Frequently Asked Questions — Brian D. Smith, Esq.

Question 1

Is the first consultation really free?

Accepted Answer

Yes, for every type of matter I handle: probate, trust administration, evictions, Lady Bird deeds and real estate. The first conversation is free, and lasts 30 minutes. It's a chance for you to tell me what's happened and what you need, and for me to explain how I'd approach it. If I'm not the right fit, I'll say so.

Question 2

What happens after the first conversation?

Accepted Answer

If you decide to go ahead, I'll explain the next steps and how the fee would work for your matter. For a probate or trust administration, I'll then ask for the documents I need, such as the will or trust and a list of assets. For a landlord matter or a real estate transaction, I'll ask for the lease, contract or deed involved. I'll tell you what I need before you start gathering anything.

Question 3

Who will I work with?

Accepted Answer

Me, from the first call to the end of your matter. I answer your questions myself.

Question 4

How much will it cost, and how do your fees work?

Accepted Answer

The cost depends on what the matter involves, so I don't quote a figure in general terms. A simple closing, an uncontested eviction and a large estate are very different amounts of work, and estates and trusts vary a great deal, from a simple Summary Administration to a large estate that needs an estate tax return. Fees are something we discuss directly. After we've talked, I'll explain how the fee would work for your matter before any work begins.

Question 5

Do we meet in person or online?

Accepted Answer

Both. Many first conversations happen by phone or video, and we can meet in person when that's easier or when a document needs to be signed or notarized. Tell me which you prefer and we'll arrange it.

Question 6

How long will my matter take?

Accepted Answer

It depends on the type of matter and on how cooperative everyone involved is. A residential closing and an uncontested eviction usually move on a clearer timetable than a probate case, which has court-set steps and a creditor period. I can give you a realistic picture once I know the facts.

Question 7

What should I prepare for the first call?

Accepted Answer

Nothing formal. It helps to know who has died or what property is involved, whether there's a will, trust, lease or contract, and what you're hoping will happen. Please don't send confidential documents or account information through the website until we've spoken.

Question 8

Who do you act for in real estate and landlord matters?

Accepted Answer

I represent buyers and sellers. When a buyer needs a mortgage, I frequently represent the lender as well. I also represent individual landlords and company landlords.

Question 9

Which counties do you work in?

Accepted Answer

I handle probate, trust administration, landlord evictions, Lady Bird deeds and real estate matters in Broward County and Miami-Dade County. My office is in Hollywood, in Broward. A probate case is filed in the county where the person lived, and an eviction is filed in the county where the property is, so the county depends on the address. If you're not sure which one applies, tell me the address and I'll tell you.

Question 10

What is the difference between an estate planning, an elder law and a probate attorney?

Accepted Answer

Estate planning is mainly about preparing before a crisis or a death. Elder law is mainly about protecting a person during aging, illness or long-term care needs. Probate is mainly about the legal and financial tasks after a death. Families often need more than one over time. I handle the probate side. I don't do estate planning or elder law.

Question 11

Which attorney should I call first?

Accepted Answer

It depends on the problem. To plan ahead with a will, trust or powers of attorney, call an estate planning attorney. For long-term care, Medicaid or a parent's declining capacity, call an elder law attorney. If someone has died and the family isn't sure what paperwork is required, call a probate attorney. The free guide on this site goes through each case.

Question 12

What is probate?

Accepted Answer

Probate is the court process of settling someone's estate after they die. In Florida it runs through the circuit court's probate division in the county where the person lived, and it typically involves proving the will, appointing a personal representative, identifying the estate's assets, paying valid debts and distributing what's left. Not every asset has to go through it.

Question 13

Can you help if a family member has just passed away?

Accepted Answer

Yes, that's the situation I deal with most. You don't need to have everything organized before you call. Tell me who has died, whether there was a will, and what property was involved, and I'll explain what happens next and what can wait.

Question 14

What should the family do first when someone dies?

Accepted Answer

Locate the original will and keep it safe. Florida law requires whoever has the original will to file it with the clerk of court within ten days of learning of the death, whether or not probate is going to be opened. Beyond that, there's no need to rush into decisions. Call me before moving money, selling property or paying bills from the person's accounts.

Question 15

Does having a will avoid probate?

Accepted Answer

No. A will usually doesn't avoid probate. It is submitted to the court, which validates it and oversees the administration of the estate according to its terms. Without a will, the estate is administered under state law instead. Assets that pass outside probate, such as those in a funded trust or a home covered by a Lady Bird deed, are a different matter. A properly prepared Lady Bird deed lets a Florida homeowner name who receives the house at death without probate for that property, while the rest of the estate may still need it.

Question 16

Which assets go through probate, and which don't?

