James W. Martin Law Blog

A recent Florida case illustrates why I don’t like arbitration clauses. If the arbitrator makes a decision that misapplies the law, the losing party is stuck with the bad decision.  Call me old fashioned, but I want to be able to appeal the case when the decision-maker misapplies the law.  Iwant the chance for an appellate court to review what the lower court did, listen to my argument, then make its own decision on the application of the law to the facts. You don’t ge... Read More

When a Florida employer terminates a Florida employee, the employee will join the ranks of the unemployed. The unemployment rate is at its highest in 26 years. The employee might not find another job in time to meet monthly obligations and might not have enough money to pay for subsidized COBRA health insurance. Other than collecting unemployment, the employee might not have any rights against the employer.... Read More

Putting your name on the title to a car, truck or other motor vehicle in Florida makes you personally liable for the negligence of the driver.  The dangerous instrumentality doctrine  extends liability of the driver to become personal liability of every owner of the vehicle. This should give pause to parents before putting their names on car titles for children.  And it also means that spouses should title their vehicles only in the name of the spouse who is the prinicipal driver.... Read More

Let’s say you are starting a business all by yourself. No partners, no investors, just yourself. Which would you choose: to do business with unlimited personal liability or to do business with limited personal liability?  Well, unless you like to be sued, you would choose to limit your personal liability. How do you do that?... Read More

It is a common misconception that when a Florida resident dies the attorney who drafted the will must be hired to probate the estate. This goes along with the misconception that the attorney represents “the estate”. The reality in Florida is that the attorney represents the personal representative and not the estate and not the beneficiaries.  Therefore, it is up to the personal representative to choose the attorney. The same thing applies to living trusts. It’s the succes... Read More

It’s happened more than once. A Florida resident dies. A family member finds the will, sees his or her name as personal representative (executor), and starts giving away furniture, cleaning out the house, etc.  Unfortunately, doing these things might create personal liability. That’s because the person named in a Florida will as personal representative generally has no right to start acting until the probate court appoints him or her to the office of personal representative. The... Read More

One of the reasons people try to avoid probate, besides the obvious one, is to avoid percentage probate fees. Florida, like many states, expressly allows attorneys to charge attorneys fees based on a percentage of the value of the probate estate. But there is an alternative: hourly fees. An hourly fee more directly compensates the lawyer for the effort involved in the probate proceeding.  The effort varies depending on the number of assets, types of assets, number of creditors, number of be... Read More

People often create revocable living trusts in Florida to avoid probate. And some of those people actually transfer assets into the trust to fund it.  And it’s true that the trust’s assets are not assets of the probate estate when the person dies. But probate is still required for another reason: clearing possible claims of creditors.

You see, in Florida, revocable living trusts are liable for the claims of creditors of th... Read More

Everyone knows that it’s the “last” will that someone makes before they die that counts. But it’s really the last “valid” will that counts. So who’s to say what’s the last valid will? The probate court gets to decide that. And for the probate court to decide, it needs to have all the wills that person ever made.  So, if a rich uncle dies and leaves two wills in his desk at home, the person who finds them needs to file both of them with the pro... Read More

I hear it all the time. “My uncle died in Florida last month and his brother won’t let me see the will. What can I do?” Well, Florida law requires that anyone holding an original will file it with the Clerk of Court within 10 days after receiving information of the death. If they do not file it within 10 days, then they can be required to pay damages and attorneys fees. It is surprising how effective a letter from a lawyer can be to such a person informing them of this law. ... Read More