Estate planning, probate, trust, guardianship, litigation and associates tax consequences FAQs.
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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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 Linde Law Group 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 Linde Law Group 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.
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 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 is an advance directive ?
A Florida advance directive is a document that allows you to make it clear whether you would want life-prolonging measures taken if you have an end-stage condition or are at a point in which you are being kept alive through artificial means. You can benefit by having a Florida Bar Board Certifed wills, trusts and estates expert help you properly draft an advance directive.
Understanding a Florida Advance Directive
Advance directives, which focus on your right to die with dignity, are not just for the elderly. For example, if you were the victim of a serious accident, would you want to be kept alive with a ventilator and feeding tubes if there was no hope for recovery? If your answer is no, you need an advance directive. Most people feel strongly one way or the other about extended life through artificial means.
When your advance directive meets all legal requirements, it will:
- allow you to predetermine medical treatment; and
- allow you to authorize someone to make medical decisions on your behalf; and
- ensure that CPR will not be performed if you have a terminal condition, as long as your medical team has a copy of the advance directive.
Copies of your advance directive should be given to as many people as possible, including your family members, neighbors, doctor, and clergy. When your advance directive is properly drafted by a Fort Myers estate planning attorney, it may be transferrable to other states. A legally binding Florida advance directive will provide peace of mind that you will always have control over your medical decisions.
Help from a Fort Myers Estate Planning Attorney is a Phone Call Away
Florida Bar Board Certifed wills, trusts and estates expert 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 Florida advance directive, contact our Fort Myers office to schedule a one-on-one meeting with a professional who can answer your questions - 239-939-7100 or 844-357-0572.
What is a personal representative?
This is a defined term under the Florida Probate Code: Section 731.201:
(28) "Personal representative" means the fiduciary appointed by the court to administer the estate and refers to what has been known as an administrator, administrator cum testamento annexo, administrator de bonis non, ancillary administrator, ancillary executor, or executor.
Now that you know what the terms means, contact Florida Bar Board Certified wills, trusts and estates expert Matthew A. Linde today at 239.939.7100 to assist you with understanding what that means in your situation.
My mother just died and my father predeceased him. There are assets in my mothers name alone. How do I get authority to distribute the assets according to my mothers will?
If there is a properly executed will, then the person named in the will has priority to be appointed as long as the named individual is not otherwise disqualified [There are several ways to be otherwise disqualified. For example, felons are otherwise disqualified, and so are minors, those deemed mentally unfit or nonresidents unless related by blood or marriage to the decedent.] from serving as personal representative. The courts have very limited authority to disregard the will and appoint someone else if the appointed person is qualified.
The named person files a petition for administration, a designation of resident agent and an oath, the will to be admitted, the filing fee and the order admitting the will. A petition to waive bond can also be filed, but in Lee County the court will probably require some type of bond, and the judge has sole discretion to determine whether a bond is required. If a bond is required, the amount of bond will be dependent on the assets listed on the petition for administration. A bond of $100,000.00 would probably cost $150.00 to purchase and there are companies that routinely issue probate bonds. Large bonds will require a credit check upon purchase, and bad credit can prevent the person named in the will from obtaining a bond, which means that somebody else has to be appointed. The person named in the will once appointed by the court is identified as the personal representative [in some other states this person is identified as the executor or executrix].
The person named in the will has priority to be appointed. Thus, under the Florida Probate Rules that person does not have to notice anybody when the petition for administration is filed with the court. However, assume that the person nominated in the will as personal representative has died and there are four siblings [You would have to follow the same procedure if there was no will and someone died and there were several individuals of equal degree of consanguinity to the decedent.]. Now assume that one sibling wants to be appointed personal representative. That person has to serve via certified mail a copy of the petition on the other siblings at the time that the person filed the petition for administration with the court. If none of the siblings object, then twenty days after each sibling was served with a copy of the petition for administration, the decedent’s child seeking to be appointed can file the proof of service [the green card for certified mail] with the court and the court will appoint that person by signing the order previously filed with the petition for administration.
If a bond is required by the court the person appointed as personal representative must purchase the bond and file the original bond with the court. Then the court will sign “Letters of Administration.” The Letters are the personal representative’s authority to act on behalf of the decedent. That wasn’t so bad was it? For more information contact Linde Law Group
Is there more than one type of probate proceeding? I mean what if my dad/mom left me with a small estate consisting of a house and $50,000.00?Do I have to go through a regular probate or is there an abbreviated option?
Section 735.201 of the Florida Probate Code provides that an estate may qualify for summary administration if it meets the following requirements: (a) the value of the entire estate subject to administration in this state, exclusive of property exempt from creditors' claims, must not exceed $75,000, or, the decedent must have died more than two years beforehand; and (b) if the decedent has left a valid will, the will must not direct formal administration in accordance with Fla. Stat. Ch. 733.
The estate must qualify under Fla. Stat. § 735.201 for summary administration. If it does not meet the requirements of that section, then the probate court is without authority to order summary administration. An order of summary administration that is entered based upon some error in procedure may be vacated, but unlike a void judgment, it has legal force and effect unless it is vacated.
Because exempt property, and real property located outside Florida are not included within the computation, summary administration is available when the value of the decedent's other assets does not exceed $75,000. Furthermore, since the decedent's homestead property is not defined as an asset of the estate (See Florida Statute §733.607) a beneficiary can petition the court for summary administration even if the decedent's homestead is worth several hundred thousand dollars. Realize if the estate has creditors, then in addition to a Petition for Summary Administration, the beneficiary will want to file a homestead petition and publish notice to creditors if less than two years has passed since the decedent died.
Summary administration is instituted by the filing of a petition. The Petition for Summary administration must be signed and verified by the surviving spouse, if any, and any beneficiaries seeking the relief. See Fla. Stat. § 735.203(1). However, a petition for summary administration is not required to be signed by a beneficiary who will receive a full distributive share. The petition for summary administration must be filed in the circuit court in which venue for the probate proceedings is proper. Venue, for purposes of summary administration, is determined in the same manner as for formally administered estates. As you might have guessed, a summary administration costs less than a regular administration, and is usually much quicker. For more information contact Linde Law Group today!