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Estate Planning: A Summary of Probate

If you have a will, great job.  If you do not have a will, take a look at A Beginner’s Guide to Will and Testament Law to learn about what a will is and why you need one.

Choosing to create a will on your own is legal, but you should really consider enlisting the services of an experienced estate planning attorney in Florida because of two words: probate court.

What is Probate Court?

When it is time to execute a will, certain things must be done and verified before assets and liabilities can be dispersed and resolved respectively.  The responsibility of the court during the probate process is to:

  • Determine the validity of the will.
  • Determining what the assets are and their value.
  • Resolving liabilities.
  • Executing the distribution of remaining assets.

If the deceased did not have a will, the probate court will be appointed as executor by a judge.  This executor is responsible for proving which assets are yours, securing those assets, and presenting the court with a list of those assets.  If your liabilities exceed your available cash, the executor will be responsible for liquidating assets to resolve the liabilities.

Are All Assets Inaccessible During the Probate Process?

In short, no.  In Florida, exemptions (some temporary) to the probate process exist:

  • The homestead exemption allows people who lived with the decedent at the time of their death to stay in the home during the probate process.
  • The automobile exemption allows a family to maintain possession of up to two vehicles.
  • The household furnishing exemption allows family members to keep furniture, furnishings, and appliances up to $20,000 in value.
  • Certain college funds are protected.
  • Certain compensatory employee benefits, disability, and pensions can be exempt.

A more in depth description of these exemptions can be found here.

This list of assets is not comprehensive and you may be entitled to more exemptions.  If you are an executor, having the guidance of an experienced probate attorney can help you handle creditors and family members.  Dsouza and Strachan Lawgroup Group has been guiding families through the probate process for over 15 years.  Contact us for a free consultation.

A Beginner’s Guide to Will and Testament Law

You may feel like you do not need a will at this point in your life.  Maybe you have not made one because you do not know what it is or how to have one created.  It is important to understand that you need a will if you are at least 20 years old because you do not want to leave your loved ones with a mess to sort through if something happens to you.

What Exactly is a Will?

A will is a legal document that tells the court exactly how you want certain things handled such as:

  • Naming the executor (a person or institution appointed to carry out instructions) of the will.
  • Naming the guardians of any children.
  • Assigning rights to assets.
  • Define instructions for paying debts.

If a will is not made, families can often have a difficult time handling the affairs of a deceased loved one.

What If You Do Not Have a Will?

In the state of Florida, if a will is not in place when someone dies, intestacy laws are used to determine who receives control of assets.  This is to say that the closest living relatives may get the assets.  In some cases, probate papers are filed.  Probate papers are usually filed by people who were supported by the assets of the deceased.  If these people can prove that they depend on any homes, personal property, or statutory allowance, they can ask the court for control of the assets.

How Do You Create a Will? 

In Florida, you can create a will without a lawyer.  However, if you think your wishes may be contested or you have specific instructions for how you want your assets and debt to be dispersed, you may want the services of an attorney.  For a will to be finalized in Florida, it has to be signed in front of two witnesses and the witnesses must sign the document.  Legally speaking, it does not have to be signed by a notary.  It is worth mentioning that Florida laws allow you to make a will “self-proving“.  A self-proving will must be signed by a notary.  The advantage to this type of execution is that the court does not have to contact the witnesses that signed the will before executing the wishes within it.

The creation of a will is extremely important.  If you have assets, children, or liabilities, you should leave instructions regarding their handling.  Situations that can occur after death can be difficult to anticipate.  Enlisting the guidance of an experienced estate planning attorney in Florida can solidify your plans and relieve the anxiety that accompanies this complex topic.  Consider Elias Dsouza of Dsouza and Strachan Lawgroup of Plantation, Florida to help you through this process.

Does Your Business Need an Attorney on Retainer?

Owning and operating a business is hard enough when things are going well, but when inevitable issues arise, you may need to call in reinforcements.  Most business owners are resourceful, competent, and ambitious which makes them ready and able to handle almost any problems as they come…. almost.  Before discussing what “almost” means here, let’s talk about things a business owner can usually handle without an attorney.

Starting a business can seem overwhelming, but the resources needed to get started on your own are out there.  Things you can do without an attorney can include:

In addition, there are some tasks that can be done on your own, but may be easier with the services of an attorney such as:

  • Choosing the structure of ownership (sole proprietorship, limited liability corporation, S corporation, etc.).
  • Creating contracts.
  • Trademark searches when choosing the legal business name.

