Undue Influence

Fort Myers attorney can assist with Alzheimer's disease and dementia care options

Wed, 03 Apr 2013 00:00:00 EST

As listed in this article in the April 3rd, edition of the Wall Street Journal, dementia is becomming one of the country's most expensive medical conditions. Alzheimer's disease is one of the most common forms of dementia. Without proper preparation, the costs of caring for a loved one can be devastating. Follow the link to the article below and contact Matthew A. Linde, P.A. to discuss options for a loved one with this condition.

http://online.wsj.com/article/SB10001424127887323916304578400641454906424.html

Fort Myers estate attorney discusses the time to file an appeal of a probate dispute

Wed, 13 Feb 2013 00:00:00 EST

One of the first issues I discuss with anyone who wants to consider an appeal is whether we still have time to invoke the jurisdiction of the appellate court.

The time to invoke the jurisdiction of the appellate court is measured from the “rendition (when the order is filed with the clerk of courts)” of an order, when all three of the following events occur: (1) the lower court's order is reduced to writing; (2) the written order is signed by the judge; and (3) the written, signed document is filed with the clerk of the lower court from which the order is issued. The date of service or mailing is not, in most cases, what matters in calculating the time for invoking the jurisdiction of the appellate court.

Generally, a party seeking to appeal has 30 days from rendition of a final order within which to file a notice of appeal. When computing time, counting begins on the day following the event that triggers the running of time. The period of time includes the last day of that time frame unless the last day falls on a Saturday, Sunday, or holiday. Holidays are only those holidays listed in the Rule. If the last day falls on a weekend or holiday, the final day to file is the next regular business day. Weekends and holidays are not counted in the calculation unless the time to act is less than seven days. Thus, if the court or other lower court “renders” an order on January 1, the notice of appeal is generally due no later than January 31. If January 31 is a Sunday, the notice is generally due no later than Monday, February 1.

If you live in Florida, who has access to your will if you die?

Mon, 11 Feb 2013 00:00:00 EST

If you die and your will was in your possession, but it cannot be found after your death then a presumption arises that you destroyed it. See In re Estate of Carlton, 276 So.2d 832 (Fla. 1973). If someone believes that you did not destroy it, then that person has the burden of proving that you did not destroy the will before your death. A key issue is whether you had possession of the will when you died. The presumption that you destroyed your will may be overcome by evidence that the will was lost or destroyed without your consent or that you were incapable of revoking the will while it was in your possession.

I have seen some expensive fights over this issue and it is simple to avoid. If you are living with someone who has an economic interest to destroy your will after you are gone, then you need to move the will somewhere safe. For more information, contact Matthew A. Linde, P.A. today.

A beneficiary should file an estate income tax return if the estate has losses in the year the estate terminates.

Mon, 28 Jan 2013 00:00:00 EST

Section 642(h) provides that when an estate or trust terminates, it may pass through to its beneficiaries net operating loss carryovers under IRC Section 172, capital loss carryovers under IRC Section 1212, or deductions in the year of termination in excess of the estate's or trust's gross income for that year. Since many of the administration expenses involved in probate are paid at the time of the termination of the estate, this means that such deductions frequently pass through to the beneficiaries. If you have an attorney who does not know anything about estate or trust taxation, then this issue is frequently overlooked. However, if the estate or trust has large losses in the year of termination, then you need to understand the tax consequences. For more information contact Matthew A. Linde, P.A. today.

Estate tax exclusion increases to $5,250,000.00 for 2013.

Sun, 27 Jan 2013 00:00:00 EST

If a taxpayer dies and the value of the taxpayer’s gross estate, plus adjusted taxable gifts exceeds $5,250,000 in 2013 then the taxpayer’s estate must file a United States Estate (and Generation-Skipping Transfer) Tax Return commonly referred to as Form 706. However, each year a taxpayer can transfer $14,000.00 to as many different individuals (and in some cases trusts) as the tax payer chooses without reducing the taxpayer’s $5,250,000.00 exclusion from transfer taxes. 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 Matthew A. Linde, P.A. today.

