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Personal Injury Attorney Answers: Disputing Car Accident Claims

Thu, 08 Aug 2024 14:56:55 GMT

Question: I was in a car accident. The other driver agreed it was his fault at the scene so I didn't call the police, but now he has completely changed his story and is saying it was my fault and his insurance company is taking his side. What can I do?

As a personal injury attorney with years of experience handling car accident cases, I've seen countless situations where honest drivers find themselves in a bind due to dishonest parties changing their stories after the fact. Today, I'll address a common scenario and provide guidance on how to dispute false claims and prove fault in car accident cases.

Document Everything, Even When Fault Seems Clear
Gather Additional Evidence
Use Expert Analysis to Your Advantage
Leverage Insurance Company Tactics
Legal Options When Negotiations Fail
Preventing Future Disputes
The Importance of Legal Representation

Document Everything, Even When Fault Seems Clear

First and foremost, always document everything at the scene of an accident, even if the other party admits fault. Take photos of all vehicle damage. Get contact information from any witnesses, and write down your recollection of events immediately.

Also, file a police report, regardless of the other driver's admission. While it may seem unnecessary when the fault appears clear, this documentation can be crucial if the other party changes their story later.

Gather Additional Evidence

If you find yourself in a situation where the other driver has changed their story, don't panic. As a personal injury attorney, I recommend taking the following steps to gather evidence:

Return to the accident scene: Take photos of skid marks, traffic signs, and the general layout.
Check for surveillance cameras: Nearby businesses or traffic cameras may have captured the accident.
Obtain your vehicle's data: Many modern cars have event data recorders that can provide crucial information about speed, braking, and other factors at the time of impact.
Seek out witnesses: Return to the area and ask local businesses if anyone witnessed the accident.

Use Expert Analysis to Your Advantage

Sometimes, the evidence you gather on your own isn't enough to definitively prove fault. In these cases, consider enlisting the help of experts. Accident reconstruction specialists can use physical evidence and mathematical models to determine how the accident occurred.

If injuries are involved, medical professionals can provide testimony about the nature of injuries and how they likely occurred. Forensic experts can analyze paint transfers, impact patterns, and other physical evidence to support your version of events. As your personal injury attorney, I would coordinate with these experts to build a strong case in your favor.

Leverage Insurance Company Tactics

Insurance companies often side with their policyholders initially, but they're also interested in resolving claims efficiently. Here are some strategies to use when dealing with the other driver's insurance company:

Provide all evidence: Submit your photos, witness statements, and expert analyses to the insurance adjuster.
Highlight inconsistencies: Point out any discrepancies between the driver's current story and what was said at the scene.
Request a recorded statement: Ask the insurance company if they have a recorded statement from their policyholder. If the story has changed, this could be powerful evidence in your favor.
Consider mediation: Many insurance companies are open to third-party mediation to resolve disputes without going to court.

Legal Options When Negotiations Fail

If the insurance company remains uncooperative despite your evidence, it may be time to consider legal action. As your personal injury attorney, I would advise you on your options. First, you can file a lawsuit. Formal legal action can compel the other party to provide evidence and testify under oath.

Phone records, work schedules, and other information can be subpoenaed through legal channels. This information might prove the other driver was distracted or otherwise at fault. Finally, the deposition process allows us to question the other driver and witnesses under oath, often revealing inconsistencies in their story.

Preventing Future Disputes

While we're focused on resolving your current situation, it's worth discussing how to prevent similar issues in the future:

Always call the police after an accident, no matter how minor it seems.
Invest in a dashcam to provide indisputable video evidence of any future incidents.
Keep a disposable camera or ensure your phone is always charged for taking photos.
Consider uninsured/underinsured motorist coverage to protect yourself from drivers who may lie about their insurance status.

The Importance of Legal Representation

Navigating the complexities of car accident claims, especially when dealing with disputed fault, can be overwhelming. This is where having a skilled personal injury attorney becomes invaluable. We can handle all communication with insurance companies and coordinate expert witnesses and analyses.

We’ll also help you ensure all deadlines are met and proper procedures are followed. Then, we’ll negotiate settlements or represent you in court if necessary.

Conclusion

Dealing with a driver who changes their story after admitting fault can be frustrating and stressful. However, by taking prompt action to gather evidence, working with experts, and understanding your legal options, you can effectively dispute false claims and prove who's truly at fault. As a personal injury attorney, my role is to guide you through this process, ensuring your rights are protected and you receive the compensation you deserve. Remember, the key is to act quickly, document thoroughly, and seek professional legal assistance when needed.

Disputed Fault? Let Folkenflik Law Set the Record Straight

At Folkenflik Law, we understand the challenges of car accident claims. Schedule a free consultation with our personal injury attorney today to discuss your case.

"The information provided herein is simply a brief overview of the Florida law on this particular matter. It should not be relied upon for legal purposes, as the facts and circumstances to any specific legal matter may vary substantially from the limited explanation and application of often complicated legal rules and principles that may be addressed herein, or applicable in your particular legal matter. You should only rely upon legal advice provided to you by a licensed attorney who has had an opportunity to fully evaluate your particular legal matter".

Personal Injury Attorney Answers: The Florida Safety Belt Law

Tue, 11 Jun 2024 19:53:56 GMT

Question: I was in a car accident and it wasn't my fault at all, but the other driver's insurance is offering me next to nothing to resolve my injury claim because I wasn't wearing my seatbelt. Is this allowed?

As an experienced personal injury attorney practicing in Florida, I frequently encounter cases where insurance companies attempt to devalue legitimate injury claims by citing the victim's failure to wear a seatbelt. While permissible under the state's Safety Belt Law, this tactic is often employed to minimize payouts and protect the insurance company's bottom line. However, injury victims must understand their rights and seek legal representation from a skilled personal injury attorney who can navigate the complexities of this law and advocate for fair compensation.

Understanding the Florida Safety Belt Law
Contributory and Seatbelt Use
The Impact on Injury Claims
Overcoming the Seat Belt Defense
Challenging the Seat Belt Defense: Strategies and Tactics
Maximizing Compensation and Protecting Client Rights

Understanding the Florida Safety Belt Law

Florida's Safety Belt Law, Florida Statutes Section 316.614, also referred to as the Seat Belt Law or the Seat Belt Use Law, mandates that drivers and passengers wear seat belts while operating or riding in a motor vehicle. The primary objective of this law is to promote road safety and reduce the severity of injuries sustained in accidents.

Contributory Negligence and Seat Belt Use

In personal injury cases, Florida now utilizes contributory negligence. This means that a plaintiff's compensation can be reduced to nothing if a jury finds the plaintiff to be more than 50% at fault in causing the accident or injuries. In other words, if the plaintiff is determined to be more than 50% responsible for their own injuries or damages as a result of not wearing their seat belt, no recovery will be had by them in court. (Note: This is a change to Florida law as of 2023).

The Impact on Injury Claims

When a personal injury attorney represents a client who was not wearing a seatbelt during an accident, the insurance company will likely argue that the client's injuries were exacerbated or directly caused by their failure to wear the seatbelt. As a result, they may attempt to significantly reduce the settlement offer or claim payout, or even take the position that they owe nothing to the client, to reflect the client's alleged contributory negligence.

Overcoming the Seat Belt Defense

While the seat belt defense is a legitimate legal argument, it is not an absolute bar to recovery in personal injury claims. As an experienced personal injury attorney, my role is to mitigate the impact of this defense and ensure that my clients receive fair compensation for their injuries, regardless of seatbelt use.

Challenging the Seat Belt Defense: Strategies and Tactics

There are several powerful strategies that a skilled personal injury attorney can employ to challenge the seatbelt defense and protect their client's interests:

Causation Analysis: We must meticulously analyze the specific injuries sustained and determine whether the failure to wear a seatbelt directly contributed to or exacerbated those injuries. In some cases, the injuries may have occurred regardless of seatbelt use, weakening the defense's argument.
Comparative/Contributory Negligence Calculations: Even if the seatbelt defense is successful, the court or insurance company must still apportion fault appropriately. As a personal injury attorney, I can argue that the defendant's negligence was the primary cause of the accident and that the plaintiff's failure to wear a seatbelt should only account for a small percentage of the fault allocation.
Seatbelt Exemptions: Florida's Safety Belt Law does provide exemptions in certain circumstances, such as for individuals with specific medical conditions or when operating certain types of vehicles. If an exemption applies, the seat belt defense may be rendered moot, and I can use this to bolster my client's case.
Expert Testimony: Personal injury attorneys can enlist the help of accident reconstruction experts, biomechanical engineers, and other professionals to provide testimony supporting the client's claim and refuting the seat belt defense. These expert opinions can carry significant weight in court or during settlement negotiations.
Aggressive Negotiation: As an experienced negotiator, I can aggressively challenge the insurance company's assertions and present compelling evidence to support my client's claim for damages. This may involve leveraging case law, medical records, and other documentation to counter the seat belt defense.

Maximizing Compensation and Protecting Client Rights

Even in cases where the seat belt defense cannot be entirely overcome, a skilled personal injury attorney can still work tirelessly to maximize their client's compensation. This may involve negotiating with the insurance company, presenting overwhelming evidence of damages, or taking the case to trial if a fair settlement cannot be reached.

As a personal injury attorney, my primary mission is to protect the rights and interests of my clients who have been injured due to the negligence of others. While the seat belt defense can present challenges, it is essential for injury victims to seek legal representation from an experienced professional who can navigate the complexities of Florida's laws and secure the correct compensation for their injuries.

Conclusion

I want to emphasize the importance of consulting with a reputable personal injury attorney if you find yourself in a situation where an insurance company is attempting to minimize your claim due to seatbelt non-use. With the right legal representation and a thorough understanding of the state's laws, it is possible to overcome or mitigate the impact of the seat belt defense and secure a fair settlement or judgment that adequately compensates you for your injuries and losses.

Personal Injury Attorney Answers: Car Accident Claims for Minors

Mon, 15 Apr 2024 14:08:52 GMT

Question: Can a minor child pursue monetary recovery if he/she is injured in a car accident?

As a parent, there are few things more terrifying than having your child suffer an injury in a car accident. In addition to the physical and emotional trauma, you are likely struggling with a mix of anger, fear, grief, and uncertainty about how to ensure your child receives proper care and compensation. When a minor child is injured due to someone else's negligence, the legal process of pursuing a personal injury claim can seem overwhelming on top of everything your family is already enduring.

As a personal injury attorney , I have guided numerous families through this difficult situation. I understand your enormous challenges and the critical importance of protecting your child's rights and future well-being. My goal is to provide compassionate legal guidance during this stressful time and fight tirelessly to secure maximum compensation for your injured child.

Children Cannot File Claims on Their Own
Seeking Justice Through Third-Party Claims
Florida's Statute of Limitations for Minors
Accessing No-Fault Insurance Coverage
Parental Damage Claims

Children Cannot File Claims on Their Own

The first crucial point to understand is that minor children lack the legal capacity and standing to file injury claims or lawsuits independently. Under the law, anyone under 18 years old is considered a legal minor or "incapacitated." This means the child's parent or court-appointed legal guardian must take the lead role in a personal injury case that stems from the accident.

As the parent, you are your child's biggest advocate throughout this process. It is your responsibility to ensure they receive appropriate medical care and have access to all the current and future resources they need to recover from accident-related injuries to the fullest extent possible. Pursuing fair compensation through the legal system is the best way to safeguard your child's interests.

Seeking Justice Through Third-Party Claims

If your child's injuries resulted from another driver's negligence—such as distracted, impaired, aggressive, or reckless driving—you may have grounds to pursue a third-party liability claim against that driver's auto insurance policy. This type of claim could provide your family with compensation for:

All medical expenses related to your child's injuries, including emergency care, hospitalizations, surgeries, medications, medical equipment, therapy/rehabilitation, and future treatment needs

Your child's physical pain and emotional suffering caused by the accident and injuries
Permanent disability, disfigurement, or impairment that diminishes your child's quality of life
Loss of future earnings/earning capacity if injuries hinder educational or career prospects
Potentially more, depending on the specific details of your child's case

Collecting full damages is crucial because a childhood injury can have lifelong impacts on the victim's health, development, education, relationships, independence, and overall quality of life as they grow into adulthood. You need to ensure there are sufficient funds to help your child overcome any limitations or challenges caused by the accident.

An experienced personal injury lawyer can carefully evaluate all potentially recoverable damages and leverage proven legal strategies to maximize the financial recovery for your family. If the insurance company refuses to offer a fair settlement amount to compensate for your child's injuries and future needs, your attorney can file a lawsuit and take the case to trial for a jury to decide appropriate damages.

Florida's Statute of Limitations for Minors

One important factor that provides more flexibility in child injury cases is Florida's statute of limitations—the legal deadline for filing a personal injury lawsuit. Typically, under a law passed just last year, these types of claims must be filed within two years from the date of the accident.

In some cases, a minor’s statute of limitations may be extended until after they are of the age of majority, which would extend the filing window and keep the statute of limitations from expiring before your child becomes a legal adult who can actively participate in the legal process. However, the extension should not be counted on in any particular instance, and I still strongly advise taking legal action as promptly as possible following the accident. Prompt action preserves key evidence, witness testimonies, and other details that can strengthen your case. It also enables your lawyer to start building a solid, compelling claim right away on your child's behalf. Plus, it takes the very substantial risk out of wondering if any particular court might grant an extension to the statute of limitations for your child’s claim.

Accessing No-Fault Insurance Coverage

In addition to the third-party liability claim against the at-fault driver, you should also review your auto insurance policy. Florida requires all drivers to carry Personal Injury Protection (PIP) coverage with at least $10,000 in benefits.

PIP is considered "no-fault" coverage because you can access these benefits to help pay your child's initial medical bills from the accident, regardless of who was at fault for causing the crash. PIP can cover essential treatment expenses, like:

Emergency transport from the accident scene
Hospital/surgical costs
Doctor appointments and follow-up care
Prescription medications
Rehabilitative therapies
Necessary medical equipment or supplies

While the $10,000 PIP limit is rarely enough to cover severe or catastrophic injuries, accessing this coverage immediately is still critical. It helps ensure your child receives necessary early care and treatment while your attorney builds a separate case against the liable driver/parties to recover additional compensation.

Parental Damage Claims

Finally, as the parent of an injured child, you may also have grounds to make certain claims for damages you personally suffered related to the accident, such as:

Lost wages from taking time off work to care for your child
Reimbursement for any out-of-pocket costs not covered by insurance
Emotional distress from witnessing the traumatic accident event
The financial burden caused by your child's injuries, medical needs, and other accident-related expenses

Conclusion

No family should have to bear the physical, emotional, and economic impacts of an accident alone when it was caused by someone else's negligent actions. An experienced personal injury lawyer with expertise in child injury cases can be an invaluable ally during this trying time.

Personal Injury Attorney Answers: Health Insurance and Personal Injury Claims

Mon, 04 Mar 2024 21:48:49 GMT

Question: If I get an injury settlement, do I have to pay my health insurance company (including Medicare and Medicaid) back for the medical bills they covered from my accident?

This is an excellent question that many of my clients have asked over the years. As an experienced personal injury attorney in Florida, I have helped numerous injured victims recover compensation for their medical expenses, lost wages, and other damages from at-fault parties. However, some of these clients were concerned that their own health insurance company may come calling to get reimbursed for the medical bills they initially covered following the accident.

The reality is, in many cases, health insurers do reserve the legal right to get repaid for accident-related medical expenses they paid through a process called subrogation. But whether they actively pursue this varies greatly. There are also laws in Florida protecting injury victims to ensure their settlements are not drastically reduced by insurer reimbursement claims after the fact.

Health Insurance Subrogation: How It Works
Protecting Your Injury Settlement
Strategies to Protect Your Settlement

So, should you expect to repay health insurance out of your injury settlement? From my experience representing injured clients, there is no cut-and-dry answer. There are many factors at play and strategies I've successfully utilized to waive, reduce, or resolve subrogation claims to maximize my client's rightful recovery.

Health Insurance Subrogation: How It Works

The majority of health insurance policies include provisions for a process called subrogation. This grants the insurer legal rights to "stand in the shoes" of the policyholder and pursue third parties liable for medical damages they covered initially. For example, if you are injured in a rideshare accident and rack up $15,000 in hospital bills paid by your health insurance, they may seek repayment from any settlement you later get from the rideshare company or negligent driver.

Methods of Subrogation:

1. Right of Reimbursement - The insurer demands direct repayment of covered medical costs from any settlement you receive.

2. Right to Subrogation - The insurer directly pursues the at-fault party for reimbursement of medical payments made.

In Florida, health insurers cannot seek double recovery of medical expenses from both you and the at-fault party. However, reimbursement claims, when aggressively pursued against injury victims, can drastically reduce rightful compensation.

Now Medicare and Medicaid operate a bit differently. If either government health plan paid your injury-related treatment bills, federal law requires reimbursement assuming you also receive a liability settlement. In 2022, the Supreme Court found that Florida Medicaid was permitted reimbursement from a settlement, according to Optum . They are stricter compared to private health insurers when it comes to waiving subrogation. The good news is that your attorney can still negotiate Medicare and Medicaid reimbursement balances down to smaller reasonable amounts under the right scenarios.

Protecting Your Injury Settlement

Luckily, as an injury victim in Florida, you have certain legal protections:

1. Made Whole Doctrine - Insurers cannot seek reimbursement unless you have been "made whole" by the settlement, or fully compensated for the entire loss suffered including pain/suffering.

2. Common Fund Doctrine - If the insurer benefits from you securing a settlement fund, they may share proportionally in attorney fees you paid to obtain it.

In my experience, by utilizing these protections, health insurers can be convinced to waive, reduce, or negotiate fair reimbursement from settlements without harming my clients' financial recovery.

Strategies to Protect Your Settlement

Over the years, I've discovered effective strategies to protect injury victims when health insurers come seeking repayment. Here are a few I've used successfully that you may find helpful:

1. Review Policy Terms - Health insurance policies vary greatly on subrogation rights, so review your plan details carefully at the outset of your injury claim.

2. Promptly Notify Insurer - Once hired, I immediately notify applicable health carriers of the injury claim and settlement pursuit to open communications. Delayed notification can weaken your negotiating stance later when reimbursement is sought.

3. Dispute Liability - Argue that the at-fault party disputes legal liability for the accident that caused injuries. This may deter insurers from aggressively pursuing currently nonexistent funds.

4. Dispute Made Whole Status - Detail pain and suffering, lost wages, and all damages making up your entire loss. Argue these outstanding damages prove you have not been "made whole" by the current settlement amount.

5. Insurer Shared Costs - Document all attorney fees and associated costs needed to secure the settlement from which the insurer may now benefit. Demand proportionate reimbursement per Common Fund rules.

Conclusion

By expertly utilizing these Florida law provisions and other negotiation tactics, a personal injury attorney can successfully have health insurance reimbursement claims reduced, waived, or settled while still maximizing injury compensation for clients. Every accident case has unique factors, but this provides a general overview of what steps may help protect your interests when resolving personal injury claims.

