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Expert Advice on Estate Planning for Homeowners: An Interview with Liz C. Messianu of Lubell Rosen

By Liz C. Messianu

Tell us a little bit about your company and the areas of law that you practice.

Rosen, LLC provides comprehensive legal services to healthcare professionals and other individuals who need legal advice. As the marketplace is changing at light speed, so is the law. Our law firm is about constant change and staying on top of the latest laws and creating legal trends.

As one of the premier firms in Florida, New York and Georgia, we offer practical solutions and the advice and guidance necessary to help you navigate complex state and federal laws, rules and regulations. Whether we are advising clients on wealth management or practice management, we put our legal experience to work to meet our clients' needs.

Our objective is to protect and guide our clients and we are able to do so by providing aggressive, intelligent and vigorous representation in order for clients to resolve their legal issues, protect their assets and focus on their families and businesses.

My practice area, Wealth Preservation, specializes in providing legal services to high net worth individuals and medical providers, in addition to business owners and other individuals who own and transact with real estate. We provide comprehensive estate plans that offer flexibility in order to avoid costly annual updates and legal fees. I assist clients in protecting their wealth.

Is there something that most people don't know about estate planning that they should know?

The simple answer is yes. Every person needs estate planning, even if it is as simple as a will or a designation of health care surrogate. Having your affairs in order now will save thousands of dollars in the future. Whether it is a first time investment, your retirement home or anywhere in between, any one purchasing real estate should have an estate plan in place prior to signing a contract. This is because there are valuable tools and various options available prior to entering into a contract that may offer more advantages than purchasing real estate in an individual capacity.

Estate planning is critical to every person. Not only does it allow you to keep control on how you want your wealth to be distributed upon your death, it provides real benefits while you are alive in order to plan for your future and allow a person the freedom to control their future. The importance of a thorough estate plan cannot be under-emphasized.

What are some of the biggest reasons that estate planning is essential for homeowners?

How you hold title in real estate can have far-reaching effects and many clients are not aware of forced heirship, division of real property rights upon divorce, how real estate is affected if there are minor children, and division of real estate upon a spouse or head of family's passing. These issues have been litigated in every jurisdiction. Currently, Florida is undergoing significant changes and creating new law based on recent Supreme Court of Florida decisions that affect a person's homestead and its protection.

If a client lives in a condominium or has a homeowner's association, other specific issues are to be taken into consideration when drafting the estate plan. Is the client a member of the board? Will your beneficiaries be allowed to vote on matters related to the association?

The most common ways to hold title are individually, joint tenants with right of survivorship, tenants in common, in trust, or through a corporation or limited liability company.

If you hold real estate in your individual name, there are some drawbacks that can affect your estate and well being. First, if a client becomes mentally or physically incapacitated due to illness or injury and the property needs to be refinanced, or a line of credit needs to be opened, you would have to go to court to have someone act for the client. Neither a will nor a power of attorney will offer any assistance.

If the client owns real estate as joint tenants with right of survivorship, you are simply postponing and not avoiding probate. When the first owner dies, full ownership does transfer automatically to the surviving owner without probate, in effect postponing probate. If the surviving owner dies without adding another owner, the property will almost certainly have to go through probate before it can go to the heirs. Under joint tenancy, the client also runs the risk of exposing the property to the co-owner's debts and obligations; and the home could be lost to the co-owner's creditors if he or she is successfully sued. There could also be gift and/or income tax problems if your co-owner is not your spouse.

If real estate is owned as tenants-in-common, each owner's share will be distributed as directed in his or her will. If there is no will, the property will go to the owner's heirs.

The problem with both tenants-in-common and community property is that the client can find themselves with unwanted new co-owners when your co-owner dies and the heirs inherit the property.

On the other hand, a revocable living trust, allows a client to dispose of their property in accordance with their specific wishes. When a client has a living trust, the title of the real estate can be held in the name of the trustee of the trust. If the client becomes incapacitated, the successor trustee will be able to step in and act for you. Because the title is no longer in the client's individual name, there will be no need for court interference.

Can you give a brief breakdown of the key steps in the estate planning process you go through with your clients?

I do not charge for my initial meeting. I believe that to retain an attorney for your estate plan, both the client and the attorney have to ensure it is the "right fit". Estate planning is a very personal and confidential aspect in a client's life and a certain level of comfort and trust must be created in the relationship.

After the initial meeting and a detailed explanation of the role of the estate planning attorney and the conflicts that are waived by dual representation of a couple, married or otherwise, below is a simplified list of the steps I take to ensure that the client's needs are met timely and that the client's wishes are expressed in the estate planning documents:

(a) Provide client with a comprehensive estate planning questionnaire which allows the client to inform me of family matters, blood relatives, heir at law, marriages, divorces, financials, medical decisions, designation of trusted individuals, financial advisors, etc.;
(b) Follow up with clients to ensure all is in order before the documents are executed;
(c) Meet with the clients to execute the documents;
(d) Post execution of the documents, we assist the clients in retitling all of their assets to the vehicle selected in the estate plan (ie: revocable trust, LLC, corporation, family limited partnership).

What is one of the challenges that homeowners face when they're creating an estate plan?

In my experience, the biggest hurdle is how to take title property.

What happens when someone wants to make changes to their estate plan?

If the estate plan is not irrevocable, updating the estate plan should be simple. We update our clients via correspondence every year on new changes and how it may affect them. Most of our estate plans are drafted in a method that "self adjust" to the constant legal changes. However, clients can have life events that require updates such as divorce, new born children, passing of a loved one.

We are always here to assist our clients in updating their estate plans in comprehensive methods that are simple and cost effective.

What practical advice do you have for homeowners who have not given much thought to creating an estate plan?

An estate plan is critical to a homeowner. While we cannot know when a change will occur in our lives, planning properly can save money and the stress of having to do something under pressure and during a time when important decisions should not be made. If a person is simple, they need to have a contingency for succession and inheritance of their real estate. In the alternative, if the homeowner is married, there are a myriad of issues that can be faced that require careful consideration on how the property can be bequeathed, while complying with state laws and forced heirships.

What's the best way for people to contact you and your company?

I can be reached via email or by simply calling our offices.

Liz C. Messianu
Partner

One Alhambra Plaza, Suite 1410
Coral Gables, FL 33134
305.442.9231 D
305.442.9047 F
305.987.4045 C
lcm@lubellrosen.com

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