Legal Knowledge and Insight

Key Points:The general rule is that a mortgage may not stay in a deceased person’s name, however exceptions may apply.Generally, if a person dies, title will transfer. If title transfers, it invokes a due-on-sale clause.“Due-on-sale” clauses can be fought with certain exemptions under federal law, including when property transfers to a spouse or child of the borrower on their death and the mortgage was on the family home.The basics: a mortgage represents debt owed by a borrower that is secured (or “collateralized”) by real property that is, almost always, in the borrower’s ...

IntroductionA reverse mortgage is a means for elderly homeowners to pull funds from equity in their home without the need to make regular mortgage payments.[1] In a reverse mortgage, the lender provides funds to the homeowner in lump sum or periodic payments, and the homeowner does not have to repay the balance back unless or until certain events happen, such as their death or the sale of the home.[2]A reverse mortgage lender is essentially taking the risk that the funds they front to the borrower in exchange for a mortgage on the property will be recoverable in the event o...

LGBT couples and families face unique challenges in the probate process.In the LGBT community, the concept of a “chosen family” is prominent.[1] This is because members of the LGBT community are often estranged from their blood relatives and are less likely to have children than the general population.[2] This presents a problem, however, as family members by choice are given less deference by the law than family members by blood.[3]Members of the LGBT community are not unaware of this, and studies indicate that they take greater care in planning their estates.[4] This use ...

IntroductionA lost will is a will that a testator was known to have in their possession but cannot be found after they die.[1]In Florida, if a will is lost, the presumption is that the will was destroyed by the testator because the testator wished to revoke it.[2] To defeat this presumption, the lost will must be established and subsequently admitted to probate.[3] The requirements for establishment are laid out in the Florida Statutes.[4] The relevant provision provides:Any interested person may establish the full and precise terms of a lost or destroyed will and offer the...

Under Florida law, a deed is a written instrument that creates, makes, grants, transfers, or releases an estate, a freehold interest, or an interest for a term of more than one year in, of, or out of any messuages, lands, tenements, or hereditaments.[1] Deeds must be signed by the vendor, or their agent, in the presence of two subscribing witnesses.[2]A deed that follows the form for warranty deeds as prescribed in the Florida Statutes is “held to be a warranty deed with full common-law convenants . . . .”[3] This refers, among others, to the covenant of seisin, the covenan...

What is Capacity?Capacity is the ability of someone to make rational decisions, and thus be accountable for their actions. Individuals with capacity are people with the power to make important life decisions in the eyes of the law; those with capacity are legally recognized as autonomous or semi-autonomous individuals.The question of capacity is rooted in state of mind. As legal concepts, the standards for capacity are designed to protect those who are legally vulnerable as a result of some kind of mental infirmity. This infirmity could be temporary, such as alcohol intoxic...

In the state of Florida, any new company that intends to incorporate must file articles of incorporation with the Florida State Department. These will establish the business as its own entity, be it a C-Corp, S-Corp, non-profit, or other corporate structure. Once filed, the application is reviewed by state officials to ensure that all applicable rules, laws, and regulations have been met and the requisite fees have been paid.Articles of incorporation are critically important and should not be drafted without proper, experienced legal counsel. These papers are legal document...

How do Contracts and Agreements Differ?On any given day, a business owner (and their legal counsel) may be reviewing and discussing various contracts and agreements. The words ‘contract’ and ‘agreement’ are often used interchangeably, but they are not, in fact, the same.The legal definition of an agreement is that it exists when there is a mutual understanding between all parties of their rights and responsibilities with regard to a business arrangement. The contract is the agreement between the parties involved, which creates obligations that are legally binding and enforc...

A will (also called your last will and testament) is a legal document that allows you to state what should happen with your assets after you die.  It is important to remember that a will is a must for every estate plan, but it should always be used with other estate planning tools such as trusts.Your Will should specify who gets what, where they get it from (e.g., personal estate), and include any special notes, You must sign it in front of 2 witnesses, and a notary public, an attorney who drafts your will or estate plan, will be able to provide two witnesses and a notary a...

A power of attorney is a legal document that names an agent to act on your behalf. This person, known as an “attorney-in-fact” or power of attorney, can be authorized to work in many different situations and act for one time or all the time. For example, you may give power of attorney to someone, so they can sign your name to a check when you are out of town.What Types of Power of Attorneys Exist?There are four different types of power of attorney. You can choose anyone you want to be your power of attorney, even yourself. The power of attorney you choose will depend on you...

