Attorney Katherine Naugle was pictured in the Jacksonville Daily Record for as President elect of the JWLA with State Attorney Angela Corey. For the full artlice click here. 
May 152012
If you own the home you live in, your home is protected from all creditors except those holding a mortgage or lien on your residence. You can exempt or protect your home and up to one-half acre of land from any forced sale if you live in an incorporated area or in unincorporated areas, you can protect up to 160 acres as homestead property.
Under most circumstances, a lien cannot be placed on your homestead home for a debt that has nothing to do with your home. However, creditors who loan you money to buy, improve, or repair your home may put a lien on your home. Nevertheless, if a creditor has a mortgage on your home no matter what the purpose for the mortgage is you are not protected by the homestead exemption.
As additionally security for your home, you can file an affidavit describing your home and claiming it as your homestead with the court/clerk. This is different from the homestead tax form you file with the county property appraiser every year. Florida Statute 222.01 provides the type of notice and affidavit which is required to be filed.
Apr 302012
The Florida Bar states “Probate administration only applies 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.”
If the lawyers at Naugle & Smith, P.L. can assist you with any probate question or issue please do not hesitate to contact us at (904)366-2703 or visit our website at www. jaxlawteam.com
If not properly handled, security deposit claims can bring dire economic consequences to landlords. Florida Statues require that upon a tenant’s vacating the premises for termination of the lease, if the landlord does not intend to impose a claim on the security deposit, the landlord shall have fifteen (15) days to return the security deposit or the landlord shall have thirty (30) days to give the tenant written notification of a claim against the security deposit within thirty (30) days after the tenant vacates the premises. If the landlord does not send the notice within the required time period, he or she may be liable to return the security deposit, even if the tenant owes money.
There are only two things which can be properly deduced form a security deposit – past due rent and damages. If there are questions as to what may or may not be deducted one should seek legal advice. If there is a lawsuit over the security and the tenant wins even partial return of the deposit, the tenant can be awarded attorney’s fees, which normally far exceed the amount of the deposit itself. This is not an area of the law where self-help is advised
Apr 092012
The Florida Bar states: “A will is a written direction controlling the disposition of property at death. The laws of each state set the formal requirements for a legal will. In Florida:
1. You, the maker of the will (called the testator), must be at least 18 years old.
2. You must be of sound mind at the time you sign your will.
3. Your will must be written.
4. Your will must be witnessed and notarized in the special manner provided by law for wills.
5. It is necessary to follow exactly the formalities required for the execution of a will.
6. To be effective, your will must be proved in and allowed by the probate court.
No will becomes final until the death of the testator, and it may be changed or added to by the testator by drawing a new will or by a “codicil,” which is simply an addition or amendment executed with the same formalities of a will. A will’s terms cannot be changed by writing something in or crossing something out after the will is executed. In fact, writing on the will after its execution may invalidate part of the will or all of it.”
If the attorneys at Naugle & Smith can help you with the preparation of a Last Will and Testament please do not hesitate to contact us at (904)366-2703 or at knaugle@jaxlawteam.com, or visit our website at www.jaxlawteam.com. Thank you.
Attorney Jonathan Smith was listed in 904 Magazine for his work with the Jacksonville Chamber of Commerce.
Apr 032012
The Florida Bar States: “When a person pays to live in a house, apartment or mobile home—whether payment is made weekly, monthly, or at other regular periods and whether the apartment or house or mobile home is rented from a private person, a corporation, or most governmental units – this is true even when this is no written “lease” agreement- the renter becomes a tenant governed by Florida law.
A tenant has certain basic rights protected by Florida law, which the landlord must observe. Of course, the tenant also has certain responsibilities.
The tenant’s rights are specified in the Florida Statutes at chapter 83 part 2. A tenant in public housing has rights under federal law, as well. If there is no written lease, these laws regulate the tenant’s rights. There may also be a written lease which could affect a tenant’s rights. If there is a written lease, it should be carefully reviewed. The Landlord-Tenant Law prevails over what the lease says.
A tenant is entitled to the right of private, peaceful possession of the dwelling. Once rented, the dwelling is the tenant’s to lawfully use. The landlord may only enter the dwelling in order to inspect the premises or to make necessary or agreed repairs, but only if he or she first gives the tenant reasonable notice and comes at a convenient time. If an emergency exists, the requirement for notice may be shortened or waived.
The landlord is required to rent a dwelling that is fit to be lived in. It must have working plumbing, hot water and heating, be structurally sound and have reasonable security, including working and locking doors and windows, and it must be free of pests. The landlord must also comply with local health, building and safety codes. If the landlord has to make repairs to comply, the landlord must pay.
If the landlord claims the tenant has violated the rental agreement, he or she must inform the tenant in writing of the specific problem and give the tenant time to correct the problem–even if the problem is non-payment of rent–before the landlord can go to court to have the tenant removed. If the tenant commits a serious act endangering the property (such as committing a crime on the premises) or the tenant fails to correct a problem after written notice from the landlord, the landlord must still go to court to be permitted to evict the tenant. In any court proceeding, the tenant has the absolute right to be present, argue his or her case and be represented by an attorney.
