1. Clear Contract. Litigation is less likely with a clear contract, so the lawyer can assist in preparing and negotiating a clear contract for sale of the real estate. Sometimes this is done with a standard form, such as the FR/Bar form issued by The Florida Bar and Florida Realtors or the FAR forms issued by the Florida Realtors. The lawyer often prepares addenda to these standard forms to clarify aspects of the transaction. Sometimes, however, the lawyer prepares a form specifically for the particular transaction rather than using a standard form that has many provisions that are not applicable to the particular case or that are more favorable to the buyer. Unlike others parts of the real estate sales team, lawyers are trained in the art and use of legal words and the drafting and interpretation of contracts.
2. Deadline Follow-up. All contracts for the sale of real estate should include deadlines for such matters as inspections, financing, title insurance, surveys, closing, etc. To avoid litigation, it is important to comply with these deadlines. The lawyer can assist the seller in scheduling contract deadlines in order to achieve the goals of getting paid and avoiding litigation.
3. Limit Liability in Contract. Deed and Closing Documents. Legal documents often contain representations and warranties that are binding upon sellers after the closing in a way that may obligate the sellers to pay damages to the buyers even years after the closing. Since the seller’s goals are to get paid (and stay paid) and avoid litigation, it is often important to limit the seller’s representations and warranties in contracts. Lawyers know which warranties and representations are standard and which are not, which can be negotiated out and which must stay.
4. Cashier’s Check or Wire Transfer at Closing. The seller should accept only a cashier’s check or a wire transfer of net proceeds at the closing. If the seller accepts a closing agent’s escrow check, then the seller accepts the risk if the check fails. While most closing agencies are reputable, there is no way to tell whether its escrow check will be honored by your bank. If it is not, the seller loses and the buyer gets to keep the deed. So, it is essential that the seller only accept a cashier’s check or wire transfer at closing.

Therefore, the seller of Florida real estate, whether it is residential or commercial, should always engage a Florida lawyer to assist in the transaction.

For additional information, see the free ebook written by Florida lawyer James W. Martin on Florida Real Estate Sales Contracts.

The lawyer can help the buyer prepare and negotiate a purchase contract, then advise the buyer through the buyer’s due diligence inspection period, and then read the deed, title insurance commitment, and other closing documents on behalf of the buyer. 

Specifically, the real estate buyer’s lawyer can do the following:

Due Diligence Period. The buyer’s lawyer can assist in preparing and negotiating a contract for purchase of the real property that includes a due diligence inspection period with broad wording to allow the buyer to check for obvious (patent) and non-obvious (latent) defects.  These might be in the building, land, air or water.  They could be environmental, structural, mechanical, electrical, or otherwise. The buyer might remember the Latin saying, Caveat Emptor, which means “Let the buyer beware.”  This meant that the seller was not obligated to tell the buyer about defects known by the seller.  While this ancient rule of law has changed with regard to residential real estate, it still applies in Florida to commercial real estate, so it is even more important for commercial real property buyers to do their due diligence inspections.  However, it is still important for residential buyers to inspect for defects because sellers are not obligated to tell about defects that sellers are not aware of so the buyer might discover something unknown to the seller.  In addition, if the residential seller fails to disclose a known defect and is liable to the buyer for not doing so, the seller might not have enough money left to pay the buyer damages for the nondisclosure. If the buyer does not discover the defect until after the closing, then it is too late to back out of the transaction without expensive litigation.

Clear Contract. The buyer’s lawyer can assist in drafting a clear contract that gives the buyer what the buyer expects to buy in the transaction. Sometimes this is done with a standard form such as the FR/Bar forms issued by the Florida Bar and Florida Realtors or the FAR forms issued by the Florida Realtors. The lawyer often prepares addenda to these standard forms to clarify aspects of the transaction on behalf of the buyer that might otherwise be unfavorable to the buyer. Sometimes, however, the lawyer prepares a form specifically for the particular transaction rather than using a standard form that has many provisions that are not applicable to the particular case. Unlike real estate brokers, lawyers are trained in the art and use of words and the drafting and interpretation of contracts.

