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Will and Testament

Do I need a Will, a Living Trust or Both?

Estate planning is an emotionally charged issue, regardless of your family dynamics.  Broaching the subject of financial matters and death can make everyone feel uncomfortable.  Yet, it is one of the most important conversations to be had, as the future financial security of your family depends on the planning that you do now.  If you have a spouse, children or financial assets, it is important that you engage in estate planning.  Both a Will and a Living Trust are useful planning tools and they are often used together. If there is no estate planning done before death, there are laws called intestate succession that controls how your assets are distributed. 

What is a Will?

   A Will is a document that outlines your wishes for your assets after your death.  Without a Will, the court will decide how to distribute your money and property.  This can be a costly and lengthy process for your descendents.  Creating a Will can give you peace of mind for the parents of young children, as it allows for the naming of a future Guardian, which otherwise would be the decision of the court. It allows for the naming of an Executor, someone that you trust, that can distribute your money and assets to beneficiaries.  However, a Will becomes a public record when submitted to the court and anyone is able to read about your property and assets.   

What is a Living Trust?

   There are two types of Living Trusts; there is a Revocable Trust and an Irrevocable Trust.  The Revocable Trust is most commonly used, as it allows for the Grantor (or trust maker) to make changes to the Trust, throughout the remainder of their life.  For example, you can transfer additional assets into the Trust or you can change the terms of the Trust at any time. Another advantage of the Revocable Trust is that the successor Trustee can take control of your property and assets if the Grantor is deemed mentally incompetent.  In that case, the successor Trustee can manage your property and finances while you are alive.

     When you set up an Irrevocable Trust, you are fully surrendering ownership of your assets.  This can be useful in some instances, such as Medicaid planning for long term care.  When applying for Medicaid for long term care, there is a five year look back of your finances, however this look back excludes any assets in an Irrevocable Trust.  The Irrevocable Trust also offers you safety from creditors.

    Both types of Living Trusts are private documents and not for public viewing.  This can be a desirable option.  But the primary purpose of creating a Trust is to avoid probate court.  Probate is not required to transfer ownership of your assets.  The successor Trustee has legal authority to make all decisions without court involvement.

Should I have both a Will and a Living Trust?

   There are advantages to having both of these legal documents.  A Will enables you to name a Guardian for your underage children.  A Will is also useful if you gain assets and your death occurs without having transferred these assets into the Living Trust.  These assets will need to be probated, however your Will can state that forgotten assets after you die, can be transferred into your Trust. 

Do I need an Attorney to complete a Will or a Living Trust?

   Don’t risk a costly mistake with your loved ones future. There are many complex issues that can arise when completing legal documents, in order for them to be valid.  Always have a qualified Attorney looking out for your best interest.  Call the Boutty Law Firm P.A. today!

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construction defect

Hidden Defects in Buildings

            Shelter is a fundamental human need.  Construction defects can render a shelter unsafe or outright collapse it, displacing families and bankrupting businesses.  Some defects are obvious: you wouldn’t buy a house with a collapsed roof.  But others, like wooden supports inside a wall, are invisible when purchasing or renting a building.  These latent (hidden) defects typically provide a stronger and longer basis for the purchaser to claim damages from the construction company.

            Florida law sets limits on how long purchasers have to file lawsuits regarding construction defects.  For most cases, purchasers have four years after occupying the building to take legal action.  This time limit is known as the statute of limitations.  But for latent defects, the four-year statute of limitations doesn’t start ticking until the time you discover, or could have reasonably discovered, the defect.  However, a ten-year statute of repose, starting from the time of occupancy, applies to all construction defects — even latent ones.  That means a family discovering a roof leak in their seven-year-old house only has three years to file against the construction company.  Since there is a grey area regarding what’s a discoverable defect and what’s a latent defect, it is best to contact an experienced construction law firm, like The Boutty Law Firm, as soon as the defect is discovered.

