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Frequently Asked Questions
Estate Planning & Probate
Do I have to go through Probate if I have a Will?
In Florida, if you have a Will, and you pass away with any assets in your name alone, like Real Estate or Bank Accounts, then those assets will need to go through the Probate Process, but your Will controls who receives the assets (called “beneficiaries”) and who controls the process (called your “Personal Representative”)
How long does the Probate Process take in Florida?
As is the case for many legal questions, the answer is that it depends. In larger counties, like Palm Beach County, Brevard County, and Miami-Dade County, the probate courts are very busy and even a simple probate can take a year or longer. In smaller counties with probate courts that are less busy, the process will take at least 6 to 7 months to complete a simple formal probate administration.
What Assets have to be Probated?
Any checking accounts, savings account, money market accounts, brokerage accounts, and any interest in real estate that do not have beneficiaries designated or that do not have joint-owners with rights of survivorship must go through probate in order for your Beneficiaries to gain possession of the assets.
What Assets do not have to be Probated?
Any account with beneficiaries designated, like Life Insurance policies, IRAs, 401(k)s or other retirement accounts, any normal accounts with beneficiaries designated or with a Transfer on Death (“TOD”) or Payable on Death (“POD”) designation, and any jointly-held accounts or real estate with rights of survivorship are not required to be probate if (a) the named beneficiary or joint-owner is alive at the time of your death or (b) the named beneficiary is your estate.
Does a Trust help me avoid Probate?
Establishing a Trust can help you avoid Probate and protect your assets if you become incapacitated. After establishing a Trust, you can “fund” the trust while you’re alive by transferring your accounts and real estate into the name of your Trust. When you pass away, the assets are still owned by the trust, and the successor Trustee distributes the assets to your beneficiaries without the need for Probate.
How long does it take to evict a tenant from start to finish?
The short answer is three (3) to six (6) weeks. However it is not that simple, as there are many factors that determine how long the process takes. And, unfortunately, several of the factors that will determine how long the process takes, are out of the landlord and/or their attorney’s control. Some of these factors include but are not limited to:
- The jurisdiction your eviction is processed. Generally, the larger the county, the longer the process takes. For example, an eviction in Broward County or Orange County generally takes two or three weeks longer than an eviction in Indian River or St. Lucie County. This is due to the fact that the courts are much busier and it takes longer to process the eviction. In addition, the final step of the eviction process, which requires the Sheriff’s Office going to the property to remove the tenant, usually takes about two weeks from the time the Judge issues the order to evict and the Sheriff executes the order.
- Another common, significant factor that may slow the process is if the defendant contests the eviction, which usually requires an additional hearing or two in front of the presiding judge, and the coordination and scheduling of the hearing which can take some time on its own.
As I stated earlier, most of the factors that determine how long the eviction process takes are out of the attorney and/or landlords control. If the landlord’s attorney timely and correctly files the correct pleadings with the court, and the court and/or sheriff is not too backed up with eviction cases, the process can be completed as fast as three weeks.
How long can I stay in my home once the Foreclosure process begins?
There is no simple answer, however it could be a range of anywhere from five or six months to a couple of years. The first question that has to be answered is “When does the foreclosure process being?” Is it when you miss a mortgage payment, or is it when you are served with a foreclosure lawsuit?” For our purposes we will consider the beginning of the foreclosure process to be when you are served with the complaint. Please note that you can miss a mortgage payment and not be served for several months, or on the other hand you can be served as soon as 1-2 months after missing a payment. There is no rhyme or reason as to why there is such a difference in the amount of time it takes, it’s strictly up to your lender and when they decide to file the lawsuit.
There are several factors that will determine how long you may stay in your property once you receive a foreclosure law suit. Those factors include:
- If you chose to contest the foreclosure, and you or your attorneys ability to defend it.
- The bank and their attorney’s timeliness and ability to ensure they have met all the condition precedents required before filing a complaint, and the documents the bank has, or doesn’t have in support of their foreclosure.
- The jurisdiction your case is being processed. The larger the county, such as Broward County or Orange County, the more time it usually takes to push a foreclosure case through. Smaller counties such as Indian River or St. Lucie County move a bit quicker.
- Who purchases the property at the foreclosure auction can also go a long way in determining how long you can stay in the property.
- Settlement negotiations, bankruptcy filings, title issues, and many other miscellaneous issues that can come up in a foreclosure case and significantly slow the process or even force the bank to dismiss your case and possibly start over.
Another important factor to consider is whether it is a foreclosure by your lender or a foreclosure by your homeowners or condominium association. Condo and Homeowner Association foreclosures tend to move much faster than lender foreclosures. This is because they do not have as many laws and federal regulations they have to comply with, and depending on the amount of arrears, they can foreclose in county court as opposed to circuit court, which moves faster.
I moved out of my apartment almost three (3) months ago, however, I still have not received my security deposit back from my ex-landlord, what are my rights as far as getting my deposit back?
