Undue Influence

Consider a Florida Trust or LLC When Leaving a Vacation Home to Heirs

Tue, 31 Jan 2012 08:00:00 EST

If you have a vacation home, you may want to consider setting up a trust or an LLC (Limited Liability Company) for intrafamily transfers. They are also useful for as blueprints for sharing expenses. After all, a major issue will be paying the costs of maintaining the home – utility bills, insurance, and taxes - when the prior owner dies.
According to a Wall Street Journal article, some other factors that you may want to consider include:

how well family members get along;
how far they live from the vacation home;
what will happen if children who inherit the home get married; and
who will utilize the property.

If you want the home to stay in your family, understand that lack of financial resources and distance could lead to the house being sold.
If you leave the home to your family in a trust, you can use life insurance to fund the trust. This would pave the way for a trustee to manage the vacation home and insurance proceeds would cover expenses. If an heir seeks to sell, trust money could be utilized to buy out that heir.
If your children get along and estate taxes aren’t an issue, you may want to opt for an LLC and a maintenance fund, along with an operating agreement. A Fort Meyers estate planning attorney can review your situation and explain your options in greater detail.

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 – 239-939-7100 or 888-643-6514.

What type of emotional legacy are you leaving? Your Will in Florida

Mon, 30 Jan 2012 08:00:00 EST

If you have several heirs, you might want to think about your emotional legacy. Part of your estate planning process should be based on how you expect to be remembered and how family relationships will be affected by your decisions.

Some advisers, according to a Wall Street Journal article, agree that when loved ones receive different disbursements in a will it can lead to problems, despite how reasonable the circumstances may be.

For example, parents might decide to leave more of their estate to the child who has the most children and maybe less to a child they have helped out financially in the past. Under other circumstances, they may want to avoid enabling a child with gambling or drug problems.

However, it’s worth noting that things change over time. In the future, long after you have written your will, there may be more grandchildren or a previously financially secure child may become seriously ill.

Whatever decisions you make, you’ll need to be clear with your children about how your estate will be divided. By all means, there should be no surprises in your will. Now is the time to explain why you are doing what you’re doing.

If you need help with your estate planning, you can schedule a consultation 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 – 239-939-7100 or 888-643-6514.

Florida Estate Planning: Federal Tax Laws Revised for 2012

Fri, 27 Jan 2012 08:00:00 EST

Now that 2012 is upon us, be aware that there have been some changes in tax laws. Many changes have risen from inflation adjustments, which may affect your income tax bracket. Since the changes apply to 2012, they will not affect your 2011 tax returns.

Revised Tax Laws for 2012

A Wall Street Journal article outlines some of the changes.

The tax bracket thresholds have increased for all filing statuses. For example, if you are married and filing jointly, $70,700 acts as the demarcation line between the 15 percent and 25 percent bracket. That’s an increase from $69,000.
There has been a slight increase in your standard deduction. If you are single, your basic deduction is $5,950; for 2011 it was $5,800. If you’re married, your standard deduction is $11,900; in 2011 it was $11,600. Different amounts apply for those who are blind, older than 65, or both.
Each dependent and personal exemption is now $3,800, an increase of $100.
The earned income tax credit maxes out at $5,891, changed from $5,751.
The exclusion amount for foreign earned income is $95,100, an increase over $92,900 in 2011.

If you have any legal concerns about your taxes, you can schedule a consultation with a Fort Myers tax litigation attorney.

Help from a Fort Myers Tax Litigation Attorney is Just a Phone Call Away

Fort Myers tax litigation 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 tax litigation 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.

Leaving a Stretched Florida IRA to a Beneficiary

Thu, 26 Jan 2012 08:00:00 EST

If your financial portfolio includes an IRA and you have no plans to deplete it, it's very important that you name a beneficiary. Your IRA can be advantageous to beneficiaries, whether it's a Roth or traditional IRA, according an article at Forbes.com. However, specific guidelines will need to be followed to bypass significant taxes and have funds available for your beneficiary's lifetime.

To make this a reality, you should schedule a consultation with an experienced Fort Myers estate planning attorney. When your beneficiary inherits the IRA, the key is not to roll it over or move it in any other manner.

It will need to be re-titled with the names of the deceased and the beneficiary. With this "stretch IRA," your beneficiary cannot withdraw money in a lump sum; money can be withdrawn in increments over the beneficiary's lifetime.

Required minimum distribution (RMD) withdrawals are required to start December 31 on the year following the inheritance of the IRA. Although they are taxable, the amount is much less than what would be taken from a lump sum.

Since the stretch IRA is supposed to last a lifetime, you can calculate your life expectancy, based on IRS standards, and divide your IRA balance by those years to get your RMD.

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

Fort Myers probate 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.