If the landlord requires the tenant to pay a security deposit, the landlord must preserve the deposit during the tenancy. In addition, the landlord must return the full amount of the deposit within (15) days after the tenant leaves the dwelling or give the tenant written notice of why some or all of it won’t be returned within thirty (30) days after the tenant leaves the dwelling. The tenant then has the right to object in writing within fifteen (15) days of receipt of the notice. Under some circumstances, the tenant may receive the security deposit plus interest. Before moving out the tenant must provide the landlord with an address for receipt of the security deposit, or else the tenant may lose the right to object if the landlord claims the right to keep the deposit money.
The tenant has the right, under certain very aggravated circumstances caused by the landlord’s neglect, to withhold rent. This can only be done when the landlord fails to comply with an important responsibility, such as providing a safe and habitable home in compliance with local housing codes. Before rent is withheld, the tenant must give the landlord seven (7) days written notice of the problem so the landlord can fix it. Even after withholding rent, the tenant should preserve the money and seek court permission to spend part of it to do what the landlord should have done. If the tenant does not preserve the money and seek court assistance, the tenant may be evicted for nonpayment.
Finally, the tenant has the right to move out. If there is a written lease, the tenant can move out when a written lease is up. If there is no written lease, the tenant may move out for no reason by giving written notice of his or her intent to leave no less than seven (7) days before the next rent payment is due if the rent is paid weekly or fifteen (15) days if the rent is paid monthly. The tenant may terminate the rental agreement if the landlord has failed to live up to one of his or her major obligations, provided the tenant has sent written notice to the landlord, seven (7) days before the rent is due (there are some exceptions to the right to move out).
If a landlord loses in court, the landlord may be held liable for any costs and attorney’s fees incurred by the tenant. If the tenant loses in court, the tenant may be liable for the landlord’s costs and attorney’s fees.
A tenant also has responsibilities, which if not observed can lead to eviction. The tenant must pay the agreed upon rent and do so on time. The tenant must comply with building, housing and health codes. The tenant must maintain the dwelling without damage, keep the dwelling clean, and maintain the plumbing. The tenant must not violate the law or disturb the peace, nor allow guests to do so.
In trying to evict a tenant, a landlord will try to prove the tenant violated a tenant responsibility. However, the landlord may not seek to evict a tenant in retaliation for legitimate complaints about housing conditions to proper authorities. No eviction can occur, though, until the landlord first gives the tenant notice of the problem, and then gets a court order. Without the court order, the landlord has no power to interfere with the tenant. The landlord cannot, for instance, lock a tenant out or cutoff tenant’s utilities. A landlord engaging in this type of prohibited practice may be liable to the tenant for damages in the amount of three months rent or actual damages whichever is higher. The landlord must get a court order of eviction before he or she can interfere with the tenant’s occupancy. If a tenant is served with papers seeking eviction, the tenant should immediately seek legal assistance. The tenant may have legal defenses. For instance, the landlord cannot try to get even with a tenant by evicting him or her when the tenant has not violated tenant responsibilities. To raise defenses in an eviction proceeding, a tenant normally must pay into the court registry past due rent if any is owed and rent which comes due during the proceeding. If the tenant disputes the amount of rent claimed to be due, he or she may ask the court to determine the correct amount, but the tenant must show why he or she believes the amount is wrong. In an eviction proceeding, a tenant has very little time to respond, so quick action is extremely important.
The landlord can never remove the tenant’s property or lock the tenant out. Only the sheriff’s office may do this after a Court Order and Writ of Possession.”
If we can be of assistance to you as a landlord or tenant with legal matter in either a commercial or residential setting please feel free to contact us at (904)366-2703 or go to our website at www.jaxlawteam.com
Mar 262012
The Florida Bar States:
“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.
There is also a non-court supervised administration proceeding called “Disposition of Personal Property Without Administration.” This type of administration only applies in limited circumstances.”
If our firm can assist you in any way with probate issues in Florida please feel free to call us at (904) 366-2703 or contact Katherine Naugle at knaugle@jaxlawteam.com
The Florida Bar states: “The decedent’s surviving spouse and children may be entitled to receive probate assets from the decedent’s probate estate, even if the decedent’s will gives them nothing. Florida law protects the decedent’s surviving spouse and certain surviving children from total disinheritance.
For example, a surviving spouse may have rights in the decedent’s homestead real property. A surviving spouse may also have the right to come forward to claim an “elective share” from the decedent’s probate estate. The elective share is, generally speaking, 30% of all of the decedent’s assets, including any assets that are non-probate assets. A surviving spouse and/or the decedent’s children may also have the right to a family allowance to provide them with funds prior to final distribution of the estate assets, and rights in exempt property that will be paid to them instead of to creditors in satisfaction of claims against the probate estate. It is important to note that a spouse may waive his or her rights to an elective share, family allowance, and/or exempt property in a valid pre-marital or post-marital agreement.
In addition, if the decedent married, or had children, after the date of the decedent’s last will, and if the decedent neglected to provide for the new spouse or children, an omitted family member may nevertheless be entitled to a share of the decedent’s probate estate.
The existence and enforcement of these statutory rights requires knowledge about the applicable laws and procedures and is best handled by an attorney. ”
If we at Naugle & Smith, P.L. can assist you with any of these types of issues please do not hesitate to call us at (904)366-2703 or visit our website at www.jaxlawteam.com
Mar 082012
On March 7, 2012, Attorney Jonathan Smith opened Public Policy Forum on Homeless in Downtown Jacksonville. The Forum was hosted by the Downtown and Arlington Councils of the Jacksonville Chamber of Commerce. Jonathan Smith as President of the Downtown Council, began the Forum with welcoming remarks and introduction of the moderator. For more information click here.
