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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  • 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 Linde Law Group today.

     

  • 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.

  • 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. 
    To get started, you should do inventory on your assets, which may include: 
    • investments;
    • business interests;
    • retirement accounts;
    • bank accounts;
    • real estate; and
    • insurance policies. 
    Then you should decide who will inherit those assets. Next, you may want to discuss your wishes with your heirs. This may reduce the potential for disagreements after you have passed on.

    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. 

  • I have children and all of my assets are in my spouse's name as well as mine. Should I still work with an estate planning attorney in Fort Myers to draw up a will?

    Yes, you should work with an estate planning attorney in Fort Myers to draw up a Florida will if you have children and your assets are in your name and your spouse's name. An attorney can help you take the necessary steps to protect your children, which is one of the primary reasons to create a will.

    Since you lack assets that are held in your name only, you probably think there's no need for a will to transfer ownership to your children. However, a Florida will can still be a critical tool for your estate planning if your children are minors.

    Why It's Still Important that You Have a Florida Will

    When you have a properly drafted will, you have the opportunity to name a guardian for your minor children who may survive your spouse and yourself

    If you miss out on this opportunity, it will be up to a judge to appoint a guardian upon your demise.  Keep in mind that a stranger who doesn't know your family's needs could be tasked with appointing someone to take on such an important role.

    You can void this by consulting with an estate planning attorney in Fort Myers. An attorney can help you prepare a will that will carry out your wishes and keep your children's best interests in mind.

    If you try to prepare a will on your own, you may run into some difficulties, especially since you are also trying to plan for your children. You'll have better success when you seek help from a proven estate planning attorney.

    Help from an Estate Planning Attorney in Fort Myers is a Phone Call Away

    Fort Myers estate planning 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, like advance directives, 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 trust and why might I need to have a Fort Myers estate planning attorney help me to draw one up?

    A trust, which is a legal document, is an agreement that's typically forged among 3 people regarding one set of assets. To ensure that your Florida trust is legally binding, it should be drafted with the guidance of a Fort Myers estate planning attorney.

    Overview of a Florida Trust

    The 3 people involved in a trust are: 

    • the settlor creates the arrangement and names a trustee;
    • the trustee, who holds the legal title to the assets for the benefit of the beneficiary; and
    • the beneficiary, the person for whose benefit the trust is created.  The beneficiary can be the settlor and trustee but if that is true then the settlor/trustee cannot be the only beneficiary.  
    • The trust does not have to be written, but good luck proving a trust if you have nothing in writing, and the testamentary aspects of the trust must be executed with the same formalities of a deed in Florida. 

    Naturally, there are legal limitations on a trust; however, it's possible that 1 person can be both the beneficiary and the settlor. It's also possible that the settlor can serve as trustee. There have also been instances in which settlors have had an entity such as a bank named as the trustee.

    The Benefits of a Florida Trust

    Trusts may offer numerous benefits economically:

    • probate avoidance;
    • privatizing family finances and assets;
    • creditor protection for beneficiaries;
    • avoiding guardianships;
    • having control of the management and distribution of assets while you are alive and after you die; and
    • avoidance or reduction of the death tax with additional planning.

    Larger estates typically benefit more from a trust than smaller estates. To find out if you are a candidate for a trust, you should schedule a consultation with a Fort Myers estate planning attorney, who can review your assets and help you make the best decisions to protect yourself and your family.

    Help from a Fort Myers Estate Planning Attorney is a Phone Call Away

    Fort Myers estate planning 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 Florida trust, 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.