When a Loved One Dies and Leaves You with Debt in Florida

Wed, 25 Jan 2012 08:00:00 EST

If your loved one has accumulated a significant amount of debt, understand that it will not automatically go away upon his or her death. There are a number of things that may happen to debt. The following questions have been answered by a Wall Street Journal article.

Who pays what? If it was a joint credit card account, for example, the survivor will be responsible for making the payment. If the account is only in the deceased person's name, you may be off the hook legally. How the person died does not affect who is responsible.
What tactics will debt collectors use? If you have a will, a debt collector could go to probate court and file a claim. However, assets going to relatives are typically off-limits.
What if the deceased didn't have a will? Debt collectors will try to persuade someone who isn't obligated to pay.
What do lenders do for protection? Risky borrowers are generally charged higher interest rates.
How is a mortgage affected? The house could be repossessed if only the deceased signed the mortgage. If the survivor is also a borrower, then he or she will be responsible for paying.

To ensure that you have a solid estate plan, you should schedule a consultation with a Fort Myers probate attorney.

Help from a Fort Myers Probate Attorney is Just a Phone Call Away

Fort Myers probate 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.

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

Tue, 17 Jan 2012 08:00:00 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.

Matthew A. Linde is addmitted to practice before the U.S. Supreme Court

Mon, 16 Jan 2012 08:00:00 EST

On January 9th, 2012, Matthew A. Linde was admitted to practice before the U.S. Supreme Court. What is interesting about the federal courts is that an attorney licensed in a state must separately apply to each federal court that the individual intends to practice in front of. The U.S. Supreme Court is necessary not only because it hears discretionary appeals from federal courts, but also because the U.S. Supreme Court is generally the only court that hears appeals from the various state supreme courts. For additional information, contact Matthew A. Linde, P.A. today.

Avoid Florida Estate Planning Mistakes: Protect Your True Beneficiaries

Fri, 13 Jan 2012 08:00:00 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 Florida Estate Planning Mistakes

Wed, 11 Jan 2012 08:00:00 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 08:00:00 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 08:00:00 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.

Estate Planning in Florida: Keeping Your Beneficiaries Informed

Sat, 31 Dec 2011 08:00:00 EST

Besides signing papers to establish your estate plan, you need to make sure your heirs will be able to find your documents. According to an article in The Wall Street Journal, many states, including Florida, are investigating whether certain insurers are not paying unclaimed policies to beneficiaries.

Insurers, however, claim they are conducting business lawfully. Based on policy contracts, they don't have to take action to determine whether a policyholder is still among the living, but they are required to pay when beneficiaries do request payment.

To avoid any problems with your policy, you can get the assistance of a Fort Myers estate planning attorney to help you secure important documents and keep your family posted of their whereabouts.

If you fail to keep any important papers in order, financial consequences could be significant. The National Association of Unclaimed Property Administrators has verified that state treasurers are holding $32.9 billion in unclaimed assets, including bank accounts. If you think you have unclaimed assets, visit MissingMoney.com.

Experts suggest you create a folder of documents that your loved ones can access in an emergency. You can also leave your documents with your Fort Myers estate planning attorney or keep them at home in a fireproof safe. Just make sure someone you trust knows the combination.

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 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.

4 Things You Should Know About Estate Planning in Florida

Fri, 30 Dec 2011 08:00:00 EST

If you have been procrastinating about your estate planning, now is a good time to stop putting it off. If you need assistance, you can get in touch with an estate planning attorney in Fort Myers. To help you get started, here are 4 things you should know about estate planning, according to an article at CNNMoney:

Despite how much or how little you are worth, you should have an estate plan to outline your financial goals when you die.
There are several elements to an estate plan. They include a will, living will, and power of attorney. Depending on your situation, you may also need a trust.
When you take inventory of your assets, you should include all investments, insurance policies, retirement savings, business interests, and real estate holdings. Now is the time to decide who will get your assets and who will handle your affairs if you are incapacitated.
If you discuss your estate planning with your heirs, you may prevent confusion and disputes down the road. When you make your intentions clear, you can dispel potential conflicts.

Estate planning can be very difficult, with tax laws continually changing and other legal issues often cropping up. To protect your interests, you should schedule a consultation with an estate planning attorney in Fort Myers.

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

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

Beware of Gift Tax Rules in Florida Estate Planning

Thu, 29 Dec 2011 08:00:00 EST

If you have any concerns about filing a gift tax return, you may want to schedule a consultation with a Fort Myers estate planning attorney. Generally, gifting over $13,000 to an individual necessitates the filing of a gift tax return, according to Better Business Bureau. However, there are exceptions to this rule, depending on who you are gifting and what the gift is for.

