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Questions Answered by Phillip William Gunthert
2 Answers | Asked in Real Estate Law for Florida on
Q: Mortgage co says mortgage from inherited property in Florida from Mom can't be assumed by 4 children, must be refinanced

We understand the Garn St Germaine Act of 1982 protects consumers from having onerous terms put on them when inheriting a mortgage. Our mother had Alzheimer's so I have been making the payments on time every month, never missed a payment. The property, still in probate, will be inherited... Read more »

Phillip William Gunthert
Phillip William Gunthert
answered on Jul 25, 2022

Generally, and specifically the mortgage company is likely wrong. The federal Garn-St. Germain Depository Institutions Act of 1982 prohibits enforcement of a due-on-sale clause after specific kinds of transactions, like a property transfer to a relative upon the borrower’s death or a transfer... Read more »

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1 Answer | Asked in Real Estate Law and Estate Planning for Florida on
Q: My husband his brother and their mom inherited a house. If something happens to my husband do I get his share.
Phillip William Gunthert
Phillip William Gunthert
answered on Jul 4, 2022

Maybe, if your husband does proper estate planning and or creates a deed naming you, then it is possible. You would have to start by viewing the current deed and how it is titled. Also, it depends on whether you have a prenuptial and or postnuptial agreement. It is not automatic that you would get... Read more »

2 Answers | Asked in Real Estate Law, Tax Law and Banking for Florida on
Q: What kind of lawyer do I need? And what are the charges?

I’m a Malaysian. Bought a land with LLC years old in Fort Myers. The land was put into an auction . Received a surplus check. But could not claim it due to it is in LLC .

I need someone to help me in claiming the surplus. What kind of lawyer do I look for . And how much is the charges?... Read more »

Phillip William Gunthert
Phillip William Gunthert
answered on Jun 29, 2022

If you agree to pay a percentage of recovery you are looking at 33-40% usually if it is a contingency matter at most law offices. If the check is in your LLC name that is closed and no longer exists, you could have an attorney look into opening it up and getting it paid up with the Florida... Read more »

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2 Answers | Asked in Probate for Florida on
Q: Death was 9\15\21. How soon does personal representative have to register will at probate court?

4 children. Personal representative gave 3 of them $146,000. A trust for the diabled 4th child was to be funded with $146,000. No trust yet 9 months later. How much time legally to create trust?

Phillip William Gunthert
Phillip William Gunthert
answered on Jun 7, 2022

In Florida, the statute states that any Will must, and I emphasize must be taken to the clerk of the court within 10 days, no one ever does that for the most part, but it is the law. If they fail to do this or do their duties in general related to the Will and or any Trust, then you need to get an... Read more »

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1 Answer | Asked in Family Law, Probate and Estate Planning for Florida on
Q: How much time does a designated Trustee have to register a benefiary trust?
Phillip William Gunthert
Phillip William Gunthert
answered on Jun 7, 2022

Florida does not require or have a registration of a Trust. If what you are referencing is a "Notice of Trust", then the rule is upon the death of the person/settlor of the trust. Florida Statute states the following;

736.05055 Notice of trust.—

(1) Upon the death of...
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1 Answer | Asked in Estate Planning for Florida on
Q: How is a revocable living trust converted to a irrevocable dynasty trust upon the death of the settlor?

I plan to hire an attorney to draft a revocable living trust that will be converted to a South Dakota irrevocable dynasty trust upon my death. I just want to get more educated on the subject matter before contacting an attorney.

Phillip William Gunthert
Phillip William Gunthert
answered on Jun 1, 2022

You will want to speak with an attorney in the state where you are domiciled and reside as a resident (where your homestead is and where you spend the majority of your time), I mention this because it will be important related to all of your estate planning with things such as your Will, Living... Read more »

2 Answers | Asked in Estate Planning for Florida on
Q: Can I appoint my sister Durable Power of Attorney over my wife to manage my estate.

I would like to appoint my sister to manage my estate. My sister is capable and would guide my wife if I become an invalid or die. My wife is a recent naturalized citizen and I worry she would prove incapable of managing things on her own.

Phillip William Gunthert
Phillip William Gunthert
answered on May 26, 2022

Yes, you can pick whomever you would like to be your Florida Durable Power of Attorney and there is no requirement, law of obligation that says a wife/spouse must come first. There are numerous rights that a spouse has related to any estate, these issues and considerations you should weigh and... Read more »

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1 Answer | Asked in Probate for Florida on
Q: Can I file a creditors claim in my County against a probate estate in another county in Florida?

I loaned the business that I work for a lot of money and all of it was paid back before the gentleman passed away except for $14,000.

Phillip William Gunthert
Phillip William Gunthert
answered on May 24, 2022

No, you need to file it in the County where the probate is taking place and you need to file it timely, all sorts of deadlines can apply and make it potentially uncollectable so be sure to make your claim properly and timely.

