Back to School Blues……Your Child Is Now An Adult!

Your child has graduated from high school and the excitement of their first semester of college has begun. Like all parents, you worry about all the necessities. You hope your child will get along with their roommate. You hope they hang out with the right crowd and focus on their studies, although we all know there will be a decent amount of partying going on. You make sure you have bought them every possible item needed so they can survive in their dorm room. But, did you realize that your child is now 18 and an adult in the eyes of the law?

Once a child reaches 18, parents can no longer make health care or financial decisions for their children without legal authorization to do so.

If your child is injured or needs help with financial matters, a parent cannot speak with doctors or help the child with financial decisions without a power of attorney.  It is extremely important that once a child reaches the age of 18, a durable power of attorney and health care surrogate are prepared.

Below are documents that are important for you to discuss with your child prior to leaving for college, traveling overseas on a trip, or living locally.

Durable Power of Attorney:

Designate and authorize someone to legally act on your behalf in the event you become incapacitated.

This document may be effective from the moment your child signs it or you can specify that it be activated by a specific event. The problem with that approach, known as “springingpower” is that someone must decide when an individual has reached that state. Traditionally this requires a medical opinion, not suggested. 

Designation of Healthcare Surrogate:

This document will allow you to designate who will make medical decisions when you are unable to do so yourself. (ie. if you get into a car accident and are not conscious to decide whether you should have surgery)

HIPPA Release:

This document will allow doctors to talk with your agents and disclose your private information that would otherwise be restricted. (ie. medical records)

If you have a child that has turned 18, you should speak with an experienced South Florida estate planning attorney to prepare a “back-to-school” package including the above documents.    

“Once a child reaches 18, parents can no longer make health care or financial decisions for their children without legal authorization to do so.”

You should sit down with your child and discuss the necessity of appointing a representative to help them if they are ever injured or incapacitated.  Your child should realize that they are now legally an adult and will need to authorize a parent if they want their parent's help to make financial and medical decisions. 

Fore more information on successful South Florida estate planning, please contact The Hershey Law Firm, PA in Fort Lauderdale, Florida at (954) 303-9468 to schedule your free consultation.  

Am I Too Young To Think About Estate Planning?

What makes humans different from other animals is that we know we are going to die. That knowledge gives us the incentive to make the most of the time we have and prepare accordingly for when our time comes.

There is no way to know when we are going to die. Young people assume they will wake up every morning, whereas old people are surprised each morning they wake up.

No one can honestly say they “enjoy” talking about their final days on this earth. However, it is a conversation that should be held between a husband and wife.  If you are not married, it is a conversation you should have with close family members and friends.

Estate planning is more  important for younger families with minor children.  You need to pre-plan and protect your surviving spouse along with appointing a guardian for your children. For example, a wife is the bread winner and the husband is  a “stay at home dad”. If husband and wife do not plan for death, and the wife dies, now the husband will have to go back to work and possibly find alternative living arrangements.

There are number of vehicles used with estate planning to protect both your assets and your wishes at your time of death: 

Revocable Trust(living trust): Allows you to control and manage assets in your trust while you are alive.

Living Will and Healthcare Surrogate- Will allow you to designate who will make medical decisions when you are unable to do so yourself.

Assignment of Property: Assign your property into your trust (real and personal property) to protect your assets.

Durable Power of Attorney: Designate and authorize someone to legally act on your behalf in the event you become incapacitated.

Last Will and Testament: Used upon death to distribute property to beneficiaries, specify last wishes, and name guardians for minor children.

“There is no way to know when we are going to die. Young people assume they will wake up every morning, whereas old people are surprised each morning they wake up.”

With the expertise of a South Florida estate planning attorney, you can start the process of thinking about what is important to you and how you would like protect your family and assets for the future. 

Fore more information on successful South Florida estate planning, please contact The Hershey Law Firm, PA in Fort Lauderdale, Florida at (954) 303-9468 to schedule your free consultation.  

Are All Children Treated Equal?

You get married thinking, “til death do us part.” In reality, it’s until we get tired of each other and we have decided we don’t want to try to make it work. Today’s society thinks it is easier to walk away from difficult situations as opposed to work through them.  With that said, it is now very common to see blended families full of biological children and stepchildren.

Most parents want to make sure their children are taken care of when they pass away.  The question is: Are all children treated equal? The answer is no.  Without proper estate planning your stepchildren will not receive inheritance from your estate.