If you are gifting your spouse, a gift tax return will not be necessary. Charities don’t count either because the IRS will consider gifts to charities contributions that may be tax deductible. School tuition doesn’t count either, and neither does medical expenses, even if you are paying those expenses for a non-relative.

However, such gifts must be paid directly to a hospital or school. Keep in mind that if you make a contribution to a Section 529 plan (college savings), your payment will not go directly to a college, so it likely will not be waived.

When you make a gift valued at more than $13,000, don’t stay awake at night worrying about the gift tax. The IRS will spot you $5 million throughout your lifetime, meaning you can gift $5 million in your lifetime, and $13,000 per person annually, before you trigger the gift tax. However, you still must file a return so the IRS can keep track of transfers.

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 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.

Florida Estate Planning: Naming a Guardian for Your Child

Wed, 28 Dec 2011 08:00:00 EST

If you’re the parent of a young child or children in Florida, your estate planning should include the naming of a guardian in your will. If you don’t name a guardian and your child becomes orphaned, your child’s fate could be up to a judge.

Although it can be emotionally disturbing to name a guardian for your children, it’s important that you do so. To get past the emotional block, consider the following, from an article at The Wall Street Journal:

A guardian isn’t forever. You can change your mind later, through a codicil, if you decide that the person you picked wasn’t a good choice.
The guardian doesn’t have to be a blood relative. Close family friends can and should be considered.
You and your spouse will need to compromise if you’re having trouble naming a guardian. You should each make a list of potential guardians and try to find common ground.

After you’ve compiled a list of potential guardians:

spend time with each to get a feel for how they’ll treat your children;
discuss practical details such as geography, education, and religion; and
consider lifestyle issues, such as whether your potential guardian has the housing to accommodate your children.

Keep in mind that many guardians named in wills never actually have to take on the role of guardian. Still, it’s best not to leave this to chance. For help, you can speak with an estate planning attorney in Fort Myers.

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 guardianship 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.

There's More to Florida Estate Planning than a Will

Tue, 27 Dec 2011 08:00:00 EST

Although the most important document that you need for your Florida estate plan is a will, there are other must-have documents tailored to certain circumstances, according to an article in The Wall Street Journal:

Revocable trusts - these can be changed during your lifetime and they’re more private than wills and more difficult to dispute.
Letter of instruction - provides your executor with contact information for your Fort Myers estate planning attorney, financial advisers, and accountant. It can also provide funeral instructions.
Durable financial power of attorney form - without this, no one will be able to make financial decisions if you become incapacitated.
Proof of ownership - documentation of any real estate ownership, stock certificates, cemetery plots, vehicles, escrow mortgage accounts, and so forth. It’d be a good idea to keep copies of your last 3 tax returns available. They can provide a snapshot of your assets.
Life insurance and retirement accounts – copies of your insurance policies, especially those provided by an employer, should be accessible by a close family member. You should also compile a list of annuities, pensions, 401(k) plans, and individual retirement accounts.

These are just a few of the documents that should accompany your will. Additional documents include a healthcare power of attorney form, marriage license, or divorce papers. You can always discuss your individual needs with a Fort Myers estate planning attorney.

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 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.

Matthew A. Linde is invited to speak at the ABA National Conference on Specialization!

Wed, 21 Dec 2011 08:00:00 EST

Listed below is what I, Matthew A. Linde, will be speaking about. The more I get involved in this research, the more obvious it becomes in my opinion that the peer review component of the Florida Bar's board certification program is seriously flawed and based on many concepts other than the science of human behavior.

Section §1.01 of the ABA Standards for Specialty Certification Programs for Lawyers “establishes standards by which the American Bar Association will accredit specialty certification programs for lawyers in particular fields of law.” Section 4.06(B) of the ABA Standards for Specialty Certification Programs for Lawyers lists the following requirement for programs applying to the ABA:

(B) Peer Review -- A minimum of five references, a majority of which are from attorneys or judges who are knowledgeable regarding the practice area and are familiar with the competence of the lawyer, and none of which are from persons related to or engaged in legal practice with the lawyer.
(1) Type of References -- The certification requirements shall allow lawyers seeking certification to list persons to whom reference forms could be sent, but shall also provide that the Applicant organization send out all reference forms. In addition, the organization may seek and consider reference forms from persons of the organization's own choosing.
(2) Content of Reference Forms -- The reference forms shall inquire into the respondent's areas of practice, the respondent's familiarity with both the specialty area and with the lawyer seeking certification, and the length of time that the respondent has been practicing law and has known the applicant. The form shall inquire about the qualifications of the lawyer seeking certification in various aspects of the practice and, as appropriate, the lawyer's dealings with judges and opposing counsel.