Source

https://www.uhccommunityandstate.com/content/owca/owca/en/insights/blog/medicare-insights-blog/2022/supreme-court-permits-florida-medicaid-to-seek-reimbursement.html

Personal Injury Attorney Answers: Health Insurance and Auto Accident Medical Bills

Mon, 18 Dec 2023 13:58:26 GMT

Question: I went to the emergency room after a car accident, and now my health insurance company is refusing to pay my medical bills because they are related to an auto accident. Are they allowed to do this?

If you’ve been in a car accident and went to the emergency room afterward, you may be shocked when your health insurance refuses to pay those medical bills. As a personal injury attorney who is well-versed in Florida law, I'm answering whether insurance companies here can deny accident-related ER claims and your rights to appeal.

The Short Answer
Why Florida Health Plans Often Deny Accident Claims
How to Appeal a Claim Denial
Other Routes to Pay Those Bills

The Short Answer

Unfortunately, it is often legal for health insurance companies to deny claims related to auto accidents. This comes down to something called “coordination of benefits” clauses that are written into most insurance policies.

However, there are still things you can do to appeal the decision, get an external review, or get your ER bills paid through another route. I’ll explain more below.

Why Florida Health Plans Often Deny Accident Claims

Most Florida health insurance contracts have a coordination of benefits (COB) clause. According to Insuranceopedia , Coordination of Benefits rules explain which policy is the primary policy that should pay off first in the event a policyholder has two policies covering the same illness or injury. This says that if you have another insurance policy covering the same illness or injury, that policy should pay first before your health insurance kicks in.

So, if you have Florida auto insurance, Florida law requires that they pay first, and the health plan expects it to fully handle accident injuries like your ER visit. From their view, this avoids double payments and saves them funds.

But here’s the issue – what if your car policy’s accident coverage falls short of that pricey ER bill? Legally in Florida, the health insurance company cannot completely abandon you with unpaid balances after auto coverage maxes out. However, it may take effort to hold them accountable.

Additionally, even with auto-accident exclusions, your policy likely has emergency and follow-up protections that legally require some cost coverage. For example, under the Prudent Layperson Standard, insurers must cover expenses for ER visits made in good faith belief that an emergency existed.

What’s more, they cannot deny payment for genuine emergency services like setting broken bones or receiving life-saving intervention during a crisis. Coverage may also extend to post-stabilization care defined under your policy’s protections.

How to Appeal a Claim Denial

Just because your health insurer sent an initial claim denial doesn't mean you have to foot that huge bill yourself. Here's what to do next:

Step 1: Submit the Claim to Your Car Insurance
First, go through the process of submitting the emergency room claim to your auto insurer. Hopefully, they approve and cover some or all of the costs. Get any payment/denial you can from them in writing.
Step 2: Resubmit Paperwork to the Health Insurer
Next, go back to your health insurance with documentation that shows your car insurer's payment (or denial). Resubmit forms asking them to process their portion of the claim. Make it clear these are leftover balances you need help with. Provide:
A copy of the car insurance payment or denial letter
Copies of the emergency room bills, highlighting unpaid balances
A letter formally requesting the health insurer cover the remaining costs
Step 3: File a Formal Appeal
If your health insurance still refuses at this point, file a formal internal appeal. Outline the steps you took, emphasize that balances remain, and state that you rely on your health policy to fill the gaps.

The appeal should trigger a process requiring the company to take a second look. Quote your policy's language about their responsibility for copays or deductibles other insurance does not cover. Explain how denying further payment leaves you underinsured relative to the premiums you paid.

By law, this formal appeal process often succeeds in overturning the original claim denial.

If that fails, an external appeal to an independent review organization may be an option. In Florida, the Florida Office of Insurance Regulation is the agency to contact to learn more about how to request this third-party appeals step in your situation if needed.

Other Routes to Pay Those Bills

If appeals don't work with either insurance company, two additional options include:

1. Negotiating directly with the hospital and providers on a payment plan or discounted rate. Inform them of your accident-related financial hardship and try to settle reasonable out-of-pocket costs you can manage. Many institutions have financial assistance programs or options to break up balances into affordable monthly payments. Discounts may also apply for paying cash sums in lump installments.

2. Consult a personal injury attorney. The at-fault driver from your accident may also carry liability coverage regarding injury-related expenses through their own auto insurance. Speaking with a personal injury attorney could introduce options for securing coverage or compensation through that party as well. Your attorney can advise if suing the at-fault driver from the accident for reimbursement of medical costs is feasible. This route also opens the door to securing a settlement both covering bills and compensating beyond just economic damages.

Conclusion

Stand your ground with the insurers. Financial responsibility for accident-related health costs often falls into confusing gaps and gray areas between health and auto policies. But Florida regulations ultimately hold insurers accountable for paying legitimate claims. Though it may require resubmission, appeals, negotiation, or the advice of a legal expert, there are still ways to get those vital bills paid.

Sources

Personal Injury Attorney Answers: Uninsured Motorists

Wed, 18 Oct 2023 21:15:51 GMT

Question: If I am in an accident with someone who has very low insurance coverage limits, what can I do?

In the event that you find yourself in an accident with a motorist who has low insurance coverage limits, the first thing to do is to stay calm and ensure that everyone is safe, getting immediate medical attention if necessary. Afterwards you can proceed to assess the situation, documenting the accident in detail and obtaining the underinsured driver’s information. From here, you can contact your insurance company to report the incident and file a claim to use your own Personal Injury Protection (PIP) and Uninsured/Underinsured Motorist (UM/UIM) coverage to cover for damages sustained. For more significant losses and in cases where damages are not fully covered by your own insurance, consider consulting a personal injury attorney to know the legal options available to you.

In Florida, where millions of motorists hit the road every day, car accidents are an unfortunate reality. The situation becomes even more complicated when you find yourself in an accident with someone who has very low insurance coverage limits or, even worse, no insurance at all. Insurance requirements can be minimal in Florida, so this scenario is not uncommon. What can you do if you're involved in an accident with someone who has very low insurance coverage limits? It’s important not to ignore the chances of finding yourself in this situation. Take a look at some of the things you need to know that can help you navigate the complex challenges involved in the aftermath of an accident with an underinsured driver.

Understanding the Problem
Stay Calm and Assess the Situation
Contact Your Insurance Company
Seek Medical Attention
Uninsured/Underinsured Motorist Coverage (UM/UIM)
Legal Action

Understanding the Problem

First and foremost, it's important to grasp the severity of the problem. Florida, like many states, requires drivers to carry a minimum amount of insurance coverage. However, these limits may not be enough to cover the full extent of damage in the event of a serious accident.

Florida's "No-Fault" insurance system requires every driver to carry Personal Injury Protection (PIP) insurance, which covers medical expenses and lost wages, regardless of who's at fault. However, these PIP policies often have limited coverage, and not all drivers adhere to the law. When you're involved in an accident with someone who has very low insurance coverage limits, it can leave you in a vulnerable position.

Stay Calm and Assess the Situation

The first step is to remain calm and ensure everyone involved is safe. If anyone requires immediate medical attention, call for emergency assistance. Addressing imminent safety concerns and serious injury is the first priority, but once that’s done, documenting the accident is paramount. Immediately after the accident, it's crucial to collect as much information as possible.

Take pictures of the vehicles, any visible injuries, and the surrounding area. This documentation will be crucial in supporting your case. You should also collect the other driver’s contact, license plate, and insurance details and document the accident location, witness information, and photographs of the scene and damages to both vehicles. This documentation will be invaluable when dealing with insurance companies or pursuing legal action. Don’t forget to contact the police to make a report of the accident. Even if the damage appears minor, an official report can be crucial in establishing liability.

Contact Your Insurance Company

You’ll need to contact your insurer right away. Your insurance company should have provided you with a number you can call in the event of an accident. When you speak to the insurance company representative, give them a true and complete account of the accident so they have all the information they need to guide you through the claims process.

Your insurer may be able to assist in case the other driver's coverage is insufficient. Under Florida law, your PIP coverage should help with initial medical expenses and lost wages, up to the limits of your policy. However, if your damages exceed your PIP coverage or if you've opted for additional coverage, such as Uninsured/Underinsured Motorist (UM/UIM) coverage, this may come into play.

Seek Medical Attention

It's important to seek medical attention promptly, even if you believe your injuries are minor. Some injuries may not manifest immediately, and a medical professional can provide an accurate assessment of your condition. Additionally, medical records will serve as crucial evidence in your case.

Uninsured/Underinsured Motorist Coverage (UM/UIM)

Planning ahead is important. Many drivers will eventually get in some type of accident, and the chances that a Florida driver will experience a collision with an uninsured or underinsured motorist are high. Although Florida is in the top 10 states with the most uninsured drivers according to MoneyGeek , the state does not require drivers to purchase uninsured/underinsured motorist coverage (UM/UIM). However, even though it’s not required, it’s a smart choice for drivers to purchase anyway.

If you have UM/UIM coverage, it can provide you with financial protection when the at-fault driver has insufficient insurance. UM coverage can also apply in hit-and-run accidents where the other driver is unknown. This coverage can be a lifeline, helping you recover damages for medical bills, lost income, pain and suffering, and other losses caused by the accident.

Legal Action

If your damages are significant and your insurance coverage isn't enough to fully compensate you, you may consider taking legal action against the underinsured driver. Depending on the cause of the accident, you may also have a claim against a negligent third party.

An experienced personal injury attorney can help you navigate the legal process, negotiate with the insurance companies involved, or file a lawsuit to seek fair compensation for your injuries and losses. You should consult with a personal injury attorney as soon as possible following an accident to find out what all of your options are.

Conclusion

Dealing with an accident involving an underinsured or uninsured motorist in Florida can be challenging, but it's not a hopeless situation. By following these steps, you can protect your rights and pursue the compensation you deserve.

Remember, consulting with a knowledgeable Florida personal injury attorney can make a significant difference in your ability to recover from such unfortunate incidents. Your legal advocate can help you understand your options, negotiate with insurance companies, and ensure that you're not left with the financial burden caused by someone else's negligence on the road. Stay safe out there, and know that help is available when you need it most.

Source

https://www.moneygeek.com/insurance/auto/resources/uninsured-motorist-facts/

Personal Injury Attorney Answers: Auto Insurance Coverage

Tue, 15 Aug 2023 13:03:02 GMT

Question: As a Florida driver, what kind of insurance is available to me and how much do I need?

If you're a Florida driver, it's essential to be aware of the various types of auto insurance coverage available to you in case of a car accident. Understanding your options can make a significant difference in protecting yourself and your finances, but navigating the options can be confusing, which is why having a personal injury attorney is recommended.

Your personal injury attorney can guide you through the various auto insurance coverage options in the state of Florida so you have the information you need to make smart decisions about your options and your rights.

Personal Injury Protection (PIP) Insurance: Your Foundation
Property Damage Liability (PDL) Insurance: Your Responsibility Cushion
Bodily Injury Liability (BIL) Insurance: Your Liability Shield
Uninsured/Underinsured Motorist (UM/UIM) Coverage: Your Safety Net
Collision Coverage: Your Vehicle’s Accident Insurance
Comprehensive Coverage: Your Protection Beyond Collisions

Personal Injury Protection (PIP) Insurance: Your Foundation

When it comes to insuring a car in Florida, Personal Injury Protection (PIP) insurance is where you need to start. This coverage is mandatory and provides medical expenses and lost wage benefits for you, your family members, and your passengers, regardless of who was at fault. In an effort to prevent delays in medical care for those injured in car accidents, Florida law requires that each driver’s own insurance pay for medical expenses for themselves and their passengers from PIP insurance first, regardless of who is found to be at fault for the accident. It's like having your own medical safety net, ensuring you get the care you need without worrying about immediate costs.

The No-Fault law requires that Florida drivers carry $10,000 in PIP insurance coverage. This generally pays for 80% of medical expenses related to the accident, up to a total of $10,000. It can also pay for up to 60% of lost wages up to $10,000 (though the total coverage, whether paid for medical expenses or lost wages, or some combination of the two, is $10,000). There is also a $5000 death benefit for a fatality.

Of course, if you’re familiar with the constantly rising cost of healthcare, you know that $10,000 may not go very far in the event of a serious injury. PIP is the legal minimum you have to carry to drive, but that doesn’t mean you should stop there.

Property Damage Liability (PDL) Insurance: Your Responsibility Cushion

Another requirement for drivers in Florida is Property Damage Liability (PDL) insurance. This is insurance that pays for damage you do to someone else’s property in an accident. As with PIP, you’re required to carry at least $10,000 in PDL insurance to be legally covered in the state of Florida.

If you’ve ever bumped into someone else’s car, even very minimally, you may have immediately experienced a guilty feeling. Your car is important to you, so you know other people’s cars are important to them, and you’ll want to make it right. PDL insurance covers damage to the other driver’s vehicle, loss of items inside the vehicle at the time of the accident, and the costs of alternate transportation while the vehicle is repaired.

PDL functions as a cushion against hefty property damage claims that you may be responsible for, hopefully ensuring you don't have to dip into your savings to pay for someone else's car repairs. However, in a serious accident, the $10,000 minimum still may not be enough to completely protect you.

Bodily Injury Liability (BIL) Insurance: Your Liability Shield

Now you know how claims against you for damage to another person’s property are covered, but what if the other driver or a passenger in their car is injured and you’re responsible? While Florida doesn't make it mandatory, having Bodily Injury Liability (BIL) insurance is a smart move.

Remember, despite the fact that the other driver should also have PIP insurance to cover their medical bills, $10,000 doesn’t go very far in healthcare, and anything that’s not covered could be your responsibility if you’re at fault. BIL insurance steps in to protect you from personal injury claims and helps with legal defense costs and settlements. It’s like having a guardian angel by your side, safeguarding your personal assets.

Uninsured/Underinsured Motorist (UM/UIM) Coverage: Your Safety Net

What happens when someone hits you, but they don’t have insurance to cover their responsibility for the damages? If they don’t have insurance or don’t have enough insurance, it may be possible to pursue a personal injury claim against them – but what if they don’t have that kind of money? A judgment that’s in collections doesn’t help you pay for repairs or medical bills.

It’s a real worry in Florida. According to the Insurance Information Institute , over 20% of Florida drivers were uninsured in 2019, ranking them 6th in the list of the 10 states with the highest percentage of uninsured motorists. That’s where Uninsured/Underinsured Motorist (UM/UIM) coverage comes in. You don’t have to carry it, but in a case like this, it can be a real lifesaver, covering your expenses if the at-fault driver is uninsured or underinsured. You won't have to bear the burden of someone else's negligence.

UM can be stacked or non-stacked. Stacked UM insurance is for when you have more than one car. UM policies on each car can be stacked so in the event of an accident in one vehicle, all the coverage for your household’s vehicle will be available. With non-stacked coverage, you only have access to the policy covering the insured vehicle.

Collision Coverage: Your Vehicle’s Accident Insurance

You’re required to carry coverage that fixes the other driver’s vehicle if you’re at fault, and their insurance – or your UM/UIM insurance – should cover your vehicle if they’re at fault. But how is your vehicle covered if you’re the one at fault?

It’s not mandatory, but Collision Coverage is the insurance that can keep you from draining your bank account when you caused the accident. It happens sometimes – no one is perfect. With Collision Coverage, when oops moments happen, you’ll have your insurance to fall back on for car repairs.

Comprehensive Coverage: Your Protection Beyond Collisions

Car accidents seem like enough to think about by themselves. But life's unpredictable, and so are the mishaps that can befall your car even when you’re not behind the wheel.

Comprehensive Coverage goes beyond collisions, shielding your beloved vehicle from non-collision-related incidents like theft, vandalism, natural disasters, and animal encounters. If you want to stay prepared for any kind of unexpected damage, this coverage is for you.

Conclusion

As a Florida driver, you have several auto insurance coverage options to choose from to protect yourself and your loved ones after a car accident. Understanding the basics of Personal Injury Protection (PIP), Property Damage Liability (PDL), Bodily Injury Liability (BIL), Uninsured/Underinsured Motorist (UM/UIM), Collision, and Comprehensive coverage empowers you to make informed decisions.

Remember, auto insurance is a complex topic, and it's essential to have the right coverage for your specific needs. If you have any questions or concerns about your auto insurance, don't hesitate to consult with a qualified personal injury attorney.

Sources

https://www.iii.org/fact-statistic/facts-statistics-uninsured-motorists

Personal Injury Attorney Answers: Independent Medical Exams

Fri, 07 Jul 2023 13:48:11 GMT

Question: My car insurance company has scheduled me for an “Independent Medical Exam” even though the accident wasn't my fault. Can they do that?

Answer : Being involved in a car accident is a traumatic experience, and it can be even more frustrating when you discover that your car insurance company has scheduled you for an independent medical exam (IME), despite the accident not being your fault. Many individuals wonder if this is a fair practice and whether insurance companies have the authority to require an IME in such situations.

A personal injury attorney can help you navigate questions like these:

What is an Independent Medical Exam (IME)?
The Purpose of an IME
Insurance Company Rights and Policy Language
Your Rights and Responsibilities Regarding an IME

Take a look at some important details that Florida drivers need to know about the concept of independent medical exams in personal injury cases.

What is an Independent Medical Exam (IME)?

According to FindLaw.com , an independent medical exam, or IME, is an exam conducted by a doctor other than the claimant’s physician. You may also see this referred to as a Defense Medical Exam (DME).

The claimant may be treated by their own doctor, but the doctor performing the IME may be called on to provide a second opinion. In the case of an IME following a car accident, the insurance company will choose the medical professional. The physician will assess your injuries, their severity, and how they were caused or exacerbated by the accident.

The Purpose of an IME

The purported purpose of an IME is to obtain an impartial assessment of the claimant's injuries and to evaluate the necessity and reasonableness of ongoing medical treatments. The insurance company may have concerns that your own doctor will be biased in favor of you, so before paying for your injuries, they want to take the extra step of obtaining an IME. However, you must keep in mind that the insurance company will be paying the IME doctor, and has very likely used this doctor to perform IME’s on many prior occasions. So, there is a real likelihood that the IME doctor may actually be biased in favor of the insurance company.

Essentially, insurance companies may request an IME to obtain a second opinion or to verify the legitimacy and severity of the injuries claimed by the injured party. But, again, just as insurance companies may have concerns about possible bias on the part of your doctor, you may (and likely should) have concerns about possible bias on the part of a doctor chosen by an insurance company.

Insurance Company Rights and Policy Language

The first question you’re likely to have is whether the insurance company can actually require you to have an IME. Most of the time, the answer is yes. There is usually language included in auto insurance policies that grant auto insurance companies the right to protect their own interests by requiring an independent exam. From the insurance company's standpoint, an IME provides an impartial evaluation to verify the extent of injuries claimed and ensures that the compensation sought is reasonable and fair. However, you should verify the language of your specific policy with your personal injury attorney to see what is required when it comes to IMEs.