Accepted Answer

Generally, assets held solely in the deceased person's name, with no surviving co-owner and no named beneficiary, go through probate. Jointly owned property with survivorship rights, assets in a funded trust, a home covered by a Lady Bird deed, and accounts with a named beneficiary, such as life insurance and many retirement accounts, typically pass outside it. It always depends on exactly how each asset is owned.

Question 17

What is the difference between a personal representative, an executor and an administrator?

Accepted Answer

They are all terms for the person appointed to administer an estate. Executor usually means someone named in the will, and administrator usually means someone appointed when no will names anyone. Florida uses the term personal representative. The job is the same: handle the estate under the court's oversight.

Question 18

What does a personal representative actually do?

Accepted Answer

The personal representative opens the estate with the court, notifies creditors, lists and protects the assets, pays valid debts, expenses and taxes, and distributes what remains to the people entitled to it. All of this happens under the court's oversight, and the personal representative answers for any mistakes, so getting advice early matters.

Question 19

Do I need an attorney to serve as personal representative?

Accepted Answer

In a formal administration in Florida, the personal representative generally has to be represented by an attorney. The role carries real responsibilities and personal liability for mistakes, so having counsel from the start protects you as well as the estate.

Question 20

What happens if someone dies without a will?

Accepted Answer

Their individually owned property is generally distributed under state intestacy law, using a set formula for spouses, children and other relatives, and a court typically appoints a personal representative. Unmarried partners and stepchildren generally don't inherit under that formula, however close they were. The outcome depends on the family, the assets and the law. Once I know the facts, I can explain who inherits and who can act.

Question 21

What is the difference between formal and summary administration?

Accepted Answer

Formal administration is the full process: a personal representative is appointed, creditors are notified and given time to file claims, and the estate is closed under court supervision. Summary administration is a shorter process for qualifying estates, where the court can order assets distributed without appointing a personal representative. Whether an estate qualifies depends on the value of the non-exempt assets and when the person died.

Question 22

How long does the creditor period last?

Accepted Answer

In a formal administration, creditors generally have three months from the first publication of the notice to creditors (or thirty days from receiving direct notice, if later) to file claims. Florida also bars most claims made two years after the date of death. That's why a formal estate rarely closes in under several months.

Question 23

Why can't the estate be distributed straight away?

Accepted Answer

A personal representative typically follows the legal process for notifying creditors, and often waits until the claims period has passed before making distributions. That protects against claims surfacing later. It's one reason even a simple estate takes time to close.

Question 24

Do I have to pay my parent's debts out of my own pocket?

Accepted Answer

Generally, no. Debts are paid from the estate's assets, not from the family's own money. A personal representative who distributes too early, or who signs personally for something, can create problems, which is a good reason to talk to me before paying anything.

Question 25

What happens to the house?

Accepted Answer

It depends on how the home was owned and whether it qualifies as Florida homestead. A home in a surviving co-owner's name, a funded trust or a Lady Bird deed passes outside probate. A home in the deceased person's sole name usually goes through probate, and Florida's homestead rules can restrict who may inherit it when the person leaves a spouse or minor children. The family can't sell or retitle it until that's sorted out.

Question 26

Can the estate sell the house during probate?

Accepted Answer

Often yes, but who has the authority to sell, and whether court approval is needed, depends on the will and the type of administration. A buyer's title company will want to see proof of that authority. If a sale is planned, tell me early so the paperwork doesn't hold up the closing.

Question 27

Does a surviving spouse have rights if the will leaves them little or nothing?

Accepted Answer

Yes. Florida gives a surviving spouse certain protections regardless of what the will says, including rights tied to the homestead and an elective share of the estate. These are time-sensitive, so a spouse in this position should speak to an attorney promptly.

Question 28

Can I serve as personal representative if I live outside Florida?

Accepted Answer

Florida limits who can serve if you live out of state. In general, a non-resident has to be closely related to the person who died, such as a spouse, child, parent, sibling or other qualifying relative. Where that applies, the court may still require other conditions to be met.

Question 29

What if the original will can't be found?

Accepted Answer

A lost will can sometimes still be admitted to probate, but it takes more: a court petition and proof of the will's contents and that it wasn't revoked. If the will can't be proved, the estate is handled as if there were no will. Search carefully, and tell me where you've already looked.

Question 30

Are probate records public?

Accepted Answer

Generally, yes. Wills and filings in a probate case become part of the court file, which anyone can view. Assets that pass through a trust or by beneficiary designation stay outside that public record.

Question 31

Can a trust avoid probate?

Accepted Answer

Generally, assets properly transferred into a trust pass under the trust's terms rather than through probate. A trust that was never funded, meaning assets were never retitled into it, won't do that for those assets. If your loved one left a trust, I can explain how it fits with the estate.

