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PR of probate estate failed to establish personal jurisdiction in Florida court over a foreign LLC, 50% owned by decedent. ( Probate, Will, Trust, Decedent, Real Estate, Attorney, Lawyer, Cape Coral, Fort Myers, Bonita, Lee, Collier, Florida )

Henderson v. Elias, 36 Fla. Weekly D452 (2011)

The fact that two shareholders of the corporation were subject to personal jurisdiction in their individual capacities was insufficient.  Complaint against foreign entity or person must allege sufficient jurisdiction facts pursuant to F.S. 48.193 to bring the matter within the reach of Florida’s long-arm statute and sufficient “minimum contacts” must be proved in evidentiary hearing to satisfy due process.

Case Impression:  The jurisdiction of Florida probate courts over decedent’s assets does not circumvent personal jurisdiction requirements over foreign persons or entities.

How Do I Transfer Real Estate of Deceased Relative in Lee County, Florida? ( Probate, Will, Trust, Decedent, Real Estate, Attorney, Lawyer, Cape Coral, Fort Myers, Bonita, Lee, Collier, Florida )

Was the relative a “resident” of Florida? If so, the real estate could be “homestead” property and transferred to the surviving spouse or heirs without probate. Depending upon the amount of assets in the name of the decedent at the date of death, probate may be required. If the decedent was domiciled in Lee County and all family members reside out of state; the individual with preference to act as Personal Representative may be appointed in Florida as a foreign PR if he or she qualifies. Florida law prevents individuals who have been convicted of a felony from acting as a Personal Representative. If the decedent was domiciled outside of Florida; a domiciliary probate proceeding may be brought in the residence state and an ancillary administration may be brought in Florida to transfer assets and pay creditors in Florida. Florida Statute 734.1025 provides a simple administration procedure for ancillary estates with less than $50,000.00 in assets in Florida.

Can I Avoid Probate By Executing A Will In Lee County, Florida? ( Probate, Will, Trust, Decedent, Real Estate, Attorney, Lawyer, Cape Coral, Fort Myers, Bonita, Lee, Collier, Florida )

There is a belief among the general public that having a properly executed Last Will and Testament will alleviate the necessity of probate for distribution of assets at death; this is unfortunately not true.  A will dictates who receives the testator’s assets at death and who will administer the estate; however having a will does not avoid the necessity of probate.  The amount of assets in the decedent’s name at death typically dictates whether or not probate of the estate is required. Another factor is whether the decedent’s only asset is his protected homestead; if so, this asset may be transferred to a surviving spouse or heirs outside of probate.

A common way to avoid probate is by titling assets in joint tenancy (which pass to the surviving owner) and creating accounts with a direct beneficiary (payable directly to beneficiary on death with production of a death certificate). Placing all assets in a trust in another method for avoiding probate. That said, a will remains an important and necessary part of future planning in addition to these documents that every person should have: (1) Living Will and (2) Durable Power of Attorney.

Probate & Trust Lawyers in Lee County, Florida vs. Trust Mills ( Probate, Will, Trust, Decedent, Real Estate, Attorney, Lawyer, Cape Coral, Fort Myers, Bonita, Lee, Collier, Florida )

The Unauthorized Practice of Law (UPL) is thought by some to be the occasional counsel or court appearance by a lawyer in a state where he or she is not licensed.  Unfortunately, the problem extends far beyond the mere taking from the mouth of lawyers in an adjacent state.  In Florida, UPL is frequently and frighteningly non-lawyers, non-law school graduates, and non-regulated lay persons drafting trust and estate documents under the guise of consulting.  I use the term “draft” loosely.  Typical “trust mills” as they are called, obtain, copy and regurgitate random trust provisions in a one-size-fits-all approach.  The common result is a template revocable living trust  sometimes valid, sometimes not, with absolutely no application for the specific needs of the signer.  Why would a person fall prey to such a trap, you ask?  The trust mills advertise free or low cost seminars to retirees who are on a fixed income.  The unbeknownst clients are led to believe that an attorney and other qualified professionals have been involved in the preparation in the documents.  In all fairness to the trust mill operators, there is an iota of truth in this misrepresentation.  Many of the trust provisions may have originated in the office of an attorney, however I do not believe that a compilation of unrelated legal drafting constitutes meaningful involvement by a professional.   The ramification of such a masterpiece is likely that the testator’s/settlor’s intentions will not be fulfilled by the documents.  Example:  a specific bequest does not state what occurs if the recipient predeceases the event triggering the gift.  The Florida Anti-Lapse statute causes the devise to pass to the recipients descendants as opposed to being added to the residue of the estate.

