FAQs

The material in this section represents general legal advice. Because the law is continually changing, some provisions may be out of date or require further analysis. It is always best to consult an attorney about your legal rights and responsibilities in your particular case.

Q?

WHAT IS A LAWSUIT?

A.

A lawsuit is the terms that we use to describe the process of court action.  They come in largely two flavors, Civil and Criminal.  When people are involved in a legal dispute that cannot be resolved in a friendly agreeable way, they frequently resort to the filing of a civil law suit.  To file a lawsuit, commonly called a Complaint, you may go to the Clerk of the Court in the county that is in the proper place, or jurisdiction, to decide your case and file your initial COMPLAINT.  A COMPLAINT is a document that contains the basic facts and conclusions that one party alleges against the other party.

A civil claim that amounts to less than $5000.00 or so when filed is, in many places, called a small claim and is typically decided quickly and usually by a judge without a jury.  A claim that is valued more than $5000.00 but less than $15,000.00 is typically decided in county court, but is not considered a small claim.  Those claims in excess of $15,000.00 get filed in circuit court.

The process after the filing of a lawsuit is called litigation.  Litigation is when information about the facts and positions of each party is exposed as fully as possible.  The exposure of facts and arguments is uncovered usually during a process called Discovery.  During discovery, attorneys send documents back and forth seeking to uncover any relevant information that may help them to prove or disprove their case.  Tools with names like Interrogatories, Requests to Produce, Requests for Admissions, Subpoenas, Depositions, etc. are utilized by attorneys to get information

After discovery is fully completed, the attorney notifies the court that the case is ready for trial and a date is set on the court’s schedule or docket.  Before the trial the judge will ask the lawyers to tell him how long the trial will take so he may reserve enough time on the docket.  Depending upon the case, the parties may have a trial heard only by the judge, a bench trial, or may have a trial using a group of people who decide the facts, a jury trial.

A jury is the trier of fact.  They are empowered to listen to all of the testimony at trial and review the evidence presented in order to make a decision in favor of one party or another, if possible.  They apply the law as instructed by the judge, who decides which law applies and in what way the jury should interpret it.

Once a jury hears all the facts and makes their decision, they issue a judgment or verdict.  The verdict is the decision of the jury based upon the way they interpreted the facts.  Should the parties not agree with the decision of the jury, they generally have the right to appeal the deceision.

The appellate process is where a party asks a higher court to review the procedures and decisions of the trial court in order to see if there were any material errors made which warrant a change in the decision of the trial court.

Criminal actions or lawsuits aredifferent in that they are prosecuted by a state of federal law enforcement agency against an individual or entity claiming a criminal violation of laws of the State or of the country nd the verdict issued often leads to a discussion and determination involving some type of punishment.

The trial process can be very complicated and is often very frustrating.  If you should have any questions about the trial process, I welcome you to call FRANKEL LAW at 305-759-6100 so we may help you to know your rights.

Q?

DO I NEED A LAWYER?

A.

One of the more common questions I get from people who call my office is “Do I need a lawyer?”

Although it’s kind of asking a plumber whether you need one while water is pouring on the ground in your home, it is a valid question with all of the information that is available to people online and through public sources.  Legal matters can present themselves; however, without much notice and often affect people in dramatic ways.

Some important questions to consider in making that decision are the following:

·       Do you understand the issues legally?

·       What kind of information will you need in order to achieve your legal goals?

·       Do you know how to ask for the information and where you should seek to get the information you wish?

·       Do you feel confident that you know how to use the information you will obtain to get what you want?

·       Do you know what you should ask for in order to fairly compensate you for your loss, or, in the case of a contract, to make the agreement fairly express your mutual goals?

In emotional or complex situations, it is often difficult to assess the nature of a legal matter clearly and without falling prey to human nature or whim in the evaluation.  A qualified attorney will listen and evaluate your situation both theoretically (does the law help you) and practically (does the investment in time, money, and emotion make sense based upon the facts).

Good lawyers are trained to ask good questions.  Even when situations seem relatively simple when they come up, like in the case of most simple residential real estate transactions or in the case of simple contracts, a lawyer can help to provide the protection to insure against or inform you of the facets of your legal situation.

If you answered NO to any of those questions abaove, you must ask one more.  Isn’t it worth a few hundred dollars on your purchase or sale where usually thousands of dollars are at issue for your PEACE OF MIND?

