6 Things You Need to Know About Florida’s Last Will and Testament

Florida’s Last Will and Testament. 

One final nod to the deceased. One last chance to determine what happens to property accumulated over a lifetime. The closing chapter on a life and all it accomplished. 

The Will is one of the most fundamental tools in Florida’s Estate Planning toolbox. 

Yes, there are others. Trusts, Joint Accounts, Beneficiary Designations and Intestate Statutes to name a few. 

But the Will, if used correctly, can work to supplement the other tools and catch any assets that may have been missed during the Estate Planning process. Kind of a belts-and-suspenders approach.

Consider the following questions in determining whether all of your assets are properly accounted for in your estate plan:

4 Things You Need to Know About a New York Quitclaim Deed

New York quitclaim laws are similar to most other states with a few exceptions. 

1. Transfer of Interest

You can only use a quitclaim deed to transfer your interest in the property and nothing more.

If you own a life estate interest in a parcel of property you cannot transfer a fee simple absolute interest in the property. If you own a leasehold interest in a parcel of property you cannot transfer a life estate interest in the property.

At its core, the person granting a quitclaim deed is really only saying "I'm not representing that I have any interest in the property. I'm only representing that if I have any interest in the property I'm transferring that interest to the grantee."

In other words, if you are buying property and you want the seller to represent that he or she actually owns the property you will need to use a different form of deed (e.g. warranty deed).

2. Unclear Language
If the language in the quitclaim deed is clear and unambiguous, you cannot bring in outside evidence to prove the deed intended to transfer something other than what is stated in the document.

7 Things Florida Courts Presume About Real Property Deeds

Remember the 2007 real estate crash?  Who doesn’t, right?

Leading up to the crash my law firm was involved in 30 new closings a month.  Most of them involved beachfront investment property in Florida’s panhandle. 

After the crash many of our clients were left scrambling. The sellers scrambled to close their deals.  The buyers scrambled to get out of their deals.

In January, 2008, one of my clients approached me with an interesting question. 

He had purchased beachfront investment property in Pensacola, Florida.  The deal closed a year before the crash.

His property was valued at over $1 million before the crash.  Now it was worth $300,000.

His question: Can I reverse a real estate transaction a year after the closing? This question was on the minds of many Florida investors in the winter of 2008. As with most legal issues, the answer was: It depends.

Florida real property laws can be difficult to navigate.  As in most states, Florida statutes and case law create certain “presumptions” about the transfer of real property.

1. Florida law presumes a "fee simple" property transfer

Why Do I Need an Advance Healthcare Directive?

Right now you are the person in charge of deciding what type of medical care you receive. Well, you and your insurance company. But what will happen if (and likely when) you are no longer able to make medical decisions for yourself. That day may be twenty years from now, OR it could be tomorrow.

Consider the case of Terry Lynn Schiavo which ignited a firestorm of controversy when it pitted the Parental Rights of an adult living in a vegetative state against those of the adult’s Spouse.

Florida's Will Reformation Statute Turns Estate Planning Upside Down

Florida's Will Reformation Statute Section 732.615

In 2011, the Florida Legislature revised its Probate Code to allow any interested person to reform a deceased person's Will even when the terms of the Will are unambiguous.  In doing so, hundreds of years of Estate Planning Precedent has been turned upside down.  The new Statute cuts against Florida's strict requirements for creating a valid Will and opens the door for abuse by disgruntled persons either left out of the Will or who want a larger portion of the Estate's assets.  The exact language of the Statute is as follows: 

732.615 Reformation to correct mistakes.—Upon application of any interested person, the court may reform the terms of a will, even if unambiguous, to conform the terms to the testator’s intent if it is proved by clear and convincing evidence that both the accomplishment of the testator’s intent and the terms of the will were affected by a mistake of fact or law, whether in expression or inducement. In determining the testator’s original intent, the court may consider evidence relevant to the testator’s intent even though the evidence contradicts an apparent plain meaning of the will.

