Estate Category

Attorney or Title Company to Handle a Closing

By:   Kevin R. Albaum and Anthony A. Velardi
Clark, Campbell, Lancaster & Munson, P.A.

Q: The Personal Representative (Florida’s term for an Executor) of my father’s estate is selling my father’s home to a family member. What is the process for this transaction, and should the probate attorney or a title company handle the closing?

A: As an initial matter, the probate attorney should review your father’s Last Will and Testament and determine whether the Personal Representative has the power to sell the home. The probate attorney should ensure that all individuals with an interest in the home have agreed to the transaction and sale price before proceeding with the closing. The probate attorney will need to confirm that there is no surviving spouse or minor child that may have retained homestead rights to your father’s home. A written agreement between estate beneficiaries may need to be drafted by the probate attorney in some circumstances in order to comply with Florida law.

For closing on the transaction, there are multiple benefits to using a probate attorney (if also a title agent) over a title company. The probate attorney is licensed by the Florida Bar and can therefore provide legal advice. Unless the title company has a licensed attorney on staff, the title agent cannot provide legal advice. Keeping the existing probate attorney also ensures that the law firm closing the transaction is aware of the history of the estate and any possible homestead issues and creditor claims against the estate. As the probate attorney is personally handling the estate, he would easily be able to obtain and record various legal documents when needed such as the Letters of Administration, Order Admitting Will to Probate and Order Appointing Personal Representative, and the Affidavit of No Florida Estate Tax Due, if filed.

Although title companies may charge less than attorneys to handle a closing, our experience is that the costs are often comparable.

 

The November 5th edition of “The Law” will discuss land trusts and whether to use them when purchasing property.

 Kevin Albaum is an estate planning and elder law attorney, and Anthony Velardi is a real estate attorney and title agent, both with the law firm Clark, Campbell, Lancaster & Munson, P.A., which offers probate, real estate title and closing, and other services. Questions can be submitted online to thelaw@clarkcampbell-law.com.

 

Anthony Velardi

Latest posts by Anthony Velardi (see all)


    Kevin Albaum

    Real Estate

    Protecting Tenants at Foreclosure

    By: Clark, Campbell, Lancaster & Munson, P.A.

    Q: Are tenants protected at foreclosure?

    A: Yes, but right now only limitedly by a recent state law. Previously, the federal Protecting Tenants at Foreclosure Act prevented most banks or buyers obtaining a property through foreclosure from evicting rent-paying tenants without providing 90 days’ notice. And unless the buyer intended to occupy the home, he would have to respect the lease. That law expired at the end of 2014, and for the first five months of this year, Florida (like about half the states) had virtually no protection for tenants at foreclosure.

    As of June 2, 2015, Florida enacted a law that requires merely 30 days’ notice to so-called “bona fide tenants” before removal after a foreclosure, regardless of the lease and regardless of whether the foreclosure buyer intends to occupy the property. A bona fide tenant, under both the expired federal law and the current Florida law, is better known as an “arms’ length tenant”, because he cannot be the prior homeowner’s child, spouse or parent and he needs to be paying at or near market value rent. Even though the new owner need not respect the lease, he must respect other tenant rights, such as the prohibition against the landlord locking out the tenant, turning off water or removing doors. Once the 30 days expires, a mere affidavit in the foreclosure action can be enough to get the tenant removed.

    In short, Florida has created a 30-day notice requirement for tenants who are truly at arms’ length with their landlords and were occupying the premises before the foreclosure buyer obtained title. This is far short of the intended protections of the expired federal Act and puts us short of the protections of approximately a dozen other states. However, notably, the protections under Florida law appear to apply to other lien foreclosures in addition to just the traditional “federally related mortgage loan” covered by the federal Act.

     Although the more protective federal Act has expired, house and senate bills have been proposed this year to reenact the law.

     

    The October 22nd edition of “The Law” will cover selecting the right attorney and title company services when dealing with real estate that is subject to a last will and testament.

    Questions can be submitted online to thelaw@clarkcampbell-law.com