My wife and I took a drive up A1A to one of our favorite places, St. Augustine. The drive along the coast is a great way to wind down after a long work week. While this is a regular excursion for us, we had not been to St. Augustine since Hurricane Matthew until recently. During the drive, I could not stop pointing out all the mismatched shingles & roof tiles, granular loss and blue tarps.
Understandably, my wife wanted me to turn off “work mode”. That was the point of the drive, right? However, I could not help to wonder how many homeowners were taken advantage of not knowing that a policyholder may be entitled, under Florida law, to matching shingle/tile replacement. In many instances, in the event a matching replacement cannot be located, the insurance company must pay for entire roof replacement per Florida law. What is meant by granular loss? Simply, look at a shingle roof. If you can see a pattern in the shingles that was not there before the hurricane, then you may have granular loss. It may be more defined now, several months later, as dirt accumulates differently depending on the amount of granules on a shingle. As for tarps, why are there so many tarps still? Are roofing companies that backlogged or are insurance companies failing to pay insurance benefits?
The frequency of shady contractors swindling homeowners in insurance claims has dramatically increased since Hurricane Matthew devastated the area. The contractors’ method of deception is forcing a homeowner to sign an Assignment of Benefits (AOB). While most insurance policies allow for a homeowner to assign benefits to a third party, such an assignment is not required or mandated in order to receive benefits. Many contractors approach the homeowner with an AOB form and suggest that it must be signed before they can proceed with providing a repair estimate.
If you sign an AOB you can no longer deal directly with the insurance carrier to resolve your claim. The claims adjuster can only legally negotiate with the contractor and payments will be made directly to the contractor. Unfortunately, some contractors cash claims checks without making any repairs to the insured’s home.
There is currently pending before the 2017 Florida Legislature a bill that will greatly reduce the ability for contractors to defraud homeowners with AOBs. If passed, under the new law an AOB will not be valid unless it is signed by all persons insured under the policy and includes a seven-day period in which the insured may cancel or void the assignment without penalty. Most importantly, the AOB must contain a written, itemized, per-unit cost estimate of the work to be performed.
Until new legislation is passed, however, your rights as a policyholder and claimant could be compromised if you sign an AOB. If a contractor asks you to sign a contract, estimate or other document, contact our office and allow one of our attorneys to review the document with you and assure your interests are protected.
After you received a Final Judgment dissolving your marriage, you probably felt a multitude of feelings ranging from relief to sadness, which are all normal feelings after a divorce. You may also feel that the Final Judgment did not fairly divide your marital assets or debts, or sufficiently provide for your support in terms of the amount or length of alimony. On the other hand, you may be the spouse who is ordered to pay alimony or portions of other spouse’s attorneys’ fees, and feel that the judge did not properly consider all the facts in your case. In either case, if you feel that the Final Judgment is grossly inequitable, here are THREE things to consider before you take the step to file an appeal .
First , the time constraints on when you can file an appeal is important. While you have fifteen (15) days from the filing of the Final Judgment to request that the judge re-hear your case, this does not necessarily mean that the time to file an appeal of the Final Judgment will be tolled or suspended. You need to make sure that you are seeking a re-hearing from a Final Judgment that is “final in nature.” Normally, you have thirty (30) days from the rendition of the Final Judgment to file a Notice to the appellate court of your intent to appeal and pay the filing fee.
You may decide that because of the time constraints you want to forego seeking a re-hearing and simply seek an appeal of the Final Judgment. One caveat to doing this is that where your appeal is based on the judge failing to find specific facts supporting the Final Judgment, it has been established that the appellate court will not reverse the Final Judgment unless a re-hearing is first entertained and rejected. But, where your appeal is based on the argument that there is a lack of sufficient evidence supporting the Final Judgment a motion for re-hearing is not required.
Second , it is best to consider the type of “standard of review” the appellate court will apply to your appeal. In most appeals of a Final Judgments dissolving a marriage, the appellate court will utilize an abuse of discretion standard. An abuse of discretion standard is a low standard that requires the appellate court to reverse portions or all of the Final Judgment award, including alimony , child support, attorneys’ fees, or equitable distribution award only if it finds that the trial court abused its discretion. However, where the judge incorrectly applied the law to the facts of your case or interpretation of the law, then the appellate court can review your Final Judgment de novo or as if, the appellate court was retrying your case.
Third , an appeal process takes time, on average, a year to two years. This is because after a notice to the appellate court is filed, you have seventy (70) days to file a brief detailing your arguments, then your ex-spouse has twenty (20) days to file an answer to your brief, and finally, you have twenty (20) days to file a reply to your ex-spouse’s answer brief. Each side can also seek extensions of time to file their briefs, which extends the appeals process even further. Also, either side can request that the parties be given a chance to orally argue their side before a three panel judge.