The American Taxpayer Relief Act of 2012 provides no relief to trust and estate income taxes

Sun, 27 Jan 2013 00:00:00 EST

Generally it is not a good idea to leave income inside a trust or estate at the close of a taxable year. The reason is that trust and estate income tax rates are compressed. An individual and a married couple does not reach the top income tax rate until they have almost $400,000.00 of taxable income. However, a trust or estate reaches the top income tax rate at $11,950.00 of taxable income in 2013, and income above that amount is taxed at a rate of 39.6%. For tax planning information, contact Matthew A. Linde, P.A. today.

Who is going to get those 401k assets - maybe it is your hated former spouse.

Sun, 27 Jan 2013 00:00:00 EST

Imagine this scenario: you get married and you and your spouse both have children from a previous marriage. You end up getting a divorce. As part of the divorce decree the order states your former spouse has no right to your retirement assets. You think you are safe and a few years later you die. However, you never changed the beneficiary of your 401k plan and now your spouse has filed a claim and the plan administrator pays out the benefits to your former spouse. Your children get nothing.

What can your children do? Maybe there is nothing the children can do. In Kennedy v. Plan Administrator et al. 555 U.S. 285 (2009), the U.S. Supreme Court faced a very similar situation. The court held that basically that the plan administrator was correct in following the terms of the plan as stated in the plan documents. Thus, if you have retirement plan assets, then you need to make sure the beneficiary designation properly states who you want the assets to go to especially after a divorce. For more information contact Matthew A. Linde, P.A.

Do you need to revise the trust formula in your revocable trust?

Sun, 27 Jan 2013 00:00:00 EST

Many estate plans were prepared when the applicable exclusion amount was much lower than it currently is now. These estate plans frequently created a non-marital share equal to the applicable exclusion amount (currently $5,250,000.00). Individuals whose plans were executed before 2001 thought that their non-marital share would never exceed $1 million, and individuals with estate plans executed between 2001 and 2010 often thought that their non-marital share would never exceed $3.5 million.

Generally, non-marital shares that are primarily for the benefit of the children and other descendants may need to be revised to include the spouse as a beneficiary. This is critically important for second marriages if the non-marital share is set up for children of the first marriage. If this scenario may apply to your trust, contact Matthew A. Linde, P.A. today to discuss.

President John F. Kennedy believed that lower taxation creates jobs

Sat, 10 Nov 2012 00:00:00 EST

“Every dollar released from taxation that is spent or invested will help create a new job and a new salary. And these new jobs and new salaries can create other jobs and other salaries for an expanding American economy.” State of the Economy August 13, 1962

State trial court cannot take action against personal representative, guardian or trustee without giving the fiduciary notice and an opportunity to be heard.

Sat, 11 Aug 2012 00:00:00 EST

In every action that is taken in a probate, guardian or trust court preceding the fiduciary (i.e., the trustee, personal representative or guardian) has the right to notice and an opportunity to be heard. I have seen this problem arise over and over again in state court proceedings. The latest affirmation of this principal is articulated in Kountze v. Kountze, 2012 App. Lexis 12515 (Fla. 2nd DCA 2012).

In Kountze, a trustee was removed by a circuit court judge apparently at a hearing on a motion to compel discovery. The 2nd District Court of Appeals affirmed that even though a court may remove a trustee on its own initiative under Florida statute §736.0706 “if . . . [d]ue to the unfitness, unwillingness, or persistent failure of the trustee to administer the trust effectively, the court determines that removal of the trustee best serves the interests of the beneficiaries," the court still must give the trustee notice and an opportunity to be heard first. Further, because the in order to determine whether the trustee is unfit, the court must make factual findings. State courts require personal appearances where federal courts often do not. However, in state court a judge can only deal with issues that have been properly noticed, and if a judge must make factual findings, then the judge must have a evidentiary hearing unless the parties have stipulated to the facts. Thus, in this case the 2nd District Court of Appeals remanded the case to the trial court and the order removing the trustee was reversed.

For additional information contact Matthew A. Linde, P.A. today.