            When a construction company builds a building, it usually has prospective tenants or owners sign a contract to buy the building on completion.  This contract often contains clauses that specify how responsible the construction contractor is for defects.  The Levitz Furniture Company signed such a contract with Continental Equities, a construction company.  A year after Levitz moved into the new warehouse, the roof and a supporting wall collapsed, costing Levitz well over a million dollars in damages considering repair contact costs plus profits lost while waiting for repairs.

            Understandably, Levitz was ticked off when Continental tried to charge it $1.2 million for rent during the period of repair.  Levitz sued Continental for the damages and to get rid of the rent charge.  The case hinged over the contract Levitz signed, which said “Tenant, by taking possession thereof, will be deemed to have acknowledged that the demised premises, with all appurtenances, were in good order and condition when received by Tenant, latent defects excepted. [emphasis supplied]”  Since Levitz could not have reasonably discovered the hidden construction errors that led to the building’s eventual collapse, Florida’s Third District Court of Appeal ruled in Levitz’s favor.  In some cases, the contract will contradict Florida law, requiring an experienced construction law attorney to convince the court as to which should take precedence.

Purchasers of poorly constructed buildings require well-constructed legal arguments to recover thousands or millions of dollars in damages from repair costs, displacement costs, property loss, and resulting injuries.  For more information, contact The Boutty Law Firm at (407) 537-0543.

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Construction

5 Facts About Construction Liens in Florida (Part 2)

This blog is part 2 of our two-part series: 5 Facts About Construction Liens in Florida. Continue reading to understand what is needed to comply with construction lien laws in the state of Florida. Click here to read part 1:

4) Falsifying a Florida Lien Claim Could Cost You Jail Time

When filing a construction lien in Florida, it is important that all information associated with the lien is filed accurately and honestly. Exaggerating the claim on a construction lien is a 3rd degree felony in the state of Florida. Felonies are serious charges which can result in a prison sentence in some cases. Even without conviction, you may still face fines, legal fees, and other consequences if you don’t file your construction lien claim accurately.

Florida law does not permit construction liens to include charges that are not approved. Examples of unapproved charges include unauthorized work orders, unperformed work, or similar claims for damages. Taking care to avoid mistakes is essential when filing claims as it may be difficult to differentiate between accidental mistakes and willful exaggeration or fraud. Lien claimants in the state of Florida should not add costs, lien-related fees, interest, or attorney fees to construction liens.  Florida construction lien laws only permit claimants to include the actual permanently improved value of the property.

5) Construction Liens in Florida Have Deadlines

Florida construction liens are only valid for a specific period of time. Filing liens accurately and in a timely manner is critical to securing their value. Generally, a Florida construction lien foreclosure is due within one year from the date the lien is recorded. After this period, the lien expires, unless a lawsuit has been filed to foreclose the property and the lien. Under certain exceptions, the one year timeframe for the lien may be shortened by the property owner to 60 or 20 days from the date of recording. These exceptions include:

  • When a property owner gives a notice of contest of lien, the foreclosure period may be reduced to 60 days.
  • If the owner or party of interest files a lawsuit or complaint, the county clerk may issue a summons which can reduce the foreclosure period to 20 days.

Other Helpful Information to Know About Florida Construction Liens:

  • Florida law requires all construction liens to be notarized in order to be valid.
  • Florida construction liens do not require a legal property description, but they should include a basic description of the property for identification purposes.
  • In the event of payment, a construction lien may be cancelled by the lienor through a release of lien form or a waiver.  

If you are considering filing a construction lien lawsuit, a Florida construction attorney may be able to help. The Boutty Law firm is a Winter Park law firm that helps clients with construction liens as well as commercial and real estate law. For more information on how we can assist you, contact us today at (407) 537-0543.

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Construction Site

5 Facts About Construction Liens in Florida – (Part 1)

When working with a construction’s liens, knowing what laws and rules apply to your situation can make a big difference in securing a successful outcome. There are several state-issued guidelines that govern the notice, handling, and qualifications for construction liens. These five tips will help you understand what is needed to comply with construction lien laws in the state of Florida.