When it comes to fault in an accident, it's important to note that IMEs are typically not directly related to the determination of fault. Regardless of fault, insurance companies may still request an IME. If the accident was caused by another party and you are filing a claim with their insurance company, they may also, in some instances, typically when a case is in litigation, be entitled to require an IME. This is because they have the right to evaluate the validity and extent of the claimed injuries.

Your Rights and Responsibilities Regarding an IME

Typically, insurance policies require claimants to cooperate with the insurance company's investigation, which includes attending the scheduled IME. Failing to comply with this requirement may jeopardize your claim. Refusal to cooperate could also result in the loss of your insurance coverage with that company. Carefully review your insurance policy to understand the specific language and provisions related to IMEs. Pay attention to any time limits, notification requirements, or conditions that may affect your rights.

However, it's crucial to remember that an IME is supposed to be an unbiased assessment of your injuries. However, an insurance company could seek out medical professionals who may be inclined to downplay the severity of injuries or dispute their causation. Having legal representation can help ensure that the examination is fair and unbiased.

If an IME is required, it is crucial to be as prepared as possible. You should have documentation of your medical history, symptoms, and any treatment you have received. Bring all relevant medical records, reports, and diagnostic tests to the examination to ensure an accurate assessment of your condition.

If the IME results negatively impact your claim, and you believe you're being treated unfairly, you may consider pursuing legal recourse. A personal injury attorney can evaluate your case, advise you on the best course of action, and represent your interests in negotiations or a potential lawsuit.

Conclusion

While it may seem unfair that your car insurance company has scheduled you for an Independent Medical Exam, even if the accident wasn't your fault, it's important to understand the purpose and rights associated with such examinations. Remember to cooperate with the process, seek legal guidance if needed, and know that an IME does not dictate the final outcome of your claim. Consult with a personal injury attorney who can navigate the complexities of your case, protect your rights, and help you pursue the fair compensation you deserve.

Source

https://www.findlaw.com/injury/accident-injury-law/independent-medical-examination.html

Personal Injury Attorney Answers: Material Misrepresentation

david@davidfolkenfliklaw.com (David Folkenflik) — Wed, 10 May 2023 15:45:53 GMT

Question: I was in an accident that was my fault and now my insurance company says they won't cover it due to something called “Material Misrepresentation”. Can they do that?

Answer : Paying for the damages and injuries related to a car accident isn’t something anyone wants to do. You have insurance for just this reason – so your damages will be covered and you won’t have to pay for everything out of pocket. However, the insurance company doesn’t want to pay any more than they have to, and they’ll deny claims if they can.

A denial based on “material misrepresentation” is often confusing to claimants. A personal injury attorney should be involved in your case to help you understand the situation and explain what your legal options are going forward.

We’ll look at some common questions people have about material misrepresentation.

What Does Material Misrepresentation Mean?
Is Any Misrepresentation Sufficient to Deny a Claim?
How Do I Defend Myself When I’m Accused of Material Misrepresentation?

Take a look at some of the things Florida drivers need to know.

What Does Material Misrepresentation Mean?

Material misrepresentation has to do with omissions, incorrect statements, or concealments made on an application that would have made a difference in the terms of your policy. It’s not a question of whether your claim is accurate or not; it’s about your initial application for car insurance .

There are a number of examples of the types of misrepresentation that could lead to a denial. If you failed to disclose previous accidents, other drivers in the household who might use your vehicle, or how you use your vehicle – for instance if you use it for delivery or courier services but didn’t inform the insurance company of that – the insurance company could decide that they would have denied coverage, required certain coverage, or charged you a different amount of money if they’d know.

They could also decide the facts you omitted are relevant to your current claim. In either case, this can lead to a denial. That doesn’t have to be the end of it, though, and a good personal injury attorney can help you get your claim covered in many cases.

Is Any Misrepresentation Sufficient to Deny a Claim?

Not every misrepresentation is grounds for denial. One of the things the insurance company will need to show if they deny your claim is whether the omitted fact is relevant to the current claim.

For instance, if you failed to notify them of a partner or child older than 14 in the house, whether or not they have a license, then you have omitted information they ask for – but if that person wasn’t driving at the time of the accident that you file a claim for, that information isn’t relevant and doesn’t constitute a reason to deny your claim.

Another thing to keep in mind is insurers are not allowed to actively search for reasons to deny your claims. They have to have a reason for looking into a specific misrepresentation. They also have to notify you immediately, void coverage, and return premiums paid from the time of the discovery if they find an omission. They’re not allowed to sit on the knowledge of a misrepresentation, collect premiums, and then deny coverage only when you make a claim later.

How Do I Defend Myself When I’m Accused of Material Misrepresentation?

Being accused of material misrepresentation by the insurance company that you’re counting on to make you whole after a car accident is upsetting, but you don’t have to just accept their conclusion.

It’s not unheard of for insurance companies to act in bad faith by doing things like denying a claim even though the omission they’re citing is irrelevant to the loss in question or covering up their knowledge of a misrepresentation until a claim is made. Even if they are acting in good faith and believe they have grounds to deny your claim, there are strategies your personal injury attorney can use to dispute that.

One strategy is to argue that it was an accidental omission. In many cases, the application forms for car insurance are completed not by you, but by an agent of the insurance company or by a broker. If the person filling out the forms was working on behalf of the insurance company, and if they failed to note or incorrectly noted something you said during the process, the insurance company would not be able to deny your claim for that reason.

Additionally, if the insurance form was unclear, the insurer may also not be able to deny your claim because your answer was incorrect. A question about drivers in the household may be phrased in a way that makes you think “only list the people I allow to drive my car”, while the insurance company actually wanted you to list “anyone who could drive your car”. This misunderstanding could lead you to leave out an unlicensed teen or a partner who has their own car and insurance. If that’s the case, they may not be able to deny your claim.

Conclusion

Coming out on top against an insurance company is a tough job for an individual, but with a personal injury attorney by your side, you can navigate the challenges. Your attorney can help you understand what the insurer is claiming to be misrepresented, help you determine whether it’s a misrepresentation that can be used to deny your claim, and develop a strategy to get your claim covered.

Source

https://content.naic.org/sites/default/files/inline-files/JIR-ZA-34-03-EL.pdf

Personal Injury Attorney Answers: PIP

david@davidfolkenfliklaw.com (David Folkenflik) — Tue, 28 Feb 2023 13:31:00 GMT

The aftermath of a car accident can be a confusing time, and if you’re injured, you have a lot to deal with in addition to worrying about your car insurance. That’s why it’s a good idea to try to understand some of the details of Florida insurance rules and how they affect you before an accident happens. Checking out a Florida personal injury attorney’s answers to some of the biggest questions people have after an accident can give you important information that you may need someday.

Take a look at a couple of important questions about Florida’s (PIP) Personal Injury Protection insurance.

Will PIP Pay Lost Wages?

Question:

If I'm in a vehicle accident, will PIP insurance cover my lost wages?

Answer:

You may be able to receive money from lost wages. However, it’s going to be a significant drop in the amount of money you earn from your job.

PIP does pay lost wages, but they only pay 60% of your lost wages, up to $10,000. This benefit can also be used to pay for someone to do physical work that you can no longer handle, like household chores, lawn mowing, and pet care, for example..

For most people, such a drastic reduction in their wage is going to be less than ideal, but it is better than being unable to work and receiving nothing. The insurance company will consider your income for the thirteen weeks before the accident to determine how much money you’ll receive for that time. You can collect past and future lost wages.

Even if you end up losing your job, you’ll still be able to claim PIP. In the case of a job loss, however, you may also be eligible for a civil lawsuit. Because of Florida’s no-fault insurance laws, which are designed to make sure drivers receive compensation more quickly after an accident, suing isn’t always possible or recommended. In cases where the accident causes you to lose more than your own insurance policy will pay for – which can be the case if you lose your job entirely – you may be eligible to sue the other driver to cover the losses.

It's possible to get PIP coverage that doesn’t include work loss, but this isn’t recommended for most people because it only diminishes your premium by a small amount and leaves you unprotected if you can’t work after an accident. Check to make sure your PIP insurance covers work loss.

How Does PIP Cover Medical Bills?

Question:

My auto insurance (PIP) cut my doctor's bills way down, and now my doctor says I have to pay the entire unpaid balance. Is this correct?

Answer:

What’s important to understand about PIP insurance is that it doesn’t pay your medical bills entirely. It only pays 80% of your adjusted medical bills. The PIP insurer will likely adjust the amount of your bills in accordance with a state authorized fee scheduled. So if you have $10,000 of medical bills after they are adjusted, you’ll be left with a $2,000 balance after PIP. Medical payments are also capped at $10,000. However, if your total medical bills were $15,000, and the insurance company correctly adjusted them to $10,000 under the fee schedule, then you would only owe $2,000, because you only owe the balance of the adjusted bill, not the total, unadjusted, bill.

The way it usually works is that your health insurance kicks in after PIP, so you would only pay anything left after PIP and your health insurer have paid their parts. If you didn’t have private health insurance but were covered under a government health insurance program like Medicare or Medicaid, they would pay all or part of the balance remaining after PIP, depending on your plan.

If you didn’t have any type of health insurance, then you would be responsible for paying the unpaid balance after PIP. You may be able to work out a payment plan with your medical provider or ask for a discount, but you are ultimately the person responsible for the costs.

Conclusion

Florida’s Personal Injury Protection insurance pays both lost wages and medical bills, but doesn’t pay 100% of either and has caps on both. Florida drivers need to understand how these policies work. In the case of lost wages, drivers need to know that the amount they receive adds up to a lot less than they would have gotten for working during that time. However, if they lose their job or otherwise have losses that exceed what PIP will pay for, they may still be eligible to sue the at-fault driver. Meanwhile, PIP also covers only 80% of medical bills, which will still leave them with some portion of their medical expenses to pay. Health insurance may pick this up if the driver has it. Otherwise, they’re responsible for their remaining balances.

Source

https://www.thelawplace.com/faqs/what-is-the-max-pip-payment/

Personal Injury Attorney Explains How Wrongful Death Suits Work in Florida

Wed, 28 Dec 2022 16:05:17 GMT

When one person or entity is negligent and that negligence results in an injury, the injured party may bring a personal injury lawsuit. If the negligence leads to death, the result can be a wrongful death lawsuit instead. The loss of a loved one causes grief, financial pressure, and other types of upheaval in a person’s life, so it makes sense to seek compensation for an unnecessary death. A personal injury attorney can help the loved ones of the deceased person learn their legal options and seek compensation.

Is A Wrongful Death Also A Criminal Homicide?
Who Can Bring a Wrongful Death Suit?
How Long Can I Wait To File a Wrongful Death Suit?

Take a look at some of the facts you need to know about how wrongful death suits work in Florida.

Is A Wrongful Death Also A Criminal Homicide?

For those who aren’t familiar with the law, it can seem like a death that shouldn’t have happened should be a criminal case. However, that’s not always the case. Even when it is, a wrongful death suit isn’t the same kind of case as a criminal homicide charge would be. Wrongful death suits are part of the civil side of the law. Criminal homicide is on the criminal side. A defendant who loses a wrongful death suit will be held financially liable but won’t be punished criminally with a sentence like jail time, for example. In some cases, a death might be wrongful but not rise to the level of criminality.

In some cases, a defendant can be charged criminally and also sued for wrongful death. In other cases, criminal charges may not be brought, but a wrongful death lawsuit can still be filed. Criminal and civil cases have different standards for guilt to be established. In a criminal case, prosecutors must establish guilt “beyond a reasonable doubt” for a defendant to be found guilty. In a wrongful death suit, if a “preponderance of the evidence” establishes that the defendant is liable, they can be held liable for damages. So even in cases where there isn’t cause to bring a criminal charge or where a prosecutor doesn’t believe they can get a conviction on a criminal charge, a civil wrongful death lawsuit is still possible.

Who Can Bring a Wrongful Death Suit?

To bring a wrongful death lawsuit, a person must have standing. To have standing to bring a case usually means that the person is affected or harmed enough by the issue in question to qualify as an appropriate person to bring the case in the eyes of the court. Who has standing when it comes to wrongful death lawsuits? Florida is different from some states; it requires that the deceased person’s personal representative files the wrongful death case. The personal representative is sometimes known as the executor – as in, the executor of the deceased person’s will.

According to NOLO , Florida’s rules about who can be a personal representative include:

Must be 18
Must not be judged incapacitated by a court
Must not have a felony conviction

A person could appoint a corporation, such as a bank, as a personal representative, but it must be authorized to act as a fiduciary in Florida. Out-of-state personal representatives have to be related to the deceased by blood, marriage, or adoption. If the deceased person didn’t have a will naming a personal representative when they died, the court can appoint someone. This is usually a spouse if they have one, or the deceased’s adult children. It could be another relative or even a close friend if the deceased person didn’t have a spouse or children.

How Long Can I Wait To File a Wrongful Death Suit?

A wrongful death suit is like other types of personal injury cases in that it’s better not to wait longer than you have to. Over time, evidence can be lost and memories can fade, which makes it harder to gather the information necessary to win a wrongful death case. However, it’s not always possible to bring the case immediately. A death in the family creates a lot of different tasks and obligations, some more time-sensitive than others. Not to mention the difficulty of dealing with grief and loss. It’s understandable that a personal representative wouldn’t have a lawsuit at the top of their priority list immediately.

In most cases, people have up to two years of the date of the death to file a wrongful death suit. It’s important to keep that deadline in mind because the likelihood is that a suit filed after that deadline would simply be thrown out. However, there are a lot of exceptions which could actually shorten the typical two year limitations time period in Florida. Thus, this is a question that should be posed to a personal injury attorney who is familiar with the facts of your specific case, and you should not rely on general statements concerning the length of the statute of limitations for a wrongful death case in Florida.

Conclusion

Wrongful death is not the same as criminal homicide, but the two can overlap in some cases. To bring a successful wrongful death suit, it must be brought by the deceased person’s personal representative and filed within two years of the wrongful death. A personal injury attorney can assist with this.

Source:

https://www.nolo.com/legal-encyclopedia/restrictions-who-can-serve-executor-florida.html

Slip-and-Fall Injuries in Florida

Thu, 01 Dec 2022 14:03:44 GMT

When you’ve been injured in a slip-and-fall accident, you may be able to receive compensation from a person, entity, or insurance company if the accident was caused by some type of negligence. Understanding the aspects of Florida slip-and-fall law will help you understand what you’ll need to do to bring a successful case.

You should always seek help from a professional when you think you need to bring legal action, but you can help your personal injury attorney work on your behalf if you have some important information.

The Statute of Limitations on Slip-and-Fall Cases
What You’ll Need to Prove to Win Your Case
What Is Comparative Negligence and Why it Matters

Learn some of the important facts that will help you when dealing with the aftermath of a slip-and-fall claim.

The Statute of Limitations on Slip-and-Fall Cases

When bringing a lawsuit, it’s important to make sure you’re filing within the statute of limitations. This is a deadline that limits how long you retain the right to have your case heard in court. Failing to file a case within the statute of limitations is likely to result in your case being dismissed before it can be heard, which means that you won’t receive compensation. There may be exceptions that allow for these deadlines to be altered or extended in some cases, and a personal injury attorney can explain when those exceptions may apply, but it’s always better to assume that you must stay within the deadline.

When it comes to slip-and-fall cases, as well as most other personal injury cases in Florida, the statute of limitations is typically four years (though it can be shorter in some instances). However, sooner is always preferable, when possible, as it’s easier to gather evidence soon after an accident. If you’ve been injured in a slip-and-fall accident, you should seek medical treatment and then consult a slip-and-fall attorney as soon as possible. That way, your attorney can begin work on your case right away.

What You’ll Need to Prove to Win Your Case

To win a slip-and-fall case in court, you’ll need to be able to show that several things are true. First, you’ll have to show to the court that you fell from a substance and that the fall occurred on someone else’s property. You’ll have to show that the substance you slipped on caused a dangerous condition that caused you to fall and become injured as a result. You’ll also have to show that the responsible party knew about the dangerous condition, should have fixed it, and failed to fix it.

You may wonder how you can show what someone else knew about a dangerous condition on their property. Couldn’t they just claim not to have known about it? There are several ways to show that the property owner either knew about the condition or should have known about it.

For example, testimony from an employee who reported the dangerous condition would show that the responsible party was actually informed. Alternatively, if you can show that the dangerous condition had been in place for a long time or happened on a repeated basis, you can argue that the property owner should have known about the condition before your fall.

What is Comparative Negligence and Why it Matters

During the course of your claim, you may encounter the concept of comparative negligence. According to NOLO , comparative negligence is what it’s called when the injured party – the plaintiff bringing the lawsuit – was also negligent and carries some responsibility for the accident. It comes into play if you were doing something that you weren’t supposed to be doing or that you knew or should have known was unsafe when the accident occurred. The party responsible for the property may still have been negligent, but they can argue that you were also negligent and that they are not wholly responsible for that reason.

If a slip-and-fall case goes to trial and the defendant is found to be negligent, but the plaintiff is also found to have been negligent, the award would be reduced by whatever percentage the plaintiff was found negligent by. So, if the award was $10,000, and the defendant was found 90% responsible, but you were found to be 10% responsible, your award would be reduced by 10%, resulting in an award of $9,000.

It’s important to provide your attorney with all the details they need about the accident. Even if your case doesn’t go to court and ends in a settlement instead – as many personal injury cases do – your attorney and the defendant's attorney will be negotiating based on what’s likely to happen should the case go to court, so any responsibility you might have for the accident will affect the outcome of settlement negotiations as well.

Conclusion

Slip-and-fall victims in Florida can seek compensation from the responsible party for a slip-and-fall accident that occurs on someone else’s property. They’ll need to file a claim within the statute of limitations and show that certain facts about the accident are true. Additionally, their own negligence can factor into any settlement or award.

Source

https://www.nolo.com/legal-encyclopedia/how-does-comparative-negligence-affect-slip-fall-case.html

What a Dog Bite Lawyer Wants You to Know About Animal Attacks

Mon, 31 Oct 2022 19:13:15 GMT

Dog bite injuries can take several different forms. It’s always serious when a dog attacks a person, and you have to take it seriously. There are different types of injuries that you could sustain following a dog bite, and it’s important to be aware of them and what you should do following an attack, including when to contact a dog bite lawyer.

Abrasions, Lacerations, and Punctures
Crushing Injuries and Avulsions
Infections, Rabies, and Tetanus
Scarring, Nerve Damage, and Fatalities

Any of the damages caused by a dog bite attack are potentially serious. A personal injury attorney who deals with dog bites can help you determine whether you can receive compensation for your injuries and guide you through the process.

Abrasions, Lacerations, and Punctures

When a dog attacks you, it will generally bite or scratch. Either can result in these kinds of injuries. Abrasions are surface-level cuts and scrapes that may be able to be treated at home – though you should still see a medical professional, as any abrasion could get infected and require care. Furthermore, a medical record will be useful if you decide to take legal action.

Lacerations and punctures are more serious. Lacerations are more serious cuts that affect more than the outer layer of skin and can involve muscles and bones. You should absolutely see a doctor for a laceration. Puncture wounds may look less serious in comparison because they’re often smaller, but these can be deep. A puncture wound would be the kind of wound you see when a dog sinks its teeth into you in one place. Like lacerations, these should always be examined by a doctor or other medical professional.