Yes you can prosecute and win an undue influence case without the presumption of undue influence.

Sat, 09 Jun 2012 00:00:00 EST

Many attorneys (and judges and even some appellate courts) incorrectly assume that if you cannot establish a presumption of undue influence (as discussed in Carpenter v. Carpenter, 253 So.2d 697 (Fla. 1971), Cripe v. Atlantic First National Bank of Daytona Beach, 422 So.2d 820 (Fla. 1982) and Hack v. Helling, 811 So.2d 822 (Fla. 5th DCA 2002)) then you might as well take it on the chin since you cannot prove that undue influence occurred. This is not correct.

In fact if you are considering hiring an attorney in an undue influence case then ask that attorney what actually happened in the Carpenter v. Carpenter Florida Supreme Court case. Carpenter is the major case in Florida concerning undue influence. However, Carpenter makes it very clear even if you cannot establish a presumption of undue influence; you can establish undue influence by a preponderance of the evidence. For more information concerning what “a presumption of undue influence” means and facts can establish undue influence follow the link below to a sample trial brief that I recently filed.

http://www.floridaprobatelitigator.com/library/SAMPLE_PETITIONER_S_TRIAL_BRIEF_FOR_UNDUE_INFLUENCE.pdf

Power of Attorney in Florida: Legal Acts Your Agent May Perform

Tue, 17 Jan 2012 00:00:00 EST

The person or professional organization you grant power of attorney to in Florida will be your agent. You should consider carefully whom you choose because your health and finances could be at stake. For help, you should seek assistance from an estate planning attorney in Fort Myers, Florida.

Activities Permitted by a Power of Attorney Agent in Florida

An agent may be tasked with any of the activities that you have specified in your power of attorney, which is a legal document. It is up to you; your power of attorney could be very broad or very limited. Typical activities usually include:

selling property such as a house or car;
accessing bank accounts;
signing contracts and other legal documents;
making health decisions; and
handling financial transactions.

A power of attorney in Florida essentially gives someone the right to conduct legal acts that the maker of the power of attorney could conduct. This includes creating trusts and making gifts.

Therefore, you should not choose just anyone. Pick someone who is trustworthy and has the competence to handle affairs on your behalf. To protect yourself, you should discuss all of your concerns with an estate planning attorney in Fort Myers, Florida.

Help from an Attorney in Fort Myers, Florida, is Just a Phone Call Away

Fort Myers 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 1-888-643-6514.

Avoid Florida Estate Planning Mistakes: Protect Your True Beneficiaries

Fri, 13 Jan 2012 00:00:00 EST

You should review your estate planning documents frequently to make sure you are avoiding common estate planning mistakes, one of which, according to an article in Forbes, is having the wrong beneficiary listed. Rather than review your documents on your own, it may be a good idea to have estate planning attorneys in Fort Myers look over them with you. If you are a single parent, you may have listed a grandparent as a beneficiary when your children were minors, and now that your children are older, the grandparent may still be the beneficiary. In another scenario, you may be divorced, but still have your ex-spouse as a beneficiary.

These are common estate planning mistakes because beneficiary information is not printed on statements and it may take some time to access the original paperwork. When these mistakes are detected, costly litigation may be required to correct the error, if it can be corrected. All parties involved would need to determine their intentions, and it will be too late for you to speak up for yourself.

However, you can protect your true beneficiaries now by making sure you have their names in writing in the correct places.

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

Fort Myers 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 – 239-939-7100 or 888-643-6514.

How to Avoid Fort Myers and Cape Coral Estate Planning Mistakes

Wed, 11 Jan 2012 00:00:00 EST

If your estate plan is not properly conceived, there are several ways things may go awry. For example, your heirs could be left with huge tax bills, or a stranger could serve as personal representative of your estate, and if you tend to procrastinate, you may have forgotten to include any new additions to your family in your will. To avoid estate planning mistakes that could lead to these consequences, you should schedule a consultation with estate planning attorneys in Fort Myers.