  1. Notice to the Owner is Mandatory

It is important to give notice to the owner after initially providing labor or materials. If this is not done, you may risk losing your construction’s liens rights. Any parties who do no contract directly with the property owner must serve a notice to owner with 45 days of providing labor and or materials to the project. The two exceptions to this rule are:

  • Individual workers who do not require a notice to owner
  • Engineers or other design professionals

Direct contractors may provide the property owner with a list of subcontractors and suppliers that are involved with the project. The contractor is required to provide this information within 10 days. The following rules apply to issuing the notice:

  • If hired by a general contractor, the notice should be sent to the property owner
  • If the work is hired by a subcontractor, the notice should be sent to the property owner and the general contractor.
  • If hired by a sub-contractor, the notice should be sent to the property owner, general contractor, and the sub-contractor.
  • If you are unaware of the specific parties, Florida law will allow you to reply on specifically publicly available information.
  • When sending the notice to the owner, it must be sent via certified mail with a return receipt requested.
  • A Construction’s Lien Must be Filed Within 90 Days of Last Labor

In the state of Florida, construction’s liens must be recorded within 90 days of the last labor completed or materials provided. The three-month period begins when the majority of the work is complete, and corrections to work or warranty work cannot be used towards establishing the deadline. For rental equipment companies, the last date of use is the last date that the equipment was on site and available to the designated parties.

3)  You Must Qualify for Lien Rights in the State of Florida

Lien rights are not automatically granted to all citizens in the state of Florida. Generally, the state grants lien rights to contractors, subcontractors, material suppliers, rental equipment companies, manual laborers, and other professionals. You are not required to have a written contract for a construction’s lien. The contract may be oral, written, or implied.

Those who do not qualify for construction liens in Florida include:

  • Sub sub-contractors
  • Suppliers who supply to other suppliers
  • Suppliers to sub sub-contractors
  • Laborers who do not meet license requirements in the state of Florida
  • Maintenance workers

The Boutty Law firm is a Winter Park law firm that helps clients with construction liens, as well as commercial and real estate law. For more information, contact us today at (407) 537-0543.

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5 Risks of Purchasing a Foreclosure

There are many ways to make money in the real estate industry, and people are always looking for an opportunity to invest. In some cases, an investor may consider purchasing a home which has been foreclosed, as foreclosed homes normally come with low asking prices. But is it really worth it to buy a foreclosure, and will your investment pay off in the end? Continue reading why it may be difficult to get a return on a foreclosure investment.

  1. You will be purchasing the house “as is”

Foreclosures occur when a lender repossesses a property from a borrower who failed to maintain the mortgage payments. The lender then offers the home for sale at a public auction for foreclosures. The highest bidder at the auction will purchase the condition as is, meaning there will be no improvements to the property prior to purchase, and all liens, unpaid taxes, and encumbrances will come with the property.

  • The property may still be occupied

There are few things more awkward than buying a new home and immediately having to evict its previous owners because the property is still occupied. Unless you are familiar and experience with the process of evicting tenants, it’s helpful to have an attorney delegate this process for you.

  • There won’t be any inspections

Normally, when you purchase a property that is not a foreclosure, you have the opportunity to have a formal inspection: first, when you visit the open house, and second at the time of purchase. When the home is a foreclosure, however, there will not be a professional inspection of the property, and chances are you will not enter the home prior to the foreclosure auction, either. Without an inspection, you will not be able to see what kind of condition the property is in or what repairs will be needed.  

  • It can be time consuming

The process of purchasing a foreclosed property is not the same as purchasing a regular property. Buying a foreclosure is more complicated as the process includes waiting periods which vary depending on what state you live in. Also, if you are purchasing the property from a bank, there are often multiple forms and approvals that are necessary to make the purchase. Purchasing a foreclosure can have many delays, and if the previous owners file for bankruptcy protection, it may even stop the sale.

  • The property may not actually pay off

In the beginning, the lower price of a foreclosed property may seem enticing, but in the long run, it may not turn out be a good deal or a wise financial investment. After spending money to remove the liens, complete all the necessary renovations, and pay back taxes, the payoff for the property may leave you feeling disappointed.

      The Boutty Law Firm is experienced in helping individuals and families throughout central Florida with foreclosures and other legal real estate matters. For more information, contact us at (407) 537-0543

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