Ryan and Marks Attorneys, LLP

30-Year Mortgage Rate Hits Record Low

2012-05-07T14:37:58Z

The 30-year mortgage rate hit another record low at 3.84% according to Florida Realtors.This is the lowest rate since the 1950's and beats the previous all-time low which was reported for February, 2012.

Mortgage Rates Fall to Near Record Lows

2012-04-13T13:16:00Z

The average rate on a 30-year fixed-rate mortgage fell to 3.88%, down from 3.98%. That is almost as low as the low rate in the 1950's of 3.87%. 15-year mortgages fell to 3.11%, down from 3.21% last week.

Buying Houses

2012-03-02T18:52:31Z

Warren Buffet was recently interviewed on CNBC’s Squawk Box. He said that he would "buy up a couple hundred thousand" single-family homes if it was practical. Buffet said that was because he believes the purchasing of a home with very low mortgage rates and holding it for long-term has become a better investment than stocks right now. He said "housing will come back - you can be sure of that".

Rental History is Important to Improve Credit Rating

2012-01-12T15:12:41Z

According to a New York Times article on January 5, borrowers who have a history of paying rent on time may see an increase in their credit score. Last year Experian, one of the large credit reporting companies, added a section to its credit reports to reflect on-time rental payments. These on-time payments help increase credit scores for some on-time rent payers. CoreLogic and FICO, two other large credit reporting companies, recently added a similar section to their reports. In a summary of the article provided to me by FloridaRealtors, it stated that nearly half of high-risk consumers saw an increase of 100 points or more after their rental history was added to their credit report. This change also helps former homeowners who went through a foreclosure. They may be able to rebuild their credit scores quicker by showing that they are responsible renters.

Change in Florida Power of Attorney Act

2011-12-05T21:35:01Z

Effective October 1, 2011, Florida's Power of Attorney Act was changed. Now, certain powers have to be initialed by the principal in order for the agent to have the authority, such as banking transactions, insurance transactions, and investment transactions. Also, all powers of attorney have to be signed in the presence of two different witnesses and a notary public.

Homeownership at Second Highest Level Since 2000

2011-10-26T15:38:05Z

The U.S. Census Bureau has just reported that homeownership is at its second highest level on record, only behind the record year of 2000. The U. S. Census Bureau has been collecting homeownership data since 1890. While the national homeownership rate remains high, the decease from the 2000 rate was 1.1%.

How to Apply for a Mortgage Loan

2011-09-16T19:40:40Z

How To Apply For a Mortgage Loan

It is more difficult now to obtain a mortgage loan. Here are five ways suggested by the National Association of Realtors® to help the process go smoother.

1. Get a free credit report. This won’t entitle you to a copy of your credit score (unless you pay for it) but it is important to review the report to make sure the information they have on you is correct.

2. Organize your financial documents such as two months worth of pay stubs, bank statements, and tax returns for at least the last two years. If you get alimony or child support, get up-to-date court records on those. If you recently changed your name because of marriage or divorce, make sure to update your financial documents.

3. Don’t do unusual financial things for several months. Don’t buy large items like a car or furniture.

4. Document the downpayment source. It might be from savings, from a money market account, or from an inheritance. If it is a gift from a relative, you will need to produce a gift letter.

5. Show a stable work history for the past two months.

Historic Low Interest Rate

2011-06-01T18:20:07Z

According to the Federal Home Loan Mortgage Corporation (FreddieMac), the average rate on 30-year loans fell to 4.60%. This is the lowest interest rate since mid-December, and historically one of the lowest interest rates ever.

NAR 2010 Profile of Homebuyers and Sellers

2011-02-23T15:12:00Z

The 2010 Profile of homebuyers and sellers, conducted by the National Association of Realtors, shows the following:

In Florida 44% of recent homebuyers were first-time owners compared to 50% nationwide. The typical first-time buyer was 31 years old while the typical repeat buyer was 54. Of recent buyers, 19% were single females and 11% were single males, which almost matches the national statistics. The typical home purchase was 1,800 square feet with three bedrooms and two bathrooms.

Explanation of Wills

2009-01-23T16:17:00Z

Death is a subject people do not like to think about. But there are good reasons to prepare for death by having an attorney prepare a will for you. A will is a written document stating the manner in which your property is to be distributed after you die. A will can be simple or more elaborate, depending upon if there are minor children, how much property is involved, and the wishes of the person making the will. In addition to directing how property is to pass at your death, a will can also name a guardian to take care of minor children and can create a trust naming a trustee to manage property for minor children or for others, and you can name the person who will manage your property after your death during the probate proceeding (the personal representative). The laws of each state set forth the formal requirements for a legal will. In Florida, the maker of the will must be at least 18 years old, must be of sound mind, and the will must be witnessed by two different people who are not receiving property under the will.