Florida’s probate laws do not treat stepchildren as a person’s legal heir, which means stepchildren do not have an automatic right to inherit from their stepparents. Your children may be the stepchildren of your spouse and, depending on whom lives longer, may be unintentionally disinherited.

In order to make sure your stepchildren are not overlooked, you need to specifically name them as a beneficiary in your trust.  If you state in a trust, “I leave 30 percent of my estate to my children”, you would only transfer assets to your biological children. This statement would include a stepchild only if they were legally adopted (at that point they would no longer be considered a stepchild)

“Since not all children are treated equally under Florida law, make sure you make it clear if you wish to take care of your stepchildren when you pass away.”

In Florida, a child is a person who is legally adopted or a biological child of the decedent. Any general statement found in a trust referring to children, will be assumed to mean only biological children unless otherwise stated.

If a person dies without a will or trust, their stepchildren will not receive any inheritance under Florida’s succession law.  Florida law states, if there is no spouse, the estate would first descend to the biological and adopted children of the decedent.  When there is no descendant, the property passes to the parents and if that is not possible, the property passes to the decedent’s siblings. If there are no heirs, the property goes to the state.

Since not all children are treated equally under Florida law, make sure you make it clear if you wish to take care of your stepchildren when you pass away. It is crucial that you have an experienced South Florida estate planning attorney draft your estate planning documents. An experienced attorney can ensure the intent of the trust, and that the named beneficiaries will be clear to the court upon your death.

Fore more information on successful South Florida estate planning, please contact The Hershey Law Firm, PA in Fort Lauderdale, Florida at (954) 303-9468 to schedule your free consultation.  

A Deficiency Judgment --No Big Deal…Said No One Ever!

So you’ve stopped paying your mortgage. You now have the fear that the bank will take your home. To top it all, there is a chance you may owe the bank money after they take your home from you.

If your house is sold in a foreclosure sale or a short sale, the property will be sold for less than what is owed to the bank. Since Florida is a recourse state, it allows lenders to seek deficiency judgments for unsatisfied debts. For instance, you owe $100,000 on your mortgage and the property is sold for $75,000. The lender/bank can obtain a deficiency judgment against you for $25,000, and you would be required to pay that money to the bank.

A deficiency judgment may be avoided if the borrower negotiated that the bank/lender will waive any rights to a deficiency, prior to a short sale.  If not, the borrower is still vulnerable to a deficiency judgment.

“Since Florida is a recourse state, it allows lenders to seek deficiency judgments for unsatisfied debts.”

The Florida Foreclosure Act

On June 7, 2013, Governor Rick Scott signed HB 87, The Florida Foreclosure Act into law. The act makes significant changes to how residential foreclosures and short sales must be conducted in Florida.

A major change to the process is the change in the Statute of Limitations (SOL) for bringing actions for deficiency judgments. A SOL is the time frame within which a person may bring a lawsuit. If a lawsuit is brought outside of that time period, the suit may be dismissed, as the claim is forever barred.

Before the Act was passed, the SOL allowed a party to bring an action for a deficiency judgment at any point up to five (5) years from the date of the certificate sale was issued by the Clerk of Court, following the foreclosure sale. Now, the time frame has decreased to one (1) year for deficiencies created by foreclosure sales and deed in lieu (not short sale).  Please note, this change is limited to actions commenced on or after July 1, 2013.

Benefit to Homeowners  Whose Actions Started Before July 1, 2013.

Although they are still subject to the old statute of five (5) years, there is a wrinkle. Any action put into motion before July 1, 2013 only remains valid until July 1, 2014.  For example, if the five (5) year time period will expire after July 1, 2014 under the old law, the new law shortens the lender’s right to pursue a deficiency judgment to July 1, 2014.

What about Short Sales?

The bill does not directly address the SOL, but it can be construed under the one (1) year threshold. Furthermore, if it is an owner occupied residential dwelling, the recoverable amount is limited to the difference between the remaining debt from the short sale and the fair market value of the property at the time of the sale.

If you are facing foreclosure ,consult with an experienced real estate attorney in South Florida to protect you from any potential consequences. Contact The Hershey Law Firm, P.A. at (954)303-9468 for your free consultation.  

Who Can Make Decisions For Me If I Become Incapacitated?

As a child, we are told to do this and do that. All children say “I can do it myself”

If all you wanted when you were a child was to be an adult to make your own decisions, why would you allow yourself to be placed in that same situation again as an adult?  Do you really want someone else to decide the most important decision you will ever be faced with? If you become incapacitated, do you want someone else to decide when to “pull the plug” or “take out the feeding tube”?

