Category: Florida BAR article
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Beyond Statute, Rule, and Contract: Equity as a Basis for Awarding Attorneys’ Fees
In Florida, attorneys’ fees can only be awarded if there is a specific law, rule, or contract that allows it. In some cases, like probate, guardianship, trust, and family courts, attorneys’ fees can be awarded to make things fair for everyone involved. There are also three other reasons that attorneys’ fees can be awarded: if…
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Domicile Planning: Don’t Take it for Granted
Domicile planning is an important but often overlooked aspect of legal and financial planning. Domicile is basically where a person considers their permanent home. It’s important to ask the right questions at the right time to help clients plan for their domicile and avoid problems in the future. This can help them and their families…
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Florida Construction Liens: Representing the Residential Owner
This article talks about how the law in Florida protects homeowners who are having a house built. In the past, homeowners could be held responsible for paying bills twice, but now the law protects them as long as they follow certain rules, like not paying the builder before receiving a notice. There are also ways…
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A Trustee’s Duties and Responsibilities Under Discretionary Invasion Provisions
In many trusts, the trustee has the power to decide how much money or property to give to the beneficiaries. This is to make sure the needs of the beneficiaries are met even if they weren’t planned for. But it can be hard to know exactly how much power the trustee has in each situation.…
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Disclaimer Statute May Permit Judgment Debtors to Deliver Money to Friends or Family With Nothing to Creditors, But Not Always in Florida
Yes, there may be a way for a judgment debtor in Florida to prevent a judgment creditor’s lien from attaching to inherited assets, but it depends on the debtor’s financial situation. The debtor may be able to use a legal process called a disclaimer to avoid the creditor’s claim, but only if the debtor is…
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The Status of Nonconforming Use Law in Florida
For the past 30 years, people in Florida have been moving to the center of the state for new homes and communities. Now, with land running out and traffic getting worse, they are starting to go back to the coastal areas that were developed before. Local governments are making plans for this redevelopment to keep…
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Not All Bonds Are Created Equal: Distinguishing a Common Law Bond From a Statutory Bond
In Florida, the construction industry is booming, but there are also a lot of legal disputes. One common cause of these disputes is poorly written documents, like contracts and bonds. There are two main types of bonds for construction projects: statutory bonds, which are required by law for public projects, and common law bonds, which…
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Understanding the Testamentary Effects of Community Property Rules
Due to a lot of people moving to Florida, the state has community property rules that are important in legal decisions. In 1992, the Florida probate laws were changed to include a version of the Uniform Disposition of Community Property Rights at Death Act. This act affects what happens to a person’s property after they…
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Minimizing a Personal Representative’s Personal Liability to Pay Taxes, Part II
In Part II of the article, the authors give advice to a personal representative (PR) on how to minimize personal liability for federal and state tax obligations. They recommend filing tax returns for the years before the decedentâs death, gathering and reviewing the decedentâs tax and financial information, and filing necessary forms with the IRS…
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Minimizing a Personal Representative’s Personal Liability to Pay Taxes, Part I
As a personal representative of a Florida probate estate, you have to file tax returns and pay taxes for the deceased person and their estate. If you don’t do this, you could be personally responsible for the unpaid taxes, penalties, and interest to the IRS and the Florida Department of Revenue, even years after the…
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The 2004 Amendments to Florida’s Construction Defect Statute: Some Solutions and More Confusion
Florida’s construction defect law, which started in 2003, changed how construction defect claims are handled. Now, homeowners have to tell contractors about any problems before they can sue. This is new and has caused confusion for lawyers and others involved in construction cases. The statute about construction defects has caused problems for both contractors and…
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Disbursement of Surplus Proceeds from a Foreclosure Sale & The Urban Myth of the Race to the Courthouse
Urban legends are stories that are unbelievable but still seem possible. Some examples include wiping out debt with a first payment, scamming money with fake deposit slips, and paying off debt with a fraction of the amount. In the legal world, there’s a myth where a lawyer convinces a judge to give leftover money from…
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The Return of the Pink Panther or Johnson v. Davis, Redux
In 1985, the Florida Supreme Court made a new rule for buying houses. The case involved Mr. and Mrs. Davis buying a house from Mr. and Mrs. Johnson. Before the sale was completed, the Johnsons said there were no problems with the roof, but after the sale, the Davises found out there were big leaks…
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Durable Powers of Attorney: A Less Restrictive Alternative?
