Frequently asked questions:
If you have questions regarding a trust or if you are trying to deal with the Florida probate process, visit this page of our website to find the answers to frequently asked questions. Contact a Fort Myers probate lawyer today at the Cody & Linde, PLLC to get your questions answered.
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Is the procedure the same for challenging a will or a trust?
There are some important differences when challenging a will or a trust. First, for a will to be valid you must have an original will and that will must be deposited with the court before the will can be admitted to probate. If you do not have the will, then absent a procedure to prove a lost will, the decedent is presumed to have destroyed a will in his or her possession, and the decedent will be deemed to have died without a will. If you are contesting a will, you cannot have a jury trial and the contest is done in front of a probate judge.
To challenge a trust you must file a complaint in the civil division of the circuit court and you proceed under the rules of civil procedure. This means you must obtain a summons and serve the defendant(s). Further, losing the original trust does not imply the trust was revoked.
If you have to challenge a will and a trust signed at the same time, be careful that the will does not have a provision that reconstitutes the trust. We have seen lawsuits seeking to challenge the validity of a trust when the plaintiff fails to challenge a will in a timely. If the will is then deemed valid and the will reconstitutes the trust, the trust challenge will be over before any evidence was obtained. Probate litigation and trust litigation are complicated and your chances of success will be improved by having an expert in wills, trusts and estates to guide you. For more information contact Florida Bar Board Certified Wills, Trusts and Estates attorney Matthew A. Linde today at 239.939.7100.
My dad is in a nursing home and my stepmother will not let us see him or gain access to his health care plans. What can we do?
I get questions like this a lot. There are several issues the court must determine in a guardianship proceeding. Actually the guardianship proceeding is two different proceedings. The first proceeding is an incapacity proceeding. The court will appoint three mental health care professionals who will evaluate your parent after you have filed a petition to determine incapacity with the court. If the parent lacks capacity then the court will declare your parent to be incapacitated. This prevents a third party from procuring the signature of your incapacitated parent later on.
The next thing the court will do is determine whether there is a less restrictive alternative. If your step-parent will not let you see your father/mother then that is not in your parent's best interest. Under this situation the court may appoint a guardian (who could be you) and the guardian will have control of the elderly person's social environment. As a child of the incapacitated person you will have access to their care plans and will be able to see them at reasonable times and places. For more information contact Cody & Linde, PLLC today.
What is the maximum assets/resources an applicant can have and still qualify for long-term nursing home benefits?
For Institutional Care Program (ICP) nursing home benefits in Florida, Medicaid is not available unless the total value of a Medicaid applicant's resources (assets), excluding income, at the time of application and throughout the time he or she is receiving benefits does not exceed $2,000 for an individual and $3,000 for a married couple when they both apply for benefits. The resources of both the institutionalized spouse and the community spouse are considered available to the institutionalized spouse.
What is considered "income" for purposes of deciding whether an application has to create a QIT to be eligible for Medicaid?
If an applicant has more than $2,199.00 (for 2015) of countable income, then that applicant will not be eligible for Medicaid long-term nursing home benefits unless the applicant establishes a Qualified Income Trust during the month the applicant seeks to qualify for Medicaid. The question becomes what is income?
Under Medicaid rules income is defined broadly to mean any cash or in-kind benefit that could conceivably enable the recipient to obtain food or shelter. Income can be earned or unearned. Income amounts are calculated on a monthly basis. Earned income deemed to be countable (or available) includes wages, commissions, and bonuses, whether paid in cash or "in kind" (i.e., payment in the form of food, shelter, or other kinds of barter, in return for services rendered). Even income earned at sheltered workshops is includible for Medicaid purposes.
All other receipts are categorized as "unearned income," including gifts from any source, interest on investments, alimony, insurance proceeds, Social Security, workers' compensation, unemployment benefits, annuity, and pension income. While all income must be disclosed, only "countable income" will be considered in the eligibility determination. Not counted are medical care, food stamps, other types of need-based assistance, or income received by other members of the family that is not otherwise "deemed" available to the individual. Loans are not income.
That is the basic rule; for more information contact Cody & Linde, PLLC today.
What are the core eligibility rules that must be met before someone can qualify for Medicaid nursing home benefits?
Here is the general rules. There are lots of qualifications. For more information contact Matthew A. Linde today.
1. Citizenship. A Medicaid long-term care recipient must be a U.S. citizen or a "qualified alien".
2. Residence. The applicant must be a resident of Florida. Residency requirements are usually fairly simple to meet: Physical presence in the state coupled with no current intent to move out of the state is a common test of residence.
3. Medical need. Before qualifying for long-term care assistance, the applicant must need long-term care. Generally, the applicant is scored on a test measuring functional disabilities; the applicant who is unable to complete at least several "activities of daily living" (ADLs) without assistance will usually qualify. Greater medical need will almost surely qualify the applicant under this test.
4. Resources. Except for coverage to those with "low-income" Medicaid under the Affordable Care Act the first of two financial requirements, resource eligibility, generally requires that the applicant have available resources worth less than $2,000 for a single applicant. The rules for married couples, and the exceptions and special rules applicable to both married and single applicants, are different in order to avoid "spousal impoverishment". For those with low-income Medicaid (eligible under Medicaid expansion, but not eligible otherwise as being disabled, etc.) there is no resource eligibility test.
