the people that really need wills or trusts or estate planning have them.

 

But getting back on point here is if the person died without a will or you can't find the original, then the Florida statutes have a set for who is to inherit. And that goes if you're a spouse and depending if it's your home well then that's treated one way under the homestead provision and the spouse receives a life estate in the property with the children receiving the remainder. If there's no children involved well then the home passes outright to the spouse. If there is a minor child well then the surviving spouse would only receive a life estate and the remainder interest would go to the children, not just to the minor child but to all the children. So you have to go through a probate proceeding and wills do have to be probated but it can be very specific.

 

Particularly I would urge folks that if you're not married and you've had a long term partner, then it's critical that you set up a will so that you can provide for your long term partner as far as your estate is concerned whenever you're gone. From time to time there is some really bad results as a result of no planning, and the partners are not married so the surviving partner really doesn't have any rights in some of the property. So it's really critical that you do the estate planning. But those are what is needed whenever someone passes away.

 

In addition to the real estate involved, this ...

First thing needs to be is [inaudible 00:08:35] and it's always great whenever the decedent has prepaid or even set forth their burial arrangement. So then it comes down well who's going to pay for that.

 

Speaker 2: Sorry. We're down again.

[inaudible 00:09:03]

Everything's overheating it's been on for so long.

I think you're still live though.

 

Speaker 1: Alright well Josh was telling me or we were concerned that we went off the air for a little bit so I'm sorry for the down time here. And hopefully we're back, we're still with you as far as that's concerned and I was chatting about what you need to take care of when somebody dies. Immediate concern is taking care of the funeral arrangements and then also providing for the payment which can be done by an individual stepping up and later being reimbursed for them or through a joint account, or through even assign the benefits under a life insurance policy, or putting it on a credit card for someone else to take care of.

 

So once that's done immediately, or that's the most pressing problem, the next thing that I suggest you do is to try and get the paperwork of the decedent and try and figure out what assets he had and how they were titled, and that's critical in a will or the probate statute governed property, just tell them their individual name versus property that has a designated beneficiary. Many accounts have a joint account with children or they provide for a payable on death provision, and so those would not be controlled by the will or by the Florida statutes, when someone passes away they're controlled by contract. Brokerage accounts also have a provision that's called a TOD which is a transfer on death provision, and again the will nor the statutes would control who would receive that account if it is designated as a TOD. Your IRAs and the 401Ks also have designated beneficiaries. So hopefully the decedent has kept that up to date and has left with you the information as to who the designated beneficiary is of the IRA or the 401K, so you know the beneficiary's name.

 

So a lot has to do with the organization or lack thereof by the decedent. So once you accumulate the paperwork, well then suggest you set up an appointment, come in and see me and we can review this to see what if anything needs to be done as far as administering the assets, and then we can talk about that, whether we had a will or didn't have a will, the cost involved and how long it takes, and so I would be pleased to work with you as far as that's concerned. So there are any number of ... Once you have the paperwork and a death certificate well we can then undertake ... Or a will and a death certificate, and know what the assets are, we can proceed with opening up a probate proceeding and getting the assets distributed to the beneficiaries either under the will or pursuant to the Florida statutes.

 

Speaker 2: I have a question. Are there ways to transfer real estate while you are alive?

 

Speaker 1: Are there ways? Josh told me that everybody could hear the question. Yes there are, I assume that you want to set your real estate up so that you control it during your lifetime, however if you still own it at your death you want it to automatically pass to someone else that you've designated. So yes, we can prepare what is called an enhanced life estate deed, and there's a nickname out there called Lady Bird deed. And how that works is you execute it and you say that you reserve a life estate and the right to live on the property and selling it, do whatever you want to, but then you designate who you wish to receive it upon your passing, and if you still own it at that time well then they'll automatically receive it along with the death certificate.

 

I do not suggest that you add someone to the title to your property such as joint tenants with [inaudible 00:14:04] survivorship for a child or whatever, since you're conveying a present interest in the property which may affect the homestead exemption, may affect your qualifications for Medicaid, may affect how much taxes you have to pay for income tax of the property sold before you pass away.

 

so hopefully I've answered the question, is yes we can take care of that whenever we do your estate planning and prepare the deed, and I've done any number of those. From what I can see they've worked very well, so that's called a Lady Bird deed, named after Lady Bird Johnson [inaudible 00:14:52]

 

Do we have any more questions Josh?

 

Well without any further questions well I probably ran along a little too long or whatever as far as the what to do whenever someone passes away and their estate or there's probate, we basically need to go through a probate proceeding and what you need to do.

 

Until the next time or the next question we'll see you the second Tuesday in October. Stay safe and if you have any questions give me a call on 727 847 2288, thanks.