The history of lawyer specialization in the United States has been reasonably well documented. ¹ Several states directly certify licensed attorneys in various specialties.² While peer review is present in each of the state programs, there is significant variation in what the peer review component is supposed to accomplish within the certification plan. ³
Recently, Zisser v. The Florida Bar 630 F.3d 1336, (11th Cir. 2011) and Petersen v. The Florida Bar, 720 F.Supp.2d 1351 (M.D. Fla. 2010) has been portrayed as a positive development. ⁴ However, there is much less discussion about whether the various peer review procedures implement good policy. Do a search on Westlaw or Lexis under “legal specialization” and “peer review.” What is interesting about the search results is the fact that there are no results from any state other than Florida.⁵
Could the amount of litigation in Florida be related to how Florida processes the peer review data? For example, California specifically requires that the committee chair “designate one member of the Commission to investigate significant negative responses to assure that they are related to proficiency and not to personality conflicts or other factors irrelevant to proficiency.” Florida has gone the opposite direction and requires peer review for professionalism, ethics and reputation for professionalism.⁶ Arizona requires than any negative information in peer review must be corroborated or substantiated or it will not be used.⁷ Florida has no such requirement.

The presentation critically examines the beliefs that form the foundation of Section 4.06(B) of the ABA Standards for Specialty Certification Programs and compares the state programs. What is supposed to be accomplished by peer review? Are the various state procedures accomplishing the goal? Are some states more effective than other states because of how the peer review data is processed? If a state administrator is seeking to improve the peer review program, what is the best model to follow?

¹See generally: Specialist Certification for Lawyers: What is going on? 51 U. Miami L. Rev. 273 (1997); Specialty Certification as an Incentive for Increased Professionalism: Lessons from Other Disciplines and Countries, 54 S.C. L. Rev. 987 (2003); History of Attorney Specialization in Indiana, 40 Val. U.L. Rev. 451 (2006).

²A list of the states is available at: http://www.americanbar.org/groups/professional_responsibility/committees_commissions/specialization/resources/resources_for_lawyers/sources_of_certification.html

³Compare §9.0 of the Rules Governing the State Bar of California Program for Certifying Legal Specialists with §2.08 of the Florida Standing Policies of the Board of Legal Specialization and Education.

⁴See U.S. 11th Circuit upholds constitutionality of certification peer review, The Florida Bar News March 1, 2011; available at http://www.floridabar.org/DIVCOM/JN/JNNews01.nsf/cb53c80c8fabd49d85256b5900678f6c/dd393ccbb0f8b74d8525783e004a4419!OpenDocument&Highlight=0,zisser*

⁵See Zisser v. Florida Bar, 630 F.3d 1336 (11th Cir. 2011); Petersen v. Fla. Bar, 720 F. Supp. 2d 1351, (M.D. Fla. 2010); John Doe v. the Florida Bar, Case No. SC10-1328, (Fla. 2010); Jane Doe v. The Florida Bar, Case No. SC08-904, (Fla. 2008); Fla. Bar. V. Coleman, 936 So.2d 566, (Fla. 2006); The Florida Bar Re: Raymond A. Haas, Case No. SC00-1382, (Fla. March 19, 2001); Fla. Bar. V. Ash, 701 So.2d 552, (Fla. 1997).

⁶See Fla. Bar. Reg.§ 6.3-5(c)(5).

⁷See Section VI, I, 4. of Rules and Regulations of the Arizona Board of Legal Specialization.

Matthew A. Linde is running for the Board of Governors of the Florida Bar!

Wed, 21 Dec 2011 08:00:00 EST

What is the Board of Governors of the Florida Bar and why is Matthew A. Linde running for a seat on the Board of Governors?

Good question! If I win the election I qualify for an unpaid position where I get to spend 200-300 hours per year and also pay all my own expenses to attend every meeting. What a deal! Why would anyone want to do that? Read on oh inquisitive one and I will tell why I am spending money to run for a position that will cost me more money. First, the other day I called a friend of mine who is a good attorney and told him I was running for the Board of Governors. He asked me what is the Board of Governors?

According to the Florida Bar website: “The 52-member Board of Governors has exclusive authority to formulate and adopt matters of policy concerning the activities of the Bar, subject to limitations imposed by the Rules Regulating the Florida Bar.”

The purpose of the Florida Bar according to Rule 1-2 (of the Rule Regulating the Florida Bar) is to: “The purpose of The Florida Bar shall be to inculcate in its members the principles of duty and service to the public, to improve the administration of justice, and to advance the science of jurisprudence.”

-to be continued -

Florida Estate Planning: Online Accounts and Passwords

Tue, 20 Dec 2011 08:00:00 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 08:00:00 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 08:00:00 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 08:00:00 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.

Probate in Florida: 10 Parties Involved in the Process

Wed, 07 Dec 2011 08:00:00 EST

There are many entities involved in procedures regarding probate in Florida, which is one reason why the process can take months or longer. For help with your probate concerns, you should schedule a consultation with an estate planning attorney in Fort Myers, Florida.

