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.
- Page 6
If I become temporarily incapacitated and enter an hospital, but I have not executed an advance directive or nominated a health care surrogate, who makes decisions on my behalf?
The answer is the person designated by the Florida legislature as the “proxy.” Listed below is the Florida Statute 765.401(1). Please note this is not an exact quote of the statute as I have made some minor edits to make this more readable, and I have added some points to consider in italics.
(1) If an incapacitated or developmentally disabled patient has not executed an advance directive, or designated a surrogate to execute an advance directive, or the designated or alternate surrogate is no longer available to make health care decisions then health care decisions may be made for the patient by any of the following individuals, in the following order of priority, if no individual in a prior class is reasonably available, willing, or competent to act:
(a) The judicially appointed guardian of the patient or the guardian advocate of the person having a developmental disability as defined in Florida Statute 393.063 who has been authorized to consent to medical treatment, if such guardian has previously been appointed; however, this paragraph shall not be construed to require such appointment before a treatment decision can be made under this subsection;
(b) The patient's spouse [ LLG Note: Is the spouse from a subsequent marriage when you have children of a prior marriage? If so an advance directive is a good idea to prevent fights over dad or mom’s care. If there is no surrogate and the second spouse starts to make decisions, the children can always petition for a guardianship under paragraph (a) above, and if there is no surrogate then, the guardian would make the decisions.]
(c) An adult child of the patient, or if the patient has more than one adult child, a majority of the adult children who are reasonably available for consultation [LLG Note: Again, this is a good reason for an advance directive. Do your children get along? If the answer is no then this is not a good time for a fight over mom or dad’s care in a guardianship court proceeding.];
(d) A parent of the patient;
(e) The adult sibling of the patient or, if the patient has more than one sibling, a majority of the adult siblings who are reasonably available for consultation;
(f) An adult relative of the patient who has exhibited special care and concern for the patient and who has maintained regular contact with the patient and who is familiar with the patient's activities, health, and religious or moral beliefs; or
(g) A close friend of the patient [ LLG Note: Another reason for a health care surrogate; do you really want the hospital to interpret this statute and decide who “a close friend” is? ]
(h) A clinical social worker licensed pursuant to chapter 491, or who is a graduate of a court-approved guardianship program. Such a proxy must be selected by the provider's bioethics committee and must not be employed by the provider. If the provider does not have a bioethics committee, then such a proxy may be chosen through an arrangement with the bioethics committee of another provider. The proxy will be notified that, upon request, the provider shall make available a second physician, not involved in the patient's care to assist the proxy in evaluating treatment. Decisions to withhold or withdraw life-prolonging procedures will be reviewed by the facility's bioethics committee. Documentation of efforts to locate proxies from prior classes must be recorded in the patient record. [LLG Note: If you haven’t been convinced to designate a health care surrogate to make health care decisions for you yet, then this paragraph should do it.]
For more information Contact Linde Law Group today.
My mom died after being married to my dad for many years; (2) soon after mom died a much younger woman (Liaretta) started following dad around; (3) eventually just before dad diedhe changed his will and made Liaretta the personal representative of the will; (4) we have filed a petition to revoke the will, but we have discovered that the vast majority of assets were transferred to Liaretta before dad died. We are concerned that by the time we get to trial on the will contest, Liaretta will have spent or transferred the funds she duped dad into transferring to her before he died. What can we do?
Generally, assets that were transferred before the decedent's death can be set aside or revoked based on the same grounds that a will could be set aside. Those transfers could be set aside (an action for rescission) based on fraud, undue influence, mistake or lack of capacity. Another option is to initiate a cause of action to establish a constructive trust. However, the standing to bring these actions belongs to the personal representative. What does one do if the personal representative is the abuser? First, the litigant could petition the court to appoint an administrator ad litem. Generally, an administrator ad litem is appointed by the court when the personal representative has an interest that is adverse to the estate (such as when the personal representative sold assets from the decedent before he or she died). Another option is to petition to remove the personal representative based on a conflict of interest with the estate.