Why Your Business Needs an Attorney

Hiring an attorney can be intimidating.  Most people are afraid of the costs involved, but keeping an attorney at the ready can actually reduce costs down the road.  Your business may need an attorney to handle things like:

  • Law suits filed by employees for discrimination and/or wrongful termination (See: A Quick Guide to Wrongful Termination).
  • Real estate acquisitions or issues.
  • Intellectual property protection.
  • Tax law consultation.
  • Protection against any potential future issues.

Perhaps one of the most important reasons to retain the services of an attorney is the prevention of future problems.  If you hire an experienced attorney, you may not have some of the issues listed above.  If you are starting a business or you already have an established business and you believe you need the guidance of an experienced attorney, consider Dsouza and Strachan Lawgroup of Plantation, Florida.  They have the knowledge and experience your business needs to move forward responsibly and securely.

A Quick Guide to Wrongful Termination

While getting fired from your job always feels wrong, it might not be illegal even if there is no apparent reason.  Florida is what is called an “at-will” state.  Generally, “at-will” means an employer can fire you without cause, but there are exceptions that vary by state. One important piece of legislation all states must acknowledge is Title VII of the Civil Rights Act of 1964.  As pertains to wrongful termination, this Act makes it illegal for an employer to fire you because of:

  • Race
  • Color
  • Religion
  • Sex
  • National Origin

In addition, the Age Discrimination in Employment Act of 1967 prohibits employers from discriminating (firing in this case) people over the age of 40 solely because of their age.

Exceptions to At-Will Employment in Florida

One type of exception to at-will employment is the public-policy exception.  Under the public-policy exception, an employer cannot fire someone for refusing to breach public policy.  For example, your employer cannot fire you for refusing to break the law.

Another type of exception is the implied-contract exception.  This is meant to protect any employee from being fired if there is an implied contract (not in writing) such as a verbal agreement.  In 38 of 50 states, an implied contract can be used in court during a wrongful termination lawsuit.

The third type of exception to at-will employment is the covenant-of-good-faith exception.  This exception protects people from being fired because of things like malice or false pretenses.  Only six states recognize this exception.

Unfortunately, Florida (along with Georgia, Louisiana, and Rhode Island) does not recognize ANY of the afore mentioned exceptions.

Filing a Lawsuit Against an Employer for Wrongful Termination

If you believe you were wrongfully terminated and want to file suit against your former employer, you should know that there is a statute of limitations.  In general, you need to file within 180 days of the date of termination although this is not “set in stone”.  It is suggested that you collect these vital documents to support your case:

  • Your job description.
  • Your resume.
  • Any and all performance evaluations.
  • Attendance records.
  • Your contract if you have one.

These and many more are important to your case.

Filing a wrongful termination lawsuit against an employer is an extremely complex legal endeavor.  You need guidance and experience.  Dsouza and Strachan Lawgroup has been protecting the people of Plantation, Florida against civil rights violations such as this for over 15 years.  Please, contact Elias Dsouza for more information.

Things Debt Settlement Companies Do Not Want You to Know

A debt settlement company can be appealing.  They often come across as caring and their plans seem simple.  These companies may seem like a great option because the thought of hiring an attorney is intimidating and even scary.

What is a Debt Settlement Company?

A debt settlement company offers an array of services such as:

  • Debt settlement.
  • Credit counseling.
  • Debt management.
  • Credit repair.
  • Debt collection.

In the state of Florida, a debt settlement or credit counseling company must be certified or licensed.  So, the good news is, there are standards.  In 2009, the Florida Senate released the Regulation of Debt Relief Services report in an effort to regulate debt relief companies which were increasing their fees to compensate for the increase in risk of non-payment.  To answer this increase in cost, regulations were implemented and/or enforced.

When you enlist the services of a debt relief company, you normally send them money to save for you.  When the sum of money becomes enough to pay off a debt (often times lower than the amount owed to the creditor), they will use the money to do so and take a fee.  Fees can include:

  • A start-up fee.
  • A percentage of the amount they saved you from paying.
  • A monthly fee for services.

Why is an Attorney a Better Option?

An experienced attorney will have a firm grasp on relevant laws.  The attorney will know if a debt collector has violated the Federal Debt Collection Practices Act (FDCPA) and they can protect you if the collector elects to sue you.  Many times, they can get the amount of your debt lowered or eliminated.  Also, debt settlement attorneys may offer credit counseling services in addition to their protection.

If you are in need of a debt settlement attorney, contact Elias Dsouza of Dsouza and Strachan Lawgroup Group in Plantation, Florida.  His team has the knowledge and experience required to counsel you through credit repair and protect you from abusive debt collectors.

What to Do If Your Landlord Refuses to Return Your Security Deposit?