My office has been providing quality service for over 25 years.  If you have a specific problem, call FRANKEL LAW at 759-6100 or at 1-800-394-3826 and I will help you to know your rights.

Q?

WHAT IS PROBATE?

A.

Probate is a court-supervised process for identifying and gathering the assets of a deceased person (decedent), paying the decedent’s debts, and distributing the decedent’s assets to his or her beneficiaries. In general, the decedent’s assets are used first to pay the cost of the probate proceeding, then are used to pay the decedent’s outstanding debts, and the remainder is distributed to the decedent’s beneficiaries. The Florida Probate Code is found in Chapters 731 through 735 of the Florida Statutes, and the rules governing Florida probate proceedings are found in the Florida Probate Rules, Part I and Part II (Rules 5.010-5.530).

There are two types of probate administration under Florida law: formal administration and summary administration. This pamphlet will primarily discuss formal administration.

Q?

WHAT ARE PROBATE ASSETS?

A.

Probate administration applies only to probate assets. Probate assets are those assets that the decedent owned in his or her sole name at death, or that were owned by the decedent and one or more co-owners and lacked a provision for automatic succession of ownership at death.

For example:

  • A bank account or investment account in the sole name of a decedent is a probate asset, but a bank account or investment account owned by the decedent and payable on death or transferable on death to another, or held jointly with rights of survivorship with another, is not a probate asset.
  • A life insurance policy, annuity contract or individual retirement account that is payable to a specific beneficiary is not a probate asset, but a life insurance policy, annuity contract or individual retirement account payable to the decedent's estate is a probate asset.
  • Real estate titled in the sole name of the decedent, or in the name of the decedent and another person as tenants in common, is a probate asset (unless it is homestead property), but real estate titled in the name of the decedent and one or more other persons as joint tenants with rights of survivorship is not a probate asset.
  • Property owned by husband and wife as tenants by the entirety is not a probate asset on the death of the first spouse to die, but goes automatically to the surviving spouse.

This list is not exclusive, but is intended to be illustrative.

Q?

WHY IS PROBATE NECESSARY?

A.

Probate is necessary to pass ownership of the decedent’s probate assets to the decedent’s beneficiaries. If the decedent left a valid will, unless the will is admitted to probate in the court, it will be ineffective to pass ownership of probate assets to the decedent’s beneficiaries. If the decedent had no will, probate is necessary to pass ownership of the decedent’s probate assets to those persons who are to receive them under Florida law.

Probate is also necessary to wind up the decedent’s financial affairs after his or her death. Administration of the decedent’s estate ensures that the decedent’s creditors are paid if certain procedures are correctly followed.

Q?

WHAT IF THERE IS A REVOCABLE TRUST?

A.

If the decedent had established what is commonly referred to as a “Revocable Trust,” a “Living Trust” or a “Revocable Living Trust,” in certain circumstances, the trustee may be required to pay expenses of administration of the decedent's probate estate, enforceable claims of the decedent's creditors and any federal estate taxes payable from the trust assets.

The trustee of such a trust is always required to file a "Notice of Trust" with the clerk of the court in the county in which the decedent resided at the time of the decedent’s death. The notice of trust gives information concerning the identity of the decedent as the grantor or settlor of the trust, and the current trustee of the trust. The purpose of the notice of trust is to make the decedent’s creditors aware of the existence of the trust and of their rights to enforce their claims against the trust assets.

All of the tasks which must be performed by a personal representative in connection with the administration of a probate estate must also be performed by the trustee of a revocable trust, though the trustee generally will not need to file the same documents with the clerk of the court. Furthermore, if a probate proceeding is not commenced, the assets making up the decedent’s revocable trust are subject to a two-year creditor’s claim period, rather than the three-month non-claim period available to a personal representative.

The assets in the decedent’s revocable trust are a part of his or her gross estate for purposes of determining federal estate tax liability.

Q?

WHAT IS A WILL?

A.

A will is a writing, signed by the decedent and witnesses, that meets the requirements of Florida law. In his or her will, the decedent can name the beneficiaries whom the decedent wants to receive the decedent’s probate assets. The decedent can also designate a personal representative (Florida’s term for an executor) of his or her choosing to administer the probate estate.

If the decedent’s will disposes of all of the decedent’s probate assets and designates a personal representative, the will controls over the default provisions of Florida law. If the decedent did not have a valid will, or if the will fails in some respect, the identities of the persons who will receive the decedent’s probate assets, and who will be selected as the personal representative of the decedent’s probate estate, will be as provided by Florida law.