Ask Thomas Mitchell: Is My Trust from Another State Valid in Florida?
Summary
I’m Thomas Mitchell, partner at Waller & Mitchell in New Port Richey Florida, and I do estate and trust work. Sometimes people ask me, “Is the trust that I had drafted for me in Ohio or Pennsylvania still valid here in Florida?” The short answer is yes, it is still valid here in Florida. The US Constitution has a provision in it that says states must honor the laws of other states. It’s called the Full Faith in Credit Clause, and so if your trust was valid in the state in which it was drafted, then it will be valid here in Florida.
Having said that, however, there are a couple of reasons why you might want to think about having it redrafted or amended once you get here to Florida. The first is that if there happens to be any problem with the trust, if there’s a contest to it, if someone thinks you weren’t competent when you executed the trust or that you were somehow influenced to make the trust against the person who’s challenging, then all the witnesses who were there for the execution of the trust are gonna be located in Ohio or Pennsylvania or wherever it was you lived before. So that’s the first thing.
The second thing is you should take a look at your estate planning documents any time you have a substantial change in your life situation, and for me, moving to Florida certainly qualified as a life changing situation. And so when that happens, you want to take a look at your estate planning documents: your will, your trust, powers of attorney, all those things. And lastly, all the trusts that I’ve seen have in it what’s called a choice of laws clause. What that says is this trust is to be administered pursuant to the laws of the state of Florida, or if you were in Pennsylvania when it was drafted, typically it will say the state of Pennsylvania because the lawyer that drafted it was a Pennsylvania lawyer and he knew Pennsylvania law.
Well, now that you’re living in Florida, we don’t want to administer the trust according to Pennsylvania law because very few of us down here are going to know what that is, so that means that we’d have to associate an attorney in Pennsylvania to advise us on what the law says. So typically when you move down here, at the very least you ought to have your trust amended so that the choice of law provision is changed to say we’re going to administer this trust pursuant to Florida law. We’re located at 5332 Main Street in New Port Richey. Our telephone number is 727-847-2288. Thanks.
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 I Short Sell My Home, Can I Buy Another Home?
Video Summary
If I short-sell my home, can I buy another home?
The answer is: Yes. After you short sell a house, you will not be able to obtain financing from a federally insured lending institution for at least a period of two years. Some institutions may stretch it out as far as three or four years, but certainly there will be a period of two years.
However, you can pay cash to buy other property. Or if you can get owner financing, you can owner-finance it, or borrow money from investors or whomever – as long as they’re not a federally insured lending institution and finance other property.
Sometimes we find people are underwater. “Underwater” is a slang term for value being substantially less than what is owed. They have good credit and so they go about purchasing another house, moving into the house, and then they short sell the home that they’re is underwater. That’s called a “buy and dump” and that happens fairly frequently. And there are a lot of bargains out there to be had by buyers at this time.
So if you have any questions, give me a call at (727) 847-2288. Thank you.
- 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
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