One affect of this Will Reformation Statute has been to cause some to question whether executing a Will is the best way to leave property to their loved ones. 

As a not-so-hypothetical example of the Statute's absurdity, suppose that as a husband and father I want to leave all of my property to my wife and children when I die.  Not so hypothetical to most of my clients.  Under the current Florida Statute, if I die intestate (without a Will) the Florida Probate Code requires distribution of my property to my wife and children in various proportions. 

Now assume that instead of dying intestate, I die leaving a validly executed Will distributing my property to my wife and children in the same proportions as if I had died intestate.  Under the new Will Reformation Statute, "any interested person" can now disrupt the probate process by filing suit for Reformation of my Will seeking a portion of my estate.  That same person can now file the same lawsuit for any estate in Florida as long as the person can show he or she is an "interested person." 

Success on the merits of such a lawsuit could depend on oral testimony of the person drafting the Will (i.e. "I wrote that down wrong, what the Testator really meant to say was..."), a letter written by the Testator in the heat of passion before or after execution of a Will, or he said/she said discussions from any number of interested parties.  I know that each of these three examples are currently being used in Reformation Lawsuits currently pending in Florida courts. 

To make matters worse, suppose a Will was probated thirty years ago with the provision that the corpus of a trust set up by the Will was only to be distributed upon the death of the trust beneficiary.  The trust beneficiary then dies after the Reformation Statute has taken effect.  According to at least one interpretation of the Reformation Statute, the distribution of the Trust corpus gives rise to a Will Reformation lawsuit over a Will probated thirty years ago.

On another note, there is a jaded part of me that wonders whether counseling my clients to execute a Will can open me up to a malpractice suit when the facts are as stated in my not-so-hypothetical hypothetical.  The statute turns Wills and Trusts law upside down.

Estate Planning: Lady Bird Deed

The term "Lady Bird Deed" is a nickname given to the Enhanced Life Estate Deed which is used to convey property to your heirs outside of probate. 

The nickname "Lady Bird" was given to the deed after President Lyndon B. Johnson allegedly used this type of deed to convey some of his real property to his wife Lady Bird. 

So why would President Johnson use this type of deed?

Texas Enhanced Life Estate Deed

Texas is one of several states that recognizes the Enhanced Life Estate Deed (a/k/a Ladybird Deed) as a means of transferring property to your heirs when you pass away.  

In simple terms, the Enhanced Life Estate Deed changes the way the property is owned from the usual form of ownership (like the General Warranty Deed or Quitclaim Deed) where the house or property is disposed of by the courts using the probate process into an ownership that transfers the property directly to a named beneficiary when the current owner passes away.

Florida Enhanced Life Estate Deed

Florida is one of several states that recognizes the Enhanced Life Estate Deed (a/k/a Ladybird Deed) as a means of transferring property to your heirs when you pass away.  In simple terms, the Enhanced Life Estate Deed changes the way the property is owned from the usual form of ownership (like the General Warranty Deed or Quitclaim Deed) where the house or property is disposed of by the courts using the probate process into an ownership that transfers the property directly to a named beneficiary when the current owner passes away.

Unlike Beneficiary Deeds in other states, the Florida Enhanced Life Estate Deed does not give the beneficiary any rights in the property while the current owner is alive.  This means the current property owner can sell the property at any time without the beneficiary's consent and the beneficiary's creditors cannot attach liens to the property while the owner is alive.  There is no creation of a "Life Estate," nor is a Trust required.

Avoiding Probate
Instead of probate, the beneficiary need merely file the death certificate in the local county records for the property to be transferred.

See also my articles on the Texas Enhanced Life Estate Deed, Ohio Enhanced Life Estate Deed, and Kansas Enhanced Life Estate Deed.

