WHAT ARE THE STEPS THAT LEAD TO A CLOSING?

Once you sign the deal, you’re on your way to buying or selling a home. However, several steps must occur for this transaction to be completed.

They are:

  1. Closing attorney (or title company) contacts seller’s current mortgage(s) to get package for paying off loan.
  2. If the deal is for a condo,  approval of new buyer must be requested and received; maintenance payments must be current (or back payments included in the closing figures).
  3. Attorney (or title company) conducts a title search of the property, checking to be sure there are no liens or other title problems before the sale; title insurance protecting the buyer from potential title problems is obtained.
  4. If property is a house, a survey of boundaries is conducted
  5. Roof, termite and general inspection is conducted; (depending on the terms of the contract) problems detected must be fixed by seller before closing.
  6. Buyer obtains hazard (and if necessary, flood) insurance prior to closing.
  7. Attorney (or title company) prepares documents for the sale, including the deed, bill of sale, affidavits and other necessary papers. Attorney calculates prorated payments of mortgage, taxes, etc. for the date of sale.
  8. Just before closing, buyer conducts a “walk-through” of the property to be sure any problems detected during the inspection have been corrected.
  9. On the day of closing, buyer brings required funds in a cashier’s check. Buyer and seller sign required papers.
  10. The sale is complete. (Congratulations!)

PROBATE-YOUR HOME GETS SPECIAL TREATMENT

Homesteaded property enjoys a complicated and confusing status under Florida probate law.  It isn’t a probate asset, but to get its special non-estate status, it has to be certified as such by a probate judge.  In other words, the only way to keep it out of probate is to take it there first, unless the owner takes the necessary action while alive to avoid probate.

house

Once someone decides to make an asset their homestead, the homestead laws can supersede what someone puts in his will. For instance if a person wants to leave his homestead to his girlfriend, that bequest won’t work if he’s still married at the time of his death. If a decedent is married, his spouse will have rights to the property until she dies, even if she is excluded from the will. She will have the right to choose between a life estate in the property and, in some cases, a 50 percent interest in the property even if she isn’t on the property’s title.  Furthermore, the decedent’s descendants also get rights to the homesteaded property.

 An example of how this probate/non-probate status of homestead property works is as follows:

 Ted Testator has a homestead condominium that he leaves to his 3 adult sons, Danny, Martin, and Joe in his will.  Ted dies and then Joe moves into the condo.  He doesn’t give his brothers access and won’t pay any of the carrying charges.  Even though a probate estate has been opened, the Probate Court won’t have the authority to hear this case.  A separate action must be brought in the Circuit Court, if the brothers want Joe out or want to sell the property.

 While the Probate Court cannot decide Joe’s fate, the Probate Judge can declare a property “homestead.”

While homesteaded properties are still subject to liens directly placed against them, like taxes and mortgages, they enjoy protection from other creditors.  As such, a homestead usually cannot be sold to meet other obligations of the estate. This protection can shelter the home’s equity for the heirs of the decedent, whoever they might be.

Ultimately, Florida’s laws dealing with homesteads and with transferring the property of deceased parties are extremely complicated and nuanced.  Given that most people do not have to deal with them on a regular basis, the help of an experienced estate attorney can be valuable.  An experienced attorney can manage these complexities and ensure that the family’s rights are protected throughout the process.

 

 

Why is a Real Estate Attorney beneficial for your deal?

Clients sometimes ask me whether they need a lawyer for their closing, especially if it seems to be a simple, uncomplicated transaction. My answer is, “always!” (And not just because I am a lawyer.)

In my years practicing real estate law, I have seen numerous cases of people who skipped on the attorney, then contacted me afterward when they realized some aspect of the deal wasn’t in their favor. Had I been onboard early, I would have looked out for this client’s interest. But late in the game, after a contract is signed and agreements made, there is sometimes not much I can do.

A Florida real estate attorney is the only member of your home-buying or -selling team qualified to give you legal advice. Smart clients contact me before they even sign the contract (or they write “subject to my attorney’s review within three business days” on the bottom, then have me look at it), so I can point out parts of the deal they may not even know they are agreeing to.

Plus, if I issue you title insurance, you won’t even be paying more than a title company to have me on board. Yet a title company doesn’t represent your interests in the transaction; I do. And since I am up to date in current Florida real estate law, I may be able to alert you to potential issues with your deal. For example, you may not realize there are various ways you can structure who will pay any homeowners association or condo association special assessments that are issued after the contract is signed (a pressing issue with these active hurricane seasons). If you are the seller, it is in your best interest to be responsible for special assessments only until the contract is signed; if you are the buyer, you would rather have the seller be responsible until closing.

My office performs the same duties as a title company (obtain a title search; evaluate the status of the title; remedy any title defects; deal with all banks, city agencies, associations and the like; prepare closing statements and other closing documents; facilitate at the closing). But in addition, I am able to review your contract (before signing) and ensure all provisions are in your best interest; inform you of your legal rights and obligations; represent you should any problems or issues arise before closing; and be available to answer any lingering legal questions after you have closed.

Even if a title company is handling the closing documents, it is beneficial to have an attorney review the documents and represent your interests, whether you are a buyer or a seller. I charge a modest, reasonable fee for such a service.