Probate Section Report
Larry E. Ciesla

The first meeting of the probate section for the year 2005 was held on January 12. Jean Sperbeck indicated that Judge Roundtree has replaced Judge Chance and is officially open for business in civil and probate matters. Jean indicated further that it is her understanding that a new procedure has been adopted in the civil division, whereby each of the two civil/probate judges in Alachua County will set aside a two-week trial term every other month, for jury as well as non-jury trials. Although we do not yet have any experience with this new procedure, it seems like it could result in longer waiting times for scheduling hearings in civil and probate matters, as more time must now be set aside on each judge’s calendar for trial terms.

The meeting next proceeded with a discussion of whether practitioners should be providing notice to Health Management Systems (medicaid) in cases involving summary administration or a stand-alone petition for determination of homestead status of real property. It was pointed out that Section 733.2121(3)(d), Florida Statutes, requires a personal representative to serve a copy of the notice to creditors on medicaid where the decedent is over age 55, however, there is no specific requirement to provide such notice to medicaid outside of formal administration.

It was also pointed out that the clerk of the court provides a list to medicaid on a monthly basis, of all probate cases filed for the month. Apparently there is a lag of approximately 45 days from the time a case is filed until the list is received by medicaid. Accordingly, if no separate notice is provided to medicaid, an order on a petition for summary administration or a determination of homestead can easily be entered prior to medicaid learning a petition has been filed. Some practitioners, your author included, indicated that for decedents over the age of 55, they provide formal notice to medicaid, wait 20 days and then submit their proposed order to the court. Due to the increasingly widespread acceptance of medicaid benefits, it would even seem advisable to provide formal notice for decedents over age 55. A related matter involving providing notice to family members in the case of a stand-alone homestead petition was also discussed. Jean indicated that although the form petition which she promulgated and recently distributed to certain section members does not expressly deal with the notice issue, it is anticipated that interested parties must either join in the petition, file a separate consent, or receive formal notice before the court will consider entry of an order on such a petition.

A discussion was then initiated by your author regarding the article published in The Fund Concept in December 2004, entitled “Satisfying Revolving Lines of Credit.” The Fund has announced a new, supposedly simplified, procedure for closing agents to follow when closing on the sale of a home with a previously opened line of credit. The problem being addressed is the possibility that an unscrupulous seller could access a line of credit after the date the lender’s payoff letter is issued, or even after the transaction has closed, if the credit line has not been properly closed out. Since these loans can typically be accessed through use of a credit card or a check, bank personnel may not be aware the line is being accessed pending a sale.

The Fund’s new procedure requires the closing agent to: 1) obtain a letter from the lender, stating the line has been closed and that upon receipt of a specified sum, the lender will execute a satisfaction of mortgage; 2) obtain at closing and then record an affidavit from the seller/borrower containing a notice limiting future advances; a list of all credit devices, including numbered checks, which may be utilized to access the credit line and stating they have all been turned over to the closing agent; and a statement by the seller/borrower that he or she will not attempt to obtain any additional advances on the credit line. The notice limiting future advances is by statute required to be sent to the lender via certified mail. A poll of section members revealed that not a single person has been complying with these procedures, nor did it appear that anyone intended to do so. There seemed to be a consensus among members that obtaining a letter from the lender stating the credit line had been closed, and including a payoff figure, should be sufficient.

Jay Donohue advised that several local real estate attorneys, including Melissa Murphy, Ramona Chance, and Marvin Bingham, are establishing a local “Real Estate Council”, to meet monthly to discuss issues affecting the practice of dirt law. Meetings are scheduled for the fourth Thursday of each month, beginning on February 24, at the offices of Carpenter and Roscow. Melissa Murphy is scheduled to speak at the February meeting on legislative issues and Ed Crapo is scheduled to speak in March. Annual dues will be $100.00. Practitioners interested in joining may contact Jay at 371-3312.

The probate section continues to meet on the second Wednesday of each month at 4:30 p.m. in the fourth floor meeting room of the civil courthouse.

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