“The last thing families should deal with at such a difficult time is inner family fighting over your last wishes.”

A very famous Florida case lasting from 1990-2005 was the Terri Schiavo case. The issue was whether to carry out the decision of her husband, to terminate life support for his wife or follow the wishes of her parents.  Terri collapsed at home in full cardiac arrest and suffered massive brain damage due to lack of oxygen. After 2.5 months Terri was diagnosed by doctors as being in a “persistent vegetative state”. The case was highly publicized and prolonged by court appeals and multiple denials by the Supreme Court of the United States.  Terri’s life was prolonged for years due to the fact that her wishes were unknown. 

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Without proper planning your ultimate last wishes will be unknown. You can have conversations with your spouse, your children, family members and close friends. However, unless there is something written on paper, your wishes will go unheard. The last thing families should deal with at such a difficult time is inner family fighting over your last wishes.

There are a number of documents that will state exactly what a person wants when they become incapacitated.

Durable Power of Attorney: This document will state who will be in charge of financial decisions on your behalf.

Healthcare Surrogate: This document will direct who will make healthcare decisions (ie. If you get into a car accident and are not conscious to decide if you should get surgery)

HIPPA Release: This will allow the individual you choose to view your medical records. Even married couples cannot view their spouse’s medical records (MRI, Xray, etc) without a HIPPA release.

Living Will (Advanced Directive): This form of “will” is to be used while an individual is still alive (but no longer able to make decisions) hence the term “living will”.

This document will state how and if you want to prolong your life if you fall into a vegetative state.  You can state if you wish to be placed on life support, if so, for how long and at what point to “pull the plug”. You can also state if you wish to receive a feeding tube and when you wish to take it out.

Without the use of the (1) Durable Power of Attorney, (2) Healthcare Surrogate, (3) HIPPA Release, and (4) Living Will, your wishes will not be heard.  Do not let someone else direct your life when it matters most.

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Take charge of your last living decisions and plan ahead! For more information on successful Florida estate planning, please contact The Hershey Law Firm PA at (954) 303-9468 to schedule your free consultation.

Can I short sale my house if it is in foreclosure in Florida?

A common question asked by a Florida homeowner in foreclosure is, “Can I short sale my house if it is in foreclosure in Florida?”. 

The simple answer is YES.

First you must understand the foreclosure process. Simply stated, a borrower/homeowner failed to make their mortgage payments. So the bank says, enough is enough, either you make good with your past due debt, or we will file suit and take the property away from you. The bank has the right to file a foreclosure action once a homeowner is “seriously delinquent” meaning three (3) consecutive mortgage payments have been missed.

Once a homeowner is served foreclosure papers, they should immediately reach out to an attorney specializing in foreclosure defense. If a homeowner does not seek legal counsel, the possibility of losing the house through the court system can be extremely quick. However, the skills and knowledge that a foreclosure defense attorney has will not only defend you in the court but also help mitigate possible damages if the property is to be sold at a foreclosure sale.

While the attorney is defending you in the court, he/she is also working simultaneously with the bank to mitigate damages. If you are unable to obtain a loan modification (for whatever the reason), a short sale is your best option.  Your realtor will work directly with your attorney and get you the best offer for the property. On top of that, the attorney will negotiate with the bank to request a “waiver of deficiency”.  This simple clause will save the homeowner a lot of headache in the future. The bank will not be able to seek the difference owed in a short sale process.

At The Hershey Law Firm, P.A. our clients have the benefit of working directly with a seasoned real estate attorney who is also a licensed realtor associate to guide them through the entire process. 

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For questions about real estate law in South Florida, please contact The Hershey Law Firm, P.A  at (954) 303-9468 in Fort Lauderdale to schedule your free consultation.

Mistakes and Misunderstandings about Florida Foreclosure

A foreclosure action is a civil lawsuit. The lender or bank is the Plaintiff and homeowner/borrower is the primary Defendant. The Plaintiff has the burden of proof.

When a foreclosure case is defended, the lender must prove every element with admissible evidence to prove that the homeowner executed the original mortgage and note and that each time ownership of the mortgage was transferred all legal formalities were complied with and the note was properly assigned and recorded. The lender may also have to prove that proper disclosures were made to the homeowner/borrower prior to the real estate closing where the loan documents were signed.