However, probate is sometimes necessary to ensure that the deceased's creditors are paid and that assets are transferred to the appropriate individual.

10 Parties in the Florida Probate Process

Among the people and entities commonly involved in the probate process are:

· Circuit Court (where probate papers are usually filed);
· Circuit Court clerk;
· personal representative (appointed by a court to handle the administration of the estate and can be an individual, bank, or trust company, subject to certain restrictions);
· attorney for the personal representative (even in simple estate cases, legal issue are likely to arise);
· claimants;
· the IRS;
· Florida's Department of Revenue;
· surviving spouse and any children;
· any other beneficiaries; and
· the trustee of a revocable trust.

To preserve your rights throughout probate in Florida, you will need experienced legal counsel by your side. Therefore, you should not hesitate to meet with an estate planning attorney in Fort, Myers, Florida, who has handled many probate cases and will help you navigate the system.

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.

Surviving spouses sould not be tricked into paying for their deceased spouses debt

Sat, 03 Dec 2011 08:00:00 EST

I read an article in the Wall Street Journal today that bothered me so much that I am placing this on two different places on my website in the hopes that anyone who will benefit by this information may see it. Here is the article:

http://online.wsj.com/article/SB10001424052970204224604577030043890121710.html?mod=WSJ_hp_LEFTTopStories

There is a growing problem that I want you, the spouse of a loved one who has died, to understand. If your husband or wife dies, and you did not incur the obligation (example below) then on the death of your husband or wife, their debt dies with them. You are not personally obligated to pay the debt – period. The Wall Street Journal points out a growing problem that is caused by aggressive creditors.

The creditors will (1) try to trick you into believing that you owe the money, (2) try to guilt you into believing that you owe the money, (3) try to harass you into paying the money.

What does it mean to incur the obligation? For example, your husband signed a contract with a credit card company, but you did not sign anything. Now your husband dies and he owed $15,000.00 on the credit card. You are not responsible for that money. A ruthless creditor may try to talk you into making payments or signing something making you legally obligated to pay the debt. Do not do it. For more information contact Matthew A. Linde, P.A. today!

4 Things Floridians Should Know About Adult Guardianship

Wed, 30 Nov 2011 08:00:00 EST

In order for adult guardianship to be appropriate, your loved one must be mentally or physically incapable of making decisions. If he or she has any legal documents such as a living will or power of attorney for finances, you should have them reviewed by an adult guardianship attorney in Fort Myers, Florida.

According to an article at Caring.com, you should keep in mind the following 4 situations when considering adult guardianship:

if your loved one lacks power of attorney for finances, adult guardianship may be necessary for the estate;
if your loved one lacks a living will or other advance directive, adult guardianship may be necessary for making healthcare decisions;
if your loved one has an advance directive, adult guardianship may still be necessary to handle medical matters that aren't covered under the advance directive, which is provided that the advance directive doesn't name an agent for such decisions; and
If your loved one has a power of attorney for finances and healthcare, adult guardianship may still be necessary to make life decisions such as where to live and who should be allowed to visit.

For more input on adult guardianship, you should schedule a meeting with an adult guardianship attorney in Fort Myers, Florida.

Help From an Adult Guardianship Attorney in Fort Myers is a Phone Call Away

Fort Myers adult guardianship 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 adult guardianship 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.

Financial Tips for Surviving Spouses with Inheritances in Fort Myers, FL

Tue, 29 Nov 2011 08:00:00 EST

As estate-tax rules become more complicated and the market more volatile, some people are putting more of their savings into IRAs, an article at The Wall Street Journal states. Consequently, some widows and widowers are being negatively affected by mistakes made regarding their inheritance.

When you inherit your spouse's IRA, you can roll it over into your own IRA. If you are 59 1/2 or older, this makes sense but if you are younger and need to access your IRA, you could face a 10% penalty. One option is an inherited IRA, in which you may have to follow a withdrawal schedule.

Your portfolio should reflect investments in your inherited IRA or inherited brokerage accounts. Widows and widowers should get help to assess risk tolerance and then redeploy assets in a way that brings about comfort.

Another mistake some widows and widowers make is collecting minimal Social Security benefits at age 60. More benefits can be collected if you wait until your full retirement age, which is based on your birth year.

For more tips on protecting your finances in these volatile times, you should meet with your estate planning attorney in Fort Myers, Florida. Take control of your money, don't let the government diminish your rightful stock options simply because you weren't aware of all the new rules and regulations.

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 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.

5 Things Your Florida Estate Plan Should Include

Tue, 29 Nov 2011 08:00:00 EST

Many people erroneously believe that a will is the only necessary document for estate planning. This is not so if you want a rock-solid estate plan designed to reduce estate taxes, avoid probate, and protect your assets in the event you become mentally or physically incapacitated.