Deadline Follow-up. All contracts for the purchase of real property should include deadlines for such matters as inspections, financing, title insurance, surveys, closing, etc. To avoid breaching the contract, it is important to comply with these deadlines. The lawyer can assist the buyer in scheduling contract deadlines.

Read Closing Documents and Include Protections. Legal documents can be written to include representations and warranties that are binding upon sellers after the closing in a way that may obligate them to pay damages to the buyer even years after the closing, but sellers try to avoid this wording so that any discovered defects are the buyer’s sole problems. If the buyer does not have an attorney the buyer may not have the benefit of including this wording in the contract, deed and other documents.  Since the seller’s only goals are to get paid (and stay paid) and avoid litigation, it is important to include seller’s representations and warranties in contracts and deeds. Lawyers know which warranties and representations are standard and which are not, which can be negotiated in and which are more difficult to include.

Cost-Benefit of Legal Advice. The benefits of having a lawyer come at a cost: legal fees. Buyers who do not have lawyers do not pay legal fees; at least, not unless or until a breach or defect is discovered. Legal fees in litigation are expensive because it is fueled by opposing parties with opposing claims and positions. Legal fees paid to a buyer’s lawyer to advise the buyer before signing a contract to purchase and before closing on the contract are much less than legal fees in litigation. There is no crystal ball to determine in advance whether a particular deal will result in litigation so it is best to hire a lawyer to assist in assessing and minimizing the risks of the purchase transaction to the extent possible.

Therefore, the buyer of Florida real estate, whether it is residential or commercial, should always engage a Florida lawyer to assist in the transaction. Otherwise, there is really no one on the buyer’s legal side.

For additional information, see the free ebook written by Florida Bar Board Certified Real Estate Lawyer James W. Martin on Florida Real Estate Sales Contracts.

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 probate court, and not just the one closer to date of death (and certainly not just the one that names that person).

In Florida we have a law that requires all wills to be filed within 10 days, and the law has teeth in it.

These are all typical questions for Florida probate lawyers. We hear them all the time. There’s no simple answer. Each case is different. That’s because everyone who dies has different assets, family, last wishes, etc. But there are some general rules.

First, if the will has not been admitted to probate, then there’s probably still time to contest it. To admit a will to probate generally requires that a) a probate proceeding must be opened in the Florida county where the decedent resided at death, b) the signed original of the will must be filed with the clerk of that court, c) a petition for administration and supporting documents must be filed with the clerk, and d) the Florida probate court must enter an order admitting the will to probate. If the order has not been entered and if the probate proceeding remains open, then generally it’s not too late to contest the will. A will contest is something that a Florida probate lawyer can file.

Second, if the Florida probate court has entered an order to admit the will to probate, but the probate proceeding is still pending, then it might not be too late to contest the will. This is done by hiring a Florida probate lawyer to petition the court to revoke probate of the will. But, if the person who wants to contest the will was served with notice of administration (a special form with wording required by court rules), then the deadline to file a will contest is just three months after the date it was served.

Third, if the Florida probate court has entered an order of discharge of the probate estate, then it might be too late to contest the will. The Florida Probate Code says an order of discharge cannot be revoked based upon the discovery of a will or a later will.

So, can a Florida will be contested five years after the person who made it died? Sure, if it has not been admitted to probate, or if the probate proceeding is still pending and it’s less than three months after notice of administration was served. Of course, it all depends on the facts. There is probably some set of facts out there where a Florida resident’s will could be contested in any event, such as where fraud on the court is involved.

And, oh, I forgot to mention another rule. In Florida we don’t let anyone file a will contest until the person who made the will has died. Otherwise, it would discourage people from making wills.

So, the daughter appealed the case, and the appellate court ruled that it was error to enter the order without a hearing and without notice. Even though Florida Statutes Section 732.901 said that the Florida probate court could order production of the will “upon petition and notice”, the appellate court determined that there was no proof that the petition was actually received by the daughter and there was no hearing held on the petition. So, the appellate court reversed the probate court’s order and sent the case back to the probate court.

What’s interesting about all this is that the petition was filed in 2008, and the appellate court opinion was issued almost 3 years later. So, the lesson here is that, while the Florida probate law gives just 10 days for the person holding an original will of a Florida resident to file it after notice of death, it can take a lot longer than ten days to enforce that law.