Crushing Injuries and Avulsions

When a person is attacked by a large dog, they may experience crushing injuries. This is when the bones are fractured or crushed by the force of the bite and the weight of the dog. This can be an especially dangerous risk for small children because they’re small to begin with and the force of a big dog can be even more devastating.

An avulsion is when the skin and tissue are actually ripped away from the body – for example, people have had their ears ripped off their heads in animal attacks. When this happens, it’s generally necessary to have reconstructive surgery to repair the damage. Both crushing injuries and avulsions are severe injuries that require immediate medical attention and absolutely should not be untreated or treated at home under any circumstances.

Infections, Rabies, and Tetanus

Sometimes it’s not the injury that’s the real danger, but the infection that can result from an injury. Dog bites can cause serious infections even if the wound isn’t that serious. All the dog has to do is break the skin for bacteria to enter the body and cause an infection. The bacteria could be located in the dog’s mouth, but you can also get an infection from the bacteria on your skin, which is why it’s so important that your wounds and the area around them are thoroughly cleaned out and kept clean.

Specific infections that sometimes result from dog bites are rabies and tetanus. Rabies deaths are relatively uncommon in the United States, but they do still happen. It’s important to find out if the dog that bit you has been vaccinated for rabies – if they haven't or you can’t verify that they have, you need to see a doctor even if the cut is very small. Treatments can stop the development of rabies, but they need to be given soon after infection. Rabies is nearly always fatal, so this is not something to put off.

Tetanus is normally associated with scraping yourself on something rusty or unclean, but in some cases, it can result from a dog bite. If you haven’t been vaccinated for tetanus or haven’t had your booster shot on time, you’ll probably need to get one.

Scarring, Nerve Damage, and Fatalities

Some injuries are ongoing. A scar may last forever, even after the wound has healed. Even in cases where reconstructive surgery is called for and used, you may have scars that won’t go away. Nerve damage is another ongoing issue that can stem from a dog attack. The type of nerve damage depends on the location and severity of the injury, but it can involve temporary or permanent loss of function or feeling or even paralysis.

Tragically, dog attack injuries can also lead to fatalities in some cases. There could be any number of reasons for this, from a serious crushing injury to an infection that wasn’t caught and treated in time. According to the American Veterinary Medicine Association , children are the most common victims of dog bites and the most likely to experience serious injuries. This puts them at greater risk for fatalities, too.

Conclusion

Your legal options vary based on what kinds of injuries you have. You’ll have more medical bills, lost wages, and other damages for an avulsion than an abrasion, for example. Different levels of the same injury may have different remedies as well – a disfiguring facial scar may result in more compensation than a small scar on your foot. A personal injury lawyer can help you understand your options and what the possible outcomes might be, so make sure that after you seek medical attention, your next stop is a dog bite attorney.

Source

https://www.avma.org/resources-tools/pet-owners/dog-bite-prevention

How Does the Personal Injury Claim Process Work?

Wed, 12 Oct 2022 13:39:36 GMT

Personal injury claims , also called torts, are legal actions that are taken due to injuries that occur because of a person or entity’s negligence. When such injuries happen, the legal system is there to help the injured party recover some compensation for their losses. If you or someone close to you has sustained an injury caused by someone else, you may be wondering how the personal injury claim process works and what you need to know about going forward.

Personal Injury Claim Categories
Liability and Damages
Settling a Claim
Proceeding to Trial

Take a look at some of the important things to know about the personal injury claim process.

Personal Injury Claim Categories

A personal injury claim can fall into one or more categories depending on the circumstances of the case. Some of the more common categories include motor vehicle accidents, premises liability, products liability, professional liability, and wrongful death. Some of these, like motor vehicle accidents and wrongful death, are fairly self-explanatory. Others may not sound as familiar.

Premises liability may be more commonly recognized as slip-and-fall or trip-and-fall cases – cases in which an injury could have been prevented, but negligence allowed it to occur. This can happen on public or private property. Products liability has to do with goods or products that cause injury. Professional liability involves injury in the course of receiving a professional service, like medical malpractice. Sometimes, a claim could fit into multiple categories. For example, a medical mistake that resulted in death could be both a professional liability claim and a wrongful death claim.

Liability and Damages

To successfully pursue a personal injury claim, you will need to show both liability and damages. Proving liability means proving that another person or entity was responsible for the injury. For instance, if you’re injured in a motor vehicle accident in which the other driver ran a red light, the driver would be the person liable. The driver’s passengers would not be liable. Being certain you know who was driving the car would be an important part of your case.

“Damages” refers to the types of losses suffered and can include both economic and non-economic losses. Medical bills and lost wages are examples of economic losses. Pain and suffering are non-economic losses. The types of damages you may be able to claim are numerous and can be confusing, which is why it’s important to have a personal injury attorney who can determine how best to structure your claim. You should also save all documentation, such as medical bills, to help prove your damages.

Settling a Claim

With your help, your attorney will establish what your claim involves, who is liable, and what your damages are. The next step will be identifying which insurance companies are involved. It’s common in personal injury cases that the defendant’s insurance company will actually be the one financially responsible for the damages. This isn’t only the case with car accidents. If the injury happened on someone else’s property, homeowner’s insurance would come into play. If the defendant is a business, there would be business insurance involved.

Your personal injury attorney will reach out to the relevant insurance companies and may be able to receive a settlement offer by communicating with them. Many personal injury claims are settled this way without ever going to court. A mutually agreeable settlement is usually a positive development for the person making the claim. It keeps legal fees and costs down and allows the claimant to receive compensation faster. Taking a personal injury claim to trial can take some time, which can be a problem when medical bills and expenses are mounting up.

Proceeding to Trial

Nevertheless, some personal injury cases do proceed to trial. This can happen when there’s a dispute about liability or when the insurer or defendant is uncooperative. If a personal injury case goes to trial, the defendant will be represented by their own lawyer, usually paid for by the insurance company. They’ll be entitled to discovery and they’ll also be able to take your sworn statement before a court reporter, a process known as a deposition.

Even after the initial steps are taken toward a trial, a settlement can still occur at any point if both parties agree. The majority of personal injury cases are settled at some point, so it’s more likely that your case will be resolved that way.

Having the right personal injury attorney is essential to a successful personal injury claim. Whether your claim ends in a settlement before trial or inside a courtroom, your attorney is your partner and guide through the process. You need to feel comfortable with them and confident in their skills. They should be able to answer your questions satisfactorily and keep you updated on the progress of your case.

Personal Injury Protection in Florida

Thu, 08 Sep 2022 20:08:53 GMT

If you’re a new driver looking for insurance in Florida, one of your options will be PIP insurance. What does that mean? PIP stands for personal injury protection. Carrying the proper car insurance is a vital necessity no matter where you are, so it’s important to understand PIP and what it means for you.

Who Has to Have PIP Insurance in Florida?
What Does PIP Cover?
Can I Still Sue After an Accident?
Is There Other Insurance I Should Have?

Take a look at what you need to know about PIP in Florida.

Who Has to Have PIP Insurance in Florida?

PIP coverage is mandated in Florida. That means that everyone who registers a motor vehicle has to have it.

There are a few exceptions to the rule. Vehicles with fewer than four wheels, including motorcycles, don’t need to have PIP insurance. School buses aren’t required to have it – children injured in a school bus accident would be covered by their parents' insurance – but the school bus driver would still need to have PIP on their personal vehicle if they have one. Taxis and limousines aren’t required to carry PIP insurance, and inoperable vehicles don’t need it.

Most of the time, though, if you’re going to register a motor vehicle in the state of Florida, you will be required to show proof that you’ve purchased PIP insurance first (you will also have to purchase minimal property damage coverage, which is not discussed here).

What Does PIP Cover?

To understand what PIP covers, it’s important to remember that Florida is a no-fault state. This means that regardless of who caused the accident, each driver is supposed to carry a minimum amount of insurance that covers up to $10,000 of their own injuries. That’s what PIP is for.

PIP covers emergency treatment, hospitalization, lab testing, prescriptions, and physical therapy, up to a limit of $10,000. PIP can also cover economic losses, such as up to 60% of a person’s lost wages. Additionally, in the event of a fatality, PIP also covers a death benefit of $5000, which can be used to defray expenses such as funeral and burial costs.

Can I Still Sue After an Accident?

Many drivers don’t realize until they get into an accident that it’s their insurance that’s meant to pay for their medical bills, not the other driver’s insurance. If you also didn’t realize this, you may be wondering what you’d do if you were in an accident where the expenses added up to over $10,000.

The answer is that you can still sue the other driver. There are only about 10 states that have PIP, and in many cases, they only allow lawsuits if a death has occurred or if the injury results in severe disfigurement or is permanent.

The point of requiring PIP is to reduce lawsuits and reduce the waiting time for accident victims to receive compensation. If fault isn’t taken into account and each person’s own insurance company pays for their injuries, injured victims receive money to pay the bills from the accident more quickly.

However, in Florida, drivers can sue the at-fault party not only for death, permanent injury, disfigurement or a permanent injury, but also for medical expenses in excess of $10,000.

It's important to remember that there are time limits on how long a driver can wait before taking legal action. That’s why one of the first things a person should do after a car accident is contact a personal injury lawyer. An attorney will be able to advise you on how to take the right actions at the right times to preserve your right to sue.

Is There Other Insurance I Should Have?

If you’re wondering whether PIP insurance is enough, it’s a good question! Legally, it’s enough – you’re allowed to drive your car as long as your PIP insurance is intact. Financially, though, it might not be. You know that if you’re injured in an accident, your treatments could easily end up exceeding the PIP limits. $10,000 only covers so much healthcare (and it’s not much to be honest). Other drivers have the same issue. That means that if you’re in an accident and you injure someone else with your car, they could end up suing you for fatalities, permanent injuries, disfigurements, or accident-related treatment totaling above $10,000. At that point, they would be able to sue for pain and suffering as well.

You'd be at risk if you don’t have additional insurance to cover this kind of claim. If the proceeds of a lawsuit have to come out of your personal funds, rather than insurance, it could be financially devastating for you and your family. It’s the reason why many drivers choose to add bodily injury liability coverage to their insurance policy. This allows an injured driver to recover money from your insurance company, not necessarily you personally.

Various other additions can also be helpful, such as medical payments, which add extra medical coverage for you, and various levels of insurance that protect the car, covering repairs. If you’re driving a car that’s leased or financed, the company you’re making payments to may require you to carry more than just the legally-required PIP insurance because the insurance protects their interest in the car until you’ve paid it off or traded it in.

Conclusion

PIP is the minimum mandated medical insurance you have to carry to drive a motor vehicle in Florida. It covers medical care, economic losses, and death benefits. Florida drivers still have the right to sue if their losses exceed the PIP limits, and additional insurance may be required to protect drivers from having to pay out lawsuit settlements from their personal funds.

The Most Common Types of Personal Injury Cases in Florida

Wed, 10 Aug 2022 14:47:52 GMT

When you suffer an injury from an accident that another party can be held legally responsible for, the type of lawsuit you’d file to receive compensation is called a personal injury lawsuit. Many accidents are minor and result in no injury or lasting damage, but when you have an accident that does injure you in some way, the consequences can be life-changing and expensive. In this case, you might want to look for compensation. Some of the most common types of personal injury cases in Florida are:

Motor Vehicle Accidents
Dog Bites
Slip and Fall
Wrongful Death

Understanding the types of cases and where your case fits in will help you when deciding to go forward with a personal injury case.

Motor Vehicle Accidents

You probably see car accidents regularly if you drive on busy roads. Unsurprisingly, they make up a large part of common personal injury lawsuits. It’s also important to remember that motor vehicle cases are not only about cars. Cars, trucks, motorcycles, scooters, buses, bicycles, boats, and other watercraft can all be considered motor vehicles and be included in this type of lawsuit.

Many motor vehicle accident personal injury cases in Florida are complicated by the no-fault insurance laws in the state. Who pays if the injured party was, for example, a bicyclist who wasn’t insured themselves? Depending on the extent of the damage in an accident, insurance payouts may not be enough to cover all the claimant’s losses. There are different types of damages that can be awarded in a motor vehicle case, including out-of-pocket expenses like the costs of medical treatments and prescriptions and speculative costs like pain and suffering. A good attorney will guide you through the potentially confusing ins and outs of a motor vehicle accident case in Florida.

Dog Bites

Dog bites and other types of animal attacks happen often enough to be a common type of personal injury lawsuit in Florida.

Animal owners have a duty to keep their pets under control; when they don’t, they’re liable for any damage the animal causes. Animal attacks can be quite serious. Not only are some attacks immediately recognizable as extremely damaging, but even seemingly minor injuries could lead to infections or complications that could end up being quite serious.

Recovering compensation after an animal attack is not always straightforward. The injury might be covered under the animal owner’s homeowner’s insurance policy, but some homeowner’s insurance policies exclude these injuries from their policies. Suing an animal owner directly may prove difficult if that person has few assets or funds to sue for. People who have experienced an animal attack should contact the police or animal control authorities immediately – this ensures that an attack is documented and also allows these authorities to take steps to prevent another attack. The victim of a dog bite or other animal attack should get appropriate medical treatment and contact a personal injury lawyer for help.

Slip and Fall

The kind of case that most people think of as a slip and fall case is actually a case of premises liability. It boils down to the idea that the owner of a premises, like a place of business, has a responsibility to make sure that their property is reasonably safe. If they fail to do that, they can be held liable for a person's injuries on their property. An example of that might be a wet floor that has no signage or barrier to prevent people from walking on it, which causes an unwary visitor to the premises to slip and fall.

While slipping or tripping and then falling are common varieties of premises liability cases, there are many other potential varieties of these cases, and they can result in various types of injuries. Premises liability injuries could run the gamut from minor finger injuries to severe head injuries. It can also sometimes be complicated to determine who is liable. For example, is it the resident or the resident’s condominium association or apartment complex who’s responsible if the injury occurs in a residential building? An attorney specializing in personal injury can help untangle these issues.

Wrongful Death

Losing a loved one before their time is, of course, an awful experience. While no amount of money can replace a lost loved one, factors like lost support and services, lost companionship, lost protection, and mental pain and suffering can be compensated for. Those damages are what’s at stake in a wrongful death case.

Almost any kind of case can be a wrongful death case if it results in death. A motor vehicle case, an animal attack, or a premises liability case where the victim died may meet the conditions of a wrongful death case if a victim died from their injuries. These cases are even more complicated than a personal injury case without a death. There may be more than one party that could be legally responsible or more than one type of insurance that could be obligated to pay out. Survivors of a wrongful death need knowledgeable legal guidance to navigate the myriad issues involved in these cases.

Conclusion

There are many types of personal injury cases, and even the most common types of these cases can often be divided into many sub-types. You should be compensated for an injury that someone else was responsible for, but the legal issues involved in pursuing a personal injury case are complex. If you’ve been injured, a skilled and experienced personal injury lawyer with a track record for cases like yours is necessary to ensure that you stand the best chance of recovering the compensation you deserve.

What to Do After a Car Accident in Florida

Wed, 06 Jul 2022 14:19:31 GMT

Knowing what to do after a car accident in Florida can make a difference in your insurance coverage, finances, and even your physical health. When you understand what steps you should take in the aftermath of an accident, you set yourself up for a better recovery. Take a look at what you need to know about the first steps you should take after a serious motor vehicle accident.

What Are the Most Common Kinds of Car Accidents?

The steps you need to take after a car accident might depend on what kind of accident it is. There are a few common types of car accidents you might encounter.

Rear-End Accidents

These are the kinds of accidents that occur when one car runs into the back of another.
These accidents are more likely to result in injury rather than death.
Damage to the vehicles is common.
They often take place at low speeds – they can happen at speeds as low as 5-10 mph.
For example, when the car in front stops to make a turn but the driver behind them didn’t pay attention to the turn signals or brake lights, they might keep going instead of stopping, causing a rear-end collision.
This can result in the type of injury known as a soft-tissue injury, like whiplash.

Pedestrian, Motorcycle, or Bicycle Injuries

When a car hits a person on foot or a person who’s riding either a bicycle or a motorcycle, that’s a different kind of injury risk. In these cases, the person who is walking or cycling doesn’t have the protection of a car enclosing them. Their lack of protection makes this kind of accident one that has a great risk of death or severe bodily injury. It may also result in damages to the vehicle or vehicles involved. A car, truck, or other large, enclosed vehicle will most likely do more damage to a bicycle or motorcycle than the reverse. With these accidents, bodily injury is usually the largest concern.

Direct Bodily Impact

When a car hits another car, it can also cause a direct bodily impact. When one car hits another car on the driver’s side, for instance, they’re being hit directly. The amount of protection they’ll receive from being inside the car depends on how fast the other car was going and how heavy it is. These types of accidents run the gamut from minor sideswipes to fatal crashes.

Why Is Florida a No-Fault State?

You may have heard Florida called a no-fault insurance state, but what does that mean? In Florida, the law says you must have a certain minimum of insurance, and your insurance must cover your medical bills, at least to a certain extent. Up to $10,000, your own insurance covers you whether you were at fault in the accident or not.

This law, created in 1971, exists for a few reasons. One is that it can cut down on lawsuits. If people get their medical bills covered, they may be less likely to pursue legal action. It’s also important for making sure the person who is at fault gets medical care. They may be injured, and if they don’t have some means of getting treated, they may not seek help.

The no-fault insurance that Floridians must carry at a minimum is known as PIP (Personal Injury Protection) coverage.

Steps to Take After Being Involved in an Accident

There are a few things you must do in the immediate moments after the accident.

Step 1: Call 911

911 needs to be called if there are injuries or even potential injuries. Even if you don’t immediately feel as if you’re injured, that doesn’t mean that you aren’t. Shock and the accompanying surge of adrenaline can temporarily mask pain – even serious pain. Also, some injuries simply take time to show up.

What’s more, you need the police in order to make a report. A police report ensures that the story can’t change later. Your insurance company could deny your claim without a police report, and you'll need one to get a formal settlement for pain and suffering later. Remember that you have up to $10,000 in PIP insurance to cover your own medical expenses if you own a car or if you’re a homeowner or live with one – homeowners are also required to carry PIP that covers everyone in their home. Your PIP follows you, even if you’re in someone else’s vehicle.

If you’re injured, put your health first. If the injuries seem serious, go to the hospital by ambulance. If they’re less severe, drive yourself or get someone else to drive you to an emergency room, urgent care, or clinic. You have to see a doctor within 14 days of the accident to preserve your PIP coverage for that accident.

Step 2: Contact a Personal Injury Lawyer

You might think your next step would be to contact your insurance, but you don’t want to do that yet. Instead, contact a lawyer. Your insurance company may want a recorded settlement, and you should have someone looking out for your interests before you do that. You don’t know how your statement might affect your claim. Your lawyer can strategize with you, then be present while you make the statement over the phone.