Further, the litigant always has the option to petition the court to issue a temporary injunction with or without notice freezing the assets transferred to Liaretta. However, courts are generally hesitant to issue this type of injunction. Further, the litigant has to follow a specific procedure that can become expensive. It should be obvious that it is critically important to have an advocate who is very proactive in discovering assets that may have been taken from the decedent before he died. Contact Linde Law Group
We have a minor child in Fort Myers who is going to receive $50,000.00. What do we do?
Under Florida Chapter 710 (cited as the Florida Uniform Transfers to Minors Act), a person having the right to designate the recipient of property transferable upon the occurrence of a future event may nominate a custodian to receive the property for a minor. See Florida Statute 710.104(1). In the absence of a will or under a will or trust that does not authorize transfer to a custodian, the personal representative, trustee, or other conservator may nevertheless make a transfer to a custodian without court approval unless the property exceeds $ 10,000. See Florida Statute 710.107. Any other obligor who holds property of a minor not having a guardian of the property may transfer the asset to an adult member of the minor's family or to a trust company unless the property exceeds $ 15,000 in value. See Florida Statute 710.108. A transfer under Chapter 710 saves the expense of establishing a guardianship of the property under Florida Chapter 744. However, there are disadvantages. First sometimes a guardianship of the property is necessary such as when the minor is to receive proceeds from the settlement of a claim under the Florida Wrongful Death Act. Further, under 710,116, a custodian can spend money in a custodial account without the court knowing about it if the custodian considers it advisable for the use and benefit of the minor.
Thus, you could find yourself in a situation where a divorced father of your child is a custodian of property belonging to your child, and when the child turns 18, the property is gone because the divorced father of your child spent the money (from an actual case). That would not happen with a guardianship of the property of a minor. Thus, careful consideration is necessary before setting up an account under the Florida Uniform Transfers to Minors Act; contact Linde Law Group for more information.
I just got married, but I already have an estate plan that gives my assets to my kids and my new husband has told me that he does not need or want any of my assets if I predecease him. I do not need to make any changes in my estate plan right?
I wish I could force every man and woman who gets married (usually a second marriage) after setting up an estate plan to read the answer to this question. This situation arises from a variety of circumstances. First, we have the scenario where a man and a woman move to Florida from another state. The estate plan was fine in their other state, but now they are in Florida and the Florida Statutes change their estate plan in ways they never imagined. Then there is the scenario where the husband and wife are happily married for many years. The husband (obviously this can happen either way, but men have a shorter life expectancy) dies and the surviving wife goes to see a lawyer and changes her estate plan. Then, she meets a nice gentleman and gets married. The new husband tells her (mom) over and over again that he does not want her money.
She thinks she is fine because her estate plan does not give him her money anyway. Then she dies and the children are in for quite a surprise. First, the surviving second spouse was married after the will was signed and is not mentioned in the will. Thus, he is considered a pretermitted spouse and he is entitled to a share equal to one-half of the probate estate. But wait, that is not all. He is also entitled to a life estate in the decedent’s homestead property. But wait there is more fun in store. The decedent's will gave her homestead to her son because of previous gifts to her daughter. Now because of Florida Statute 732.401, the remainder interest in the homestead property vests in all mom's descendants at the time of the her death. This means the daughter gets a vested remainder of one-half of the house that was supposed to be devised only to the son. Further, now son and daughter are fighting about everything. The daughter tells her brother that it is not her fault that Florida law changed mom's estate plan, and the son wants her sister to "do the right thing."
Hold on there is more. That car that mom promised to her son is now going the surviving spouse along with the other car that mom used from time to time. In addition, the second spouse also gets up to $20,000.00 of tangible personal property within the house. Finally, if that is not enough, that surviving spouse who did not want any of mom’s money can receive a family allowance during the probate of up to $18,000.00. To avoid this heart breaking mess, contact the Linde Law Group today for more information.
My dad in Cape Coral needs help. What does a guardianship cost and who pays for it?