Kansas Enhanced Life Estate Deed

Kansas is one of several states that recognizes the Enhanced Life Estate Deed (a/k/a Ladybird Deed) as a means of transferring property to your heirs when you pass away.  In simple terms, the Enhanced Life Estate Deed changes the way the property is owned from the usual form of ownership (like the General Warranty Deed or Quitclaim Deed) where the house or property is disposed of by the courts using the probate process into an ownership that transfers the property directly to a named beneficiary when the current owner passes away. 

Unlike Beneficiary Deeds in other states, the Kansas Enhanced Life Estate Deed does not give the beneficiary any rights in the property while the current owner is alive.  This means the current property owner can sell the property at any time without the beneficiary's consent and the beneficiary's creditors cannot attach liens to the property while the owner is alive.  There is no creation of a "Life Estate," nor is a Trust required.

Avoiding Probate
Instead of probate, the beneficiary need merely file the death certificate in the local county records for the property to be transferred.

See also my articles on the Florida Enhanced Life Estate Deed, Texas Enhanced Life Estate Deed, and Ohio Enhanced Life Estate Deed.

Ohio Enhanced Life Estate Deed

Ohio is one of several states that recognizes the Enhanced Life Estate Deed (a/k/a Ladybird Deed) as a means of transferring property to your heirs when you pass away.  In simple terms, the Enhanced Life Estate Deed changes the way the property is owned from the usual form of ownership (like the General Warranty Deed or Quitclaim Deed) where the house or property is disposed of by the courts using the probate process into an ownership that transfers the property directly to a named beneficiary when the current owner passes away. 

Unlike Beneficiary Deeds in other states, the Ohio Enhanced Life Estate Deed does not give the beneficiary any rights in the property while the current owner is alive.  This means the current property owner can sell the property at any time without the beneficiary's consent and the beneficiary's creditors cannot attach liens to the property while the owner is alive.  There is no creation of a "Life Estate," nor is a Trust required.

Avoiding Probate
Instead of probate, the beneficiary need merely file the death certificate in the local county records for the property to be transferred.

See also my articles on the Florida Enhanced Life Estate Deed, Texas Enhanced Life Estate Deed, and Kansas Enhanced Life Estate Deed.

Florida Life Estate Deed

Florida Life Estate Deed
The Florida Life Estate Deed is a document that grants ownership of a parcel of real property to two separate parties: (1) the Life Tenant, and (2) the Remainderman.

The Life Tenant
As in other states, the Florida Life Estate Deed gives the Life Tenant complete use and ownership of the property for a certain period of time. That period of time is measured by the life of a natural person; usually the Life Tenant’s. In other words, if I am the Life Tenant and the time period is measured by my life then when I pass away the “life tenancy” automatically terminates. However, if the time period is measured by the life of my wife and my wife passes away before me the Life Estate automatically terminates upon her passing and I can legally be evicted from the property.

The Remainderman
When the Life Estate owned by the Life Tenant terminates, the Life Estate Deed transfers ownership of the property to the Remainderman. The Remainderman is the person or persons whose names are listed on the Life Estate Deed as a Remainderman. To officially transfer ownership, in most states the Remainderman need only record the death certificate of the person whose life was the measure of the Life Estate.

Transferring a Life Estate
A Life Estate may be transferred from the Life Tenant to any other person. However, the person to whom the Life Estate is transferred takes ownership subject to the same conditions as the original Life Tenant. This is so even if the person is unaware of the Life Estate.

A Life Estate may be transferred using a Warranty Deed. The Warranty Deed must contain the state specific Life Estate language to create a valid Life Estate.

Obligations of the Life Tenant
A Life Tenant owes certain duties and obligations to the Remainderman. The Life Tenant is required to pay real estate taxes assessed against the property during the Life Tenancy, protect the property from tax sales, and keep the property free from encumbrances and not to allow the property to just go to waste.

If you would like to purchase a Florida Life Estate Deed, we recommend Legaleagleforms.com's Florida specific Life Estate Deed for $14.99.