Step 3: Get Treatment for Your Injuries

If you have injuries, treatment is the next step. It’s important to follow the doctor’s instructions. They may order diagnostic tests like X-rays and MRIs both because they need them to diagnose and treat you. In Florida, you must be diagnosed with an injury by a doctor to make a claim against the "at-fault party" for your injuries, so you’ll need these tests for documentation purposes.

You’ll be preparing for a potential lawsuit as you go along. Ideally, most cases would end in settlement, but that can’t happen until your treatment is complete. Your attorney will need to monitor your medical treatment, oversee the bills, and stay in touch with the insurance company. The good news is that you won’t have to deal with the insurance company directly - your attorney will.

When the doctor determines that you’ve reached maximum medical improvement, your attorney will send all of the records and reports to the insurance company of the at-fault party to begin settlement negotiations. If a settlement that’s agreeable to both parties can’t be reached, then a lawsuit would need to be filed and the case would go to trial.

Are All Florida Drivers Required to Have Auto Insurance?

Florida has the second-lowest insurance requirements in the country. However, all drivers are required to at least the minimum PIP auto insurance. PIP pays $10,000 of your own medical bills and $10,000 of property damage for someone else's car. It does not, however, provide any money to pay for someone else's injuries.

Conclusion

Immediately following an accident, medical treatment for the injured and documenting the accident with a police report are the most important things. After contacting the police and emergency services, the next call should be a qualified personal injury attorney. A lawyer can help you with making your statement for the insurance adjuster and handling the ongoing reports and documentation involved in making a claim.

What is a Lady Bird Deed?

Wed, 06 Jul 2022 13:28:17 GMT

Is a Lady Bird Deed different from a Life Estate Deed (a/k/a Enhanced Life Estate Deed)? There is a distinction that may make the Lady Bird Deed preferable.

Both a Life Estate Deed and a Lady Bird Deed can be created to apply to one real estate property. You can make either type of deed part of your Estate Plan. However, the Lady Bird Deed gives you more control over what you do with your property even after the deed is created.

Keep reading to learn more about what a Lady Bird Deed is and how it’s both similar and different to a Life Estate Deed.

The Differences Between a Life Estate Deed and a Lady Bird Deed

When you create a Life Estate Deed, you as the property owner are signing a special Deed that gives another person ownership of your property as soon as you pass away. In the document, you’re designated as the life tenant. The person who will receive the property upon your death is the remainderman or remainder person. The document stipulates that it’s your property for life, but upon your death, it becomes the property of the remainder person.

In order to establish ownership of the property, the remainder person will need to do two things:

Obtain a certified copy of the official death certificate (this is usually available a week or two after death) and bring it to the courthouse for recording.
Pay the recording fee set by the clerk of courts.

The clerk will record this in the official county records and it serves as proof that the property now belongs to the remainder person.

Life Estate Deeds have a long history, stretching back hundreds of years to English Common Law. From those early times, the way that it worked was to lock the property, preventing a later transfer to a different person. Once a remainder person was added to a Life Estate Deed or any other type of property ownership, the life tenant would then need the written permission of the remainder person to make any changes going forward. This made creating a Life Estate Deed somewhat risky. The property immediately became the property of the remainder person upon the death of the life tenant, and no changes could be made in the meantime without the remainder person's permission.

If you changed your mind while still alive, revisions could not be made to the Deed without permission of the remainder person.

In recent years, the legal field has come up with another option called an Enhanced Life Estate Deed or a Lady Bird Deed. The Lady Bird deed gives the property owner more control over what they can do with their property once a remainder person has been named. Under a Lady Bird Deed, the owner doesn’t need to get the remainder person's consent to sell, transfer, or mortgage the property. In fact, while still living, the life tenant can change remainder persons anytime they desire, or even cancel the Lady Bird Deed entirely.

The owner doesn’t even need to let the remainder person know about their decision to do any of these things. They can just do whatever they would otherwise do with the property.

Choosing the Lady Bird Deed option will help the owner save hundreds or thousands of dollars in attorney fees and probate costs. There are many different fees associated with Probate, so an option that allows property owners to avoid them is becoming a more and more popular choice.

The Requirements of a Lady Bird Deed

The requirements of a Lady Bird deed are simple. The owner just needs to choose the remainder person. It’s not necessary to notify the remainder person that they’re being added to the Deed if the owner doesn’t want to. It’s also permissible to add more than one remainder person – for example, all of the children in a family could be added as remainder people. It’s a fast and easy process.

There are no other requirements, but if the property has a mortgage, it’s a good idea for the property owner to check with their mortgage company first to make sure they have no restrictions. The owner should also need to let the property’s insurance company know that they’re making this change, though it shouldn’t really cause any problems for them.

A Lady Bird Deed can be used for other types of real property, not just houses. It can be used for a vacant lot or a mobile home (where the real estate is owned by the mobile home owner) as easily as a single-family home, for example.

Having the Lady Bird Deed drafted and recorded by an attorney will ensure that you and your heirs will save the maximum amount possible on costs and fees and receive as much value as you can for your property. However, you will have to pay the costs of having an attorney draft and record the Deed. But this cost should be far less than what you and your family stand to lose without the Deed being in place.

Lady Bird Deed Language

The language used in a Lady Bird Deed isn’t too difficult to understand. The owner, referred to as the grantor, transfers the property named in the Deed to himself or herself for life. The person named to receive the property upon death is the remainderman or the remainder person.

The document states that it reserves the rights of the grantor to use the property in all ways through the remainder of their life. It also reserves the grantor’s right to cancel, modify, or amend the Deed unilaterally. The ability to make these changes without the permission or knowledge of the remainder person is what differentiates a Lady Bird Deed from a basic Life Estate Deed. Otherwise, the language is similar to what can be found in other Real Estate Deeds.

Lady Bird Deeds in Florida

Lady Bird Deeds are recognized in the state of Florida. In order to be recognized, the deed needs to have two witnesses and be signed by the grantor – the person whose property is being deeded. The document must also be notarized in order to be properly executed.

Conclusion

There are key differences between a Life Estate Deed versus a Lady Bird Deed (a/k/a Enhanced Life Estate Deed), all of which can be addressed by a qualified attorney. They will advise you on the most effective ways to protect your assets and avoid unnecessary costs and fees.

If I Have a Living Trust, Why Do I Need a Last Will and Testament

Tue, 15 Mar 2022 17:52:47 GMT

If you already have a Living Trust , do you need a Last Will and Testament? The answer is yes, but the reasons might not be clear to you.

While a Living Trust is typically intended to cover your entire estate and avoid the need for probate, you still need to have a Last Will and Testament because, following your death, there may still be assets in your estate that you failed to put into your Living Trust during your lifetime. If you don’t have this document, your beneficiaries for any item of your estate not properly transferred into your Trust may wind up being your next-of-kin, who may or may not be your chosen beneficiaries under your Living Trust.

Keep reading to learn more about what these documents are and why they’re both necessary.

What Is A Living Trust?

A Living Trust is a document that works for you while you’re alive. The Living Trust is a legal entity that’s separate from you; you’re one entity (that is, you, personally), and the Trust is another. This means the property in the Living Trust belongs to the Living Trust. In order to exist, the Living Trust has to own some property (this is referred to as the Trust being “funded”), so you’ll typically work with your attorney to initially assign your personal property to the Trust.

Why would you want to do this? The reason is to keep your personal prope rty out of probate . If you were to die and your personal property still belonged to you (personally), it would need to go through the probate process. When it belongs to the Living Trust, however, it won’t need to go through that process.

Thereafter, you would transfer other types of property to your Trust. For example, you may wish to transfer your real estate, investment accounts, bank accounts, etc., into the Living Trust so that they will not have to go through probate following your death.

While your Living Trust goes into effect immediately, it’s important to understand that you can change the ownership of your property as long as you are alive. You can put items in and take items out of the Trust as needed, and you can modify or cancel it at any time during your life (this is why a Living Trust is also often referred to as a “Revocable Trust”).

After your death, the Living Trust becomes irrevocable. This means it cannot be changed or modified. At that point, your successor trustee (a person you designate prior to your death) will be given full control over the contents of the Trust. He or she will pay outstanding bills, transfer assets to your named beneficiaries, and so on. These tasks will be done in accordance with your last wishes as set forth in the Living Trust document.

One important benefit of having a Living Trust is that these documents are private. Only on very rare occasions would a Trust need to be filed with the courts, so it will generally not become a public document before or after your death.

Living Trusts are particularly necessary if you own out-of-state property . If you don't have a Living Trust, the property would likely have to go through probate not only in your current state but also in the state where the property is located. This will be time-consuming, expensive, and stressful for your beneficiaries.

What Is A Last Will & Testament?

A Last Will and Testament is a document that becomes final after death. It can be modified or canceled at any time while you're still alive, but after your death, it cannot be modified.

The personal representative (called an executor in some states) you appoint will fill the role of distributing your estate to your beneficiaries, paying any outstanding bills, filing your final tax return, and managing any other financial obligations on your behalf. However, none of this will be accomplished without the opening of a court proceeding called “probate”. Probate can be expensive, time-consuming, and cause substantial delays in the distribution of your estate to your beneficiaries.

You can find out more about personal representatives here . So, unlike a Living Trust, a Last Will and Testament does go through probate and will become a publicly accessible document after your death.

Why Are Both Documents Necessary?

The final question remains: Do you need a Last Will and Testament if you already have a Living Trust? The answer is yes because if there's anything you haven't remembered to put in your Trust, those leftover assets will be disbursed as indicated in your Last Will and Testament. Thus, what is typically done is that your lawyer will prepare a “pour-over Will” to address the assets you may not have remembered to, or may not have been able to add to your Living Trust during your lifetime.

A simple way to manage this is to talk to your lawyer about a "pour-over Will." This document indicates that anything you own will go to your Trust as the beneficiary. Then, your Trustee will be able to distribute any assets you hadn't already transferred to your Trust, in accordance with the terms of your Trust. So, the assets that did not ever make it into your Trust prior to your death will still be distributed to the beneficiaries you have designated to receive your assets from your Trust.

Conclusion

You should always work with a knowledgeable attorney to learn about what is needed in your specific situation. If you have a Living Trust, a Last Will and Testament will provide a needed layer of protection for any assets that aren't part of your Trust.

How Does a Living Will Differ From a DNR?

Wed, 23 Feb 2022 15:50:26 GMT

Numerous reasons exist for having a Living Will drawn up. When challenging or unexpected medical issues arise, having a Living Will helps in several ways, as may a Do Not Resuscitate (DNR) order but the two couldn't be any more different.

A Living Will’s purpose is to eliminate the burden on your loved ones to navigate life support issues. A DNR order is often confused with a Living Will by some people.

Below, you'll learn more about the key differences between a Living Will and a DNR order.

The Definition of a Living Will

The legal definition and summary of a Living Will is that it serves as a written declaration that outlines an individual’s directives in the event that the individual is incapacitated or unable to provide informed consent or refusal for medical treatment concerning life support, such as mechanical ventilation, feeding tubes and the like. The Mayo Clinic summarizes the details of the varying types of Living Wills and Advanced Directives here.

The Timelines of a Living Will

Once a Living Will is created, whether part of a larger estate plan or not, it is effective from the day it is signed and executed as it becomes a legally binding document. A large majority of people who have Living Wills are seniors but adults of all ages should have a Living Will as anyone, at any time, could become seriously ill or injured.

Having a Living Will makes your specific preferences and wishes known for your family or spouse should the unthinkable happen. Every few years, review and update your Living Will as necessary. You can make changes but those changes should be made formally, with the help of an attorney.

Why Do You Need A Living Will?

A legally drafted Living Will protects your interests and desires for life support-related medical care. When scenarios arise that require them, it is most likely that your loved ones are under duress. Making difficult decisions during those times can be very stressful. Having a Living Will helps to mitigate some of the anxiety around decision-making because many of those decisions have already been laid out in a single document.

Without a written Living Will, doctors, hospitals, or health care clinics may refuse to honor your wishes. If you have a Living Will, they are much more likely to honor your wishes, and if they don’t, then your appointed surrogate can challenge that doctor, hospital, or clinic, and, if necessary, take them to court to force them to comply with your wishes.

What Happens If There Isn’t a Living Will?

If there isn’t a Living Will drawn up and a critical situation occurs where emergency or life-altering decisions need to be made and made quickly, those decisions may fall into the hands of health care professionals. Family members, husbands/wives, and other loved ones may not be able to step in and make these decisions in a time of crisis, even when aware of an individual’s wishes because there is no formal, legal document on record.

The Parties Involved in Drafting and Executing a Living Will in The State of Florida

Under Florida law, a Living Will must be signed by an individual who has requested it in the presence of two witnesses. Other parties typically involved with the execution of a Living Will are the attorney responsible for drafting the document, and the notary.

A medical advocate or "surrogate" is listed within the Living Will as the person who is designated to carry out the wishes listed should the time come where that is necessary. However, this person does not need to be in attendance at the time of the Living Will’s execution. The only requirement is that they are 18 years of age or older and legally competent to act on your behalf. In many cases, a backup surrogate is also chosen to take account of the possibility that the primary surrogate listed may be unable to perform their duties.

A DNR Defined

A DNR order is a medical order written by a doctor on an individual’s behalf that instructs health care providers including EMTs and paramedics not to engage in life-saving measures. This includes cardiopulmonary resuscitation (CPR), which is used when a person is either unable to breathe or their heart stops.

What Parties are Involved in Drafting and Executing a DNR in the State of Florida?

Under Florida Law and The Florida Department of Health , a DNR must be signed by the patient, and signed off by a patient’s primary care physician, and placed in the patient’s medical records and history. Attorneys do not typically draft DNR orders.

A DNR differs from a Living Will in that it specifically states that no resuscitation measures should be taken if a person’s heartbeat or breathing ceases whereas a Living Will stipulates a person’s wishes regarding life support measures if they are no longer able to make those decisions for themselves.

Can You Request Both a Living Will and DNR Be Drafted and Executed?

Yes, you can request both a Living Will (legal document) and a DNR (if applicable to your situation). Both protect the interests of the individual should they not have the ability to make decisions or choose medical options for themselves. These documents lessen the burden and outline detailed instructions for procedures or end-of-life care for your loved ones to follow.

Conclusion

A Living Will is a necessary document to have on hand while you are still relatively healthy, and will be very helpful to your loved ones if you're ever faced with a life-threatening medical situation down the road. Some parties opt to request both a DNR and a Living Will, however, there are significant differences between the two documents, and while a Living Will is necessary for everyone to have, a DNR is really only applicable to certain people in certain health situations.

Sources

How Do I Transfer a Deceased Person's Real Estate That's in Another State?

Mon, 24 Jan 2022 21:47:22 GMT

Going through the estate-planning and probate process is never easy, but when there's the need to transfer real estate after a death, it can make things more complex. And when the deceased lived in another state, that adds an additional layer of complexity.

It's not uncommon for people living out of state to own property in, for example, Florida. What that property is can run the gamut from vacant lots and mobile homes to condominiums, single-family residences, and even mansions! If someone in this position dies, however, there are some things you need to know about transferring the property into your name.

Steps for Transferring Real Estate After a Death Out of State

When a person dies, their estate is handled by the state in which they resided (a/k/a the “domiciliary estate”). However, it's important to note that the state of the decedent’s primary residence (their domicile) has no jurisdiction over real estate in another state. As an example, if your uncle lives in New York but owns property in Tampa, the probate process generally will be handled in the State of New York, but not as it relates to the real estate located in Tampa, Florida, which must be handled by the Florida courts. This is where having a probate attorney in Florida will be necessary.

You'll need to hire a lawyer in the state where the property is (in this case, Florida), and he or she will need to open up an Ancillary Administration proceeding. Ancillary Administration is a process similar to the domiciliary probate. It will allow the real estate to be transferred to the domiciliary administration, which is the probate administration in the deceased's primary state of residence (in the case of this example, that would be New York).

Once the Florida courts have allowed the transfer of the Florida real estate to the New York probate administration, the New York probate would then manage the distribution of that real estate as part and parcel of the New York probate administration. The property would then typically go to the beneficiary who is supposed to receive it in accordance with the deceased's Last Will or intestacy, or otherwise in accordance with the probate process.

How Long Does This Process Take?

This completely depends on the states involved. In some states, the process is simple and straightforward, but in others, it adds many steps to the process that could lengthen the time needed. So, sometimes it can be quick, while in others it can take nearly as long as the rest of the probate process. Your attorney will be able to look into the process for the state you're working with to give you a more accurate timeframe.

Final Thoughts

Going through the estate-planning process can be more complicated when there is an out-of-state property to manage. It is also necessary! If the proper planning hasn't been done, it will likely extend the time needed to get through the entire probate process.

One of the best ways to avoid this situation is to put out-of-state property into a Living Trust while you are alive to minimize the need for Ancillary Administration. So, if you own property in another state, speak to an attorney in your state, as well as one in the other state, to determine the most efficient way to provide for transfer the out-of-state real estate to your beneficiary following your death.

What Documents Are Necessary to Begin a Probate Administration?

Mon, 03 Jan 2022 21:41:47 GMT

When an individual dies, in the midst of the grieving and practicalities like planning a funeral or memorial service, there is the issue of Probate administration & the documents required to proceed. If the person had a Last Will and Testament, the process is a bit simpler.

Below, you will be provided with a brief overview of Probate administration & what documents are needed to begin. Please note that this is a general overview; a qualified Probate attorney will be able to answer any additional questions & address your particular situation.

What is Probate?

Probate is the process of settling the deceased person's affairs. This means collecting up their assets, paying their debts, distributing the assets to beneficiaries, and, sometimes, selling assets in order to accomplish the previous two actions.

The person who begins these actions is the deceased's personal representative (called the executor in some states). If the deceased had a Last Will (Will), this is someone who is chosen by the deceased individual in their Will before they die. If there is no Will, or if nobody is named in the Will, then someone, typically a family member, can volunteer or the court might ask someone to take on those responsibilities. There is an order of priority for who may be appointed personal representative, which is contained in the Florida Statutes .

Background Information About Probate

There are two main forms of Probate: formal administration and summary administration . While there are various differences, the main consideration is how much the estate is worth. Generally, if it's worth more than $75,000.00, formal administration is the only option unless the deceased passed more than 24 months prior. Smaller estates can be served best by Summary Administration, where asset value (excluding exempt property) does not exceed $75,000.00.

There are some other considerations, such as the number of creditors involved, and whether assets may need to be sold out of the estate to cover the decedent’s outstanding debts, taxes, or legal expenses.

You also need to think about which assets are impacted by Probate . As a general rule:

Assets owned only by the deceased are subject to Probate.
Assets jointly owned are usually not subject to Probate.
One exception is if the assets are jointly owned by someone who has already died. In that case, they are subject to Probate.
Assets in a revocable living trust are usually not impacted by Probate.

As you can see, the situation can be complex, depending on the specifics involved.