Unfortunately, too many people pay rent on time, respect their neighbors, and take great care of their home only find out they will not be receiving a dime of their initial security deposit.  It goes without saying that some landlords are better than others, but what can you do if you believe you are being taken advantage of?

Protect Your Deposit Before You Move In

When you do the initial walkthrough, take detailed notes.  Any imperfections should be listed so you are not blamed for them when you move out.  Most move-in paperwork will include space to list any damage, odors, and other observations made before you move in.  Make sure you are following any rules regarding pets such as: telling them you have one.  If you do not tell them, forfeiture of your security deposit is a real possibility.

Do You Deserve an Explanation for Deductions?

In the state of Florida, a landlord must return your security deposit (or what is left of it) 15 – 60 days after you move out.  In addition, any deductions from your initial deposit must be itemized.  Typical itemizations include owed rent, payment to remove items placed by you (tv mounts, blinds, etc.), payment(s) to repair damage to the premises, money owed for utilities, and more.  It is easy to convince yourself that you deserve the initial deposit but take some time to consider the landlord’s charges.

You Believe You Are Entitled to Your Deposit, Now what?

First, try to handle the situation outside of court.  You should write a demand letter (see Florida demand letter template).  Be as specific as possible regarding why you believe you deserve any or all of your deposit. Including:

  • How much you would like and when you expect payment.
  • Why you believe you are owed this money.
    • Incorporate any relevant language from the lease agreement or any other documents pertaining to your landlord-tenant agreement.

Let the landlord know you plan to sue in small claims court if they do not meet your demands.  You should also cite any relevant Florida State law.

If you pursue a lawsuit against the landlord, you are within your rights to do so without an attorney in most cases.  However, Elias Dsouza of Dsouza and Strachan Lawgroup Group has the experience and knowledge of Florida law you need to get your money back.

A Quick Guide to Asset Redemption in Chapter 7 Bankruptcy

Did you know that you do not have to liquify all of your assets when you file for Chapter 7 bankruptcy in Florida?  You can file for asset redemption if you have “secured debts”.  Secured debt is debt that has collateral that can be used to pay off the debt.  For example, if you own a car, but still owe a lender money for the car, you can file for redemption on the car during Chapter 7 bankruptcy.

 

So, Why Would You Want to File for Redemption on Your Secured Debts?

Simply, you can save a ton of money.  When you file for redemption on a secured debt, you are asking the court to allow you to pay the lender fair market value for the collateral of the debt in one payment.  Say you owe $8,000 on the car we talked about earlier, but the car’s fair market value is $6,000.  You can ask the court to allow you to pay the lender one payment of $6,000 to eliminate the debt.  This option saves you from having to pay a ton in interest and you no longer have a car payment to worry about.

 

What If You Cannot Afford to Pay the Lump Sum for Your Secured Debt? 

It is reasonable to assume many people cannot afford to pay a lump sum to eliminate a secured debt.  After all, we are in the middle of bankruptcy here.  If you cannot afford to pay a lump sum, you can apply to participate in a redemption program.  A redemption program will:

  • Allow you to keep your asset.
  • Pay the creditor fair market value for the asset.
  • Allow you to pay back the “loan” in installments.
  • Usually, allow you to make fewer payments over the life of the loan.
  • Lower the amount of each monthly payment.

These programs sometimes incorporate a one-time attorney fee that is much smaller than the interest you would pay on the original loan and you can usually apply online.  An experienced debt attorney can easily help you through this process.  For over 15 years, Elias Dsouza has been helping people manage and retain their assets through bankruptcy in Plantation, Florida.

Chapter 7 Bankruptcy: The Tax Considerations

Believe it or not, filing for bankruptcy under Chapter 7, liquidating most of your assets, and starting over is not the end of the story.  Chapter 7 is unique because a separate estate is created using your non-exempt assets (see Chapter 7 posts for more information).  The assets within this separate estate can derive their own income, create their own costs, and they are taxable.

Who Prepares Taxes for a Bankruptcy Estate?

Your non-exempt assets are placed in the care of a trustee.  This trustee is court-appointed and is responsible for preparing the Federal and State taxes of the bankruptcy estate and calculating tax due.  If the trustee does this incorrectly or misses any deadlines, the bankruptcy estate is responsible for paying any fees or interest incurred.  In addition, any tax return owed to the debtor that was not received before filing for bankruptcy can be intercepted by the trustee to fund the estate.

 

Who Prepares Taxes for You During the Bankruptcy Process? 