Bankruptcy: Fresh Start Policy

One of the cases heard in Bankruptcy Court today involved a twenty something who graduated from college 3 or 4 years ago. After graduation he got a job with the State of Florida which pays him an annual salary of around $40k per year. He apparently thinks he makes $80k as he lives in a $2,000 per month appartment, drives a brand new BMW and has $35,000 in an unsecured loan. He has fallen behind on his car payments and on the loan. With few real assets and unable to pay his debts he has filed a petition to have his debts discharged in bankruptcy. The Bankruptcy Court will have to decide whether he is deserving of a "Fresh Start." In doing so, the Court will be taking into account the following considerations:

Why Give the Debtor a Fresh Start?
One goal of the Bankruptcy Code's long-term debtor rehabilitation is to give the debtor a "fresh start." Assuming the debtor has complied with the Code’s requirements and has surrendered executable assets or sufficient future income for distribution to creditors, the debtor is entitled to a new beginning, unburdened by the unpaid balance of prebanktuptcy debts. The fresh start is intended not only to serve the interests of the debtor but also the public good. A rehabilitated individual debtor may become self-sufiicient once again, rather than a public charge. The rehabilitation of a corporate or business debtor may preserve jobs and add to the general well-being of the economy.

Cons of the Fresh Start Policy
In determining who may receive a bankruptcy discharge, bankrupcty courts have to balance the above considerations against the harm individual debtor may fail to learn from the bankruptcy and may simply slide again into debt, or, where a business is failing, attempting to save it may ultimately be less economically advantageous than selling its assets to a more effective user. Furthermore, the debtor’s fresh start comes at the expense of its creditors, who are forced to forgive a portion of the debt to which they would otherwise have been entitled. In addition to the direct effect that this has on the creditors themselves, the discharge of debt adds to the cost of giving credit and, therefore, affects the market as a whole. That is, borrowers in general are likely to pay more for their credit because lenders factor into their interest rates the predicted percentage of loans that will be uncollectible because of bankruptcies.

So What Decision Will the Court Make?
It is a longstanding policy of bankruptcy law that relief is intended to help the honest debtor who has encountered serious financial difficulty. Bankruptcy is not supposed to enable prodigals to evade payment of their debts. This does not mean that a prodigal should never be placed in bankruptcy. Sometimes the bankruptcy of a dishonest or manipulative debtor serves the best interests of creditors. It does mean, however, that when bankruptcy has the effect of allowing a dishonest debtor to take advantage of creditors, it should be denied to the debtor. To draw the line between a deserving and undeserving debtor requires a moral judgment which is not always self-evident or easy to make. Nevertheless, many provisions in the Code require the court to take into account the debtor’s good faith or sincerity in determining the availability and form of relief. Sometimes an undeserving debtor may be denied relief altogether, and sometimes limits may be imposed on the advantages to be obtained by the debtor. In the end, the Code generally favors rehabilitation over liquidation, on the theory that creditors are usually likely to do better under a plan of payment. The Bankruptcy Court will likely grant a discharge.

For more bankruptcy information read: Bankruptcy: Automatic Stay, and What is Bankruptcy, Bankruptcy: Fresh Start, Bankruptcy: Student Loans, Bankruptcy: Means Test, Bankruptcy: Income Eligibility, Bankruptcy: New Asset Evaluation,

Florida Probate Law: Execution of Wills

Any person 18 or older who is of sound mind may make a Will.

Every Will must be in writing and executed as follows:

By Testator
(1) The Testator must sign the Will at the end; or
(2) The Testator's name must be subscribed at the end of the Will by some other person in the Testator's presence and by his discretion.

By Witnesses
Witnesses signatures must sign the Will in the presence of the Testator and in the presence of each other.

A Will may be Self-proved to avoid having to bring the attesting witnesses into probate court to prove the Will.

