A Spouse’s Rights Even If a Will Leaves You Nothing

Spouse RightsYou may think that if you’ve been written out of your spouse’s will, you won’t inherit a thing, but that may not be true. Ditto if your partner drafted their will before you were married. That’s because Florida law protects spouses from total disinheritance, regardless of what a will says.

A husband or wife, for instance, has rights regarding your primary, or “homesteaded,” home. If your spouse has no children, the home would automatically pass to you. Even if he or she has kids from a prior marriage and left the house to them, you still have the legal option to live in the house for the rest of your life (known as a life estate), or to immediately become a 50 percent owner of the home.

Beyond your house, a spouse is also entitled to some of the deceased person’s money. In general, the law gives you 30 percent of your late spouse’s assets, including assets that fall outside the probate, such as property in a trust in their name. This also holds if the person wrote their will before they married you and left all their stuff to a parent or someone else.

The law also provides for a disinherited spouse to receive some money, called a family allowance, from the estate’s assets even before the probate is completed and all the money is distributed.

Of course, all of these rights may have been waived by the spouse if he or she signed a valid premarital or postmarital agreement.

Don’t try to understand these complex laws yourself. If you live in South Florida and need the advice of a probate attorney, contact us at The Law Office of Gary M. Landau, P.A.

The New Form You’ll Find at Your Next Closing

If you last bought or sold your property more than 8 months ago, you may be surprised the next time you’re at a real estate closing. That’s because last October, the longstanding HUD-1 closing form was replaced by something called a Closing Disclosure, or CD.

The new form is part of a larger revamp brought about by the Federal government’s overhaul of the way mortgages are processed and disclosed to borrowers. The CD has all the same information as the old HUD, but it’s presented in a new way, and, importantly, much additional information is provided. Although the new form may seem confusing to people used to the old one, there actually are some good changes.

Here are some of the biggest differences:

  1. You’ll get the closing disclosure no less than 3 days before the closing. Before, banks typically released figures to the closing agent at the last minute, so buyers and sellers often didn’t see the HUD until just before closing. Now, the law requires each party to get and sign a CD at least 3 days ahead of time. While this is a good thing in most cases (you have time to go over the form with your attorney/closing agent), one kink is that some changes that are made trigger an additional 3-day period. So if you found, say, during your walk-through that the air conditioner is shot and the seller agrees to give you money for a new one, you may not be able to close later that day.
  2. Terms of the loan are spelled out clearly. Unlike the 2-page HUD, the CD is a 5-page form, with many of the new lines filled with specific information about your loan, such as the exact monthly principal and interest, and whether there’s a prepayment penalty or balloon payment expected. This information must match the numbers given to you by your bank earlier in the loan process.
  3. Costs are itemized in detail. Under older versions of the HUD, banks sometimes lumped various fees together. Now, they must itemize each one in detail, including how much they’re charging for underwriting, and even for determining whether you’re in a flood zone. Costs from other vendors are also listed one-by-one, ranging from the charge to record your deed to what you’re paying for a home inspection.
  4. Who pays what is a bit confusing. One complaint of the new form is which costs are to be paid by the seller and which by the buyer isn’t always straightforward. In some cases a payment by the seller that’s credited to the buyer looks like a charge the buyer must pay. Talk to your attorney/closing agent if your payments seem unclear.
  5. The last page provides other helpful information.  In addition to summarizing your loan (including the total amount you’ll pay in interest over its life), other useful information is listed, such as whether, in the unfortunate event of a foreclosure, your state protects you from liability for any unpaid balance. Finally, the page handily lists the names and contact information for each professional involved in the deal, from the lender and mortgage broker to the Realtor and closing agent, so you can more easily get your questions answered.

If you’re buying or selling in South Florida and want a free consultation with an attorney, contact us at The Law Office of Gary M. Landau, P.A.

The Biggest Items To Consider When Writing A Will

What to Consider When Writing a Living Will

Nobody lives forever, so no matter how young or healthy you are, almost everyone should have a valid will. A will determines who gets your stuff. A will determines who watches your kids. A will can keep family members from squabbling after you’re gone.

Without a will, the State determines how your assets are divided, according to very specific guidelines. So even though you may want some money or possessions to go to, say, your stepchild or best friend, absent a will they may not get a thing. It’s that element of control that makes a will so important, even if you don’t have a ton of money.

Here are a few things to consider before drafting this crucial document:

  • Don’t create one on your own. While many websites offer do-it-yourself or cheaply crafted varieties, a will is too important to go discount. (Anyway, having a professional lawyer draft one is not too expensive.) Many wills from these websites are poorly drafted, with ambiguous wording. Sometimes they don’t execute them properly, with the state-mandated number of witnesses or such. Some programs even offer will services that aren’t state-specific, so you could end up with a will that the court won’t accept. And since you won’t be around to redraft fixes to these problems, the court would treat your estate as if you died without a will. To avoid these potential problems, work with an attorney with knowledge of all the laws in your home state.
  • Select your personal representative with care. While many people think their spouse or oldest child should automatically be their personal representative (in charge of managing and disbursing your assets after you die), think clearly if they have the best skills and temperament for the job. A good representative should be detail oriented, trustworthy, fair, and patient (probates can take from a few months to a year). State law places limits on who can be your personal representative; again, a lawyer with knowledge of your state can help you decide.
  • Do a mental inventory of all your assets. You don’t have to enumerate in a will how much money goes to each heir, only the percentage of your final estate. But mentally calculating how much you have, including property, valuable jewelry, artwork, and the like, can help you determine if you have enough to leave a bequest to more than your immediate family. Of course, a will can also specify how you want to handle your tangible property, including any embryos you may have frozen during prior treatments for infertility!
  • Plan for backup beneficiaries. Clients often tell me they don’t want to think about the possibility that their child may predecease them. And while I agree that is awful to contemplate, the truth is your will may not be probated for decades, and anything can happen between now and then. I won’t even work with clients who won’t include a backup beneficiary in their will (e.g., leaving your daughter’s portion to her children if she is not still alive), because this can create a legal mess for the remaining clan.

If you reside in the state of Florida and need additional information about or help with drafting your will, contact us today at The Law Office of Gary M. Landau.