According to an article at ElderLawAnswers.com, a good estate plan should include at least a will and a durable power of attorney. Other useful instruments include a trust, directives and the designation of beneficiaries, as described below:

Will - If you lack a legally-binding will, the state of Florida will determine how your property will be distributed.
Trust - In some circumstances, a trust, which is a private document, can help you to avoid probate and save time and money for your beneficiaries.
Power of attorney - This allows you to appoint someone to handle your finances if you become mentally or physically incapacitated.
Medical directive - This allows you to make your medical wishes known while you're healthy and sound.
Beneficiary designations - When you create your estate plan, it would be a good idea to also make sure your beneficiary designations for your retirement plan are updated. To control where your money will go, you need to name beneficiaries.

To give your estate plan a check-up, you should speak to an estate planning attorney in Fort Myers, Florida.

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 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.

The Estate of Huguette Clark appears headed for litigation

Tue, 29 Nov 2011 08:00:00 EST

Huguette Clark, who died in May at the age of 104 had an estate of over $400,000,000.00. Ms. Clark died in a hospital. She had two different wills that were changed weeks apart. One will signed in March 2005 left most of the estate to her family (i.e., relatives since she had no children) and another will executed weeks later left her estate to charity and a nurse and cut out her family. Ms. Clark received her fortune from her father who was U.S. Senator William A. Clark. Senator Clark represented the state of Montana after amassing a huge fortune mining copper.

Her relatives filed an action in the New York Surrogate Court recently to review how money was spent over the last several years of her life. Ms. Clark’s assets were managed by two people named Bock and Kamsler. These two were among few people who had access to Ms. Clark over the last several years of her life. According to a court ordered accounting of the finances as overseen by Bock and Kamsler demonstrated that this woman who lived in a hospital room spent over $1,000,000.00 per month. Bock and Kamsler are accused of manipulating Ms. Clark for her money.

It appears that there will be a fight over her estate. I have seen over and over again who individuals who have wealth are usually surrounded by people who are afraid to help wealthy person is obviously becoming incapacitated. People just seem to be afraid to assert that a wealthy person is incapacitated. It is almost as if we have some type of belief that it is bad to be incapacitated, and by denying the obvious we are helping the wealthy person out. This is not true. If you or I live long enough, we will be incapacitated; it is just part of life. It is far better to claim that someone needs help than to ignore the situation because the incapacitated person is rich or was very powerful when that person had capacity. Ignoring the situation can allow the wealthy person to be exploited by those people he or she trusted. If you have a loved one who may be losing capacity, do not hesitate to contact Matthew A. Linde, P.A. today!

Considering adult guardianship in Florida? Review the Pros and Cons

Mon, 28 Nov 2011 08:00:00 EST

When an individual can no longer make important life decisions, a judge may appoint a guardian to make those decisions. This person, often called a conservator or adult guardian, may be tasked with calling the shots on decisions regarding finances, personal care or medical issues.

According to an article at Caring.com, adult guardianship, also known as conservatorship, has several advantages:

family members can have peace of mind that someone is making decisions for their loved one;
the guardian will have authority when it comes to dealing with third parties; and
major decisions may require a judge's approval.

A few disadvantages are:

adult guardianship can be costly to establish and time-consuming;
an older individual may find it humiliating; and
it can be an emotional experience for family members if they disagree on who should be the guardian.

Adult guardianship may be ideal if your loved one is suffering with a form of dementia, such as Alzheimer's disease; a stroke; life-altering injuries; or any other serious medical condition. However, if the individual has an advance directive or durable power of attorney for finances, some medical and financial decisions might already be established.

To find out if adult guardianship would be a good fit for your loved one, you should schedule a meeting with an adult guardianship attorney in Fort Myers.

Help From an Adult Guardianship Attorney in Fort Myers is a Phone Call Away

Fort Myers adult guardianship 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 adult guardianship 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.

The Time is Now: Take Advantage of the $5 Million Gift-Tax Exemption

Mon, 28 Nov 2011 08:00:00 EST

According to an article in The Wall Street Journal, the time is now to benefit from the $5 million lifetime gift-tax exemption, which is scheduled to stay valid through 2012. If you wait too long, you might lose out because Congress could whittle the gift-tax exemption down to $1 million. When you have questions about your estate planning, contact your attorney.

To take advantage now, you could:

Make a gift of any of your assets that you can quickly transfer. For example, you could deed a house that's paid off. By doing so, you can avoid the lengthy process of lender approval. With the assistance of a Fort Myers realtor, you can get an idea of the value of this taxable gift.
Transfer equity interest in a limited liability company, family partnership, or S corporation.
Consider forgiving any intra-family loans that you may have made when taking advantage of low interest rates. This would allow you to complete a gift without any new accounts or further transfers.