Form
No particular form of words is necessary to the validity of a Will if it is executed with the formalities required by law.

A Codicil must be executed with the same formalities as a Will.

Florida Probate Law: Definitions

The following definitions are included in the Florida Probate Code:

Beneficiary - an heir at law in an intestate estate, and devisee, in a testate estate.  The term "beneficiary" does not apply to an heir at law or a devisee after his interest in the estate has been satisfied.  In the case of a devise to an existing trust or trustee, or to a trust or trustee described by Will, in the absence of a conflict of interest of the trust, the trustee is a beneficiary of the estate.  An owner of a beneficial interest in the trust is a beneficiary of the trust and is, in the absence of a conflict of interest of the trust, not a beneficiary of the estate.

Child - includes a person entitled to take as a child under the Florida Probate Code by intestate succession from the parent whose relationship is involved, and excludes any person who is only a stepchild, a foster child, a grandchild, or a more remote descendent.

Devise - when used as a noun means a testamentary disposition of real or personal property and, when used as a verb means to dispose of real or personal property by Will.  The term includes "gift," "give," "bequeath," "bequest," and "legacy."  A devise is subject to charges for debts, expenses, and taxes.

Devisee - means a person designated in a Will to receive a devise.  In the case of a devise to an existing trust or trustee, or to a trustee of a trust descibed by Will, the trust or trustee is the devisee.  Beneficiaries of a trust are not devisees.

Distributee - a person who has received estate property from a personal representative other than as a creditor or purchaser.

Domicile - a person's usual place of dwelling and is synonymous with "residence."

Estate - property of a decedent that is subject to administration.

Grantor - one who creates or adds to a trust and includes "settlor" or "trustor" and a testor who creates or adds to a trust.

Heirs - those persons, including the surviving spouse, who are entitled under the statutes of intestate succession to the property of a decedent.

Interested Person - any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved.

Florida Probate Law: Revocation of a Will

A Will or Codicil, or any part of either, is revoked:

(1) By a subsequent inconsistent Will or Codicil, even though the subsequent inconsistent Will or Codicil does not expressly revoke all previous Wills or Codicils, but the revocation extends only so far as the inconsistency exists. The law favors two separate Wills to be read together except where the two are inconsistent.

(2) By a subsequent written Will, Codicil, or other writing declaring the revocation, if the same formalities required for the execution of Wills are observed in the execution of the Will, Codicil, or other writing.

(3) By burning, tearing, canceling, defacing, obliterating, or destroying it with the intent, and for the purpose of revocation.

Effect of Subsequent Marriage, Birth or Divorce
Neither subsequent marriage nor birth or adoption of lineal descendants revoke the prior Will of any person, but the pretermitted spouse or child shall inherit regardless of the prior will.

All Wills made by husband and wife whose marriage has been subsequently dissolve or who become divorced shall become void by means of the dissolution of marriage or divorce as the Will affects the surviving divorced spouse.

Florida Probate Law: Pretermitted Spouse

A Pretermitted Spouse is when a person marries after making a Will and the spouse survives the Testator. The surviving spouse receives a share in the estate of the Testator equal in value to that which the surviving spouse would have received if the Testator had died intestate, unless:

(1) Provision has been made for, or waived by, the spouse by prenuptial or postnuptial agreement;

(2) The spouse is provided for in the Will;

(3) The Will discloses an intention not to make provision for the spouse.

Florida Probate Law: Self Proving Will

A Self-proved Will executed in accordance with the Florida Probate Code may be admitted to probate without further proof.

A Will or Codicil executed in conformity with the Florida Probate Code may be made self-proved at the time of its execution or at any subsequent date by the acknowledgment of it by the Testator and the affidavits of the witnesses, each made before an officer authorized to administer oaths and evidenced by the officer's certificate attached to or following the Will.

