Adding Someone To Your Bank Account For Convenience Can Cause BIG Problems

STOP, COLLABORATE AND LISTEN- think twice before adding someone to a bank account.  

In South Florida it is common for aging parents to 'add' their children, caregiver, or trusted individual on his/her personal account. A typical reason to add someone to a bank account in Florida is so that person can have access to the funds for the original owners benefit. By setting up the account this way, it will make it more convenient during the owner's lifetime to assist in managing the bank accounts and paying bills.

“An account owner’s Last Will & Testament or Trust will not prevent this presumption from arising, and the financial institution has no duty to inform the account owner of this presumption. ”

However, adding someone to a Florida bank account becomes somewhat inconvenient upon the original owner's death. Setting up Florida bank accounts in this manner can lead to expensive litigation between the original owner's heirs to determine the survivorship rights in these joint accounts. Intent will be questioned in addition to undue influence and fraud.

Under Florida Statute Section 655.79, unless expressly stated otherwise in contract, agreement or signature card executed in connection with the relevant account, any account that is titled in the names of two or more persons creates a presumption that all ownership rights in the account automatically pass to the surviving owners upon the death of any owner.  

There are no explicit words that are required for this presumption- just the fact that there are two or more owners.  An account owner's Last Will & Testament or Trust will not prevent this presumption from arising, and the financial institution has no duty to inform the account owner of this presumption. With that said, the surviving owner can simply walk into the bank after the original owners death and withdraw all of the funds as their own!

Good news, there are alternatives available to making an account a joint account. They allow flexibility and also allow the owner to revoke these designations within his/her lifetime:

Alternative #1- "DPOA"

Appoint someone to act as his/her agent under a Durable Power of Attorney

Alternative #2- "POD"

Create a 'pay on death account' where the owner can designate a beneficiary to receive the account upon his/her death

Alternative #3- "ITF"

Create a Totten Trust where the owner maintains complete control over the account during their lifetime, but all rights pass to a beneficiary who is designated 'in trust for'

If you live in Miami-Dade, Broward, or Palm Beach county contact an experienced estate-planning attorney at The Hershey Law Firm, in Fort Lauderdale, Florida, at (954) 303-9468 to discuss your estate planning needs.

You Can’t Predict The Future, But You Can Plan For It.

Who Can Make Decisions For Me If I Become Incapacitated?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The simple answer is YES.

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

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

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

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

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

Mistakes and Misunderstandings about Florida Foreclosure

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

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

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

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

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

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

Estate Planning: Summertime Fun – Prepare and Protect

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

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

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

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

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

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

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

DIY Estate Planning in South Florida, Think Again Buddy!

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

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

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

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

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

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