Starting and Forming a New CompanyThere is a difference between simply starting a business and building a foundation for a lasting enterprise. The fact that you have made it to this point means you are likely more interested in starting a new business or expanding your existing business. No matter the reason, we are here to help.Starting a business is like sailing the open sea because getting lost can be easy but if you have your compass to navigate, you will never be off course. Here at Easler Law, we are your compass; we will guide you through every step of the way to ens...

An eviction is a legal process of removing a tenant from the rental property with an enforced court order.Residential evictions can be stressful in real estate, especially when it’s on a residential level. In the real estate industry, there is always something going on. There are sales to make, rent to collect, updates for properties…you name it!Commercial evictions can become complex fast, depending on the lease type and negotiated terms. It’s also common for commercial leases to be different from tenant-to-tenant.Though evictions have specific lawful procedures that must ...

While probate ensures full disclosure of a decedent’s real and personal assets, shortens the timeline for creditors’ claims, and reduces the risks of errors in a will, the disadvantages outweigh the benefits. The probate process is time-consuming, has higher expenses, and intrudes on a family’s privacy. Attorney fees, court costs, estate executor/administrator fees, and accounting fees push the costs even further. In fact, the cost of probating a will usurps 3% – 8% of the gross estate value, taking up to 13 months to settle, which may extend to several years if an uncooper...

Key Takeaways:C corps have double taxation while S corps have pass-through taxation.C corps can have unlimited owners, while S corps are limited to 100 shareholders.C corps are the default entity you are assigned during registration.Setting up a business structure is one of the most important foundations of jumpstarting your business growth. Some people opt for LLCs, but there are others who go for S Corporation or C Corporation. If you’re trying to choose between the two business structures, it’s important that you understand what each legal entity entails and its unique d...

Key Takeaways:A will allocates how your estate should be distributed upon your death, while a trust is an arrangement giving a trustee the right to manage your estate once set upWith a trust, the owner of the assets (trustor) may continue holding and managing the assets but appoint a successor trustee to take over after their incapacitation or deathA will must go through a court approval before execution, a process that compromises its privacyA trust can be executed immediately the right of management passes to the trustee, without the public exposure of a court processMaki...

Key TakeawaysA will is a document that highlights your wishes regarding the distribution of your properties.If you die without a will, the court will determine the distribution of your properties.The best way to prepare a will is through the help of an attorney.A lawyer ensures that you draft a valid and legally binding will.What Is a Will?A will is a legal document that gives direction regarding the distribution of your property upon death. It protects your wishes and hands down your real estate, personal property, and cash to people or organizations that you want.Creating...

Can you imagine spending years of your life working to build the perfect image of your company, products or services only to realize that you cannot successfully protect the brand that you have so carefully built? That is where the importance of selecting a trademark which is not descriptive comes into play.A descriptive trademark is something that can easily be avoided, however it is important to know how trademarks are categorized in order to be better equipped with the knowledge of how to make your trademark the strongest that it can be. The consequences of having a desc...

All businesses are started with an idea, and it only takes one person to believe in that idea before business planning commences. Before any work can be done to make that idea a reality, it is very important that some pre-incorporation planning take place.The pre-incorporation agreement is an essential business plan template which has the potential to save small businesses and their owners from a great deal of trouble down the road.If you are someone who would like to incorporate a new business, pre-incorporation planning is one of the most important aspects of starting up ...

When you sit down with an attorney to go through the fundamentals of the estate planning process, one of the questions you will almost certainly be faced with is this: who would you like to designate as your power of attorney. You may be unfamiliar with this legal document and wondering, “What the heck is a power of attorney, anyway?”Many people have questions about choosing a power of attorney and what it means, what it entails, and who you could or should designate. To help you start thinking ahead, we have answered some of the most frequently asked questions about power ...

Key Takeaways:Survivorship life insurance offers greater death benefits at lower costs than typical life insurance because the benefits are not paid until two or more policyholders have died.Because survivorship life insurance lists someone other than the decedent’s estate as a beneficiary, this type of insurance does not need to be distributed by a court through a probate process.Survivorship life insurance may not be right for those who will need the death benefits in the immediate term in order to pay off expenses after the death of their spouseIs survivorship life insur...

According to the dictionary, the definition of the word trust is a “firm belief in the reliability, truth, ability, or strength of someone or something.” When it comes to legal matters, it takes on a whole other meaning. However, you’ll still want significant “trust” built into a revocable living trust. That’s why you should secure the assistance of an experienced attorney and why you’ll want to carefully choose trustees who always have your best interest at heart.Keep reading to learn more about this important legal process and how it can benefit you and your estate.What i...

