The Law Office of Michael R. Vines, P.A.The Law Office of Michael R. Vines, P.A.2026-07-07T19:05:36Zhttps://www.mvinespa.com/feed/atom/WordPress/wp-content/uploads/sites/1104436/2025/09/cropped-favicon_site-icon2-32x32.pngOn Behalf of The Law Office of Michael R. Vines, P.A.<![CDATA[Is it legal to sell inherited homes before Florida probate ends?]]>https://www.mvinespa.com/?p=467222026-04-18T19:07:18Z2026-04-18T19:07:18ZThe Florida probate process can sometimes take a year or longer to complete, especially if there are disputes or if the estate is relatively large. The personal representative overseeing estate administration may want to limit their hands-on obligations for asset maintenance by selling the primary residence or other real estate holdings of the decedent before the completion of the probate process.
However, they may worry about facing consequences for selling assets before the final accounting of the estate or the fulfillment of all outside financial claims. Is it legal to list real estate owned by an estate for sale while probate proceedings are still underway?
Yes, a sale during probate could be lawful
Florida probate statutes do not explicitly require the retention of all assets until the completion of the probate process. So long as the personal representative retains enough property to fulfill the remaining financial obligations of the decedent, they can transfer or sell some of the property that belongs to the estate.Once the probate courts provide theLetters of Administration to the personal representative, they can conduct transactions on behalf of the estate, including the sale of valuable resources. There are many reasons to list real estate for sale before the completion of probate. A sale can limit conflicts about responsibility to pay the mortgage, taxes and insurance costs for the home.Personal representatives may worry about the property falling into disrepair if it becomes vacant or experiencing a sharp decline in property value because of a protracted vacancy. They may also lack the time or physical capability to maintain the property throughout the estate administration process. In cases where the estate lacks adequate resources to cover debts and tax obligations, liquidating assets can help the estate fulfill outstanding financial obligations.Additionally, they may worry about local homeowners associations (HOAs) continuing to impose monthly fees that consume estate resources. There is no non-use waiver in Florida law that prevents the HOA from collecting monthly fees because a home is vacant and the owner does not use community amenities.Working with aFlorida probate attorney can help personal representatives ensure they fulfill their responsibilities and comply with all applicable statutes. Those concerned about how to manage high-value resources may want to consult with a lawyer before making any major financial moves.]]>On Behalf of The Law Office of Michael R. Vines, P.A.<![CDATA[1031 Exchange Process]]>https://www.mvinespa.com/?p=462432026-04-11T00:28:02Z2022-12-23T06:18:35ZWhat are 1031 Exchanges?
A 1031 exchange is a type of tax-deferred exchange that comes from Section 1031 of the Internal Revenue Code (IRC) that allows real estate investors to defer capital gains taxes when selling one investment property for another. This tax-deferred exchange involves using the proceeds from the sale of the relinquished property to acquire another like-kind piece of real estate of equal or greater value.
By completing the exchange, the taxpayer can build wealth, save taxes normally due upon the sale, and dispose of investment assets to acquire new ones. To reap the benefits of this practice, investors must identify and close on the replacement property within a specific time limit.
The Internal Revenue Service (IRS) has established rules that limit the use of these properties for business, investment, and trade purposes only. For instance, a taxpayer wouldn’t be able to exchange their rental unit property for a personal vacation home. A 1031 exchange may also be referred to as a Starker exchange or used as a verb, such as saying, “We should 1031 that building for this one.”
With a 1031 exchange, investors can use the delayed method — selling their former property before acquiring the replacement — or they can swap them at the same time. This is known as a simultaneous tax-deferred exchange. In this process, the taxpayer closes on the relinquished property and the replacement property on the same day.
IMPORTANT STEPS
STEP 1 – INVOLVE QUALIFIED INTERMEDIARY
STEP -2 – IDENTIFY PROPERTY WITHIN 45 DAYS
STEP 3 – PURCHASE REPLACEMENT PROPERTY WITHIN 180 DAYS]]>On Behalf of The Law Office of Michael R. Vines, P.A.<![CDATA[How Do Trusts Affect My Title?]]>https://www.mvinespa.com/?p=462412026-04-11T00:27:30Z2022-12-22T06:17:43Zalso needs to be reviewed.
Incorrect:
The Jane Doe Trust
Correct:
Jim Doe, as Trustee of the Jane Doe Irrevocable Trust, created on June 5, 2001.
Why does this matter? Marketability of title could be affected when property is not correctly conveyed to a trustee, a business entity or an individual and subsequently conveyed out. This creates a cloud on title that must be resolved prior to closing your transaction.
If a trustee has conveyed trust property in the back-chain and it was properly titled into the trustee of the trust, the presumption is that the trustee had the authority to convey title out. A certificate of trust should be recorded with the trustee’s deed to indicate the trustee had the power to convey the property. This eliminates future questions regarding the transaction. The trust document itself does not and probably should not be recorded in the deed records due to privacy concerns.]]>On Behalf of The Law Office of Michael R. Vines, P.A.<![CDATA[Addendums to Real Estate Contracts]]>https://www.mvinespa.com/?p=462392026-04-11T00:27:45Z2022-12-21T06:16:38Z1. STANDARD ADDENDUMS
The first is the “Standard Addendum”. These standard addendums, for issues such as condos, Buyers that need to sell their home before the purchase of the new home, and appraisals are standard in the industry and there is a place on the “AS IS” contract to check off that the specific addendum is being executed at the same time as the contract. These standard addendums have much of the substance of the addendum already written and the Buyer/Seller or real estate agents fill in the blanks provided.