Enhanced Life Estate Deed a/k/a Lady Bird Deed

One of my clients is an elderly widow. She recently contacted me with several concerns about her estate. Her primary concern was that she wanted to keep her home out of probate when she passes away. Like most people, she doesn't like the idea of her property being tied up in legal limbo for months before her beneficiaries (i.e. her daughter and two sons) take possession of the home. She was advised by another attorney to set up a trust, put her home (her only asset of real monetary value) into the trust and then manage the trust until she passes away. She brought the matter to me as she does with all of her legal concerns. I advised her that a simpler way for her to handle the matter might be to execute an "Enhanced Life Estate Deed" also known as the "Lady Bird Deed" (named in honor of former First Lady, Ladybird Johnson) or a "Transfer on Death Deed."

What is an Enhanced Life Estate Deed?
An Enhanced Life Estate Deed is a document that would deed my client's home to her children but reserve for my client a life estate coupled with the ability to sell the property at any time. This is called an "Enhanced Life Estate." In layman's terms, this means that (1) my client still owns the property; (2) my client can sell the property at any time without notifying her beneficiaries; and (3) if my client never sells the property, the house will pass directly to her beneficiaries after she passes away without going through probate.

Florida, Texas, Ohio, California, Kansas and several other states now accept this form of conveyance. In these states it is a recommended alternative to the traditional life estate deed. Of course, where a life estate can result in unwanted capital gains taxation, it should not be used, and other forms of planning should be considered (such as a living trust).

Other Benefits to a Lady Bird Deed
The Enhanced Life Estate Deed has several other benefits including:
(1) bypassing probate;
(2) it does not result in capital gains for the beneficiaries because they will not receive any value until my client passes away. When she passes away, her beneficiaries take the home at a "stepped-up basis" - not my client's original basis. A "stepped-up" basis is the value of the property on the day of my client's death;
(3) it does not open up the property to the beneficiaries' creditors during my client's lifetime because the beneficiaries have no interest until my client has passed away without selling the home;
(4) it allows my client to sell her home at any time, compared to a regular life estate where she would not be legally entitled to sell her home.

Divorce: Arizona Divorce Proceedings

I have a friend who moved his family (consisting of his wife and two elementary school age children) to Arizona in January of last year. He did so over his wife’s objections to leaving her extended family. About two months after moving to Arizona his wife grew too homesick to stay any longer. One day while my friend was at work, his wife packed her bags, loaded up her car and moved herself and their children back to Florida. Within a week after his wife left him, my friend decided to file for divorce.

Although I am not licensed to practice in Arizona, my friend contacted me about how to go about filing for divorce. His first question concerned whether he could legally file for divorce in Arizona when his wife and children now lived in Florida. His second question dealt with grounds for the divorce. Specifically, whether his wife leaving him for a little over a week and telling him that she would not return constituted grounds for divorce. His third question was whether he was required to obtain an attorney to represent him in his Arizona divorce proceeding.

Arizona Divorce: Residential Time Limits
The answer to his first question could be found with a simple appeal to the Arizona Divorce Statute. In Arizona, either spouse must have lived in Arizona for at least ninety (90) days prior to filing for divorce. This meant my friend would have to either file in Florida or wait an additional three (3) weeks before filing.

Arizona Divorce: Grounds for Divorce
Unlike some states, Arizona does not require that one of the spouses prove blame or responsibility in order to end the marriage unless the marriage is a “covenant marriage.” Instead, the court is simply required to answer in the affirmative the question of whether the marriage is "irretrievably broken." “Irretrievably broken” means the parties have differences or disputes that cannot be settled which are so serious that they have caused the marriage to totally and completely break down.

As my friend did not have a “covenant marriage” this post does not address that type of marriage. Suffice it to say that Arizona divorce law prohibits a court from granting a divorce after such a marriage unless one of the parties can prove adultery, abandonment, physical abuse or regular substance abuse or both spouses agree that the marriage should end. A “covenant marriage” is a marriage where both parties agree to limit grounds for divorce prior to their getting married.