Documents Needed to Begin The Probate Process

Before Probate can begin, the personal representative will need to gather various documents. Here is what you will need:

A certified copy of the death certificate
Any bank or financial statements for the deceased, including investment or retirement accounts
A list of assets held by the deceased
Titles or registrations of the deceased's vehicles, vessels, and/or mobile homes
A current list of debts, such as mortgage loans, car loans, personal loans, etc.
A list of any liens against the home or any other personal property
Copies of bills for credit cards, utilities, medical bills, etc.
Receipts from the funeral, burial, and/or cremation
The original (best if available) or copy of the Last Will and Testament

Once you've compiled these, you can consult with a Probate attorney to determine which type of administration is suitable and to get the process started.

Sources

https://m.flsenate.gov/Statutes/733.301

What Are The Requirements for a Last Will & Testament in Florida?

Wed, 24 Nov 2021 14:27:39 GMT

When it comes to preparing for the end of your life or working through the legal system after a loved one dies, there will be many terms and procedures you don't fully understand. A qualified probate attorney can help walk you through all of these issues, but it's helpful to understand some of the requirements for a Last Will and Testament .

In addition, many people confuse a Living Will with a Last Will and Testament, and that is something that will be addressed within this article.

What is a Last Will & Testament?

A Last Will & Testament, also sometimes called a “Will”, is a document that is designed to transfer someone's assets to their beneficiaries after death. The Last Will & Testament is a phrase that is used to refer to that one document.

The Will doesn't become final until your death. Before your death, nothing you write in the Will will go into effect (and thus you can amend or cancel it anytime prior to death). Upon your death, the person you name to be in charge of your estate, called the personal representative or executor, will be the one responsible for locating your assets, ensuring they're distributed as you indicated in your Will, paying your outstanding bills, and preparing your final tax return, among other things.

Your Will determines how your assets will be distributed to your beneficiaries after any debts and bills are paid on your behalf from the estate. If you choose, you can also mention how your bodily remains are addressed. You can specify, for example, whether you'd like your body to be buried or cremated, and you can direct how your funeral ceremony is to be performed.

What is a Living Will?

While the term "Living Will" has the word "Will" in it, it actually has nothing to do with your Last Will & Testament. It is important to have both a Living Will and a Last Will & Testament in an estate plan, but the two documents do not have any impact on each other. In fact, it would make more sense if the Living Will was called something like "Declaration Regarding Life Support."

A Living Will is a type of Advance Directive. An Advance Directive is a document that explains your wishes should you need assistance during your lifetime (typically due to illness, injury, mental incapacity, old age, etc.). A Living Will, in particular, is a document that allows you to appoint someone to carry-out your decisions with regards to medical life support. It also allows that person to direct the doctors and hospital to discontinue life support (i.e. "pull the plug") if you are in a position where you cannot communicate your wishes, you're not getting better, and recovery chances are minimal at best in the opinion of your doctors.

Another very important Advance Directive is the Durable Power of Attorney. There are different types of Powers of Attorney that are beyond the scope of this article, but you can read more about them here .

Requirements for Writing and Filing a Last Will & Testament in Florida

Every state has different rules when it comes to drafting, executing, and filing a Last Will & Testament. Some states in the Northeast have a Registry of Wills, for example. If you live in one of those states, you'd create your Will and then file it at the courthouse while you are living.

In Florida, however, there is no place to file a Last Will & Testament before a person's death. According to Florida statute 732.901, the person in possession of the Will (the custodian of the Will) must deposit (file) the Will with the clerk of court after the testator's death . They'll also need to file a certified copy of the death certificate to prove the testator has passed.

There are positives and negatives of having a Will Registry. One negative is that it limits the testator's ability to create a "Deathbed Will," which is when a simple Will is created very shortly before the person's death. Since there is no Will Registry in Florida, someone who does not have a Will can create one when they are on their deathbed if they wish.

Note that it is not a good idea to plan on making a deathbed Will in lieu of having one prepared in advance of death. First, a sudden accident or severe medical event could cause death before this type of Will can even be discussed, drafted, and executed.

Secondly, it's a bit more difficult to make a deathbed Will self-proved. In order to make a Will self-proved, so as to not require one or more witness affidavits after death, the testator needs to sign it in front of two subscribing witnesses, and a Notary Public. They must all watch each other sign, and it must be done as part of a contemporaneous “ceremony”. The notary will notarize all of the signatures (testator and witnesses). A self-proved Will is preferable, and a non-self-proved Will is more likely to be disputed, particularly with respect to challenging the validity of the signatures contained on the Will.

Conclusion

If you currently do not have a Last Will & Testament and you have any assets and/or beneficiaries, it's wise to prepare a Will now, even if you expect that you have decades left to live. Remember that you can always change your Will as your circumstances change.

Sources

http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0732/Sections/0732.901.html

Does a Last Will & Testament Have to be Notarized?

Wed, 20 Oct 2021 20:31:58 GMT

Having a Last Will and Testament in place before you pass away is important if you have a spouse, children, or other beneficiaries whom you'd like to inherit a portion of your estate. Many people choose to go to an estate planning attorney to help them ensure the legality of their paperwork, but others choose to create a Will on their own. The trickiest part about this is not necessarily the actual creation of the document, but the process of ensuring that it is legally valid.

You might wonder how you can go about making sure that your final wishes will be honored. Should your Last Will and Testament be notarized? What else should you do? Read on to learn about the process for notarizing and self-proving your Will.

What is The Purpose of Notarizing a Will?

Though not required by law, the process of making sure that a court will accept your Will without further evidence of proper execution of the document, is called "self-proving." This helps ensure that the Will is properly executed; it also reduces the risk that the document will be challenged after your death.

One of the steps towards self-proving a Will is to have it notarized in the manner required for self-proof. The testator (that's the person who signs the Will for himself or herself) is responsible for making sure that they sign their document in front of two witnesses and, yes, a notary, in the manner specifically prescribed by law. Once this is done, you can pretty much be assured that the Florida court system will accept the Will at face value without requiring any other proof that the Will was, in fact, properly signed (executed) by you and the witnesses. You can read more about Florida Statute 732.503 that further addresses self-proving a Will here .

The affidavit of proof that the Will is valid is contained in a section of the Will immediately preceding the notary signature and seal; without it, more proof will be needed that the testator and witnesses properly signed the Will. If the Will is not self-proved, then, typically, one of the witnesses will need to provide an oath in front of either a judge or clerk of the court, to prove the Will’s valid execution.

What Are The Steps for Self-Proving a Will?

The steps toward getting your Will self-proved (notarized) are fairly simple, though not nearly as simple as notarizing most legal documents. First, make an appointment with a notary at a time that you and your proposed witnesses (you'll need two of them) are available and will be all together at the same time. Bring your witnesses and your completed (but unsigned) Will to the appointment. Everyone will also need to bring a form of legal identification sufficient for notarization purposes (driver's license, passport, etc..).

First, the notary will make note of the identification of each person and will record the type of ID everyone is using. Then, you will sign your Will in all places required. Once you've indicated that your document is correct and have signed it, your witnesses will each take a turn signing the Will in all places where required.

The notary will ask all of you to take a sworn oath, and, finally, the notary will sign and stamp the document, indicating that the document was “sworn to, and acknowledged by” the testator and both witnesses.

Of course, most estate planning lawyers will provide the necessary witnesses and notary, and make sure everything is executed properly. Thus, hiring an attorney to handle your estate planning should be the easiest manner of doing this.

What Are The Benefits of Self-Proving a Will?

Having your Will self-proved can make it easier for your beneficiaries to move the Will through the probate process. The court will accept the original Will without any additional proof, saving time, effort, and money. Even a photocopy of your Will is acceptable if self-proved, though one of your witnesses will still have to take an oath before a judge or the clerk of the courts in that instance.

Another benefit is that it's much more difficult to challenge the validity of a Will on its face if it has been properly self-proved. If you have a family member or another individual whom you think might try to challenge the validity of the execution of your Will, making sure that it is self-proved is a good way to minimize the chances of them being successful.

What Are The Ramifications of Not Notarizing a Will?

A Will that has not been self-proved might not stand up in court if someone is trying to challenge the proper execution of it. Also, not having it self-proved can make it more difficult for your beneficiaries or loved ones to get the Will admitted to court. Plus, at least one of the witnesses will need to go down to the courthouse to sign a witness oath, and this can greatly slow down the entire process. It will also likely cause an increase in the expenses and costs to ultimately settle the estate.

Conclusion

Going through the process of ensuring that your Last Will & Testament is valid can be challenging. Consulting with a qualified Florida probate attorney will help you to understand the process for having your Will self-proved and answer any questions you have about the process.

Sources

http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0732/Sections/0732.503.html

Do All Estates Have to Go Through The Same Type of Probate?

Mon, 27 Sep 2021 17:14:40 GMT

When you're in the position of having recently lost a loved one, the legalities surrounding their estate can be confusing and overwhelming. You might have heard about different types of probate , but which type would apply to your specific case?

Read on to learn about how different estates are handled through Summary Administration and Formal Administration.

Different Types of Probate

There are two main types of probate: Summary Administration and Formal Administration . In short, smaller estates will generally go through Summary Administration while larger ones will go through Formal Administration. There are some exceptions, which will be covered below.

In addition, if the estate is so small that an attorney is not necessary, the estate can go through Disposition Without Administration . Florida Statute 735.301 outlines the process in further detail.

Formal Administration

Any estate worth over $75,000 in property or assets after exempt property and assets are accounted for will go through Formal Administration. Exempt property includes the following:

Homestead Real Estate: The primary residence of the deceased (with some limitations), will not count towards the $75,000. To take advantage of this benefit, the individual should have claimed a homestead tax exemption (though not necessarily mandatory in some situations). This also offers a tax break, and the State of Florida allows each individual or married couple to claim one homestead property. The mortgage, if any, will remain with the property, but as a general rule no other creditors will be able to access it to pay their claims in probate; instead, it will go to the beneficiaries of the estate (so long as they are related to a certain degree to the deceased).
Up to Two Family Vehicles: These are the vehicles, of unlimited value, that the deceased and any family members personally use(d), including cars, vans, & trucks, but not commercial vehicles.
Household Effects such as kitchen items, furniture, artwork, and other items that were used in the deceased's home.
Up to $1,000 in Cash

Formal Administration takes longer than Summary Administration; the minimum amount of time is six months, but on average, it takes about a year. This type of probate is also more expensive than Summary Administration for several reasons.

First, the filing fees are more expensive. Secondly, the compensation for the Personal Representative (sometimes called an executor in other states) is charged separately. A tax professional may need to prepare tax returns, and that fee is charged separately. These legal costs add up as the process unfolds.

Summary Administration

Those with estates valued at less than $75,000, after the above exemptions have been subtracted, can usually go through Summary Administration as long as there aren't many debts against the estate. This is a less expensive and faster way to settle probate because there are often fewer services and fees overall. Summary Administration does not work well, however, if there are assets that must be sold and liquidated within the probate administration.

There is another way that Summary Administration can be used regardless of the value of the estate: If the individual has been deceased for over two years, then Summary Administration can be used regardless of estate value. This is because creditors cannot make claims against the estate once two years have passed since the date of death.

Conclusion

Knowing whether to request Formal Administration or Summary Administration might not be cut-and-dry if you don't know the value of the deceased's estate, what debts they have and other details about their financial situation. Talking to a qualified probate attorney will help you understand the process and can make it less confusing and overwhelming.

Sources

http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0735/Sections/0735.301.html

What Sort of Fees and Costs Can Be Expected in a Probate Administration?

Fri, 27 Aug 2021 14:30:25 GMT

When someone dies, there are various fees involved as their estate goes through the probate process. Cases often do need to go through probate, even if there is a Last Will and Testament in place. It is understandable that when a loved one passes on, the idea of dealing with probate can seem overwhelming. Knowing what the process will cost can help the family plan for what’s ahead.

There are several considerations to keep in mind as you navigate this sometimes-complicated process:

Exactly what probate is and what it involves
The types of costs and fees associated with both regular and expedited probate
Various factors that can influence the costs

In this article, you'll learn about what probate is, the different forms of probate, as well as why it costs what it costs.

Understanding Probate Administration

Probate is the legal process of settling the estate of a person who has died . If the person has a Last Will and Testament, that document must go through the court system for it to be deemed valid. At that point, the estate is handled based on the deceased person’s wishes.

In other cases, there is no Last Will and Testament. This could happen for a variety of reasons: The deceased could have been young and healthy and was not even considering that they would die, they might not have thought they needed a Will, or perhaps they simply believed they could not afford to have a Will drawn up. Whatever the situation, the estate will still need to go through probate administration in order to settle debts and distribute the estate assets.

The actual process will depend on whether the estate will go through Summary Administration or Formal Administration . Summary Administration is typically used for simpler estates that have few creditors and limited assets, or where the decedent has been dead for over two years. Formal Administration, on the other hand, is for larger estates that might have many creditors, more valuable assets, someone contesting the Will, or other factors that make the situation more complex.

What Are The Costs Associated With Different Types of Probate?

The fees that will come out of the estate or be paid by the family vary from case to case. Your attorney will be able to tell you more about what probate will cost in your particular situation. However, here are some ballpark figures that will give you a rough idea of how much you might expect to pay depending on which process is used.

Formal Administration

In Florida, Formal Administration is sometimes referred to as "regular probate." An estate that has a non-exempt asset value in excess of $75,000 would go through Formal Administration. A fee equal to 3 percent of the value is typically considered reasonable for ordinary probate services, such as preparing and filing the probate administration and handling the uncontested administration through conclusion. For extra services (which are called “extraordinary probate services”), there would generally be additional fees. These might include assisting with the sale of real estate, preparing tax returns, and so on.

The bottom line, according to the Florida Statute 733.6171 , is that a fee over 3 percent of the estate’s value is subject to approval by the probate court. However, there is the possibility of the parties reaching a different agreement regarding the attorney's fees, as long as it is disclosed to everyone impacted and as long as there are no objections to the fee.

Summary Administration

Summary Administration is sometimes called "expedited probate," and for good reason: It tends to take a lot less time than Formal Administration. It will generally cost between $2,500 and $4,500. Extra services are generally not necessary and also not included.

For very small estates that are generally less than $5,000 in value or so, there's also the possibility of Disposition Without Administration. Florida Statute 735.301 has the legal verbiage, and your attorney can give you more information on this process. The Disposition Without Administration process is intended to be utilized without the assistance of an attorney.

What Other Factors Can Influence The Cost of Probate?

In addition to the flat or percentage-based fees listed above, there are some other factors that can influence the costs that might be associated with probate administration.

If the deceased had a large collection of items that are high in value, or if they had real estate, the fees for appraising this property would come out of the estate.
The filing fee with the court depends on the value & type of estate and will be charged in addition to the attorney's fees.
The newspaper will charge a fee for the publication of notices; this is a required step with most probate cases.
In Florida, the Personal Representative is an individual who is essentially in charge of a Formal Administration; in other states, the person in this role might be called the "executor" or "administrator." This individual is typically entitled to also charge a fee for the services they provide to the estate.
The attorney fees won't generally cover additional costs, such as things like postage, copies, courier charges, and other incidentals.

Conclusion

The best way to find out how much probate will cost is to do your research and talk with a qualified attorney. You can learn about what probate fees will be by speaking to the attorney who is assisting you with your estate planning and writing your Last Will and Testament.

Alternatively, you may find out this information when you are going through the probate process after a loved one has passed on. Be aware that every state will have different laws and statutes, and attorney’s fees and costs may greatly vary by state. This article concentrated on the laws in the State of Florida.

Sources

How Do I Secure Medical POA in Florida?

Wed, 23 Sep 2020 15:26:13 GMT

Securing a Medical Power of Attorney (POA) in Florida, more commonly referred to as a Healthcare Surrogate , can be a simple process when you gain the information necessary to better understand what it means to appoint or become a Medical POA (Healthcare Surrogate).

In the state of Florida, the document that will need to be completed to appoint a medical power of attorney is titled, “Designation of Health Care Surrogate.” You will want to work with an attorney during the process of creating this Medical Power of Attorney in order to make the process smooth, seamless and legal. Although, the Medical POA does not have to be registered or recorded, in order for it to be effective the document must be in writing, signed by you, before witnesses and a Notary Public.

You may have a few questions on becoming or appointing a Medical Power of Attorney. Keep reading to find out more on what it means to become or be appointed as a Florida Medical Surrogate. Necessary steps to take for a Medical POA, how long the process takes, what requirements are necessary, who can be a Medical POA and the costs associated with the process.

Becoming or Appointing Medical Power of Attorney in Florida

To become the medical power of attorney (Health Care Surrogate) or to appoint a person to become your medical power of attorney in Florida, you must complete a Florida Medical Power of Attorney Form , also commonly referred to as the “Florida Designation of Health Care Surrogate.” This form will have you choose your appointed Medical POA (agent), in addition to having you choose which options and how much power your acting agent will have over medical decisions involved in your life once you are deemed incapable of making these decisions for yourself. You and your surrogate or agent will then choose which healthcare decisions can be made for you in the chance of a situation where you are deemed incompetent to make decisions on your own by your doctor.

In most cases there are two options that you can select for your Medical Power of Attorney involving which healthcare decisions they can make for you. You can choose to limit your acting agent’s power or give them full power. Unless you specifically choose differently, the most common selection for Medical POA means you authorize your acting POA to make any and all final medical decisions on your behalf, with your doctor's approval. Those decisions include:

Agreeing to refuse medical treatment on your behalf, including the choice for life-sustaining care
Health Care Benefit Packages
Access to all of your medical records in order to make informed decisions on your behalf
Choosing whether or not your organs and tissues can be donated

Those outline the main structures of what your Medical POA can do on on your behalf. Some of the things they cannot do include, but are not limited to: experimental treatment methods, aborting a child,withholding life-prolonging treatment if with child, electroshock treatments, and “sterilization,” according to Chapter 765, section 113, of the Florida Statutes Healthcare Advance Directives for Civil Rights .

If you choose to include any other specific limitations regarding your medical POA’s choices, you will want to work with a Florida attorney to make sure you have covered all of the bases of what you want and expect from your agent.

Becoming or Appointing Medical Power of Attorney in Florida

Agreeing to refuse medical treatment on your behalf, including the choice for life-sustaining care
Health Care Benefit Packages
Access to all of your medical records in order to make informed decisions on your behalf
Choosing whether or not your organs and tissues can be donated

Steps to Take for Medical Power of Attorney in Florida

The steps that should be taken when choosing an agent as your Medical Power of Attorney include, but are not limited to:

Choose Your Surrogate/Acting Agent
Be specific on what decisions Your POA can make for you and what they do not have the power to do.
Fill out your Florida Medical Power of Attorney Form.
Sign your document before subscribing witnesses and a Notary Public.

How Long is the Process for Medical Power of Attorney?

The Florida Bar states that once everything has been officially signed, witnessed, and notarized, your Medical Power of Attorney is effective immediately, but as long as you are sound in mind and body, you will continue making your own medical decisions, unless otherwise noted. You do have the capability to revoke the medical power from your originally chosen agent if necessary but this must be done while you maintain and have full-capacity of decision making. It is always wise to have extra copies of your document in your important belongings, with a trusted family member and with a legal professional of your choice. It is also a good idea to provide a copy to your primary physician, and any medical specialists that you may be a patient of.