In Florida, there are laws that give someone the power to make decisions for another person if they become unable to do so. These laws have changed over time to allow more people to act as a decision maker. An article questions how much power these decision makers actually have and if they need to…
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Servants of a Masterful Conflict
In a perfect world, a Florida real estate transaction would involve the buyer and their lawyer, the seller and their lawyer, a representative from the mortgage lender, and a title insurance agent. However, in reality, the buyer’s lawyer often takes on multiple roles, such as issuing title insurance, handling the lender’s documents, and preparing the…
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Drafting Trusts That Include Broad Invasion Powers
Sometimes a client might want to include a broad standard in their trust that allows the beneficiary to access the trust funds for more than just basic needs like health and education. However, there are certain restrictions on when and how this standard can be used. Marital trusts and independent trustees can still allow for…
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Contractual Indemnity in Construction for Your Negligence,What Year Is It?
In construction projects in Florida, if someone does something wrong that causes damage or injury, certain people like contractors and architects agree to take responsibility for it in their contracts. Some people think this is not fair and shouldn’t be allowed, while others think it’s okay because the people signing the contracts should understand what…
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Eminent Domain: Identifying Issues in Damages for the General Practitioner
The government has the power to take private property for public use, but the owner must be fully compensated. There are three types of compensation: the value of the property being taken, damages when only part of the property is taken, and relocation expenses for mobile home owners. The government can take either a partial…
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Things That May Surprise You About Florida’s Principal and Income Act and Related Accounting Law, Part II
In the second part of the article, the authors use examples to explain how the Florida Uniform Principal and Income Act allocates trust and estate expenses between income and principal. In one example, if a person leaves their vacation condo to their spouse for life and then to their child, the spouse is responsible for…
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How to Comply with Chapter 558 Florida Statutes: Current Challenges and Future Changes
In short, a legal firm and its attorney are being accused of not paying a former employee fairly. The former employee is asking for proper compensation for their work. The Florida Construction Defect Statute requires owners to send a detailed notice of any construction and design defects to developers, contractors, and others before suing for…
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Unraveling the Mysteries of the Florida Exemptions for Life Insurance and Annuity Contracts, Part Two
This is the second part of an article about exemptions for life insurance and annuity contracts in Florida. It discusses whether the exemption for annuity contracts applies to deferred annuities, traditional estate planning arrangements, and the application of the fraudulent conversion rule. The law says that the money from an annuity contract is protected from…
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Unraveling the Mysteries of the Florida Exemptions for Life Insurance and Annuity Contracts, Part 1
Florida has laws that protect residents’ assets, like their primary residence, life insurance, annuities, retirement accounts, and education savings accounts. In this two-part article, we’ll look at the rules for protecting life insurance and annuities in Florida. Part one focuses on how life insurance is protected after the insured person passes away, how the policy…
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Section 522(f): Forward to the Past or Back to the Future?
In Florida, there has been a lot of confusion about whether people can avoid judgment liens on their property in bankruptcy. The law has been unclear for a long time, and there have been different opinions from judges. It’s important for bankruptcy lawyers to understand this issue and how it could affect their clients. The…
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An Analysis of Affordable/Work-force Housing Initiatives and Their Legality in the State of Florida, Part II
Local governments in Florida can only tax through ad valorem taxes unless there is a general law allowing it. In the past, they mostly used public revenue to grow, but now they also use private revenue like impact fees on new developments. Impact fees are charged to the users of facilities like sewers and roads…