Another common result of trust mill documents is that they are not entirely effective due to lack of execution formalities.  A tip not known by many non- trust and estate lawyers is that trusts with testamentary provisions (creates a devise at death) must be executed with the same formalities as a will; i.e. two witnesses and a Notary Public.  Without these formalities, the testamentary distributions fails.

Use your instincts.  A client recently came to me requesting a review of her estate plan.  The results of my evaluation were unfortunate.  The documents lacked several essential provisions and further, exposed the client to losing homestead exemption on her personal residence.  Once I explained the problems that I found, she said “I just knew something was wrong.  I had a feeling.”

If you did not meet with an attorney prior to receiving your estate planning and/or advanced directive (POA, Living Will) documents; you should have an attorney review your documents for efficacy and accuracy.

Lee County Bar Assocation’s Voices for Kids Charity Golf Tournament

Jack Nicklaus “Signature” designed golf course, Old Corkscrew Golf Club

Saturday, June 4, 2011

Registration opens at 7:00 a.m. Shotgun Start at 8:30 a.m.

Click below for more information.

Lee Bar Golf Tournament for Voices for Kids 6-4-11

Florida Residents Mortgage HELP – US Treasury awards Florida an additional $401 million

The federal government has allocated funding to help pay the mortgages of qualified homeowners who are unemployed or underemployed through no fault of their own. Troubled homeowners in all 67 counties who want to apply for HHF financial assistance will be able to do so via this website.

Homeowners who qualify for financial assistance may receive up to six (6) months of monthly mortgage payments (including escrowed mortgage-related payments) and/or funds to pay past due mortgage payments to bring the mortgage current; these funds are paid directly to the loan servicer/lender.

You must meet all eligibility requirements to be considered for the program. Please review the following criteria prior to applying for HHF assistance.

An eligible homeowner:

* Must be a Florida resident;
* Must occupy property as primary residence (the property cannot be vacant, abandoned or rented);
* Borrower/co-borrower must be unemployed or underemployed through no fault of his/her own, which makes the first mortgage unaffordable;
* Must have documented total household income at or below 140% of the area median income (AMI), adjusted for household size;
* Must have an active checking/savings account that can be debited by the ACH method of funds transfer;
* May not have unencumbered assets of $5,000 or more, or three times the current monthly mortgage payment (whichever is greater);
* Cannot have a bankruptcy that has not been discharged or dismissed; and
* Cannot have been convicted of a mortgage-related felony in the last 10 years.

The current mortgage:

* Must be serviced by a participating lender, who agrees to accept payments on behalf of the homeowner;
* Must not be more than 180 days past due at the time of application;
* Must have been originated on or before January 1, 2009; and
* Must have an existing principal balance of less than $400,000.

This list is not all inclusive; other information and documents will be required prior to determining eligibility for HHF financial assistance. For a complete list of all requirements please click here. To begin your application process, click“START HERE.”

IMPORTANT ALERT!

Please be aware that www.FLHardestHitHelp.org is the OFFICIAL website for Florida’s Hardest-Hit Fund (HHF) information and to apply for assistance. We strongly encourage you to verify that the website you are using is, in fact, the official Florida HHF website BEFORE you provide your personal information. If you are suspicious that the website you are using is not the correct site, contact the HHF Information Line toll-free at 1-(877) 863-5244 to verify the website address. Application for the Florida’s Hardest-Hit Fund program is FREE-OF-CHARGE and you will not be asked to pay for any eligibility determination services in conjunction with applying for the Florida HHF.

Office Information: Phone (239) 443-3866 3501 Del Prado Blvd., Suite 306 Cape Coral, Florida 33904 Fax: (888) 443-5219 Email: [email protected]

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