For more tips on taking advantage of the gift-tax exemption, you should schedule a meeting with an estate planning attorney in Fort Myers, Florida. An experienced attorney can help with all of your estate planning needs including your will, trusts, power of attorney and advance directive.

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 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.

With Living Trusts, You Still Need a Will in Florida

Mon, 21 Nov 2011 08:00:00 EST

Although living trusts in Florida can help you manage property for a beneficiary, you should also have a will. Otherwise, you risk having some property automatically fall into probate. With the help of a North Fort Myers, Florida attorney, you can protect yourself and your beneficiaries with the proper documents.

Wills usually have a clause naming the recipient of all property that hasn't been specifically left to a beneficiary. If you were to buy a car shortly before your death, for example, and had not yet included it in your will, you might not have had the title transferred to a living trust either. If you didn't have a will, the car would end up in the long, drawn-out probate process.

However, if you did have a will containing the clause mentioned above the car would be granted to the recipient in your will. In the absence of a will, property that hasn't been transferred to living trusts will be given to your closest relatives, according to Florida law.

Since there's no guarantee that courts will distribute your property as you'd like, your best bet is to contact a North Fort Myers, Florida attorney to have a will drafted so your wishes can be honored.

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

North 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 living trusts, 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.

4 Reasons To Get an Advance Directive in Florida

Thu, 17 Nov 2011 08:00:00 EST

One of the most important documents that you should have is an advance directive. In Florida, you can get the assistance of an estate attorney in Fort Myers for help with this document, which will allow you to make end-of-life decisions while you are capable.

Reasons to Have an Advance Directive in Florida

Although an advance directive is optional, you should consider it if:

you want your wishes respected when you are incapable of making medical decisions;
you don't want your life prolonged through artificial means; and/or
you don't want CPR performed if your heart stops and you have an end-stage condition.

You should know that no one, including your doctor, can force you to have an advance directive. However, without an advance directive in Florida, you may receive more medical treatment than you desire.

When you lack an advance directive, your medical team can consult with the following people for guidance:

your spouse;
an adult child;
a court-appointed guardian;
either one of your parents;
an adult sibling;
other relatives; or
a close friend.

If you want your voice to be heard, speak to an estate attorney in Fort Myers to help you prepare your advance directive.

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 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.

Matthew A. Linde celebrates 10 years as a member of the Florida Bar

Wed, 16 Nov 2011 08:00:00 EST

Matthew A. Linde, originally admitted in Wisconsin 1993, Minnesota 1996, California 1997 and Florida 2001 celebrates 10 years as a member of the Florida Bar!

Questions to Ask Estate Planning Attorneys in Fort Myers, Florida

Tue, 15 Nov 2011 08:00:00 EST

There are many reasons to hire an estate planning attorney in Fort Myers, Florida. When you have legal guidance, you can get tips on coordinating assets, adequately providing for your children or spouse, and avoiding huge tax bills. If you try to handle your estate planning with a DIY kit, you may run into problems. Speak to estate planning attorneys in Fort Myers, Florida.

Before You Hire an Estate Planning Attorney in Fort Myers, Florida

There are a few questions you should ask estate planning attorneys, in Fort Myers, Florida, before you hire one:

Is there a flat rate for legal fees?
How will your plan be maintained?
What's the best way to choose a guardian to protect minor children until they become adults?
Will you be working directly with the attorney or members of the staff, and who should you contact with urgent questions?
Will you be notified if and when tax laws change and will there be related fees?

All of the above questions should be answered to your satisfaction when you interview potential estate planning attorneys in Fort Myers, Florida. If you are comfortable with the answers, you may have a comfortable working partnership with the attorney you choose to hire.

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 Florida estate planning, 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 Living Trusts Help You Avoid Probate in Florida

Sat, 12 Nov 2011 08:00:00 EST

One of the main purposes of revocable living trusts in Florida is to avoid probate upon your death. However, a North Fort Myers, Florida attorney who handles probate and estate planning will tell you that complete probate avoidance will not be easy.

Under ideal circumstances, all property that has been transferred per a living trust will avoid probate. When you die, the trustee will transfer ownership of the property to your beneficiary, as stated in your trust document. When ownership of all property has been transferred according to the terms set forth in the document, the trust will cease to exist.

Difficulties with Living Trusts

Any assets that were not in the trust and are subject to probate would still be probated.

If the trust is not properly funded, you won't be able to avoid probate, which can last for months and often entails:

identifying and inventorying property;
getting property appraised;
paying taxes and debts; and
distributing property according to your will or Florida law.

It would be best that you speak with a North Fort Myers, Florida attorney if you are seeking a living trust with the goal of avoiding probate. An attorney can help you make decisions that would be best for you and your beneficiaries.