2. CUSTOM ADDENDUMS
The second type of addendum is a “Custom Addendum”. There is a form in Florida for such addendums which helps the buyer/seller and real estate agents prepare the addendum. However, the substance of the addendum is not included and therefore it must be written by the parties to the contract, their agents and/or real estate attorney. These addendums are used for any situation not covered by the original contract or standard addendums. They can be used for simple issues like extending a closing date or may be complicated, multiple page documents, detailing the rights and responsibilities of each party to resolve sophisticated issues.
It is important to note that both types of addendums change the terms of the original contract. It is therefore extremely important that Buyers and Sellers understand the terms they are agreeing to and how those changes modify their financial responsibilities and the time requirements of the original contract. It is also important that custom addendums are written with unambiguous language that clearly defines the new agreement of the parties. It is strongly advised that Buyers and Sellers consult a real estate attorney before creating and/or executing a custom addendum.]]>On Behalf of The Law Office of Michael R. Vines, P.A.<![CDATA[Considerations for Types of Property Ownership]]>https://www.mvinespa.com/?p=462372026-04-11T00:27:51Z2022-12-08T06:15:23ZNOTE: The Florida Constitution allows for arguably the broadest “Homestead Exemption” in the country. This however is not automatic. Youmust apply with the property appraiser in your county to take advantage of the exemption. Homestead limits annual tax increases, reduces tax liability and provides protection for your property from many types of creditors. The most common exceptions to protection from creditors are the mortgage(s) on the property, property taxes, condo/homeowner associations, and materialmen/subcontractors providing materials/labor for repairs/modifications/upgrades to the property.
Homestead also has advantages in probate. If a person dies and their property is homesteaded, the heirs can petition the court in probate for an order determining homestead. This process takes on average around 150 days due to the publication requirements of Florida law. The property will usually be protected from unsecured creditors but will still be subject to certain creditors like mortgages, property taxes, associations, etc.
Considerations for minor children: It becomes a significant issue if a minor child becomes the owner of real estate in Florida. Unfortunately, this situation can arise upon the unexpected demise of the minor child’s parent(s). The minor child cannot enter into a contract so the minor cannot rent or sell the property. Absent proper planning, a guardianship may need to be filed with the court to establish a guardian that can act on behalf of the minor child. This can be not only expensive to establish but expensive to maintain as annual accountings will be required and it may require court orders to remove monies from the guardianship. Properly written trusts avoid this situation.
The most common types of ownership are Individual ownership, Tenancy by the Entireties, Tenancy in common, Joint Tenancy with right of survivorship, Enhanced Life Estates, ownership through an LLC or corporation and ownership through a Trust.
Individual Ownership
This is where a single person owns the property in their sole name. This does not provide any protection from creditors and is not an estate planning tool. If the property is the person’s residence, then they can apply for homestead. Once homestead is established, they have protection from many types of creditors and if they pass away their heirs can petition the court in probate for an order determining homestead.
Tenancy by the Entireties
This can only be created between married persons. The deed must include the marital status of the owners. Each owner has an undivided ownership interest in the property. Upon the demise of either owner, the then living owner records certain documents in the public records and they are the sole owner of the property. There is no need for probate. If the property is the primary residence of the owners, then they also must apply for homestead. When the second owner passes away the property will be subject to probate just like “Individual Ownership” listed above. Tenancy by the Entireties also affords some protection from creditors because judgments against one owner may not attach to the property. Tenancy by the entireties property can be placed into a revocable trust without restricting the ability to homestead the property.
Tenancy in Common
This is where a property is owned by more than one person, and they are not married. Each person has a percentage ownership in the property. If the deed is silent as to the percentage of ownership, then it will be deemed, absent some other agreement between the owners, that they each have an equal ownership percentage. This property can be completely or partially homesteaded depending on the principal residence of each owner. Many times, this is not the preferred type of ownership because issues can arise when one owner passes away, one owner wants to sell and another does not, or a judgment or lien is recorded against one of the owners.
Joint Tenancy with Right of Survivorship
This is where a property is owned by more than one person, they are not married, and the owners agree (at the time they take ownership) that when one owner passes away their ownership interest in the property will pass to the other owner(s). The words, “with rights of survivorship” must be included in the deed. This type of ownership does avoid probate. However, this type of ownership may also create issues like a Tenancy in Common if one owner wants to sell or has a judgment or lien recorded against them.
Enhanced Life Estates
This type of ownership is also called a “Lady Bird Deed”. The owner executes a special life estate deed which names a remainderman or remaindermen and reserves not only a life estate but also certain other rights. If properly created, this deed allows the “Life Tenant” to mortgage, sell, rent and/or otherwise dispose of the property. However, if the “life Tenant” owns the property when they die then the listed remainderman(men) become the owners without probate. The “Life Tenant” can homestead the property. This type of deed is used in some estate planning models because it avoids probate, however, consideration should be given to whether a minor child could become a beneficiary of the deed.
Trust Ownership
Trusts can be revocable or irrevocable. Many trusts will not adversely restrict the ability to homestead the property. Trusts allow for an adult to be named the Trustee of the property even if a minor child becomes the beneficiary of the trust. Trusts can also be written to control when and/or at what age a beneficiary will receive monies from a property. Trusts can be written to allow for the property to be sold and the proceeds held in trust after the sale. Trusts can be written so that use of proceeds from the sale can be restricted and protections from the beneficiary’s creditors can be included in “Spend Thrift” provisions.
LLC/Corporate Ownership
Many investors will use an LLC or corporation to protect their other assets from creditors of the property. This is a protection from liability tool as well as a tax planning tool. This is not usually an estate planning tool. However, many investors that own their properties in LLC’s or corporations also use a trust to act as the member in an LLC or owner in a corporation to establish an estate plan as well. Property owned in an LLC or corporation cannot be homesteaded.]]>