It is important to remember that a will has no legal effect until you die. You can change your will at any time by making a new will or making an amendment to the will (called a "codicil"). In order for the will to be legal, it is important that there be no mistakes in the preparation or signing of the will. You should never try to prepare your own will. You should have an attorney prepare it and supervise the signing of the will.

There are some restrictions as to what you can put in the will. To protect the family, particularly a surviving spouse, Florida law does not allow you to disinherit your spouse without a properly executed pre-nuptial agreement. Most people do not have such agreements. Even if the will leaves all of your property to someone else or even to a charity, Florida law requires that your surviving spouse be allowed to have at least 30% of property owned at your death less any claims against the estate, real estate located outside of Florida, and state and federal taxes, and administrative expenses. This is known as the spouse’s elective share. You may, however, disinherit your children. There are also restrictions on what you can do with your homestead (your primary residence). In most cases, your surviving spouse or minor children will have some form of ownership in the homestead after you die no matter what your will says.

Real estate and personal property owned jointly with your spouse or another person with right of survivorship cannot be given away in the will, since ownership of the property automatically passes to the other person upon your death. Also, you cannot specify that someone other than the beneficiary of your life insurance policy receive the benefits of the policy. When you die, the benefits of the life insurance policy immediately become the property of the beneficiary named in the policy.

If you die without a will, your property will be given to your heirs according to the formula provided by Florida law. Your property does not go to the State of Florida unless there are absolutely no heirs at law, which is unlikely. If you die without a will, the court will appoint the personal representative to manage your estate. The cost of probating your estate will probably be more than if you had a will.

If you have moved to Florida from another state, you should have your will reviewed by a Florida lawyer to be sure that it is a valid will in Florida.

There are also several other documents that you should consider when having a will made:

(a) A Living Will allows you to provide a written statement that you do not want artificial life prolonging procedures used if your physician and another attending physician find that there is no reasonable medical probability of your recovery from your illness or accident.

(b) Power of Attorney. This is a document where you name someone else to act for you. It is especially useful if you are out of town or if you are injured or ill and cannot act for yourself.

(c) Health Care Surrogate. Florida law allows individuals to designate a person to make health care decisions for them when they are temporarily unable to do so.

Powers of Attorney in Florida

2008-12-10T18:47:00Z

This article discusses the use of powers of attorney in Florida, including use for real estate transactions. Most of the information contained in this article was derived from a pamphlet published by the Florida Bar entitled "Florida Powers of Attorney". The pamphlet is available at www.FLABAR.org.

What is a power of attorney? A power of attorney is a written document delegating authority from one person to another to perform a legal act. The authority granted depends on the language in the power of attorney. The person giving the power of attorney is known as the grantor or principal. The principal may make the power of attorney broad or may limit it to certain specific acts. The recipient of the power of attorney, that is the person who is given the power to act on behalf of the principal is known as the attorney-in-fact, agent, or grantee. The term "attorney-in-fact" does not mean that the recipient of the power of attorney is a lawyer.

What is a specific or limited power of attorney? This type of power of attorney gives the attorney-in-fact authority to conduct one or more specific acts. For example, a person might use a specific power of attorney to handle the sale or purchase of specific real property.

What is a general power of attorney? A general power of attorney gives the attorney-in-fact broad powers to perform any legal act on behalf of the principal. Many times this type of power of attorney contains a list of types of activities the attorney-in-fact is authorized to perform but generally states it is not limited to those activities.

What is a durable power of attorney? Powers of attorney terminate when the principal dies or becomes incapacitated. Because many people wanted powers of attorney to continue to be used even upon their incapacity, Florida law was changed a number of years ago to allow for a durable power of attorney. A durable power of attorney remains effective even if the grantor becomes incapacitated, but there are certain exceptions specified in Florida law when a durable power of attorney cannot be used for an incapacitated person, such as when the grantor has been adjudicated by a court to be incompetent. In that instance, the court would appoint a guardian to act on behalf of the principal. A durable power of attorney must have special wording that states that the power of attorney survives the incapacity of the principal. Today, most lawyers draft powers of attorney to be durable.

Must a person be competent to sign a power of attorney and who may serve as attorney-in-fact? The principal must understand what he or she is signing at the time the document is signed, including understanding the effect of the power of attorney, to whom it is being given, and what property may be affected by the power of attorney. Any competent person eighteen years of age or older may serve as an attorney-in-fact. Certain financial institutions and not for profit corporations may also serve as the attorney-in-fact.