5. Income. For 2015 the applicaint cannot have more than $2,199.00 of countrable income.
As a court appointed guardian, how do I know what I can or cannot do?
The simple answer is talk to your attorney. Guaridans are required to be represented by an attorney. The reason for this is that a guardianship is a court supervised procedure, and non-attorneys generally do not understand the process. Further, even if you are a guardian who has an attorney, you need to ask your attorney questions. The time to ask whether a guardian can borrow money from the Ward is not 8 months after the guardian has borrowed the money. Further, Fla. Stat. 744.441 specifically lists the authority of a guardian to act AFTER the guardian has petitioned the court for approval to act. Thus, as a guardian when you have any doubt get something in writing from your attorney. For more information contact an attorney at Cody & Linde, PLLC today.
If I am inheriting assets do I need a probate attorney when someone else is nominated as personal representative?
The answer to this question is maybe. For example, assume your mother just died after a long-term marriage to your father. Assume this was the first marriage for both parents and you have one sibling who is nominated in the will as the personal representative and you trust her completely. Further she has fully disclosed all the assets. Then I don’t think you need an attorney.
However, now assume that your step-father just died one year after your mother died and you have three step-siblings. Further, your step-father just changed his will two weeks before he died and suddenly only one step-sibling is the personal representative. Now assume that step-sibling is suddenly driving a new car and you do not think that she had the money to buy it. You receive a Notice of Administration in the mail. Further, the attorney for the personal representative sends you a legal document that is hard to understand. The attorney tells you it is routine and you should sign it. In this scenario you probably should see an attorney. There are important deadlines in probate and important rights that you can lose by taking no action. For more information contact Cody & Linde, PLLC today.
How can I tell if a lawyer is qualified to assist me with planning my estate?
Many lawyers claim to do estate planning. As someone who does a lot of probate and trust litigation, I am frequently appalled by some of the sloppy wills and trusts that I see. Many lawyers simply purchase a computer estate planning program and type your name into the blanks. This can result in a mess after your disability or death.
Laws governing the estate planning process can be complex. Matthew A. Linde is one of approximately 327 (out of over 85,000 licensed) lawyers to be Board Certified by the Florida Bar in Wills, Trusts and Estates. Mr. Linde is also Florida Bar Board certified in Elder law. There are currently 11 attorneys licensed in Florida who are board certified in wills, trusts and estates and in elder law. Mr. Linde has prepared and administered estates worth over $60,000,000.00 and is experienced in the complexities that can arise. Matthew A. Linde is an expert in Wills, Trusts and Estates and has been evaluated for professionalism and tested for expertise. Why would you want anyone other than a Florida Bar Board Certified expert in Wills, Trusts & Estates to prepare your estate plan? For more information contact Cody & Linde, PLLC today.
What is a reasonable trustee fee?
Florida statute provides wonderful clarity to this question. Under §736.0708(1) trustees are entitled to “reasonable compensation.” The most comprehensive Florida case that gives guidance on reasonable compensation for a trustee is West Coast Hospital Assoc. v. Florida National Bank, 100 So.2d 807, 811 (Fla. 1958) where the court stated that the following factors determine a reasonable fee:
The following factors may be influential in enabling the court to reach a conclusion as to the appropriate amount of pay which should be granted the trustee in a given case: The amount of capital and income received and disbursed by the trustee; the wages or salary customarily granted to agents or servants for performing like work in the community; the success or failure of the administration of the trustee; any unusual skill or experience which the trustee in question may have brought to his work; the fidelity or disloyalty displayed by the trustee; the amount of risk and responsibility assumed; the time consumed in carrying out the trust; the custom in the community as to allowances to trustees by settlors or courts and as to charges exacted by trust companies and banks; the character of the work done in the course of administration, whether routine or involving skill and judgment; any estimate which the trustee has given of the value of his own services; payments made by the cestuis to the trustee and intended to be applied toward his compensation."
Additionally, corporate trustee fees charged by local banks and trust companies would probably be helpful in deciding what is reasonable. For more information contact Cody & Linde, PLLC today.
My father died with a large estate, what is a Form 706?
A Form 706 is a form published by the IRS. It is called a United States Estate (and Generation –Skipping Transfer) Tax Return. The purpose of the form according to the IRS is “[t]he executor of a decedent's estate uses Form 706 to figure the estate tax imposed by Chapter 11 of the Internal Revenue Code. This tax is levied on the entire taxable estate and not just on the share received by a particular beneficiary. Form 706 is also used to figure the generation-skipping transfer (GST) tax imposed by Chapter 13 on direct skips (transfers to skip persons of interests in property included in the decedent's gross estate).” For 2013, the exemption from the estate tax is equal to $5,250,000.00 for each spouse.
Issues related to this form are complicated, and if you are a trustee of personal representative of large estate, you need someone who is aware of the issues. For more information, contact Cody & Linde, PLLC today!