Can a Chapter 13 Bankruptcy Help to Forestall a Foreclosure?
Video Summary
Can a Chapter 13 forestall a mortgage foreclosure action? You betcha it can! Because once you file any kind of bankruptcy action, it is a federal court, and so it immediately stays the foreclosure action. And even if it’s scheduled for foreclosure sale, the Chapter 13 will stop the foreclosure sale if it’s filed just before the sale date after it’s already been going through a foreclosure.
I don’t do bankruptcies; however, my understanding of a Chapter 13 is that you basically say that I can make the payments, and I’m a little bit behind on my other payments, so the bankruptcy court – this is my understanding – will take your deficiencies or the payments that you’re behind, and let you spread that out over a 60-month period, but that means you’ve got to make your regular payment, as well as one-sixtieth of the back payments. And if you don’t make those payments, well, you get kicked out of a Chapter 13.
Now sometimes it’s sort of frustrating if you’re trying to foreclose a mortgage where people will file more than one 13. We call those a Chapter 26 or Chapter 39 if they keep filing, you know, several times after you go through the foreclosure process, but it can be very useful.
Also, if you file bankruptcy action, you have a good chance of possibly working out a mortgage modification in the federal bankruptcy court. So if you need a referral to a good bankruptcy lawyer, well, give me a call and I’ll be happy to give you the name of an attorney who will be glad to try and help you or refer you to someone that will do a Chapter 13 for you.
My phone number is 727-847-2288.
- Published in Real Estate - Foreclosure, Videos
What are My Duties as a Trustee of a Trust?
Video Summary
What are the duties of a trustee named in a trust? The most common scenario we see is whenever someone comes in and they set up a trust during their lifetime, which is called a living trust or a revocable trust, where they name themselves, and then they provide who their assets are going to be distributed to under the provisions of the trust, and name a successor trustee.
During the person’s lifetime they can pretty well treat the trust assets any way they want to since it’s for their benefit. Upon their death, the revocable trust becomes irrevocable, and the successor trustee then assumes the responsibilities, and they are to send a copy of the trust to all the beneficiaries, whether they be income beneficiaries, whether they like the beneficiaries or not, but they’re to send a copy of the trust to everyone.
They’re also to file a notice of trust in the public records. After having sent out the trust and recorded the notice of trust with the probate court, then they go about obtaining an inventory of all the assets that are in the trust. Once that’s accomplished, they need to obtain a federal identification number so that an accounting or a tax return can be filed by them so that they don’t have to pay any taxes.
Now during the lifetime of someone who sets up a trust for their own benefit, they’re not required to get a federal identification number, and can use their Social Security number. However, upon their death, the successor trustee has to have a federal identification number in order to file a fiduciary tax return, and that would govern how the people are to pay taxes on the money that they receive or the income that they receive from the trust, and that would be something that the successor trustee would want to consult with the attorney about, as far as the administration of the trust and the distribution of the assets, in particular, if there is homestead property involved, if there’s property in the name of the decedent, and we need to go through a probate proceeding in order to obtain those assets to be titled in the trust, and then the trustee must be very careful in reviewing the provisions of the trust to see what they’re directed to do. If it says simply, “Distribute out at my death as soon as possible to the named beneficiaries,” well, you need to make sure that the creditors are paid, and then have an accounting of everyone, as far as the inventory, to make distribution, and then file a fiduciary tax return with the Internal Revenue Service so that the income can be accounted for, and you can be compensated as trustee in order to be able to fulfill your duties as a trustee.
If this is a continuing trust, meaning that you must pay the income to a beneficiary for an extended period of time, then you need to consult with an attorney concerning your investment responsibilities and financial responsibilities, and that you’re governed under the Prudent Investor Act. There’s a whole trust code, a bunch of rules and laws as to what you’re obligated to do, and I would urge you to consult with an attorney about a trust administration.
If you have any questions, give me a call at 727-847-2288.
Thank you.
What Are The Rights of a Spouse in a Home When the Spouse Dies?
Video Summary
What are the rights of the spouse in a home when their spouse dies? We first have to look at how title is held to the property. If it is held in their joint names as husband and wife, then the property automatically goes to the spouse, and all that is needed is to record a death certificate.
If the title is just held in the spouse’s name alone who passes away, then it is considered homestead property, and is controlled by the Florida Constitution and the laws of the State of Florida. And if you’re survived by a spouse and minor child, then the spouse receives a life estate and a remainder interest vest in the children. You cannot devise it or leave it in your will to anyone else. The spouse does have an election to make, and they can elect to take a half interest in the property, but they must file that election within, I believe, six months of the date of death of the spouse. So if you do lose your spouse, you need to contact an attorney right away to discuss your rights in the property.
