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 Linde Law Group to get your questions answered.
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What is probate administration? Do we need a lawyer?
Under Florida statute §731.301 (31) “probate of will” means all steps necessary to establish the validity of a will and to admit a will to probate. Probate administration involved admitting a will, if the decedent had a will, to probate, noticing creditors, paying creditors and transferring property to the rightful beneficiaries. If a person died in Florida with property in his or her name (with no payable on death provision), then generally you will need some form of probate procedure to transfer the property. We recommend a lawyer even if you are the only beneficiary because the process can be complex. Even with simple estates creditor issues can become complex very quickly. For more information contact Florida Bar Board Certified expert in wills, trusts and estates attorney Matthew A. Linde at 239.939.7100 today.
What are the trust income tax rates for 2016?
Remember these taxes are on "net" income:
Estate and Trust Income Tax Rates
$ 0 - $ 2,550 15% of the amount over 0
$ 2,551 - $ 5,950 $ 383 + 25% of the amount over $ 2,550
$ 5,951 - $ 9,050 $ 1,233 + 28% of the amount over $ 5,950
$ 9,051 - $ 12,400 $ 2,101 + 33% of the amount over $9,051 and
$ 12,401 - $ 3,206 + 39.6% of the amount over $ 12,400
Under Florida law, what is a revocable trust and do I need one?
I have talked to many people who want to create a trust. When I ask people what a trust is, I generally hear "its something to avoid probate."
A trust is a legally enforceable agreement where one person or entity, the trustee, holds property at the request of another personal or entity, the settlor, for the benefit of a third person, the beneficiary. The word revocable simply means that a settlor (the person creating the trust) has the authority to revoke or amend the trust.
The question of whether you need a revocable trust is different. Let's say you have a house, car and small bank account. You are single and have one child. Do you need to spend the extra money to set up a trust under these facts - no.
Let's say you have a second marriage, real property assets in several states, estate tax issues and privacy concerns. In this situation you are more likely to benefit from the extra costs involved in setting up and funding a revocable trust. For more information contact Florida Bar Board certified expert in wills, trusts and estates attorney Matthew A. Linde, at 239.939.7100 today!
I want to do some estate planning. How do I create a trust?
Florida law actually describes what is necessary in order to create a trust.
"§ 736.0402. Requirements for creation
(1) A trust is created only if:
(a) The settlor has capacity to create a trust.
(b) The settlor indicates an intent to create the trust.
(c) The trust has a definite beneficiary or is:
1. A charitable trust;
2. A trust for the care of an animal, as provided in Fla. Stat. §736.0408; or
3. A trust for a non-charitable purpose, as provided in Fla. Stat. §736.0409.
(d) The trustee has duties to perform.
(e) The same person is not the sole trustee and sole beneficiary.
(2) A beneficiary is definite if the beneficiary can be ascertained now or in the future, subject to any applicable rule against perpetuities.
(3) A power of a trustee to select a beneficiary from an indefinite class is valid. If the power is not exercised within a reasonable time, the power fails and the property subject to the power passes to the persons who would have taken the property had the power not been conferred."
For information on what type of trust is right for you, contact Linde Law Group today!
What is the maximum gift I can make in 2017 without paying any gift tax?
The answer to this question can be very complex and you need to see a tax attorney to fully answer it. However, the basics are as follows:
The taxpayer can give $14,000.00 of a present interest in an asset to each individual, and some trusts, and it will not reduce the $5,490,000.00 lifetime gift tax exclusion (its $5,000,000 as adjusted for inflation. For 2017 the excluded amount is $5,490,000). Thus, if you gave $14,000 to 100 different individuals then you would have no gift taxes. However, if you gave $10,000,000.00 to one person, then you would owe gift tax on ($10,000,000.00 -$5,490,000 -$14,000.00 (annual exclusion) )= $4,496,000 in 2017.
If a taxpayer dies and the value of the taxpayer’s gross estate, plus adjusted taxable gifts exceeds $5,490,000 in 2017 then the taxpayer’s estate must file a United States Estate (and Generation-Skipping Transfer) Tax Return commonly referred to as Form 706. Annual exclusion gifts can be an important part of planning to reduce estate taxes especially for older taxpayers. For more information about estate planning to reduce transfer taxes, contact Linde Law Group today.
My husband dies without a will, and he has children of a prior marriage. Do I have to take any action to obtain an interest in his house?
Yes if you want to own part of the home. Under Florida Statute §732.401 you have six (6) months from your spouse’s date of death to file an election to take a one-half ownership interest in the marital home. If you do not make this election, then you will receive a life estate in the marital home, and your spouse’s children will receive a vested remainder interest in the home (that means they own the home outright after you die). Having a life estate in a house is not usually a great option because generally you will fight with the children of the deceased spouse over the maintenance of the house, and it is difficult to sell a life estate because the life estate is only valid as long as you are alive. The election must be made by filing a notice of election containing the legal description of the homestead property for recording in the official record books of the county or counties where the homestead property is located. For questions concerning probate or estate administration call Florida Bar Board certified wills, trusts and estates expert Matthew A. Linde today at 239.939.7100!
