Real Estate FAQs
If I have a realtor, why should I hire an attorney to represent me when buying or selling real estate?
Many, if not most, realtors are “transactional” realtors. This means that they do not represent either the Buyer or the Seller but rather their role is to try to negotiate a contract between the two parties. Realtors sometimes will only disclose the positive aspects of the deal to get the Parties to agree and they fail to disclose the negative consequences that the Buyer or Seller may suffer if the deal goes through or falls apart. These things may include negative tax consequences, loss of costs advanced for inspections and/or financing, etc. It is the lawyer’s job to make sure that his client is aware of all of these possible twists and turns and to protect the client from these in advance.
If I am buying or selling real estate at what stage should I hire a lawyer?
As is typically the case in most matters when you are trying to protect yourself, “the sooner, the better.” It is advisable to have an attorney review all contracts, including listing contracts with realtors, before you sign them. In most instances having a contract reviewed after you sign has no value except to let you know what you should have taken out or what you should have put in the contract. It is usually too late to do anything about it at that point.
Should I have an attorney represent me at the closing?
The sale or purchase of a piece of real estate is usually the single largest transaction in which most people will be involved. An error in the closing process could result in the loss of a substantial amount of money or, worse yet, in litigation that could drag on for years. Although many transactions are now closed by title companies it is advisable to let a lawyer conduct the closing. If your lawyer conducts the closing, then he or she is involved in the entire process and is looking out for your best interests. Many people are not aware that attorneys will likely charge much less for conducting a closing and writing title insurance than a title company would. In addition, most title insurance agencies hire employees who have no training in legal matters and simply go through the same procedures with every closing; these people would be unprepared to handle any unique aspects of your transaction.
Estate Planning FAQs
Do I Need a Will?
The law does not require you to have a will, but if you do not have one, then the Florida legislature (through the Florida Statutes) directs who gets your assets. In addition, the cost of administering your estate will be higher, because the probate court might have to conduct hearings which would not be necessary if you had a valid will.
I have an out-of-state will. Do I need a Florida will also?
Chances are that you do not need a Florida will, provided the out-of-state will was valid in the State where it was prepared and as long as it was executed properly. You may want to review your will with an attorney to make sure circumstances have not changed that would make amending the will (or drafting a new one altogether) advisable.
Someone told me I should have Advance Directives. What are these?
Typically when people refer to Advance Directives, they are referring to a Living Will and a Durable Power Of Attorney.
A Living Will is a document which tells the world what your wishes are regarding being connected to life support or undergoing other life-sustaining measures (such as receiving nutrition via a feeding tube) after it is determined that you are terminally ill or in a persistent vegetative state.
A Durable Power Of Attorney is a document where you designate one or more persons to handle your financial and personal affairs for you in the event you should become temporarily or permanently incapacitated. If you become incapacitated and you do not have a Durable Power Of Attorney, the court will likely appoint someone to be the guardian of your person and property. A guardianship proceeding is expensive and time-consuming for the person appointed guardian. He or she would have to ask the Court’s permission to take actions on your behalf and would also be required to file periodic reports with the Court. This would entail paying attorney fees each time a new issue arises in which the Court’s direction is needed.
If I die while my children are still young and before they finish school what can I do to make sure that the money from my estate is used for their health and education?
What many parents do is to establish a trust through their will which upon the death of the last parent provides funds for the health, education and other necessary living expenses of the children. The parents appoint a trusted family member, friend or a professional to act as trustee until the children reach a predetermined age, at which time leftover funds would be distributed. The parents can also have any life insurance proceeds administered through this trust simply by changing their life insurance beneficiary designation.
How often should I update my will?
There is no specific time frame for updating your will. You should review your will periodically and if your circumstances have changed, such as the death of anyone named in the will as beneficiary, personal representative or trustee then it may be advisable to update your will. If your will was executed prior to 1977, then you should see an attorney about whether it is advisable to update it.
Is a will that I prepare myself valid?
A will does not have to be prepared by a lawyer to be valid, but a will does have to comply with statutory requirements to be valid. There are companies that will prepare wills based upon the information that you provide them and then it is up to you to make certain that the will is properly executed. A misunderstanding of what your intentions were when assembling the will could result in the company inserting provisions in the will which result in a distribution totally different than what you intended. Also, failure to strictly comply with the procedures for executing the will would result in the will being declared invalid. There are also companies who sell “cookie cutter” will forms that you fill in yourself.
You only get one chance to do it right; if it is not done correctly, you will not be around to correct it. So you have to ask yourself whether the little bit of money you save doing it yourself is worth the risk of having the State decide how your assets will be distributed. My firm has prepared literally thousands of wills in the 29 years I have been in practice and I have never had a will I prepared successfully challenged.