Question 32

What does a successor trustee do after the person who created the trust dies?

Accepted Answer

The trustee takes control of the trust assets, identifies and secures them, notifies the beneficiaries, pays the trust's debts and expenses, and distributes assets according to the trust's terms. Florida law requires the trustee to keep beneficiaries informed, including notifying them within a set period after the trust becomes irrevocable. The trustee owes duties to the beneficiaries and can be held personally responsible for mistakes.

Question 33

Does a trust have to go through court?

Accepted Answer

Usually not. A trust is generally administered privately, without the court supervision that probate involves. Court involvement can arise if there's a dispute, a question about the trustee's actions, or a need for a court to interpret the document.

Question 34

Does the trust need its own tax ID after a death?

Accepted Answer

Typically, yes. A trust that was revocable during the person's life usually becomes irrevocable at death and needs its own tax identification number and its own tax filings. Your accountant should be involved alongside me.

Question 35

What can beneficiaries ask the trustee for?

Accepted Answer

Beneficiaries are generally entitled to be kept reasonably informed about the trust and its administration, including a copy of the trust terms that affect them and periodic reports. If you're a beneficiary and aren't getting information, or you're a trustee unsure what you owe, I can explain what Florida requires.

Question 36

What if family members disagree about the will or the estate?

Accepted Answer

Disputes over a will's validity, how assets are divided or what the personal representative is doing can lead to contested court proceedings, with hearings and rulings. That usually makes the estate take considerably longer to close. Getting legal guidance early can help.

Question 37

Do you represent individual landlords and company landlords?

Accepted Answer

Yes, both. That matters because an LLC or corporation generally has to be represented by an attorney in court, while an individual landlord may sometimes appear alone. Either way, I can handle the notice, the filing and the court process for you.

Question 38

What should a landlord bring to the first meeting?

Accepted Answer

The lease, a record of what has and hasn't been paid, any notices you've already served, and any messages with the tenant. If you haven't served anything yet, please wait until we've spoken.

Question 39

Can I change the locks or remove a tenant's belongings myself?

Accepted Answer

No. A landlord generally can't force a tenant out without a court order. That's why an eviction ends with a writ of possession, which the sheriff's office carries out.

Question 40

Can I shut off the utilities or remove the door?

Accepted Answer

No. Cutting off water, electricity or other services, or removing doors or locks, to force a tenant out is treated as an illegal eviction. It can expose the landlord to liability for the tenant's damages. The only lawful route is a court order.

Question 41

What are the steps in a Florida eviction?

Accepted Answer

First, the landlord serves a proper written notice. If the tenant doesn't pay or leave, I file a complaint in county court, and the tenant is served and has five business days to respond. If the court rules for the landlord, it issues a judgment and a writ of possession, which the sheriff carries out after posting notice. Each step has strict requirements, and a mistake early on can mean starting over.

Question 42

What notice do I serve if the tenant hasn't paid rent?

Accepted Answer

A three-day notice to pay or leave. Weekends and legal holidays don't count toward the three days. It has to demand only the rent that is due, not other charges unless the lease treats them as rent, and it has to be delivered the way the law allows. A defective notice can get the case dismissed.

Question 43

What if the tenant is breaking the lease but has paid rent?

Accepted Answer

That generally calls for a seven-day notice. Depending on the violation, the notice may give the tenant a chance to fix the problem, or it may be an unconditional notice to leave. Which one applies depends on what the tenant did, so bring me the lease and any evidence before you serve anything.

Question 44

What about a month-to-month tenant, or a tenant whose lease has ended?

Accepted Answer

If there's no lease term, or the lease has expired and the tenant has stayed on, you can usually end the tenancy without a reason, but the notice period depends on how often rent is paid and the notice has to be given before the end of a rental period. Florida changed these periods recently, so please check with me before you count days.

Question 45

Does the tenant have to pay rent into the court?

Accepted Answer

If the tenant wants to contest an eviction for unpaid rent, the tenant generally must deposit the rent that is due, and rent that comes due while the case is pending, into the court registry. If the tenant doesn't, the landlord can ask the court to enter judgment for possession without a hearing on the tenant's defenses.

Question 46

Can I accept partial rent after serving a notice?

Accepted Answer

Be careful. Accepting rent, especially partial rent, after serving a notice can weaken or waive that notice. Florida has specific rules on when partial payment can be accepted. Call me before you accept anything.

Question 47

What if the tenant moves out and leaves belongings behind?

Accepted Answer

Don't throw things away right away. Florida has procedures for handling property left in a unit after a tenancy ends, including notice to the tenant. Take photos, record what's there, and talk to me before disposing of anything.