The good news is that the State of Florida has a statute that specifically addresses security deposits. The bad news is that despite the statute clearly spelling out what your rights are as a tenant or landlord, many landlords are not familiar with the statute or don’t care about following it. The statute specifically requires landlords to send you your deposit back, in full, within 15 days of the tenant vacating the property, or send the tenant a written claim, that identifies how much of your deposit the landlord intends to keep and for what reasons, via certified mail. The statute does not allow for verbal claims, claims via text-message, or claims via email. If the claim is not sent via certified mail, within 30 days of the tenant leaving the property, the landlord forfeits their right to any of the deposit. Unfortunately, it is not that simple, and usually the landlord is not going to just give you back the security deposit, despite an invalid, untimely claim, and you will have to file a lawsuit against your former landlord in an attempt to get the deposit back. The good news is that the statute allows the winning party to not only get their security deposit back, but also be reimbursed for any fees and costs associated with retrieving your security deposit, including the fees you paid your attorney and any filing fees and costs associated with filing the lawsuit.
How long do I have to sue someone for breach of contract?
In Florida, the statute of limitations for breach of a written contract is 5 years. For an oral contract, 4 years.
I have been served with a lawsuit – how long do I have to respond to the Complaint?
Under Florida Rule of Civil Procedure 1.140(a), a defendant must serve an answer within 20 days “after service of original process and the initial pleading on the defendant.” This means, in most cases, a defendant has 20 days to file an answer with the clerk of court of the county where the action is pending. The clock starts ticking when the defendant is personally served with the complaint, not the date that the complaint was filed with the court. Additionally, the time to answer a complaint is usually indicated on the summons that is served with it.
Whether an association may limit, restrict, or otherwise regulate a condominium owner’s or homeowner’s ability to engage in short-term rental arrangements involving their property, such as through the increasingly popular AirBnB, Vrbo, and HomeAway websites, within communities governed by a condominium association or homeowners association.
This issue has been of particular concern in communities governed by a condominium association or homeowners association, where many owners and board members have expressed reasonable reservations about a lack of background checks or other vetting procedures for short-term renters, the often disruptive conduct and behavior of short-term renters, and other issues with the specifics of short-term rental regulations. For example, this has been an ongoing local issue discussed and put before the Town Council of the Town of Indian River Shores and the City of Vero Beach imposed additional rental restrictions and enforcement procedures in recent years to address such issues.
While an association may be subject to relevant city, county, and state ordinances and laws regarding short-term rentals and the use of short-term rental facilitating websites, owners and associations should also review the provisions of the association’s governing documents as such documents may contain relevant leasing restrictions. As condominium owners and homeowners buy into their communities with the knowledge that they and their property are subject to the terms of the association’s restrictions and other governing documents, any short-term rental or leasing restrictions or amendments to short-term rental or leasing restrictions may provide guidance and authority to this matter.
If, however, an association’s governing documents are silent as to short-term rental procedures or limitations, or if an association with existing short-term rental restrictions desires to provide for a more robust short-term rental policy, then an association’s board may be required to hold a membership vote to amend its governing documents to include any preferred short-term rental restrictions, limitations, and procedures.
There may be additional caveats involved, as created by and detailed in Florida’s case law, if certain owners bought into a community governed by a condominium association or homeowners association with the specific intent to rent their property at the time of purchase and if such owners do not support or otherwise consent to an amendment to the association’s governing documents to limit or restrict an owner’s ability to rent their property.
For these more complicated short-term rental and related issues, please do not hesitate to contact one of the qualified and experienced attorneys at Block & Scarpa as we would be happy to assist in drafting amendments, reviewing an association’s governing documents for rental or leasing authority, suggesting accepted rental limitations, advising about amendment and rental procedure, or any related issue that may arise in living within or governing a community association.
How long to I have to respond if I am served with a lawsuit in Florida?
In many cases, the amount of time provided for a response is included in the summons that a person or entity receives when they are served with a lawsuit. In most civil actions in Florida, a named defendant has 20 days to file a response with the court after being served with a lawsuit.
What is civil litigation?
In a civil litigation case, a person who believes they have been wronged, called the “plaintiff”, brings a legal action against the person the plaintiff believes to be wrongdoer, called the “defendant”. If the defendant is found responsible for the harm to the plaintiff, a court can enter a judgment for monetary damages, reimbursement for certain costs, or injunctive relief, which is the court’s requirement that something is to be done or not to be done by the defendant.
Does the losing party in civil litigation have to pay the prevailing party’s attorney’s fees?
Generally, no. Florida, and a majority of states, follow what is referred to as the “American Rule.” The American Rule provides that attorneys fees can only be awarded to a party if authorized by a contract or by statute. If your case involves a contract and that contract contains an attorney’s fee provision or if there is a statute that provides for the recovery of prevailing party attorneys fees, then the general rule is superseded by one of those conditions.
What is the cost of filing a civil action in Florida?
Generally, and with certain exceptions, the cost for filing a civil action is $400, for actions against five defendants or fewer. In addition to this filing fee, and in order to effect service on each defendant, a separate charge of $10 per defendant is required for the clerk of the court to issue a summons for each defendant.
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