Can an attorney-in-fact sell the principal’s homestead property? Yes, if the power of attorney authorizes the sale of real estate. We title attorneys would prefer that the power of attorney describe the specific real estate and state that it is homestead but this is not an absolute requirement. If the principal is married, the attorney-in-fact must also obtain the signature of the principal’s spouse on the deed or mortgage.

Are there any things the attorney-in-fact cannot do on behalf of the principal? There are a few things that the attorney-in-fact cannot do even if the power of attorney states that they can. For example, unless the attorney-in-fact is a licensed member of the Florida Bar, the attorney-in-fact cannot practice law in Florida. Also, the attorney-in-fact cannot sign a document stating that the principal has knowledge of certain facts, as for example, if the principal was a witness to a car accident, the attorney-in-fact cannot sign an affidavit stating what the principal saw or heard. An attorney-in-fact may not vote in a public election on behalf of a principal. An attorney-in-fact may not create or revoke a will or codicil to a will for the principal. If someone has appointed the principal to be a trustee of a trust or if a court has appointed the principal to be a guardian or conservator, the attorney-in-fact cannot perform these duties based solely on the power of attorney. The attorney-in-fact may not make gifts from the principal to the attorney-in-fact unless the power of attorney authorizes that.

What are the responsibilities of an attorney-in-fact? An attorney-in-fact is considered to be a fiduciary under the law. A fiduciary relationship is one of trust. If the attorney-in-fact violates this trust, he may be ordered by a court to pay restitution and punishment money, and even jail if the act becomes criminal.

When is a power of attorney effective? A power of attorney is effective as soon as the principal signs it unless it states that it is conditioned on the principal’s lack of capacity to manage property, in which case appropriate affidavits are required in accordance with Florida law. This latter type of power of attorney is often referred to as a "springing" power of attorney because it springs into effect when the principal lacks capacity to manage their own property.

Must the original power of attorney be presented for use? Yes. For real estate transactions, the original power of attorney must be given to the closing attorney so that it can be recorded in the public records. After recording, the original will be returned to the attorney-in-fact. Banks and others asked to rely on a power of attorney might accept a copy, but the attorney-in-fact should check with them.

How should the attorney-in-fact sign? The attorney-in-fact always needs to type, print, or sign that the document is being signed "as attorney-in-fact" for the principal. It is best to sign as follows: Jeffrey B. Marks, as attorney-in-fact for Penny S. Marks, or Penny S. Marks by Jeffrey B. Marks, as her attorney-in-fact.

Can a third party require the attorney-in-fact to sign an affidavit prior to honoring the power of attorney? Yes, under Florida law, a third party is authorized to require the attorney-in-fact to sign an affidavit stating that he or she is validly exercising the authority under the power of attorney and also perhaps that the power of attorney has not been revoked, that the principal is not deceased and has not been determined to be incapacitated by a court.

Can the attorney-in-fact employ others to assist them? Yes, the attorney-in-fact may hire accountants, lawyers, real estate brokers, and other professionals to help with their duties but they cannot delegate their responsibility as attorney-in fact.

Can the power of attorney avoid the need for a guardianship? Yes. If the incapacitated person executed a valid durable power of attorney prior to his or her incapacity, it may not be necessary for the court to appoint a guardian since the attorney-in-fact already has the authority to act on behalf of the principal. This presumes that the durable power of attorney is a general one, granting the attorney-in-fact all necessary powers.

What is the proper procedure for a principal to revoke a power of attorney? Written notice must be served on the attorney-in-fact and any other party who might rely on the power of attorney. The notice must be served either by any form of mail that requires a signed receipt or by certain approved methods of personal delivery. Special rules exist for servicing notice of revocation on banks and other financial institutions. Check with your lawyer.

Are there any other special requirements when using a power of attorney to sell real estate? Yes. In Florida a power of attorney must be signed with the same formality as the document for which it is to be used. If the attorney-in-fact is signing a deed on behalf of the principal, then the power of attorney must have two witnesses and be notarized. There is one exception to this rule. A valid military power of attorney, using the form provided for in the federal statutes, does not have to be witnessed. If the attorney-in-fact wants to use the power of attorney for a buyer/borrower, then it is necessary that the lender approve the form of the power of attorney in advance of the closing.

Any other cautions? I would caution everyone to have an attorney prepare the power of attorney. Many store bought forms are insufficient under Florida law. The attorney can also counsel the principal and/or the attorney-in-fact about all of the matters contained in this article.