What Requirements Must be Met for a Medical Power of Attorney in Florida and Who Can Become a Medical Power of Attorney?

The number one requirement that must be met to become or assign a Medical Power of Attorney in Florida is that the agent you choose must be a competent adult over the age of 18 years old, as outlined by the Florida Bar . The person selected to act as your Medical POA does not have to be a member of your family. You should choose someone that you trust who fully understands your values and personal beliefs if they must be acted upon. You can, and usually should select an alternate person to take over their duties as surrogate in the event your primary surrogate is unwilling or unable to act when the time comes.

Costs Associated with Medical Power of Attorney Legal Fees and Documents

The Medical Power of Attorney document can be created without legal assistance, although it is not recommended. If you choose to go the inexpensive route, your costs will be whatever your notary charges you, which can be as low as $10.00 in Florida, and generally as low as $50.00, according to Agingcare.com . It is always suggested to work with a professional attorney or legal professional in these cases to ensure that every box is checked. If you choose to work with a legal professional, their costs will differ based on their hourly or base rates.

Appointing a Medical Power of Attorney

Although it is never easy to imagine yourself as incapacitated in your own medical decision making process, it is important to understand that if the time ever comes, having a Medical POA already in place will save your family and loved ones from facing hard decisions. Seeking out and assigning a trustworthy person to become your Medical POA is important to do at any stage in your life, because it protects you and your free-will in addition to protecting your friends and family. Your medical and personal decisions are based on your individual beliefs, which is why it’s imperative to discuss these choices with a close, trustworthy person and appoint someone as your Medical POA that will be able to correctly make your decisions for you in the event that you are ever mentally or physically incompetent to make them for yourself.

Sources

Is Probate Required if There is a Will in Florida?

Mon, 04 May 2020 18:21:46 GMT

Unfortunately, properly dividing a deceased person's estate is far from straightforward. Even though this is typically a time for grieving, there are necessary steps that must be put into motion to eventually distribute the decedent's estate assets appropriately. When it comes to handling their Last Will and Testament, each state has its own unique procedures for proving that the Will is valid, and for distributing the deceased’s assets, to the appropriate beneficiaries. Usually, this will be supervised by the court via a process called probate . However, it is not always mandatory, depending upon what state the decedent resided in at the time of their death.

Is probate required if the deceased left a Will in Florida? Simply put, the answer is generally yes. It is usually necessary to go through probate when there is a Will. The Will must first be deemed to be valid on its face to be accepted by the probate court (that is, the court will look to see if the Will is properly signed by the deceased, witnesses, and, in some instances Notary Public). Furthermore, there are certain considerations that must be made on a case by case basis to determine if probate is even necessary, such as if there are any probatable assets in the estate, or, for example, in cases involving a wrongful death.

As you would expect, dealing with these kinds of things can be extremely complex, and thus each case must be dealt with circumstantially. In this article, we will take a look at what the probate process entails and whether or not probate should be carried out on Wills in Florida.

What is Probate?

Probate is the process of distributing an estate with court supervision. First, the court will determine whether or not the Will is valid before proceeding with the distribution of assets. This means that the Will was executed in accordance with the law’s strict requirements for correctly executing a Will, and that it was executed during a time that the deceased was mentally competent to do so.

This is to ensure that there is no wrongdoing and no misallocation of assets to potentially fraudulent, or incorrect beneficiaries. Once the court has gone on to validate the Will, the court will officially appoint the Personal Representative of the estate or the “executor” who, with the assistance of their probate lawyer, will then proceed to identify and locate all rightful beneficiaries of the Will, identify and collect all of the deceased’s assets for probate, and locate and notify the decedent’s creditors of the death. These actions are subsequently followed by the payment of legitimate creditors, taxes, and the expenses of administering the estate. Finally, after all of these processes are complete, the remaining assets are distributed among the beneficiaries.

Depending on how complex the estate is and how many creditors and beneficiaries there are, this process can take several years to complete. However typically, the process takes between six months and a year in Florida. Here are some things that can substantially slow down probate and cause lengthy setbacks in the process:

A challenge to the validity of the will
Any property that is tied to the estate
Business ownership
Long lists of creditors
Claims for wrongful death or personal injury
Taxes owed by the estate and those owed by the deceased prior to death

Long setbacks are mainly put down to long and drawn-out creditor lawsuits, beneficiary disputes, and situations where the estate may be liable to pay any taxes. If estate taxes must be paid, the process will likely take a minimum of two years to finalize.

Finally, the case will be reviewed for closure at the probate court, where they will determine whether or not all of the requirements for proper probate administration have been successfully completed. If they have, the court will allow the court probate administration to be closed out, and the Personal Representative will be discharged of further duties to the estate.

Is Probate Required if There is a Will in Florida?

As we touched upon earlier, it is often necessary to go down the probate route with most cases when there is a valid Will provided to the court. If no Will exists, then this is classed as dying "intestate" under Florida law. This means that probate must be carried out to determine how the deceased person's assets will be distributed.

In these cases, for example, a surviving spouse with no children might be the sole heir or beneficiary; however, it can get extremely complicated when there are children involved, and handling estates for decedent’s with second or third marriages, blended families, step-children, and such can be extremely complicated to put it mildly.

As you would expect, many people want to try to put in place measures to avoid a messy probate process. So, even though having a Will does not avoid probate in most instances, it does tend to simplify or streamline the probate process. This helps to save the deceased loved ones from the long drawn out process that contested probate entails, and allows them to divide the estate as per their wishes, and not based on some preferences put in place by the state legislature or the courts.

It should be noted that, in Florida, all original Wills must be filed with the court following death. This must be done within ten days of the decedent's death, as it puts the Will into the custody of the court. It should also be noted that this process is entirely different from probate. When a valid Will is presented, probate must still be petitioned for and does not happen automatically.

Under What Circumstances Should a Will be Probated in Florida?

Here are some examples of when probate is typically necessary and can actually be very helpful.

During a pending wrongful death claim

Granted, this only occurs in rare cases, but it is worth mentioning. If the representative of the estate decides to open up a wrongful death claim, then the probate process is required.

During these times, it is especially important to distribute assets appropriately as the deceased’s death has potentially been through the fault of another person or entity. This avoids any fraudulent or underhanded handling of the estate or the wrongful death claim itself.

If there are very few debts to deal with

As mentioned, during the probate process, creditors are the first to receive payment. This can lead to a very costly and time-consuming process of creditor lawsuits and the subsequent payments. If handled incorrectly, beneficiaries can actually wind up on the hook for paying for the deceased’s bills. On the other hand, if there are no creditors to be paid, then the process of probate becomes much smoother, quicker, and is potentially a cheaper path to walk down.

When there are probate assets present in the estate

As the name may suggest, if there are probate assets then they must go through the probate process. Such assets include, but are not necessarily limited to, any that are in the decedent's sole name upon death, without any clear provision for a beneficiary or automatic succession of the ownership.

This latter category of assets may include any real estate that is in the sole name of the decedent, any solely owned bank accounts, any life insurance policies that are made payable to the estate, or do not list specific beneficiaries, and often foreign assets, business assets, and investment assets.

If there is an ongoing legal case/litigation against the deceased

In Florida, If there is an ongoing legal case against the deceased when they pass, then this legal case does not simply end upon their death. In these cases, the probate process will be necessary, so that the estate can take the place of the deceased in the ongoing legal case.

How to Simplify or Avoid the Probate Process?

As we have mentioned throughout this article, the probate process is one that people often seek to avoid. Some careful and well thought out planning can go a long way to avoiding or minimizing the need for probate.

One of the best ways to avoid probate is to use a Revocable Living Trust . This type of trust is particularly common for those who have larger estates. This involves all of the assets being placed within a trust that the owner can access, while they are still alive. Once they have passed away, all of the assets within the trust are then passed on to the stated beneficiaries of the trust, thus typically avoiding the probate process altogether for any assets covered by the trust.

Another method for avoiding probate is to use joint ownership with rights of survivorship. If you add another person as a joint owner to your bank accounts, property, or investments, all of these assets should pass to the designated joint owner without probate. However, this does have some, often significant drawbacks, and you should seek legal advice prior to adding joint owners to your assets.

Final Word

In many instances, it will be necessary to go down the probate route, even if there is a valid Will in place. However, retaining the services of an experienced probate lawyer will be invaluable in navigating the probate process as quickly and efficiently as possible. Please contact an experienced probate lawyer for more information, as each decedent’s estate must be viewed on a case by case basis, to determine how best to proceed.

Thank you for reading.

Why Do I Need a Living Will?

Thu, 02 Jan 2020 21:12:15 GMT

Like other topics surrounding end-of-life choices, thinking about a living will is uncomfortable. Therefore, people tend to put it off. It’s easy to tell yourself that a living will is something you can think about later. After all, you don’t intend to need one for many years yet.

But the fact is, life is unpredictable and filled with situations and circumstances that are outside of your control. A living will is an important document because it helps you and your family prepare for the unexpected and uncontrollable. Putting it off only puts you and your family at risk. Take a look at some of the reasons that you do need a living will .

Retain Control Over Medical Procedures and Treatments

One of the most important things that a living will does is allow you to maintain your autonomy over your body. In a medical crisis, you might not be able to speak up for yourself. Bodily autonomy is a basic human right. You can always decline medical treatments that you don’t want, even when medical professionals deem them necessary. For example, some religions disallow certain medical treatments, like the use of blood products. People who follow those faith traditions can always refuse treatments that involve blood products, like transfusions, even when they’re medically indicated.

But when you reach a certain level of incapacitation – for example, when you’re unconscious, in a vegetative state, or suffering from advanced dementia – you’re no longer able to express your wishes to your doctors. In these situations, medical professionals typically look to the patient’s next of kin or medical power of attorney to make the decisions. The problem is that your relatives or representatives may have different ideas than you do about what medical treatments are best for you.

In a living will , you can outline what you want to have happen in situations where you’re incapacitated. You may specify that you do not want to be resuscitated under certain circumstances, for example. Or you may request that you not be fed through a feeding tube if you’re no longer able to feed yourself. On the other hand, your living will can state that you do want drastic measures taken to preserve your life. Your relatives would not be able to “pull the plug” or withhold care that could keep you alive longer. The important thing is that whatever your wishes are, you put them in writing. With a living will in place, you can have peace of mind knowing that your wishes for your body and health will be respected no matter what.

Head Off Family Arguments

One of the most distressing things that can happen when a family member is incapacitated and in need of medical treatment is an argument between family members about how to handle medical treatments. This can happen when there are legal questions about who should be the one to make the medical decisions for an incapacitated family member. For example, you might assume that your long-term live-in partner would be the one to make the calls, but if you have living parents, adult children, or an estranged spouse that you’re not officially divorced from, one of those people might legally have the right to make medical decisions for you. This is true even if they may not be the people in the best position to know what you would want.

Even when the next of kin is clear and unchallenged, it’s normal for family members to discuss these decisions with each other. Differences of opinion under stressful circumstances can lead to messy and painful disagreements. For example, if you have two adult children who have different beliefs and desires about the medical decisions that should be made for you, that can easily turn into a volatile situation.

A living will can cut off these arguments before they have a chance to get started. If you make your wishes clear or designate a person to make the decisions that you haven’t clarified, there will be less to argue about. You are the one whose treatment is being discussed, and you’ve put your wishes in writing, so that will have to be respected. There may still be conflicts or hard feelings among family members and loved ones concerning your care, of course. In the end, though, most people will respect the wishes of the patient. Creating a living will now can help save your loved ones the heartache that can come with conflict around end-of-life issues.

Reduce Unwanted Medical Bills

It’s no secret that medical costs are a major challenge for many people. And expenses can rack up fast in critical medical situations or when a patient reaches the end-of-life stage.

A living will can help you protect your own nest egg that you may want to pass on to your children or other loved ones. By putting limits on the amount and type of medical treatment that you’re willing to receive, you also put some limits on how much of your wealth can be drained to pay for those medical expenses. You may also be concerned about putting your partner, children, or other family members in debt if they are the ones paying for your medical treatment. Putting a living will in place allows you to protect their finances to some extent as well.

No one’s life should depend on an accounting of dollars and cents, but if you’re ever facing the possibility of being kept alive by artificial means for an extended period of time, you may want to be sure that you or your loved ones are not spending money to extend your life when you have little quality of life or expectation of regaining a better quality of life. This is a very personal decision. If you want to be the person who makes that decision for yourself, a living will is the best way to make sure that you can.

Your estate planning attorney can go over the different factors that should be addressed in a living will and help you make sure that your wishes are expressed clearly and preserved for legal purposes. David P. Folkenflik, P.A. is an attorney in St. Petersburg who can help you make these important decisions.

What Are the Different Types of Power of Attorney in St. Petersburg, FL?

Thu, 07 Nov 2019 17:12:25 GMT

A power of attorney is a powerful legal tool, especially when it comes to estate planning in St. Petersburg, Florida. In brief, giving someone power of attorney means that you’re appointing them to take action on your behalf when you’re incapacitated or otherwise unable to act on your own behalf. But of course, it’s not that simple. There are different types of power of attorney, and they are used at different times and for different purposes. If you’re going to use this particular legal tool, you’ll need to know which type best suits your needs. Take a look at what you need to know about the different types of power of attorney.

Limited Power of Attorney

The word “limited” gives you a clue about what this type of power of attorney means. It’s a power of attorney that only applies for a short period of time or for a single specific purpose. For example, if you were leaving the country and needed someone who was empowered to handle your financial transactions at home while you were away, you could give them a power of attorney that would apply only until the date that you expected to return home. You might also restrict that person to certain specific transactions that you expect will need to be handled during that time, instead of giving the person with your power of attorney the authority to handle all possible transactions that might arise during that time.

Limited power of attorney can also be used when you want to hand over certain transactions to someone who has more expert knowledge on a subject than you do. For example, you might give your financial advisor a limited power of attorney that allows them to buy or sell securities on your behalf. This would not allow them to, for example, withdraw money from your account or close the account without your approval. Or, your CPA might need a limited power of attorney to file your tax return for you, but this wouldn’t give them the authority to cash and spend your refund check.

General Power of Attorney

A general power of attorney is one with a considerably broader scope than a limited power of attorney. It gives the person who is granted the power of attorney the authority to do all of the things that you have the authority to do. That means they could sign contracts on your behalf, conduct financial transactions, handle legal matters, and other things as well.

A general power of attorney stays in effect until one of three things happens: until you rescind the power of attorney, until you die, or until you become incapacitated. So, a general power of attorney is not what you would use if you expected to become incapacitated and wanted that person to make your decisions (unless it is also a durable power of attorney.) If you become incapacitated and can no longer make decisions for yourself, a general power of attorney would become invalid, and if there was no other legal provision in place, a court would have to appoint someone to take over the management of your estate at that point. You can rescind a general power of attorney at any time, so long as you’re not incapacitated at the time.

Durable Power of Attorney

A durable power of attorney could be either general or limited in scope. The important thing to know about a durable power of attorney is that it remains in effect even after you become incapacitated. This means that if you become incapacitated unexpectedly, because of an illness or injury, for example, the person who holds your power of attorney can carry on making decisions and taking actions on your behalf without waiting for the court to appoint a guardian or conservator.

A durable power of attorney might be important, for example, if you own a business that would require decisions to be made on a continuous basis. If you were incapacitated and no one else was empowered to make those decisions, your business could suffer serious losses in the meantime. A durable power of attorney would prevent that.

Springing Power of Attorney

A springing power of attorney also allows the designated power of attorney to act on your behalf if you become incapacitated. The difference between a durable power of attorney and a springing power of attorney is that the springing power of attorney does not take effect until you become incapacitated, unlike the durable power of attorney which is in effect both before and after incapacitation. It’s important to note that as of October 2011, the state of Florida no longer recognizes springing power of attorneys. However, springing powers of attorney executed before October of 2011 are grandfathered in, meaning that if the power of attorney was put in place before the change in the law, it will remain valid. Florida also recognizes valid powers of attorney executed in other states as well as military powers of attorney, and those may include springing powers of attorney. So, while a new springing power of attorney created in Florida would not be valid, it’s still possible to encounter a valid springing power of attorney in Florida.

If you wanted a power of attorney that functioned like a springing power of attorney but was valid under Florida law, the solution would be to have your lawyer create a durable power of attorney but ask them to hold off on delivering the executed document to the designated agent who will hold the power of attorney until a specific event happens. The specified event is usually some certification of incapacity. This way, you could designate someone who will be able to take over your affairs while you’re incapacitated without empowering that person to make decisions on your behalf before you become incapacitated.

Understanding the different types of power of attorney can help you make decisions about which type might best suit your situation, but you should consult The Law Offices of David P. Folkenflik in St. Petersburg, Florida, to get a more detailed analysis of which power of attorney meets your personal needs.

Summary Administration vs. Formal Administration

Thu, 10 Oct 2019 15:49:56 GMT

If someone close to you has recently passed away, then you might be trying to handle his or her assets. When you’re mourning the loss of a loved one, dealing with the hassles of probate law can be particularly challenging. It’s important to make the right choices along the way, such as by choosing between summary administration or formal administration. This decision might seem complicated, but asking yourself the questions below and working with a good probate lawyer can help you make the right choice.

What is the Value of the Decedent’s Assets?

One of the first things that you should look at is the value of the decedent’s assets. Summary administration is only an option if the assets at hand are worth $75,000 or less or if the decedent has been deceased for more than 24 months. Formal administration, on the other hand, can be used to handle assets of any amount.

Are There a Lot of Creditors?

Before funds from the deceased’s estate can be distributed to the beneficiaries, the deceased’s creditors may have to be paid. If there are not many creditors, then summary administration might be an option. Formal administration is typically the best option when there are a lot of known creditors.

How Much Information Do You Have?

The amount of information that you have about the deceased’s assets and debts will have a big impact on which probate option you should choose. With formal administration, a personal representative -- also known as an executor -- will be appointed. If you are eligible to serve, you may be the person who is appointed. A personal representative has a lot more access to information. With summary administration, there is no personal representative.

For example, if you are fully aware of all of the deceased’s assets, then you may want to opt for summary administration. If you are not completely sure of all of the property that the deceased owned or all of the money that he or she might have in the bank, on the other hand, you’re probably going to want to choose formal administration so that all of his or her assets can be accounted for. You’ll be able to find more information about the assets that are out there, and you’ll have the ability to do things like liquidate stocks if you choose formal administration and are appointed as the personal representative.

Additionally, if you don’t know much about the deceased’s creditors, formal administration might be the right choice. If you need to call and talk to a bank or loan company, you might not be given any information if you aren’t appointed as a personal representative. This can make it difficult to find out what is owed, and it can make negotiations impossible. If you’re appointed as a personal representative, on the other hand, you can call and negotiate, settle and pay off debts on behalf of the deceased.

Do You Think the Will Might Be Contested?