What are the advantages of a trust as part of my Florida estate plan?
Florida Bar Board certified expert in Wills, Trusts and Estates attorney Matthew Linde can explain the advantages of including a trust as part of your Florida estate planning. If you meet any one of the conditions listed below, you may benefit from having a trust:
- You have significant assets in a business, real estate or an art collection.
- You want your heirs to have your estate, but you don't want it directly payable to them when you die. For example, you may want certain conditions to be met before they can get their inheritance.
- You want your spouse to be supported, but you also want the rest of your estate to go to any chosen heirs when your spouse dies.
- Your goal is to maximize estate-tax exemptions.
- You want to provide for a disabled relative without disqualifying them from government assistance such as Medicaid.
Trusts are complex and varied, so before you settle on one, you should discuss your concerns thoroughly with a Cape Coral estate attorney.
Common Advantages of Trusts in Florida Estate Planning
Among the primary advantages of trusts are:
- You can put conditions on the distribution of your assets.
- Gift taxes and estate taxes can be reduced with advanced planning.
- They allow you to distribute assets efficiently without the trouble of probate court.
- They provide some protection from lawsuits and creditors.
- Trusts allow you to appoint a successor trustee, who can manage your assets if you become incapacitated.
Your attorney can answers any questions you may have about costs, fees and everything a trust entails with Florida estate planning.
Estate attorney Matthew A. Linde understands firsthand the importance of careful estate planning and the complexities of financial legal matters, such as probate, tax litigation and guardianship. For help with your estate planning concerns, contact our Fort Myers office to schedule a one-on-one meeting with a professional who can answer your questions – 1-239-939-7100 or 1-844-357-0572.
How important is identifying my assets in the course of estate planning?
Estate planning is a topic that often reminds us of our own mortality. However, there are several reasons to identify your assets and begin your estate planning .
Advantages of Estate Planning in Florida
First, understand that when you set up your estate planning in Florida:
- you can name those whom you wish to receive your assets;
- you can have minimal taxes siphoned from your estate; and
- you can have peace of mind that your affairs are in order and that there will be no confusion upon your death.
- business interests;
- retirement accounts;
- bank accounts;
- real estate; and
- insurance policies.
If you fail to identify your assets, you may be creating problems when you die. To protect your heirs and your wishes in call an attorney to assist with your estate planning. Your attorney can help you prepare a solid plan to outline your wishes, minimize taxes and keep your heirs informed. It is best that you contact an attorney now, while you are physically and mentally capable.
Need Estate Planning? An Attorney is a Phone Call Away
Estate attorney Matthew A. Linde is a Florida Bar Board Certified expert in Wills, Trusts and Estates who understands first hand the importance of careful estate planning and the complexities of financial legal matters, such as probate, tax litigation and guardianship. For help with your estate planning concerns, contact our Fort Myers office to schedule a one-on-one meeting with a professional who can answer your questions – 1-239-939-7100
Why should I have a power of attorney as part of my estate plan?
There are several reasons why you should assign power of attorney as part of your estate planning documents. As you age, the risk of mental clarity diminishing increases. Also, a health crisis could strike at any time, leaving you unable to pay bills, manage investments and make financial decisions. When you grant someone power of attorney, that person will be allowed to manage your affairs if you become incapacitated. For help, you should schedule a consultation with a attorney Matthew Linde today!
The person you grant power of attorney to will be known as your agent. This individual or organization will have the authority to sign your name and handle fiduciary duties according to your pre-determined wishes. The durable type takes effect immediately with no need for proof that you are incapacitated. Matthew Linde can sit down with you and discuss any concerns you have about power of attorney and help you decide which type would be best for you and your finances.
In the event that you become incapacitated without having a power of attorney, a court may appoint a guardian, which may prove to be costly for your family.
Florida Bar Board Certified expert in Wills, Trusts and Estates attorney Matthew A. Linde understands firsthand the importance of careful estate planning and the complexities of financial legal matters, such as probate, tax litigation and guardianship. For help with your estate planning concerns, contact our Fort Myers office to schedule a one-on-one meeting with a professional who can answer your questions – 1-239-939-7100.
What common mistakes in estate planning in Florida should I be on the lookout for?
One mistake is hiring an attorney who does not know what he or she is doing. We currently have too many attorneys in the U.S. Over the last 10 years I have seen many attorneys who cannot find employment simply rent an office and start advertising. Most of these attorneys are nice people. But this is important technical stuff, and many people hire a lawyer because they were referred by someone who really had no idea if the attorney was qualified. Further, there are programs attorneys can buy that create documents. Often we see documents that were obviously created by a program that are inappropriate for the married couple.
Matthew A. Linde, is a Florida Bar Board Certified expert in Wills, Trusts and Estates and in Elder Law. There are only 11 attorneys in Florida who have both these certifications as of January 2017. Attorney Matthew A. Linde understands firsthand the importance of careful estate planning and the complexities of financial legal matters, such as probate, tax litigation and guardianship. For help with your estate planning concerns, contact our Fort Myers office to schedule a one-on-one meeting with a professional who can answer your questions – 239-939-7100.