Taking the time to learn about estate planning is one of the kindest gifts you can give to family and other loved ones. While no one wants to think about their own mortality, most people find great comfort and peace of mind once their affairs are in order. This is one task that you shouldn’t put off any longer, and you might be surprised by how comfortable the team at Easler Law makes the process. Keep reading to understand the value of thinking ahead!What is estate planning?You have an estate – really! It consists of everything you own: property, bank accounts, cars and/or...

When it comes to the estate planning process, one document gets the lion’s share of the limelight: the last will and testament. Often the catalyst for drama in books, films, and soap operas, this legal record is actually a must-have in the real world.While many people have a tendency to put this task off, the professionals at Easler Law advocate for a more proactive approach to your end-of-life planning. Have you prepared your will yet, or do you keep saying ‘someday’? Are you wondering what a will actually entails and how to go about drafting one? Keep reading to learn mor...

Some people are planners by nature. They have their will and power of attorney drawn up before their first child is even born, and they pre-purchase burial plots long before retirement. If your parents are the planning sort, having “the talk” will probably be more of a show and tell. You’ll learn where and how to access those precious documents if something should happen to them, where the bank accounts and insurance policies are held, and what they would want to have included in their obituary. Consider yourself lucky!If, however, that all sounds grim and uncomfortable to ...

If you are a non-US person living outside the US and are considering investing in US real estate it’s important to understand taxation for foreign real estate investors.  It’s equally important to remember that the information is not a substitute for personal tax advice. Each investor should seek personalized advice from a qualified US tax professional. That being said, It is no secret that many foreign investors find the US real estate market to be an attractive target for their investment funds.[1] There are multiple variations of real estate investments, including commer...

Six months after oral arguments were heard in the matter of Google LLC v. Oracle America, Inc., the Supreme Court of the United States (SCOTUS) has issued a decision.[1] However, despite the nearly unprecedented level of speculation that surrounded what the impact of the Court’s decision would have; the SCOTUS’ holding does not appear to be as groundbreaking or revolutionary as some may have anticipated.The two major issues in the Google LLC v. Oracle America, Inc[2] case was whether Oracle’s Java programming language's application programming interfaces (APIs) are sub...

A corporation must file the necessary paperwork with the Secretary of State to be incorporated. The incorporation process might take some time, and while this process is pending, the individuals forming the corporation may need to sign purchase orders, leases, or other necessary contracts. The individual who signs any of these contracts lists the corporation’s name, but the corporation is not technically in existence and will not be liable until the corporation adopts the contract.Any contract entered into prior to the incorporation of a business entity is a possible liabil...

The issue of whether or not computer code is subject to copyright protection has finally reached the Supreme Court of the United States (SCOTUS).[1] Although the particular court case surrounding this controversial issue has only been making its way through the hierarchy of the courts for the past 10 years, the core issue that is up for debate has been in the making over the past 40 years.[2] Additionally, while the stakes for the parties who are involved in the lawsuit, namely Google LLC and Oracle America, Inc., are high and amount to billions of dollars in potential dama...

Military members are afforded certain protections and benefits while in active duty, including protections relating to housing and accommodations. For this reason, landlords need to be aware of the laws that can affect the landlord’s relationship with its military tenants. In 2003, the United States Congress enacted the Servicemembers Civil Relief Act (“SCRA”) to revise and expand the Soldiers’ and Sailors’ Civil Relief Act of 1940.[1] The SCRA provides legal protections for active military members to enable them to focus on the defense of the nation.[2] The SCRA includes p...

In 2002, the United States Congress passed the Sarbanes-Oxley Act (the “Act”) of 2002 to combat corporate and accounting fraud.[1] The Act was passed in response to a series of corporate bankruptcies and other scandals that occurred in previous years, the Enron scandal for example.[2] Under section 404 of the Act, the Securities Exchange Commission (“SEC”) had to adopt rules requiring that each annual report submitted by a company include an internal control report.[3] This internal control report should contain:(1) a statement of management's responsibility for establ...

The landlord-tenant relationship involves more than the exchange of rent payments for access to residency. In Florida, when a landlord and tenant enter into a lease agreement, they agree to be bound by a plethora of terms, whether express in the agreement or imputed by operation of law. One such obligation imposed upon both parties is maintenance. Maintaining rental property is a way to protect both parties’ investment in the property but also to comply with the law. Outside of the terms of a lease agreement, there are certain minimum maintenance responsibilities for both t...

Service dogs[1] aid people with disabilities so that they can fully participate in daily life routines and activities.  Dogs can be trained to perform many significant tasks to assist people with disabilities. These service dogs offer support to people with physical or mental disabilities including those who are visually impaired, deaf or hard of hearing. When it comes to housing, landlords and property managers generally enforce pet policies for the properties they rent. The Americans with Disabilities Act of 1990 (ADA)[2] prohibits discrimination in public accommodations ...