In many cases, handling a deceased person’s estate is fairly simple. All of the family members might have an understanding of what the deceased’s wishes for handling the estate were, and everyone might go along with the proceedings without any issues. In these situations, summary administration might be a sufficient way of handling an estate.

If you are afraid that the will might be contested or that someone might complain about how your loved one’s affairs are being handled, on the other hand, you should be prepared to handle these issues. With formal administration, you will have more of an ability to handle a contested will.

How Much Time Do You Have?

Formal administration does have its benefits. After all, you have a lot more power when you choose this probate option. However, you should be prepared for it to take a lot longer to handle your loved one’s case. These proceedings may take anywhere from four to 12 months, and it could take even longer if there are complications along the way.

Summary administration, on the other hand, is almost always the faster way to handle a person’s estate. Instead of taking up to a year, it normally takes three to five months when you choose summary administration. Of course, if issues pop up, it could take longer. For example, if someone contests the will, it can complicate matters and delay the process. Overall, though, summary administration is the ideal way to get your loved one’s estate taken care of as quickly as possible.

What is Your Budget?

Consider your budget for court costs, attorney costs and publication costs, as well as any other expenses that might pop up while the case is in probate. Summary administration is almost always the more affordable option for probate law .

Are You Hoping to Keep Matters Simple?

It’s no secret that handling a deceased person’s estate can be complicated and exhausting. If you’re hoping to keep matters simple, then you might find that summary administration is the appropriate choice. There is less work and less complication, although you don’t have as much power or as many protections if something goes wrong. If you want to ensure that everything is handled appropriately but if you don’t mind putting in a lot more time and work, then formal administration might be ideal.

Either way, hiring the right lawyer can help you make things easier on yourself. A probate attorney can help you make the right decisions and can keep you informed every step of the way.

Probate law can be very complicated. When making decisions like this and when handling your loved one’s estate and assets in general, it is important to seek legal assistance. If you are looking for a probate attorney in Florida, contact us at The Law Offices of David P. Folkenflik. We will be happy to tell you a little more about summary administration, formal administration and other matters related to probate law , and we can also help you with handling your legal situation.

How Does Probate Work Without a Will?

Fri, 26 Jul 2019 15:39:19 GMT

Even if you’ve been lucky enough not to lose many people in your life, you still probably have an idea in your mind about how the distribution of an estate works after someone passes away. You might picture the reading of a will or imagine an attorney or someone close to the deceased person cataloging the estate, contacting beneficiaries, and distributing property in accordance with the wishes of the deceased person.

But what if there is no will?

Any St. Petersburg estate attorney can tell you how important it is to have a will that spells out what you want to happen to your possessions, assets, and money after you die. But the reality is that it’s not uncommon for people to pass away without formally outlining their wishes. Often, people plan to make a will and believe that they have plenty of time to do so, but don’t get around to it before it’s too late. In other cases, people may believe that they don’t need a will because their family will know what to do with their estate after they die. Some don’t have a will drawn up because they don’t believe that they have enough assets or wealth to warrant taking that step. No matter what the reason, the result is the same: the estate must be settled without the benefit of a formal plan laid out by the deceased person.

Who Takes Responsibility?

If there is no will, there is no person specifically named to be the executor of the will, so one of the first orders of business is to determine who will take responsibility for settling the estate and resolving any issues.

The state will have a list of people who are eligible to become the executor. The specifics can vary somewhat, but generally, the first choice is the surviving spouse of the deceased person, and if there’s no surviving spouse, then one of the adult children of the deceased person is next in line, followed by other family members.

When there’s no will, the estate may be subject to probate court proceedings, and the court will appoint the executor based on that priority list of people eligible to be executor. The person who is ultimately chosen to act as executor does not have to act alone, however – they can hire attorneys and other professionals, like accountants, real estate brokers, and financial advisors to give them the expertise and advice that they need to make good decisions. The fees for these professionals are to be paid out of the estate, not out of the executor’s pocket.

What is Subject to Probate?

You probably know that probate is the legal process by which assets in the estate are distributed. But what you may not know is that not everything in an estate is necessarily subject to probate. This can be important information, because in the aftermath of a loss, survivors may need access to certain assets right away, and probate can be a lengthy process. But if there are things in the estate that are not subject to probate, those assets may be immediately available to survivors.

Some of the assets that are not subject to probate include:

The proceeds from a life insurance policy
Funds in an IRA, 401k, or retirement plan with a named beneficiary
Money in a payable on death bank account
Any stocks, securities, property, or vehicles that are transferable on death
Property in a living trust

Additionally, any assets that are held jointly are also not subject to probate. That includes things like joint bank accounts or real estate that’s deeded to more than one person. The surviving person named on these assets has immediate access to them.

Who Gets What?

Outside of assets that aren’t subject to probate, the most important question on many people’s mind is who will inherit which parts of the estate. As with the executorships, states lay out rules for who will inherit what in the absence of specific instructions from the deceased person.

As a general rule, if there is no will, property is distributed among spouses, children, and other adult relatives. Romantic partners who are not legally recognized, friends of the deceased, and charities or other institutions do not receive anything from the estate of a person who passed away with no will unless one of the people who did inherit decides to share what they received.

While the idea that spouses and children inherit may sound simple, it isn’t always as simple as it sounds. For example, when a couple is separated but not legally divorced, the surviving spouse may still inherit even if the couple was planning on divorcing. Common-law marriages are recognized in some states but not in Florida, so even in cases where a couple lived together, presented themselves as married and thought of themselves as married, one may not be eligible to inherit after the other passes away if there is no will.

Children’s inheritances can be complicated as well. People in blended families should be aware that stepchildren who have not been formally adopted by their stepparent may not be eligible to inherit from their stepparent in the absence of a will. And while the child of unmarried parents is eligible to inherit from their birth mother, they may need to provide proof of the relationship in order to be able to inherit from their birth father.

When someone dies without a will, there’s a risk that the executor of their will could be someone whom they would not have chosen to put in charge of their affairs. There’s also a chance that people whom they would have preferred not to inherit their assets end up with them, and a very good chance that some of the people who the deceased person would have liked to leave assets to will not receive them. These situations frequently cause tension and conflict between family members and friends. Making a will is the only way to avoid misunderstandings and unwanted estate distribution outcomes. The Law Offices of David Folkenflik P.A. can help you ensure that your estate is settled according to your preferences so you can avoid these types of conflicts.

What Types of Assets Are and Aren't Subject to Probate?

Thu, 20 Jun 2019 15:19:33 GMT

Probate is the legal process by which assets and property owned by a deceased person pass to a living beneficiary. This process is for assets and property that require a court’s supervision in order to be disbursed. Not every type of asset or property is subject to probate , and an important part of estate planning involves understanding which assets are and aren’t subject to probate . You can save your beneficiaries some time and trouble by making sure that certain assets aren’t subject to probate, and you can ensure that your wishes are followed after your death by making sure that certain assets are subject to probate. Take a look at what you need to know about what types of assets are and aren’t subject to probate.

Assets In Your Name Only

For the most part, assets that you own in your own name will be subject to probate . This can include vehicles, land, houses, bank accounts, investment accounts, stocks, bonds, and business interests. If your name is the only name listed on the deed, title, or account, then the items won’t pass on to your beneficiaries without going through the probate process first.

Personal property that may not come with deeds, titles, or other paperwork, like home electronics, artwork, clothing, and memorabilia are also considered to be assets in your name only, so they will also have to go through probate.

In some cases, you can set up assets so that they have a payable on death (POD), transfer on death (TOD), or in trust for (ITF) designation. For instance, you may have a bank account that’s in your name only, which means that no one but you can access it while you’re alive. But if you add a POD designation with a named beneficiary, that beneficiary can access your bank account without waiting for your estate to go through probate. They may need to show a death certificate or other proof to gain access, but they won’t need to wait for the probate court.

Jointly Owned Assets

Anything that you own jointly with another person should avoid probate after you die. Many spouses own property this way – for example, you and your spouse may both be named on the deed to the house. If one of you dies, the other still has ownership of the property, so they don’t need to wait for probate to be considered the owner of the house. They’ll become the sole owner upon the death of the other owner.

Joint ownership can be another way to ensure that a person you want to have an asset or a piece of property doesn’t have to wait through the probate process. For example, adding your child’s name to the deed of your house can ensure that your child is able to take immediate possession of your house after you die – however, it also means that they have joint ownership while you’re still alive, which could get complicated if you decided to sell the property or take out a mortgage on the property.

Assets That Have No Living Beneficiary

In the event that one or more of your beneficiaries predecease you, assets that may not otherwise have been subject to probate become subject to probate . For example, if you own a bank account in your name with a POD designation and your spouse is named as the beneficiary, but your spouse dies before you do, then that account has no living designated beneficiary and will need to go through probate.

The same applies to jointly owned property. If the deed to your home is in your name and the name of your spouse, but your spouse dies before you do, then the house will go through probate because the other owner is no longer living.

This is one of the reasons that it’s important to update your estate plan regularly. If someone you had intended to be a beneficiary predeceases you, you can update your beneficiary designations. For instance, if your spouse dies first, you may want to update certain assets so that your child is a designated payable on death beneficiary so that they can avoid probate on those assets.

Assets in a Revocable Living Trust

A revocable living trust is a type of trust that gives you control over your own assets while you’re alive but allows you to name a successor and beneficiaries and designate what will happen to the assets placed in the trust after your death, without the need for the assets to go through probate.

Revocable living trusts remain in your control as long as you’re alive and mentally competent. You can add or remove assets, sell assets, and use the income from the assets in any way that you see fit. You can also add, change or remove beneficiaries and successor trustees. A named successor trustee is someone who will assume control over the trust in the event that you become incapacitated – they maintain control over the trust either until you are competent again or until you die.

A revocable living trust shares your Social Security number and is listed on your personal income tax forms – you’ll pay any applicable taxes on income from the trust the same way that you pay them on your personal income. When you die, the trust automatically switches from a revocable trust – one that you can reclaim assets from or make changes to at any time – to an irrevocable trust. An irrevocable trust cannot be changed and assets cannot be removed from it. Whatever designations you had for the assets at the time of your death will need to be followed by your successor trustee. That means that assets in the trust can be turned over or disbursed to your beneficiaries without the need to go through probate.

The best way to sort out all of your options for making sure that your assets pass to the proper beneficiaries after your death, with or without going through probate, is to talk to an estate planning attorney . David Folkenflik is an attorney in St. Petersburg who handles estate planning and can help you make sure that your assets and property will go where you want them to go after your death.

What You Need to Know About Estate Personal Representatives

Thu, 30 May 2019 15:02:41 GMT

When you set up a will or estate plan , one of the things that you’ll be asked to do is name a personal representative. The personal representative, sometimes called an executor or administrator, is responsible for handling your estate and making sure that your wishes are carried out. This is an important responsibility, and it helps if you understand what the job entails and what you should be looking for in a personal representative. Take a look at some of the things you need to know.

What Does a Personal Representative Actually Do?

Your personal representative fills a number of important functions. It’s their job to locate all of your assets that are subject to probate and keep them safe for your beneficiaries. They may also need to have assets appraised for their value or identify creditors so they can pay off debts.

Your personal representative will be responsible for preparing and filing your final tax return, and if you have a large enough estate, or if your state requires it, they’ll also have to prepare and file estate tax returns as well. They’ll also need to pay the operating expenses involved in administering your estate until probate closes, and that may require them to sell or liquidate assets if you don’t have enough available cash in the estate. Finally, your personal representative is the person responsible for ensuring that your assets are distributed to the beneficiaries that you’ve named and that all relevant documents are filed with the probate court.

Who Should Be Your Personal Representative?

So, who is the best person to trust with these tasks? Often, people choose a family member or close friend to act as a representative. The thinking behind this is that a person who knows you well and has had an intimate relationship with you over the years will understand your intentions better than a stranger, so if there are any questions about your intentions or unexpected decisions to make, the personal representative will make the decision with your wishes in mind. However, a personal representative doesn’t have to be a relative or friend – it could be a professional, like an accountant or attorney, or even an entity, like a bank.

In any case, your personal representative should be somebody that you trust to follow through with your wishes. It should also be someone who you believe will be up to the task. For example, someone who lives far away or has many obligations of their own may not be the best choice to handle a complex estate, no matter how trustworthy they are. You’ll want to make sure that they have the time, energy, and resources needed to carry out your wishes and fulfill their legal responsibilities.

Are Multiple Representatives A Good Idea?

Sometimes, people name multiple co-representatives. This is common when a person has multiple children and doesn’t want to appear to be playing favorites, so they name all of their kids co-representatives. This can be a mistake. The problem is that when no one person has the final say, it can be difficult to avoid arguments. It’s usually preferable to appoint one person who will be the last word on any decisions that need to be made. This also avoids a situation where, despite having multiple co-representatives, one person ends up doing all the work and winds up feeling resentful.

However, that doesn’t mean that it’s always a bad idea to think of multiple people who could serve as a representative. If your preferred representative predeceases you, or if they’re otherwise unable to fulfill their duties, it’s helpful to have a backup named in your estate paperwork. Otherwise, the court will wind up appointing a representative.

It’s also a good idea to review your choice of personal representatives every so often. Relationships change over the years, and sometimes a person who seemed like a good choice at the time may seem like a less viable option in a few years. For example, a divorce in the family – even if it’s not your own – can change your relationships with people you were once close to and may be a good reason to rethink your choice of representatives.

How Does a Personal Representative Get Paid?

If you choose a lawyer, accountant, trust company, or bank to act as your personal representative, they’ll charge a fee for their services. This could be either a flat fee, an hourly rate, or a percentage of the value of the assets that will go through probate . Their fee comes from your estate.

If you choose a family member or friend to be your personal representative, they’re able to charge a fee, but it’s common for them to waive the fee in that situation. However, even if they waive the fee, they can still collect reimbursement from your estate for travel and other expenses they incur along the way.

Do You Need to Inform Anyone of Your Choice?

It’s up to you to choose the personal representative that you want, but before finalizing the paperwork, you should talk to the person (or people) who you want to fill that role. Acting as a personal representative can be a big responsibility and also a big chore, and some people may not want to take it on. Someone who has prior experience acting as a personal representative should be aware of what is involved and have an idea of whether or not they want to do the job again, but if the person you’re considering has never been a personal representative before, you should make sure that they’re aware of the scope of the duties they’re agreeing to before they agree.

You may also want to have a conversation with certain people who weren’t chosen, if only to avoid discord later. For example, if you appoint one of your children to be the executor, you may want to explain to your other children why they weren’t chosen so that they don’t feel slighted. This is entirely optional, but addressing the issue head-on can avoid hard feelings and difficulties later on.

Different estates have different needs, and choosing a personal representative depends largely on the specific needs of your estate. Consulting with an estate planning attorney can help you identify your needs so that you can make a choice about your personal representative that works best for you.

Probate Matters: Paying Debts and Selling Assets

Thu, 30 May 2019 14:34:45 GMT

When you’re named the executor (also known as the "personal representative") of an estate, it’s your job to settle the deceased person’s affairs, usually with court supervision. This process is known as probate . Your job is not just to pass on items and assets to the deceased person’s beneficiaries – before that can happen, you’ll need to settle the deceased person’s debts. You may also find that you need to liquidate the deceased person’s assets, either in order to have the cash to settle debts or in order to distribute the proceeds among the beneficiaries. This process can be simple or complicated, depending on your state’s laws and on the complexity of the estate, but even a simple estate can seem complicated if you’ve never been through the probate process before. Take a look at some of the ins and outs of paying debts and selling assets during the probate period.

Which Debts Come First?

Almost everyone leaves some debt behind. The deceased person may have had a mortgage or credit card bills. Even if they didn’t, it’s very likely that they have medical bills from their last illness. And of course, there are burial or cremation expenses that have to be paid, and these are also usually considered to be the responsibility of the estate. If you’re an estate executor or personal representative, you may be looking at a number of different creditors and wondering who should get paid first.

Typically, the first payments that are made are the expenses of administering the estate. That means that if you have an attorney helping you sort out the estate rules, an accountant helping you reach a valuation of the estate, or an appraiser determining what assets are worth, those fees are to be paid out first in the process. After that, the burial and funeral costs take priority. In some states, a family allowance may also be exempted at this time. This is not necessarily the amount of money that the beneficiaries will eventually receive after debts are settled, but it’s a smaller amount meant to help the family during the probate period. Other states don’t have family allowance exemptions, which means that beneficiaries won’t receive anything until after all the debts are paid.

Following the burial costs and family allowance (if any), the executor is next responsible for making other priority payments including medical bills, hospice or nursing facility expenses, and state, local, and federal taxes. Some medical bills and taxes may even have priority over the family allowance. Part of the job of the estate executor is to file the deceased person’s final tax return and make sure that all federal, state, and local taxes are paid in full.

Once these debts are taken care of, other debts like mortgages, loan repayments, and credit card bills should be taken care of. It can be difficult to know how much debt a person has, even a person you know well, which is part of the reason why probate can take so long. The court has to give creditors a certain amount of time to file a claim with the estate. Once the probate creditor period is over and all debts have been paid, beneficiaries or the next of kin can receive their inheritance.

How to Sell Assets in Probate

Only the executor, personal representative, or administrator of an estate can sell assets during the probate period. Other parties risk legal problems if they try to sell a deceased person’s assets, even if they believe they have a claim to that property.

Selling property during probate can be somewhat tricky, but it’s sometimes necessary in order to settle debts. The easiest route is if the deceased person left a will that authorizes the executor or representative to sell the property at their discretion. But whether or not a person includes that authorization in their will depends largely on the details of the estate. If there’s a reason to believe that selling the property might not be in the best interest of the estate, an attorney might have advised the person making the will not to include such an authorization.

In the absence of an authorization to sell property, the representative will often need to ask the court for permission to sell the property. Generally, in order to get the permission, any surviving spouse or legal heirs must consent to the sale in writing, and that consent must be filed with the probate court. If consent is not obtained, there will typically be a court hearing to determine whether or not the proposed sale will be approved.

What If There Are More Debts than Assets?

The good news is that if you’re a beneficiary of an estate, you do not inherit that estate’s debts. Beneficiaries are typically not responsible for any outstanding debts that may be discovered after the probate period has passed or that can’t be paid during the probate period.

The bad news is that if the estate doesn’t have enough assets to pay all of the debts discovered during probate , you may not inherit anything at all. The probate court is allowed to reduce gifts named in the will in order to pay off debts. If the estate has more debts than assets, it’s called an insolvent estate. When an estate is insolvent, the assets are used to pay off as much of the debt as possible. The court will decide which debts are the highest priority and who gets what, but when the assets are gone, any remaining debts go unpaid. The beneficiary doesn’t inherit the debt, but they may not inherit any assets either.

If you’re a named executor or personal representative, a probate estate attorney is the best person to help you understand the probate process and correctly pay off debts and dispose of assets. If you’re interested in planning your own estate, an estate planning attorney can help you ensure that your estate is set up in a way that allows your beneficiaries to pay off your debts and still receive their inheritance. If you are in the St. Petersburg area, talk to Attorney David P. Folkenflik to find out more about how the probate laws work and how the practice can help you.