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David A. Shulman

David Shulman’s Answers

27 total

  • Are life insurance proceeds payable to a trust created in my will subject to creditor claims in Florida?

    I am a Florida resident and have a life insurance policy. My total estate is about $500,000, a $250,000 house free and clear with a $250,000 life insurance policy. I would like to create a trust for my kids in my Will for simplicity, and make th...

    David’s Answer

    I think that if the beneficiary designation is correctly completed, and the testamentary trust is named as the beneficiary (and you have to be careful to do it right), then it should not be subject to the claims of your estate's creditors.

    Disclaimer: This legal advice is worth what you paid me for it.

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  • How long does Probate take in Florida?

    I was told that I have to see an attorney that does probate. My husband died 2 years ago, and the deed was only in his name I have been paying the house but I would llike to sell it is this very costly? I do have a will but since his death was s...

    David’s Answer

    Following up from my post before.

    Everyone got the answer wrong.

    Your husband's house was what is known in Florida as his homestead. The homestead is not subject to devise (meaning it can't be left by will) and passes outside of probate.

    If your husband had any children, whether they are yours or not, then you receive what is known as a "life estate" in the house. The remainder goes to his children.

    There could be issues regarding the title and the mortgage so you still need to see an attorney though.

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  • How long does Probate take in Florida?

    I was told that I have to see an attorney that does probate. My husband died 2 years ago, and the deed was only in his name I have been paying the house but I would llike to sell it is this very costly? I do have a will but since his death was s...

    David’s Answer

    There's an issue that no one is raising. The out of state attorneys who obnoxiously answer Florida questions without knowing what they are talking about always make this mistake, which would be malpractice if you were a real client.

    The issue is that the house was your husband's homestead, and there are special rules regarding the disposition of the homestead upon death.

    You need to see an attorney, and if they don't bring up the homestead issue, you need to see a different attorney.

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  • Florida homestead property

    Is it possible to have a homestead property become titled to a trust by the owner use of a quit claim deed effective at the owner's death and then have the owner make a trustee's distributive deed made out to certain heirs of choice also effec...

    David’s Answer

    The problem is that in certain circumstances, your Homestead is not subject to devise. If you have a surviving spouse or minor children, then there will be issues with regards to the "certain heirs of choice."

    Disclaimer: This isn't legal advice. This is free. You pay for legal advice.

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  • If my husband dies without a will and he has large credit card debts can they put a lien on the house which is in both our name?

    We live in Florida

    David’s Answer

    • Selected as best answer

    The Florida lawyer has it right. The out of state lawyers are just trying to raise their Avvo score by opining on things that they know nothing about, and are giving wrong answers.

    In Florida, your homestead is not subject to the claims of creditors. Period (except creditors that are tied to the house itself, like the mortgage).

    So whether or not the house was in his name only or both of your names, or even whether he is alive or dead, the credit card companies may not place a lien on the house.

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  • I live in Fl. would like my friend in CT to be executor of my will.

    Can he be executor? I have 3 boys & I know they would be fighting if I chose either one of them. What can I do

    David’s Answer

    There's a reason that lawyers shouldn't answer questions in jurisdictions in which they aren't licensed to practice.

    In Florida, your Personal Representative (which is what we call the executor in Florida) has to be either a relative, or a Florida Resident (who may or may not be a relative).

    If you're friend lived in Florida, it would be ok. But since it's a non-relative who lives out of state, he can not be appointed the Personal Representative.

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  • My two sons are my primary beneficiary to my 401K plan, if I re-marry how is the distribution divided in case of my death?

    if I re-marry how is the distribution divided in case of my death?

    David’s Answer

    I agree with Kelly.

    Without a waiver from the spouse, the beneficiary designation on a 401(k) does not control.

    Note that in IRAs, the beneficiary designation does control.

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  • Can a new york attorney witness a document instead of a notary in florida

    can an out of state attorney witness a document instead of a notary in florida

    David’s Answer

    In order for a Will to be valid, it requires the signature of two witnesses. A notary isn't *necessarily* required. The NY attorney can be one of the witnesses.

    In order for the Will to be "self proved" the testator needs to execute a self proving affidavit. That requires the signature of the two witnesses plus the notary.

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  • X wife on a will.

    If my father has a will that names his X wife as beneficiary to his home will she get it?

    David’s Answer

    Maybe.

    In Florida, there are certain restrictions that prevent you from devising your home under certain circumstances.

    If your father has remarried at the time of his death (and is still married to that woman)

    OR

    if your father has any minor children, that is children under the age of 18, at the time of his death,

    then his ex-wife will not receive the home.

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  • Question regarding the settlement of estate.

    My husband is the sole beneficiary to his grandmother estate. The lawyer (hired by his grandmother before she passed) told my husband that her house and personal belongings inside the house must be sold before the estate can be settled. He sugge...

    David’s Answer

    Unless the grandmother made the sale of the house a requirement of her Will, there is no reason that the house needs to be sold.

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