1 Answer | Asked in Business Law for Florida on
Q: If I am a tenant in a plaza and want to rent out two of the rooms inside my business am I legally able to do so?
Phillip William Gunthert
Phillip William Gunthert
answered on May 13, 2022

You better review your commercial lease agreement that you signed and were provided with, it is doubtful that this would be allowed in normal circumstances for a variety of reasons. You need to get a copy of the lease and read through it, and or get the help of a business attorney to review it with... Read more »

1 Answer | Asked in Probate for Florida on
Q: Can I sell a house in Florida before or during probate ?
Phillip William Gunthert
Phillip William Gunthert
answered on May 12, 2022

It depends on what the probate court has said and approved, it matters if the property is Homestead or if it is owned and transferred via deed in some other manner. You really will need to speak with a Florida Probate Attorney and determine what steps need to be taken in order to address, transfer... Read more »

1 Answer | Asked in Business Law and Probate for Florida on
Q: Death of a partner and partnership interest.

A partner in an FL LLC/Partnership passed away. There were 2 partners. How can the spouse take over partnership interest of the partner who died? Can the spouse and existing partner change LLC members?

Phillip William Gunthert
Phillip William Gunthert
answered on May 12, 2022

You will have to review your LLC Operating Agreement that you drafted when you formed the LLC (this should address death of owenr) or you will want to look at the Florida default statutes on how to handle matters. If nothing is clear, a probate will have to be done for the deceased partner (will... Read more »

1 Answer | Asked in Probate for Florida on
Q: Should I sign a waiver of service of notice of administration? If I do what does it mean in general?
Phillip William Gunthert
Phillip William Gunthert
answered on May 11, 2022

Generally, you should not sign any waivers whatsoever without your own probate attorney reviewing any and all documents on your behalf. Remember, any attorney working for the estate, is indeed working for the estate and the Personal Representative and not you as a named beneficiary of the estate.... Read more »

3 Answers | Asked in Business Formation and Business Law for Florida on
Q: How can you change the percentage of ownership in the state of Florida for an llc?
Phillip William Gunthert
Phillip William Gunthert
answered on May 10, 2022

You would want to speak with a Florida Business Attorney and make changes to the LLC Operating Agreement and you would want to make any applicable changes to the Florida Department of State documents as they relate to business and ownership via an amendment probably as well.

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2 Answers | Asked in Real Estate Law for Florida on
Q: I want to buy a condo & found out there is a lawsuit being filed against the HOA re insurance issue should I walk away?

HOA for the past 12 yrs has been undercharging some units while overcharging some units for the insurance.

Phillip William Gunthert
Phillip William Gunthert
answered on May 10, 2022

HOA=Bad, all you see and hear on this Q and A sights is the horror stories of HOA related matters, you should always think twice when an HOA is involved, if one is involved in litigation and potentially protracted ones, those are larger assessments and costs to the owners eventually. HOA's... Read more »

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1 Answer | Asked in Estate Planning and Probate for Florida on
Q: My cousin passed with no will in place. She did not have children and her spouse passed years before she did.

I was told that next in line are aunts and uncles. Are cousins entitled to their parent share if the parent is deceased? When did the law change? I was told the law changed after my cousin passed.

Phillip William Gunthert
Phillip William Gunthert
answered on May 8, 2022

I am sorry for your loss and the passing of your cousin, please accept my condolences for you and your family. You will need to work with and get a probate attorney in the state where they were a resident, if property was owned in another state, you will likely need an attorney there as well. When... Read more »

1 Answer | Asked in Elder Law for Florida on
Q: Is a spouse responsible for a deceased person's debts? what is the Florida statue?
Phillip William Gunthert
Phillip William Gunthert
answered on May 6, 2022

Generally, No, not unless they signed and agreed to be responsible. The estate may be responsible in a probate. I would encourage the spouse to speak with a Florida Probate Attorney.

1 Answer | Asked in Probate for Florida on
Q: Number 9 on the probate application how do I answer it
Phillip William Gunthert
Phillip William Gunthert
answered on Apr 29, 2022

You are going to need a Florida Probate Attorney to look at the documents. It is additionally likely that if this is a Summary Administration, that you will end up needing and probably be required to have a probate attorney under most circumstances. The court/judge will quickly let you know this in... Read more »

1 Answer | Asked in Probate for Florida on
Q: Petitioners purpose to distribute the estate as follow
Phillip William Gunthert
Phillip William Gunthert
answered on Apr 29, 2022

I think it would be that the Petitioner (in Summary Administration) proposes to distribute the estate in the following manner. These likely relate to proposed orders related to the Summary Administration. If it was a Formal Probate, then it would be a Personal Representative. If you are not sure... Read more »

1 Answer | Asked in Estate Planning for Florida on
Q: Does the Florida Homestead law about surviving spouses supercede a will if the will left the property to the children?
Phillip William Gunthert
Phillip William Gunthert
answered on Apr 25, 2022

Yes, as long as no prenuptial or postnuptial agreement was signed or some other waiver of Homestead Rights, then the surviving spouse usually has substantial rights to Homestead (at least a life estate or half 50% interest) amongst many other rights. The Will or any estate planning for that matter... Read more »

2 Answers | Asked in Real Estate Law for Florida on
Q: Can I claim an abandoned home?

I’ve lived in the home for 2 years after noticing it was abandoned. I’d like to try to own it. Is this possible?

Phillip William Gunthert
Phillip William Gunthert
answered on Apr 19, 2022

No, you will not be able to take ownership of the property simply based on the fact that you moved in. You need to find out via deed who owns the property and or through probate and then deal with them. If you are thinking about Adverse Possession type scenario the answer is still absolutely no, I... Read more »

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