Now if your spouse leaves a will, and the deceased spouse is not survived by minor children, then the decedent can leave in his will the property to his spouse. That is the only person he can leave it to. He cannot provide for life estate or anyone, anything else, and so it is an improper devise to leave it to anyone other than your spouse, and then it would be controlled by law, which would mean that the spouse would have a life estate or elect to take a 50 percent interest in it, and the other remainder interest would pass to the adult children of the decedent.
So it’s a little bit complicated as far as homestead is concerned; misunderstood by a lot of attorneys. So if you lose your spouse and he owns the property in his name alone, I urge you to give me a call; set up an appointment, and let’s review the situation right away.
My phone number is 727-847-2288.
What is a Lease Option?
Video Summary
What is a lease option? Well, I like to rephrase that clause, and I’ll explain later that saying. It should be a lease with an option to purchase. It’s utilized whenever you want someone to purchase some property; however, they don’t have a lot of money to put down on the property, and they’re not able to obtain financing to purchase property for cash, yet they want to move into the property. So what you do is you enter into a lease to lease them the property for a certain period of time, and then you attach to that an option to purchase. Well, what does the option do?
It sets the price of a certain dollar amount so during the option period, which usually coincides with the lease term, the tenant is in a position to purchase the property for that amount. So you have someone that is recovering from a foreclosure that needs some additional time to get their credit back up so they can go get a bank loan is one circumstance. Other circumstances would be if they’re looking for the down payment to come as a result of a lawsuit settlement, or there are any number of scenarios wherein the parties do not have a sufficient down payment to be able to purchase the property. And if you have a mortgage on the property, you’re not in a position to take back a mortgage, or if you did, it would be a wraparound mortgage.
Now one of the advantages over a lease with the option to purchase versus a sale of the property under an agreement per deed or a deed in mortgage is that the foreclosure process takes about a year to accomplish, and is very expensive. It will probably cost in the neighborhood of $3,500.00 to $5,000.00 to foreclose. Whereas with a lease with an option to purchase, you’re looking at an eviction action, which would take approximately 30 to 45 days in which to get rid of the tenant if they failed to make the payments.
Now the term “lease option” is a problem if you combine the lease payments with the option payments. Then it can be considered an agreement for deed, and you can be required to foreclose those. So it’s very important that if you’re going to enter into a lease with an option to purchase that you specify or keep the option separate from the lease. Although it would be contained in the lease, it needs to be very clear that they are two separate rights: one is tenancy, and the other is the option to purchase.
So if you’re interested in selling your property under a lease with an option to purchase, well, give me a call at 727-847-2288. If you’re going to enter into a lease with an option to purchase, and you’re concerned about the landlord, I suggest you give me a call, and it might do well to do a title search to make sure that the property isn’t in foreclosure; that the mortgage on the property does not exceed the purchase price. So that once you’re in a position to purchase the property, you know that the seller will be in a position to sell it to you.
So if you have questions, give me a call at 847-2288.
Thank you.
- Published in Real Estate, Videos
If I am Married, Do All My Deceased Spouses Assets Pass to Me?
Video Summary
If I am married, do all of my deceased spouse’s assets pass to me? Well, if he left a will leaving everything to you, the answer is yes, but the myth is that this happens automatically, and that is not true. You may have to go through a probate proceeding in order to obtain the assets. Depending on who his heirs are, as to whether or not the spouse will receive all of the assets or not. So if he has a will, the will, will control who will receive what assets.
We also have to consider homestead, and that if you’re survived, and the homestead property is just in the decedent’s name, well, then, he can only leave it to the spouse if he wants to do that as far as his will is concerned. If he doesn’t leave it to the spouse, it is controlled by the Florida Constitution, the laws of the State of Florida, which gives the spouse a life estate or can elect to take a half interest in the property.
As far as the other assets are concerned, the state of Florida sets forth a will for you, or says who receives all the assets. If the decedent is only survived by a spouse and there are no minor children, any children of the decedent, well, then, all the assets will pass to the surviving spouse. However, a probate proceeding will be necessary.
I don’t have time to go through all the various scenarios as far as if there are children of a prior marriage or children of that marriage as to how much the spouse receives and how much the children will receive, but the myth that it happens automatically is merely that – a myth – and if you lose your spouse, and they have assets in their name other than motor vehicles, please give me a call at 727-847-2288 so we can discuss what would be necessary and who will receive the assets.
Thank you.