A Properly Conceived Estate Plan

When you have good legal counsel providing guidance, your estate plan may:

outline instructions for the care of yourself and your loved ones;
still be effective if you move out of Florida or own property outside of Florida;
avoid probate;
keep all affairs confidential;
control your property, including life insurance and pensions;
create trusts for special needs children, minor children, grandchildren and adult children; and
provide estate tax planning.

Having a solid estate plan is not just for your best interests but your surviving spouse, dependents, and other family members too. You may benefit by having estate planning attorneys in Fort Myers help you take steps now to avoid estate planning mistakes down the road.

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

Fort Myers 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 – 239-939-7100 or 888-643-6514.

Probate in Florida: The Time it Takes to Settle a Case

Sat, 07 Jan 2012 00:00:00 EST

The length of time it takes to settle cases involving probate in Florida is contingent upon multiple factors but they generally take roughly 6 months to settle. Some cases may take more time than others, especially when lawsuits have been filed. To make matters less stressful for your beneficiaries, you should discuss all of your concerns now with an estate attorney in Fort Myers.

Typical Delays in Closing a Probate Case in Florida

In some probate cases, your personal representative might be tasked with:

selling real estate before the probate case can be settled;
resolving a creditor's dispute; and/or
resolving a lawsuit challenging the will's validity.

Any of the above circumstances could lengthen the probate administration process. Even a simple probate estate has at least an open 3-month period for creditors' claims.

In the event the estate isn’t mandated to file a federal estate tax return, then the final documents to settle the estate will first be due within 1 year after Letters of Administration are issued to your personal representative to confirm that they have the authority to serve as a personal representative. However, this time period can be extended

If a federal estate tax return is required, then the return will be due 9 months after the decedent's death, but the deadline for filing the return can be extended 6 months. The documents to settle the probate administration will be due within 1 year from the time the tax return is owed.

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

Fort Myers 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 probate in Florida, contact our Fort Myers office to schedule a one-on-one meeting with a professional who can answer your questions – 239-939-7100 or 888-643-6514.

Probate in Florida: Common Probate Assets

Thu, 05 Jan 2012 00:00:00 EST

One of the duties of a personal representative in probate in Florida is to distribute probate assets to beneficiaries. Probate assets, according to Florida law, are those that the deceased owned only in his or her name at death, or that the deceased co-owned as long as there is no mandated succession of ownership at death.

Since it can sometimes be difficult to determine which assets are probate assets, it's best to consult with an estate attorney in Fort Myers.

Examples of Probate Assets in Florida

Common probate assets include:

an investment account or bank account in the deceased's name, excluding an account payable or transferable to another individual or entity upon death;
an individual retirement account, annuity contract, or life insurance payable to the estate of the deceased, but not payable to any specific beneficiary; and
real estate in the deceased's name or in the name of the decedent and another individual as tenants in common (excluding homestead property), but no real estate in the deceased's name and anyone else's name as joint tenants with rights of survivorship.

When you meet with an estate attorney in Fort Myers, he or she can explain many more assets that are indeed probate assets, and provide valuable assistance for your estate planning.

Help From an Estate Attorney in Fort Myers is Just a Phone Call Away

Fort Myers 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 probate in Florida, contact our Fort Myers office to schedule a one-on-one meeting with a professional who can answer your questions – 239-939-7100 or 888-643-6514.

Florida Estate Planning: Online Accounts and Passwords

Tue, 20 Dec 2011 00:00:00 EST

Don't forget to include your online passwords in your Florida estate planning documents. If you fail to do so, your accounts may be inaccessible to family members or your personal representative. Like financial information, all passwords should be kept in a safe place, perhaps in files at the office of your Fort Myers estate planning attorney.

When you die, your computer and your accounts may sit dormant if your passwords are unknown. It would be a good idea to create a master list of your accounts and passwords to give your heirs or personal representative access upon your death. This will allow them to close out financial accounts and other sites.

In addition to passwords, your Florida estate planning should also include beneficiary designation forms. If you have an incomplete or inaccurate beneficiary designation form, it will be very difficult, and, in some cases, impossible to correct the error. Because these forms are contracts, they dictate who gets certain assets.