The person who initially pays for the proceeding is generally the person seeking to establish the guardianship. There are exceptions to this. When a professional guardian is involved, the fees and costs for the guardianship proceeding generally come directly from the alleged incapacitated person’s assets after an emergency or plenary guardian is appointed. The type of guardianship referenced in this question is a guardianship for an individual 18 or older when there has been a finding of incapacity. Once the court has made a finding of incapacity, there can be a guardian of the person or the guardian of the property or both (generally referred to as plenary guardianship). The cost of a guardianship proceeding will vary greatly. Generally, if no one contests incapacity, no one contests who the guardian should be, no one contests the inventory or the initial guardianship report and there are no complications with the examining committee, then a guardianship proceeding will cost approximately $3,500.00, which includes the filing fees and the fees for the three examining committee members. This is an estimate and the actual cost could be more or less than this.
Generally, the documents necessary to start a guardianship are (1) a petition to determine incapacity, (2) a petition to appoint a plenary or limited guardian, (3) an oath, (4) an application for appointment as guardian and (5) the filing fee. The process, depending on which civil judge the petition is assigned to, will take anywhere from four to eight weeks if there are no complications. Many times assistance is needed sooner than that. One option is to petition the court to appoint an emergency temporary guardian. If the court finds that there is imminent danger to the person or their property is in danger of being wasted or misappropriated, then the court can appoint an emergency temporary guardian. This process generally adds another $1,500.00 to the overall cost, and this assumes no complications.
Under Florida law, a guardian or an attorney who has rendered services to the ward or to the guardian on the ward’s behalf is entitled to a reasonable fee for services rendered. Thus, if a family member is successful in establishing a guardianship for a loved one, that family member will be reimbursed for money spent. However, this assumes that person who is deemed incapacitated has money to reimburse the family member establishing the guardianship. Further, if there are objections to a fee petition, then the courts will hold an evidentiary hearing to rule on any fee dispute. Contact Linde Law Group for additional information.
The Fort Myers trustee is incompetent and will not give me information. What can I do?
I get this question a lot. Generally, the context of the question is that the settler (person who created the trust) has died and the trust is being administered for the benefit of the beneficiaries. The trust terms can require that assets are distributed outright, or the trust terms can hold assets in trust for varying lengths of time. Regardless of the length of the trust, the trustee is required to provide “qualified beneficiaries” with certain information, and this information requirement cannot be waived by the trust. For example, Florida statute 736.0813 requires the trustee to give qualified beneficiaries the following:
The trustee shall keep the qualified beneficiaries of the trust reasonably informed of the trust and its administration.
(1) The trustee's duty to inform and account includes, but is not limited to, the following:
(a) Within 60 days after acceptance of the trust, the trustee shall give notice to the qualified beneficiaries of the acceptance of the trust and the full name and address of the trustee.
(b) Within 60 days after the date the trustee acquires knowledge of the creation of an irrevocable trust, or the date the trustee acquires knowledge that a formerly revocable trust has become irrevocable, whether by the death of the settlor or otherwise, the trustee shall give notice to the qualified beneficiaries of the trust's existence, the identity of the settlor or settlors, the right to request a copy of the trust instrument, and the right to accountings under this section.
(c) Upon reasonable request, the trustee shall provide a qualified beneficiary with a complete copy of the trust instrument.
(d) A trustee of an irrevocable trust shall provide a trust accounting, as set forth in s. 736.08135, to each qualified beneficiary annually and on termination of the trust or on change of the trustee.
(e) Upon reasonable request, the trustee shall provide a qualified beneficiary with relevant information about the assets and liabilities of the trust and the particulars relating to administration.
If the trustee violates a duty the trustee owes to a beneficiary, then the trustee has committed a breach of trust and a qualified beneficiary can sue the trustee. Contact Linde Law Group for additional information.
My dad in Fort Myers is giving money away, but his doctor says he has capacity. Help!
Get ready to be shocked; many medical doctors have very little understanding whether your loved one has legal capacity or is incapacitated. Further, understand that capacity is a legal not a medical term. I have had several cases where the children or grandchildren were convinced that dad/grandpa et cetera was not the same person, but the doctor said dad/grandpa was fine. In one case I distinctly remember, the general practitioner was convinced that grandpa had capacity, but after the grandson filed a petition to determine incapacity, it became very obvious that grandpa lacked capacity and had impaired functioning. The court found grandpa lacked capacity and the court prevented a wealthy 92 year old man from marrying a 56 year old caretaker earning $12.00 per hour. If you have questions it pays to talk to a qualified guardianship attorney to understand your options. Contact Linde Law Group today.
