I’ve lost track of the number of times I have heard someone say, “Oh, we don’t need to do a probate. Mom had a Will.” Somehow, this notion has become very commonplace, and it is just so wrong. I blame the movies. The rich relative dies, usually under mysterious circumstances, and all the family gathers in the lawyer’s mahogany-swaddled office to hear the Will read and discover who has inherited the family fortune. Our hero walks away a rich man, leaving his villainous relatives pea green with envy. This makes for lovely on-screen drama, but it is entirely fiction.
Firstly, it is very unusual in the State of Florida for a Last Will and Testament to be read out to one’s grieving relatives. I have never seen it done. Secondly, property does not transfer from a decedent (that’s lawyer-speak for “dead person”) to his relatives just because he had a Last Will and Testament. Wills are not automatic! When a person dies owning property, that property still has to be transferred to living people (or charities, trusts, favorite pets, etc.), and that is accomplished through a legal process known as probate*.
You may ask, then, why even have a Will? The purpose of a Last Will and Testament is to direct the probate court as to how the testator (lawyer-speak for “person who made the Will”) would like his or her assets to be distributed. If a person dies intestate (lawyer-speak for “without a Will”), Florida law dictates who must inherit that person’s assets, regardless of what the decedent may have wanted. A Last Will and Testament also tells the probate court who should be named as the decedent’s Personal Representative, which is the person in charge of handling the probate process and making sure the assets are distributed. A Last Will and Testament can also name a guardian for minor children; under Florida law, minor children, with some exceptions, will need a guardian to safeguard their inheritance for them until they come of age. In short, a Will expresses the wishes of the decedent and guides the probate process.
So, don’t believe everything you see in the movies. Money will not magically appear in your bank account just because Great Aunt Ida’s Will says it should. Wills are not automatic. If a person dies owning property, a probate will usually be needed to distribute that property, whether or not the person had a Will.
*There are ways to avoid probate: trusts, ladybird deeds, co-ownership, to name a few. But that’s a blog post unto itself.
People often feel that they do not need a written lease if they are renting a home from a friend, close acquaintance or family member. This is wrong, wrong, WRONG! If you are leasing from anyone, you need a clear, written lease that outlines the obligations and rights of the tenant and the landlord. Always. No matter what relationship you have with the landlord. And this is especially true when renting from someone with whom you have a close relationship. That may seem counterintuitive, but in my practice, I have seen many relationships needlessly strained because the parties involved did not think they needed a written lease.
The first reason that all leases should be written rather than verbal is clarity. Everyone needs to be on the same page regarding the terms under which the tenant is being allowed to use the property. That way, if there is a disagreement later, there is a well-written document that can answer the questions that may come up. When is rent due? Check the lease. Who is responsible for mowing the grass? Check the lease. How many pets can live in the house? Check the lease. If there is no written lease to reference, there is no simple way to resolve these disputes. Working out a lease agreement in advance gives parties the chance to talk through these details and make sure that everyone knows what is expected of them. Having those expectations clearly defined protects relationships.
Furthermore, written leases protect legal rights better than verbal agreements. There’s a saying in the legal profession: if it didn’t happen on paper, it didn’t really happen. Now, that’s hyperbole, of course, because verbal agreements can be binding, but they create huge problems if a disagreement arises between the parties. If a dispute arises that cannot be resolved by the parties, the matter will typically result in a lawsuit. If the court has no written lease to reference, the court has to make a determination about which party is testifying truthfully about the verbal agreement. Imagine trying to prove what was said in a private conversation six months ago. It is next to impossible even under the best of circumstances, and the inside of a judge’s hearing room during an eviction trial is hardly the best of circumstances. Additionally, the verbal agreement you made may not even be enforceable under the law. § 83.43(6), Fla. Stat., provides that a verbal rental agreement has to be for less than one year in duration. If the parties to a verbal lease agreed that the tenant could occupy the property for two (2) years, that verbal lease could be unenforceable.
A written lease protects assets, legal rights, and, yes, relationships far better than a verbal agreement. If you are a landlord, going into a landlord-tenant relationship without a written lease is gambling with one of the most significant investments you have – real property. If you are a tenant and you do not have a written lease, you are risking your home, in the case of a residential lease, or your business, in the case of a commercial lease. Taking the time to work out a written lease in the beginning saves time, money, and feelings in the end.