Although a homeowner enters foreclosure due to lack of payment, it does not mean they are powerless to take on the large banks. Banks make mistakes all the time. Since the real estate crash many banking giants/lending institutions (Countrywide, Wachovia, Washington Mutual, Lehman Brothers, Fannie Mae, and Freddie Mac) have gone bankrupt, were taken over by the government, or taken over by the FDIC and sold to other banks. Throughout the process of selling the loans from one bank to another, proper formalities with respect to the sale and transfer of the loan were not complied with.

Lenders and mortgage brokers created a “bubble” controlling the real estate market and assumed market prices would continue going up. They would  offer Americans loans that they knew the borrower was not qualified to obtain and did not have sufficient income to repay.  Once the A.R.M (adjustable rate mortgage) adjusted, the homeowner was unable to make their monthly payment thus causing the homeowner default. More often than not the mortgage brokers were more concerned with commission then the best interest of the homeowner.

The banks have thousands of foreclosure cases pending in Miami-Dade, Broward and Palm Beach counties.  The law firms representing the banks have such an enormous case load that the attorney handling your case for the bank cannot devote much time specifically to your case. This is a benefit to homeowner who has retained an experienced foreclosure defense attorney. The banks typically focus their attention on the unrepresented homeowners.

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For questions about real estate law in South Florida, please contact The Hershey Law Firm, P.A  at (954) 303-9468 in Fort Lauderdale to schedule your free consultation.

Estate Planning: Summertime Fun – Prepare and Protect

Nothing says summertime like beaches, BBQ’s , family road trips and anything but school and work. Sometimes the best made plans are those that happen on a whim. Others require some pre-planning to make sure it goes off without a hitch.

Summertime in Florida is hurricane season. All summertime plans can be washed away if a hurricane hits. What do Floridians do when they are told there is a hurricane forming? Go crazy of course.  You prepare for the possibility of days without electricity and the ability to get gas. You stock up on canned goods, batteries, water bottles, and fill your tank of gas for your car and generators.

No one watches the news and says, “the hurricane won’t hit us so we don’t need to stock up.” Hurricanes can unexpectedly change directions and you could go from being safe to being in the center of the eye.  Without proper planning, you will be at the mercy of others to help you. Don’t you wish you prepared?

“Just like a hurricane, you cannot predict or control when or where you are going to die. You should plan ahead and take charge of your estate.”

In Florida, if you die without a will or trust your intentions of how you would like your assets to be distributed and who will become the guardian of your children is irrelevant. Your assets will be statutorily distributed “per stirpes” and groups of loved ones may be excluded. Proper estate planning is necessary to protect who will receive your assets and who will care for your children.

Protect yourself and your family with proper estate planning before it is too late. Safeguard your assets and determine who will take your children to the beach, who will teach them how to ride their bike, or guide them through life if you are no longer able to.  With proper estate planning including, Wills, Trust, Power of Attorney, Health Care Surrogate, Funding Techniques, you can feel secure when your time has come.

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For more information on how to prepare your estate as you wish, contact The Hershey Law Firm, P.A.  at (954) 303-9468 to schedule your free consultation.

DIY Estate Planning in South Florida, Think Again Buddy!

Would you trust your friend to perform open-heart surgery, if he was not a surgeon, in order to save money? Hopefully your answer to that is no.  If not, read that question again and think harder.

Lately in society, everyone seems to be addicted to DIY projects. Everyone thinks they can purchase a rundown house and then fix the house (plumbing, electrical, painting, etc.) then flip the house for profit. What makes someone think they can do electrical and plumbing without being properly trained? 

What about something simpler. Pinterest, one of the hottest website people turn to for ideas in all areas of their life. Everything looks great on the website and seems relatively simple. However, when the average person attempts the project, more likely than not, they achieve a level of failure. Disappointment ensues, yet, they will probably attempt something else. Trial and error works for simple activities in life, but trial and error is not the route anyone should go when planning their estate.

Death rate is 100%. If you are given a 100% probability of dying, why not prepare for it accordingly? There are plenty of DIY workbooks with fill-in the blank forms available at the bookstore or online. They even give you instructions. Planning your estate in South Florida is not as simple a task as preparing your tax returns on TurboTax.

There is no cookie cutter form that will effectively plan your estate.  No two estates are the same. You need the expertise of a Florida estate planning attorney. Your estate planning attorney will represent your interests and desires when preparing your estate plan.

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For more information on successful South Florida estate planning, please contact The Hershey Law Firm, P.A  at (954) 303-9468 in Fort Lauderdale to schedule your free consultation.