After filing for Chapter 7 bankruptcy, you are still responsible for filing your personal tax return.  However, there is an election afforded to you as the debtor which allows you to create two “short tax years”.  The first taxable “short year” closes the day before the bankruptcy case starts.  The second taxable “short year” starts on the day the bankruptcy case begins and ends on the last day of the normal taxable year.  If you do not elect to separate the year, the bankruptcy will not affect your tax filing which means you will not receive the tax benefits of filing for bankruptcy.

 

Do Not Forget to File Your Personal Taxes After Filing for Bankruptcy

According to Publication 908 on irs.gov, if you do not file your personal return after filing for bankruptcy, your case might be dismissed by the bankruptcy court.  If you did not file and you were notified that you must file, you have 90 days to do so or your bankruptcy case will be dismissed.

 

The tax implications of filing for bankruptcy are enormously complex and it is often important to retain the services of an attorney who understands these issues.  Dsouza and Strachan Lawgroup Group of Plantation, Florida has the experts you need.  Elias Dsouza has been helping people through the bankruptcy process for over 15 years.

A Guide to Personal Bankruptcy Under Chapter 7 (Part Two)

At this point, we know that not everyone is eligible to file for bankruptcy under Chapter 7, we know you must complete credit counselling before you file, you must take the means test, and you must have less than $100 of income after the calculation (generally).  There are exempt assets (things that do not have to be liquified by law) and non-exempt assets (things that are usually liquified during the Chapter 7 process).   Did you know that exempt assets vary from state to state?

Assets considered exempt under Florida law:

  • Annuity contract proceeds excluding lottery winnings.
  • Death benefits paid to a certain person and not an estate.
  • Damages paid to an employee for working in a hazardous environment.
  • Property of a business partnership.
  • Pensions for most first responders, state employees, and teachers.

This list is not comprehensive and these assets are considered exempt in addition to the assets protected under federal law (see previous post).


Does Filing Under Chapter 7 Have Tax Implications?

In short, yes.  The IRS does offer a comprehensive guide on this subject and we will be covering this topic later this week.

 

Do You Need an Attorney to File Chapter 7 Bankruptcy?

It is legal to file for personal bankruptcy without an attorney in the state of Florida.  Instructions can be found here.  However, it is a complex process and it could be very beneficial to retain the services of an attorney because they have an understanding of the law, they can explain what debts can be discharged and what assets can be exempt, and they can explain the tax consequences of filing for bankruptcy under Chapter 7.

If you are considering filing for bankruptcy under Chapter 7, consider Dsouza and Strachan Lawgroup Group.  With more than 15 years navigating this incredibly complex topic, Elias Dsouza is ready to help you get a fresh start.

A Guide to Personal Bankruptcy Under Chapter 7 (Part One)

There are any number of reasons you can end up considering bankruptcy under Chapter 7.  Now, you need to understand what it really is.  First, you should understand that bankruptcy can mean a new beginning.  The stress of dodging phone calls from creditors and the anxiety of checking the mail can come to an end.  Second, you should understand what Chapter 7 bankruptcy in Florida is and what it is not.

Are You Eligible for Chapter 7 Bankruptcy?

The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 makes pre-bankruptcy credit counseling mandatory within the 180 days preceding the filing of bankruptcy.  This can usually be accomplished in 60 to 90 minutes with an accredited debt councilor.  It is usually around $50, but it can be free of cost if you tell the councilor you cannot afford to pay.

This Act also implemented the means test.   If you use the calculation and your remaining income is less than $100, you are generally eligible to file for bankruptcy under Chapter 7.

 

What is Chapter 7 Personal Bankruptcy?

The defining characteristic of Chapter 7 bankruptcy is the liquidation of assets.  A trustee will be assigned to collect all non-exempt assets and sell them.  The proceeds of the sales will be distributed to creditors.  Non-exempt assets (can be taken and sold) include (but are not limited to):

  • Collectibles such as sports memorabilia, stamps, coins, etc.
  • Family heirlooms.
  • Any cash or investments you may have.
  • A second car.
  • A second home.

Assets considered exempt (generally not taken and sold) are:

  • Motor vehicles.
  • Necessary clothing, household items, furnishings and appliances.
  • Jewelry (up to a defined value).
  • Public benefits such as welfare, social security, unemployment, etc.
  • Pensions
  • Damages awarded for injury.

 

Check back for Part Two as we cover what assets may be considered exempt specifically in Florida and more topics related to bankruptcy under Chapter 7.

If you have read enough and you are considering filing for bankruptcy under Chapter 7, consider Dsouza and Strachan Lawgroup Group.  With more than 15 years guiding people through some of the most difficult times in their lives, Dsouza and Strachan Lawgroup group is prepared to get you the fresh start you deserve.