But I went to a seminar, had a nice lunch and Fred the seminar guy said . . . .
While I personally do not know any seminar guy named “Fred,” I am surprised how many times I am speaking to someone about estate planning when suddenly the potential client tells me about what that person “knows” based on what was said at a seminar. Estate planning seminars are very popular in Florida. Generally what happens is that some financial planning agency or brokerage will contact a bunch of people and offer a “free” lunch. Then during the time you are eating, someone will speak about how great so-and-so agency is. Usually, there will be a self professed “expert” who will speak about a given estate planning topic.
It is very important that you understand that unless you get something in writing from the speaker (not likely) than the advise you receive may or may not be correct. Many times people will tell me what they heard at a seminar and what they heard is simply wrong. I would never rely on what somebody said at a seminar. Here the phrase “you get what you pay for” is very true. Further, even if you clearly remember what somebody told you, unless what you were told is in writing, the speaker can always simply say that “that is not what I said” or “that is not what I meant.” Therefore, if you have questions and you need to rely on the advice received, set up an appointment with Matthew Linde at Linde Law Group. Generally, with potential estate planning clients, I provide a 15 minute free consultation.
I live in Punta Gorda and my mom lives in Fort Myers. What is an advance directive?
Under Florida statute 765.101, and “advance directive” means a witnessed written document or oral statement in which instructions are given by a principal or in which the principal’s desires are expressed concerning any aspect of the principal’s health care, and included, but is not limited to, the designation of a health care surrogate, a living will, or an anatomical gift made pursuant to chapter 765.
What types of litigation could involve the probate estate of a deceased person?
When someone dies in Florida with assets titled in their own name (as opposed to assets held in trust, in joint tenancy with right of survivorship, in a tenants by the entirety, in a pay-on-death or transfer-on-death account) those assets generally cannot be transferred except through a probate proceeding. The court appoints a personal representative to take charge of the decedent's property. The personal representative has many different duties under Florida law. Thus, litigation can involve who is the personal representative. When a will has been properly executed with an attestation clause, then generally the court must appoint the person nominated in the will if they are otherwise qualified. However, if there is no will, then before a person can be appointed personal representative; all individuals with an equal right to be appointed must be noticed of the proceeding by certified mail (commonly referred to as “formal notice”).
Even if a will is properly executed, a beneficiary under the will can challenge the will within three months after that person has received a notice of administration from the personal representative. Will challenges can involve, mistake (although not mistake of the inducement), insane delusion, undue influence or lack of capacity.
A properly executed will can be ambiguous if the will was not written very well. There can be latent ambiguities or patent ambiguities. Thus, litigation can involve a proceeding to interpret that meaning of a phrase in a will.
One of the first tasks of a personal representative is to inventory the assets of the estate. Once this is done, the personal representative files an inventory with the court and serves the inventory on the beneficiaries. If the beneficiaries disagree with the inventory, then litigation can result from objections to the inventory. Sometimes there are claims that before the person died, that person was manipulated by someone determined to steal money. This happens a lot in Florida.
Once a personal representative has been appointed, the personal representative must send out a notice to creditors. The notice to creditors is published and creditors have ninety days (90) days to file a creditor claim. If the creditor is “reasonably ascertainable” to the personal representative then the personal representative must send that creditor a notice and the creditor has the later of thirty (30) days from the notice or ninety (90) days from the original publication to file a claim. If the creditor files a claim, then the personal representative may object to the claim. If that happens, the creditor generally has thirty (30) days to file a lawsuit on the claim. Thus, litigation can involve creditor claims.
When the creditors have been paid, tax returns have been filed and the estate is ready to close, the personal representative must serve an accounting on all beneficiaries unless waived. Litigation can result from objections to the accounting if the personal representative wasted assets or paid attorney too much money et cetera.
These are just some examples of issues that can result in probate litigation. Please contact Linde Law Group today to answer any questions that you have. For more information contact Florida Bar Board Certified wills, trusts and estates expert Matthew A. Linde at 239.939.7100 or 844.357.0572 today!