Whether an appeal should be your next choice, or the right choice, requires consideration of many things including the time, expense and the overall outcome you wish from an appeal. Contact our offices at (386) 506-8325 for more guidance and advice on whether you should seek an appeal and what to expect from your appeal.
With the 2016 Hurricane season over and 2017 season soon to be on us, it is a good idea to review your homeowner’s policy for coverage exclusions. Your insurance agent has probably let you know whether you live in a flood zone and whether additional flood insurance was mandatory and highly advised. But, what about lightning?
Typically lightning strikes, as well as fire caused by lightning, are covered as perils in almost all homeowner’s insurance policies. But, there may be exclusions. Read the fine print. For example, your policy may not cover damage from an electrical surge that occurs when lightning strikes the power line that runs to your home.
A lightning strike can create a fire inside or outside your home, ruin sensitive appliances, electronics and wiring inside the walls, and even shock and injure occupants.
If a lightning strike happens, the most important thing is to safeguard your family and yourself.
- Make sure your house is equipped with smoke and fire detectors. Lightning is so hot that fires caused by direct strikes are instantaneous. If you smell smoke or feel heat during a storm, evacuate the building immediately.
- Make sure all of your appliances are plugged into grounded outlets that offer surge protection. This will not protect against a direct strike, but it may help if there is an electrical surge in a storm. For maximum safety, unplug computers, televisions, microwaves and other electric appliances during storms.
- If you live in a high strike area, consult professionals about installing lightning rods or whole house surge protection.
Even with such precautions, it only takes one direct lightning strike for your home to be damaged.
The primary purpose of having your assets in a living trust is to avoid the expense and delay of the probate process. Keep in mind that anything that you own which is not jointly held or in a revocable living trust at the time of your death will go through probate . Therefore, if you have created a revocable living trust by executing a trust agreement, the objective is to transfer the ownership of suitable assets into the name of the trustee of your living trust, so that these assets will not be involved in the probate process.
Your living trust can’t have any beneficial effects, if it is unfunded (empty). The trust can’t deal with property that it does not own. So, it is an essential step in making your trust effective to transfer ownership (title) of property to the trust’s name.
Most of your assets should go into your living trust. Any assets which are solely in your name, outside of your trust will be subject to the probate process. Transferring assets into your trust is usually very simple. Basically, there are two types of property that are transferred into a trust – property with ownership (title) documents and those without such title documents. Each type of property is treated differently when it comes to transferring it to your trust.
- Property Without Ownership (Title) Documents
Many types of property don’t have title documents, including all kinds of household possessions and furnishings, clothing, jewelry, furs, tools, farm equipment, antiques, electronic and computer equipment, art works, bearer bonds, cash, precious metals, and collectibles. Some estate planners suggest that you can transfer these items to the trust simply by listing them on a trust schedule and that no other action is needed. However, we recommend that such items be listed on a schedule attached to a transfer document such as a Bill Of Sale, which simply and legally formalizes the transfer. Enclosed is a Bill of Sale for you to sign when you come in to sign the deed to your house.
- Property With Ownership (Title) Documents
After your trust agreement has been signed, witnessed, and notarized, it is essential that you formally re-register the ownership of all items of property, that you want to transfer into your trust, which have ownership documents (title papers). Here is a list of some of the types of property which must have the title documents re-registered, if you want such property transferred into your trust:
(i) Bank Accounts
(ii) Business Interests
(iii) Motor Vehicles
(iv) Real Estate (Real Property)
(v) Stocks, Bonds, & Mutual Funds
Your trust won’t be effective for any property with an ownership document which is not re-registered in the trust’s name. The new document of title must show that the trustee – not you, the grantor – is the legal owner of the property. If the trustee isn’t the legal owner of the property, the trustee (and successor trustee) has no legal authority to deal with the property for the benefit of the beneficiaries and no authority to transfer that property to the beneficiaries as your trust directs.
If the title to property listed on the trust schedule remains in your name (you fail to re-register it to your trust), that property will pass under the terms of your will. Since it’s not usually specifically listed in your will, it will go to the residuary beneficiary, who, of course, may not be the person who you intended to receive it. Even if your residuary beneficiary in your will is your trust, that property will have to pass through the probate process. If you have no will, any property not transferred to your trust will be left under the terms of the state’s intestate succession law. In either case, it will be subject to all the expense and delay of the probate process – the very things you are trying to avoid.
Our firm can discuss how a living trust will help you make distribution of your assets after your death without going through probate, and can discuss how to fund the trust to make it effective. Contact us and arrange an appointment to discuss this important subject.