Ask Thomas Mitchell: If I Go Into a Nursing Home, Can The Nursing Home Take My House?
Summary
I’m Tom Mitchell, a partner with Waller & Mitchell, and I do elder law here. One of the things that I do is planning for individuals who might have to go into a nursing home and need to ensure that their assets are not completely dissipated. I frequently am asked, “Is the nursing home going to take my house when I go?” And the answer is no.
First, under Florida law there is a provision called the Florida Homestead Provision. And that’s not the homestead that you have on your real estate taxes, but this is a provision of the Florida Constitution that says your house, the house that you reside in before you went into the nursing home, is your homestead and is exempt from forced sale by your creditors. Which means that the nursing home cannot force you to sell it in order to pay the bills. And after your death, if it’s willed to your heirs, your blood relatives, or children for example, it continues to have that exemption from creditors’ claims.
So whether you’re married or single, you can have the house. If you’re single, you can only have $2,000.00 in the bank. That’s all you can have, and all the rest of your assets have to be dissipated, spent on the nursing home in order to pay for your care. Now, there are some other planning opportunities that I can do for you if you need to have that done, so give me a call if that’s the situation.
But in a married situation, the spouse who’s staying at home gets to keep additional liquid assets so that they are not impoverished. Currently the liquid asset amount is about $115,000.00 of liquid assets. That’s stocks, bonds, mutual funds, and cash in the bank. This does not include the house or car and does not include the usual household effects: the toaster, blender or the big screen TV.
So in a nutshell, the nursing home is not going to take your house. If you have any questions, please call me at Waller & Mitchell. We’re located at 5332 Main Street in New Port Richey. My telephone number is 727-847-2288. Thanks.
- Published in Medicaid Planning, Videos
Ask Thomas Mitchell: Is My Will from Another State Valid in Florida?
Summary
I’m Tom Mitchell, a partner with the law firm of Waller & Mitchell, and I do estate planning here in the office. And I frequently get questions from people that want to know if their will from up north is still valid now that they’ve moved to Florida, and the short answer is yes, it is still valid. The United States Constitution has a provision that’s called the Full Faith and Credit Clause, and what it means is that states have to honor the laws of other states. So if your will was valid in the state that it was drafted, then it will be valid here in Florida.
Having said that, there are still a couple of reasons why you might want to consider rewriting your will once you’re down here. First of all, you should be checking your will and rewriting it any time there’s a substantial change in your life situation and, the last time I heard, retiring and moving to Florida qualifies as a pretty substantial life changing situation. And the second and more practical reason is that if there’s any issue about the validity of your will, such as being drafted in Pennsylvania or Ohio, the witnesses to the will are all located in Pennsylvania or Ohio, so they’re gonna have to be brought to Florida and put up while we have a trial to contest the validity of your will. It’s a lot cheaper to pay $150.00 for a new husband and wife will than it is to fly in a bunch of people from Pennsylvania and put them up here for a week while we have a trial.
So that’s just a practical reason why even though your will might still be valid, you probably want to take a look at having it changed to a Florida will. Maybe not the first month you’re here, but certainly in the first six months or a year you should. We’re located at 5332 Main Street in New Port Richey, Florida. Our telephone number is 727-847-2288. Thanks.
If My House is in Foreclosure, Can the Lender Take Money from My Bank Account?
Video Summary
If my home is in foreclosure, can the bank take money from my bank account?
Well, the bank cannot, unless you bank with the same lending institution where you have your mortgage. So if you have a bank account with Bank of America, and you also have your mortgage or line of credit with Bank of America and you go in default, they may exercise the right of offset to take money out of your account.
If, however, you have your mortgage with Bank of America, and you have your bank account with any other financial institution, Bank of America has no right to attach any of your assets or your bank account whenever you go into foreclosure.
A foreclosure action is one wherein the lender is taking back their collateral, which is called a foreclosure. They are not suing for a money judgment.
In order for them to obtain a money judgment, they must file a supplemental proceeding after the foreclosure action. That’s called a “deficiency judgment action.” And then, if they do obtain a deficiency judgment, they’re then in position to garnish your bank account, or take your bank account or any other assets other than your home or other assets that you may own as husband and wife.
So the answer to the question is: No, the bank cannot take your money or your assets just because they file a mortgage foreclosure action unless you’re banking with them and they may have some right of offset.
If you’d like to talk to me or set up an appointment to discuss foreclosure action, please call me at (727) 847-2288, and I look forward to seeing you.
- Published in Real Estate - Foreclosure, Videos
If My Home is in Foreclosure, Can the Lender Lock Me Out of My Home?
Video Summary
If my home is in foreclosure, can the lender lock me out of my home?
The answer to that question is: No. Once they file the mortgage foreclosure action, they have to conclude it and get what they call a “certificate of title” showing that they’re the owner before they’re entitled to possession. Even after getting the certificate of title, they must apply to the court for what they call a “writ of possession” before they are entitled to have you removed from the property and take possession of the property.
If the property is abandoned – meaning that there’s no one living there – the lender does have a right under most mortgages to secure the property. And they hire contractors to go out and change the locks and to maintain the property, cut the grass and basically make the property look like it’s not abandoned.
We’ve seen any number of abuses and very aggressive contractors going out and changing locks even though someone may be maintaining the property. However, if you’re living there, I can assure you that they will not come on the property to change the lock. Or if they do, simply call the police, 911, and have them arrested for breaking and entering if they attempt to change the locks on your house.
If you go away on vacation and come back and see they’ve changed the locks, all you have to do is break in and take their locks off because it’s still your property. So you’re not divested of that property until such time as the mortgage foreclosure has been completed. They get a certificate of title and then they have the occupant – whether it be a tenant or you if you’re living there – obtain a writ of possession. If you have tenants there, the tenants have the right to remain in the property for the balance of their term under a federal law that allows tenants to remain in possession even after the mortgage foreclosure.
If you have any questions about your mortgage foreclosure or would like representation, give me a call at (727) 847-2288.
- Published in Real Estate - Foreclosure, Videos
If My Home is in Foreclosure, Can I Buy Another House?
Video Summary
If my home is in foreclosure, can I buy another house?
The answer to that question is: You certainly can. The only impediment you may have is if you go to a federally insured lending institution and apply for a loan. If your home is foreclosed, then after the foreclosure you may be prevented – or you won’t be able to borrow money from a federally insured financial institution for a period of four years.
During the foreclosure action or even after the foreclosure actions, you can buy a home any time you want to. You can of course pay for it in cash, if you have the cash, and then move into the home and it’s protected as far as your homestead is concerned. You can see about owner financing to give some money down and have the owner carry the mortgage, or any other way that you can find to purchase a house.
So there’s no prohibition about buying a house. Some people find themselves with a mortgage that far exceeds the market value of the property. They have good credit and decide that they’re going to give up on that property. They have money, they have credit, and they go out and buy another house and finance that, and then short sell or let the original home that is underwater go. This is called “buy and dump,” and basically there is no problem in buying. And it’s something that does happen.
So yes, you can buy a house as long as you can figure out how to pay for it, either through cash or owner financing.
If you’d like to discuss this with me, give me a call at (727) 847-2288.
- Published in Real Estate - Foreclosure, Videos