Arizona Divorce: Self Representation
Arizona did not require that my friend obtain an attorney to file his divorce papers. However, I advised him that in addition to being without the benefit of an experienced attorney to guide him through the process, he would be required to abide by the same statutes, rules and procedures as an attorney would. This includes the proper and timely filing of legal documents, observing proper courtroom decorum and having at least a working knowledge of the divorce process. In the end, he chose to retain an Arizona divorce lawyer.

Another legal fact of interest is that in Arizona the court cannot grant a divorce until at least sixty (60) days after the other spouse is first served with the original court papers.

Mediation: Small Claims in Florida

This topic may seem a little dry to some of you so if you want to bypass the legal information and go straight to the somewhat humorous anecdotes, skip down to the paragraph titled "Some Words of Caution."

And now for the post.

I've had several people e-mail me with questions about Florida's lawsuit procedures in civil "small claims" court cases. In response, this post is intended to shed a little light on one particular area of Florida Small Claims Court: Mediation. If you are suing or have been sued in a Florida Court I hope this post is helpful.

Three Separate Divisions
As a general rule, Florida's Civil lawsuits are handled by one of three separate divisions, most often depending on the amount of money involved in the case: (1) the Circuit Civil Division, (2) the County Civil Division, or (3) the Small Claims Division. Cases where the amount sought in the suit is $5,000 or less usually belong in the Small Claims Division.

Small Claims Mediation (Pre-Trial)
It is always interesting to me to see the expression on a defendant's face when he or she first finds out that most of the Florida Rules of Civil Procedure DO NOT APPLY in Small Claims court. To begin with, discovery (i.e. depositions, interrogatories, production requests, etc.) is generally either extremely limited or altogether prohibited. If you file suit in Small Claims court thinking you are going to be involved in a full-blown, knock-down, drag-out fight you need to think again. "A pound of flesh nearest the heart" has very little place in Small Claims court. Short, sweet and to the point is what Small Claims is all about.

The Nuts and Bolts of the Small Claims Process
It has been my experience that Small Claims court is primarily designed to help the two parties work their case out prior to trial. This design is typified by the process itself. Once suit is filed the Small Claims court (often the same judge who runs County Civil) sets a Mediation, or Pre-Trial, date. The Pre-Trial date requires both parties to show up on a set date, sit down with a mediator and try to work things out.

In practice it works like this. Suit is filed and the defendant is served with the papers. The suit papers contain a Pre-Trial date instructing both parties to appear before the Court on a certain date. There are usually a number of other cases and parties scheduled to appear on the same date and at the same time. The judge will then call roll (yes, just like elementary school) and the parties answer "present," "here," or some other respectful reply to the judge. If both parties to a case appear, the judge will assign the case to a mediator. The parties will go into a separate room in the Courthouse and try to work their case out. If the case cannot be worked out, the parties will then return to the Courtroom. The judge then assigns a trial date (usually within 30-60 days). The judge will not take testimony at Pre-Trial and no witnesses are required.

Some Words of Caution
The following things should be avoided with regard to Pre-Trials:

(1) Do not leave your cell phone turned on while in the Courtroom. I saw a guy get stared down, yelled at, held in contempt of court, handcuffed and taken to jail all because of his cell phone. In all honesty, if the guy had not answered the phone in open court only the first two would have happened. The judge was clearly not running for re-election;

(2) Do not answer "Uh-huh" when the judge calls your name. You guessed it-stared down and yelled at;

(3) Do not tell the judge "Judge, you don't know what the H--- you're talking about." The judge will likely skip staring you down and yelling at you and just send you straight to jail; and

(4) Do not miss the Pre-Trial. If you miss the Pre-Trial the judge will dismiss the case (if you are the Plaintiff) or enter a judgment against you (if you are the Defendant).