Now is a good time to make sure the beneficiary designation forms are accurate for your annuity, life insurance policy, retirement account or pay-on-death account.

For help with any Florida estate planning concerns you may have, you should meet with a Fort Myers estate planning attorney.

Help from a Fort Myers Estate Planning Attorney is Just 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, 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 1-888-643-6514.

Florida Letters of Administration When a Brokerage Firm is Involved

Thu, 15 Dec 2011 00:00:00 EST

If a loved that has died had assets in a brokerage firm, you might need to present Letters of Administration (LOAs) to get access to mutual funds or stock holdings. But before you take action, you should discuss your options with estate planning attorneys in Fort Myers, who can explain the pros and cons of LOAs and situations when they may or may not be necessary.

In some situations Summary Administration, which is less costly than LOAs, may be ideal, but there are eligibility requirements that you should discuss with an attorney.

Probate Scenario that May Ring True

Consider this scenario: The deceased had a brokerage account holding several investments that haven't been liquidated. Securing Letters of Administration may be necessary because, with LOAs, you would have the authority to order those stock positions be closed.

What this means is that if you wanted to sell your loved one's stock, you would most likely have to be the personal representative in possession of LOAs to make such a call.

The laws regarding Letters of Administration in Florida can be difficult to understand if probate is not your area of expertise. Sometimes LOAs are necessary and sometimes they aren't. To get an understanding of the LOA process, you should meet with estate planning attorneys in Fort Myers.

Help from Estate Planning Attorneys in Fort Myers is Just 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 probate 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 1-888-643-6514.

When You May Need Letters of Administration in Florida

Wed, 14 Dec 2011 00:00:00 EST

If your loved one has died and you need access to his or her bank account, a bank employee may ask you for Letters of Administration (LOAs), which are court orders that are costly and may take at least 6 months to obtain. Your first step should be to speak with estate planning attorneys in Fort Myers.

When Letters of Administration are Necessary

You may need LOAs for the following reasons:

To find out how much money is in the account: The bank can remain silent until you present LOAs as proof that they can discuss the account with you.

To open a safe deposit box: You could also get a court order for this, but a simple order typically will only allow you to take inventory without removing any of the contents.

On the other hand, you probably won't need LOAs if you want an account liquidated to heirs. Summary distribution, which is much quicker and less costly than LOAs may suffice in certain situations.

If you are unsure whether you need Letters of Administration or summary distribution, you should schedule a consultation with estate planning attorneys in Fort Myers, who can advise you on the proper steps to take.

Help from Estate Planning Attorneys in Fort Myers is Just 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 probate 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 1-888-643-6514.

Probate in Florida: Why the IRS is Involved

Fri, 09 Dec 2011 00:00:00 EST

Among the people and entities involved in probate in Florida is the Internal Revenue Service (IRS). The purpose, of course, is taxes, because the deceased's estate will become a new tax entity. This is one reason why you may need to consult with an estate planning attorney, in Fort Myers, Florida, to discuss how you may be affected as a beneficiary.

On the other hand, an attorney can advise you on taking steps now, before you die, to minimize any tax burdens on your beneficiaries.

Tax Documents Arising from Probate in Florida

Depending on variables such as the deceased's income and the size of the estate, the personal agent assigned to handle the administration of the estate may be tasked with filing any of the following returns:

· Final Form 1040 to report income for the deceased's last tax year;
· Form(s) 1041 to report income for the estate;
· Form 709 gift tax return to report gifts the deceased made before death; and
· Form 706 to report the gross estate as well as deductions.

The personal agent may also have to handle issues from past tax years, such as tax returns that have been flagged for various reasons or returns that weren't filed but were supposed to be filed. Complicated tax issues such as these usually necessitate an estate planning attorney in Fort Myers, Florida for probate in Florida.

Help from an Estate Planning Attorney in Fort Myers is Just 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 probate concerns, contact our Fort Myers office to schedule a one-on-one meeting with a professional who can answer your questions – 239-939-7100 or 888-643-6514.