Question 48

How long does an eviction take?

Accepted Answer

It depends on whether the tenant responds and whether there is a dispute. An uncontested case moves faster; a contested case, or one with a mistake in the notice, takes longer. I can give a better idea once I've seen your facts.

Question 49

When does the landlord have to return the security deposit?

Accepted Answer

Generally within fifteen days after the tenant leaves if the landlord isn't keeping any of it. If the landlord intends to keep part of it, the landlord must send the tenant written notice by certified mail within thirty days, stating the reason and the amount. Missing that deadline can cost the landlord the right to keep the deposit.

Question 50

What is a Lady Bird deed?

Accepted Answer

It's a deed, formally called an enhanced life estate deed, that lets a Florida homeowner name who will receive the property at death while keeping full control during life. The owner can still live in it, sell it, mortgage it, rent it out, or change their mind. When the owner dies, ownership passes to the named people without probate.

Question 51

How is it different from an ordinary life estate deed?

Accepted Answer

With an ordinary life estate deed, the owner generally gives up the right to sell or mortgage without the consent of the people who will inherit. A Lady Bird deed keeps that control with the owner. That's the "enhanced" part, and it's why it's the version most Florida owners ask about.

Question 52

Do the people named in the deed have to sign it?

Accepted Answer

No. The owner signs the deed. Because the owner keeps control during their lifetime, the people named don't have to agree to it or sign it.

Question 53

If I'm married, does my spouse have to sign?

Accepted Answer

If the property is your Florida homestead, your spouse generally must sign the deed even if they aren't on the title. Without the right joinder, the deed may not work as intended. This is one of the most common problems with deeds written without a lawyer.

Question 54

Can I sell or refinance the property after signing one?

Accepted Answer

Yes. The people named in the deed don't have to agree or sign. A buyer's title company will review the deed, so it needs to be drafted and recorded properly.

Question 55

Can I change my mind and change who gets the property?

Accepted Answer

Yes. The owner can generally revoke the deed or sign a new one naming different people, as long as the owner has the capacity to do so. Because of this, the named people have no ownership they can rely on until the owner dies.

Question 56

Does a Lady Bird deed avoid probate?

Accepted Answer

For the property it covers, yes. At death, the property passes to the named recipients, and the paperwork needed to put title in their names is usually much simpler than a probate case. Other assets in the owner's name still need to be looked at separately.

Question 57

What happens when the owner dies?

Accepted Answer

The named recipients typically record the death certificate, and sometimes an affidavit, in the public records so the title reflects the transfer. A title company may have its own requirements before it will insure a later sale, so it's wise to speak to an attorney before treating the house as yours to sell.

Question 58

Does a Lady Bird deed affect my homestead exemption or property taxes?

Accepted Answer

During the owner's lifetime, a properly prepared Lady Bird deed generally doesn't change the homestead exemption. The deed should still include the right language, and it's worth checking with your county property appraiser if there's any doubt.

Question 59

Is there a transfer tax or gift tax?

Accepted Answer

Florida's documentary stamp tax is generally minimal on a Lady Bird deed because nothing is sold. A completed gift hasn't been made either, since the owner keeps control. A tax advisor can speak to income-tax effects for the people who inherit.

Question 60

Does a Lady Bird deed protect the house from Medicaid or creditors?

Accepted Answer

It doesn't protect the property from the owner's own creditors during life, since the owner still owns and controls it. Medicaid is a separate question: the deed's effect on eligibility and on estate recovery after death is a topic for an elder law attorney. I handle the deed itself, not Medicaid planning.

Question 61

What if the person I name dies before me?

Accepted Answer

That depends on the wording of the deed. A well-drafted deed names backup recipients so the property doesn't end up in a gap. If you have an existing deed, tell me who is named and I can see whether it covers this.

Question 62

Can you help transfer property within a family?

Accepted Answer

Yes. Adding or removing a name on a deed, passing a home to a child, or recording a Lady Bird deed are all deed transfers I can look at. Some have tax or title consequences, and some can affect homestead status or the mortgage, so please talk to me before you sign or record anything.

Question 63

Do you handle commercial purchases as well as residential ones?

Accepted Answer

Yes. I handle residential and commercial purchases and sales in South Florida.

Question 64

Do you represent the lender as well as the buyer?

Accepted Answer

Frequently, yes. When a buyer needs a mortgage, I often act for the lender as well as the buyer. If you'd like to understand what that means for you, ask me when we speak and I'll explain how it works in your transaction.

Questions, answered plainly

Working with me

Know who to call before you need to

Choosing an attorney

Probate and trust administration

Landlord eviction

Lady Bird deeds

Real estate

Questions that depend on your situation

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