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

North 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 living trusts, 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.

The Advance Directive in Florida: 5 Things You Should Know

Thu, 10 Nov 2011 08:00:00 EST

If you are considering an advance directive in Florida, there a few things you should know about this document. Your fist step should be to meet with an estate attorney in Fort Myers to get a thorough understanding of what an advance directive encompasses.

5 Things to Know About an Advance Directive in Florida

The purpose of an advance directive is to enable you to make your end-of-life wishes known in the event that your medical condition prevents you from making sound decisions.

With most advance directive documents, you should know the following:

you can designate information about organ donation;
you can revoke the advance directive at any time;
if it meets legal requirements, your advance directive in Florida will be honored in other states;
in an emergency situation, those closest to you will need to provide your medical team with your advance directive, therefore it's important that you make copies of your advance directive and give them to as many people as possible (family, neighbors, clergy, doctor); and
if paramedics are called and they aren't provided with a copy of your advance directive, they will be required to perform CPR and other life-saving measures, despite your desires.

An estate attorney in Fort Myers is an excellent resource for input on advance directives. Contact an attorney today to get your estate planning documents in order.

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 your advance directive 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.

New weapon to set aside a Florida will during contest

Wed, 09 Nov 2011 08:00:00 EST

Effective July 1, 2011, now a beneficiary or potential beneficiary can attack a will by claiming that the beneficiary did not intend to say in the will what the beneficiary clearly did say. Florida statute 732.615 states the following:

§ 732.615. Reformation to correct mistakes

Upon application of any interested person, the court may reform the terms of a will, even if unambiguous, to conform the terms to the testator's intent if it is proved by clear and convincing evidence that both the accomplishment of the testator's intent and the terms of the will were affected by a mistake of fact or law, whether in expression or inducement. In determining the testator's original intent, the court may consider evidence relevant to the testator's intent even though the evidence contradicts an apparent plain meaning of the will.

Before this statute took effect on July 1, 2011, if the terms of a will were clear, then the will could not be changed if the terms of the will were clear and unambiguous; however, now even if the will is clear, the terms of the will can be changed to reflect the testator or testatrix's intent if that intent can be proved by clear and convincing evidence;

This is a major change in the law; for more information, contact Matthew A. Linde, P.A. today.

Seniors Might Cut Tax Bill by Writing Off Medicare Premiums

Fri, 28 Oct 2011 08:00:00 EST

Seniors have fallen into a habit of claiming a standard deduction rather than itemizing because they practically have no mortgage interest and there is no state income tax in Florida. Therefore, itemized deductions that the rest of us commonly claim will often amount to nothing for senior citizens, according an article at SmartMoney.com.

Additionally, those who are 65 or older tend to get significant standard deductions. However, the standard deduction may not be beneficial if you are burdened with medical expenses.

Medical expenses can be deducted only when they exceed 7.5% of your adjusted gross income (AGI). When you tally your expenses, don't forget to add your Medicare insurance premiums. Medicare premiums along with out-of-pocket expenses can help you reach the 7.5% AGI parameter. This may cause your itemized deductions to surpass the standard deduction amount.

To find out if itemizing will help you cut tax bill, you should:

Decide which expenses are medical expenses - add up your premiums for Medicare Parts B, C and D; supplemental Medicare; qualified long-term care; out-of-pocket bills; and relatives' medical expenses.
Subtract 7.5% of your AGI for your total medical expenses.
Add other itemized deductions and compare all deductions with your standard deduction amount.

When you've done this, you might discover that itemizing is your best bet.

Help from a Tax Planning Attorney in Fort Myers is Just a Phone Call Away

Fort Myers tax planning attorney Matthew A. Linde understands firsthand the importance of careful tax planning and the complexities of financial legal matters, such as probate, tax litigation and guardianship. For help with your tax 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.

Appointed executor of an estate? A Tough Task Lies Ahead

Thu, 27 Oct 2011 08:00:00 EST

You may consider it an honor to be asked to be an executor of an estate, but you should be warned of the tough task that lies ahead, according to a Wall Street Journal article.

After someone's death, you'll be faced with numerous tasks, and if anything goes wrong, legal repercussions may arise. Also, it's not uncommon for relationships to be adversely affected. If you take on this job, you should be organized and prepared to deal with a lot of red tape.

Sources indicate that incidences of troubled executorships are increasing, with one source calling it an epidemic. The increase could be related to the sour economy, causing a lot of fighting over inheritances.

Keep in mind that the executor has the job of administering the will through probate, and this generally involves the following:

paying bills;
accounting for assets; and
distributing property per the deceased's wishes.

For a midsized estate, this may take up to 2 years, but for larger, more complicated estates, it could take more than 3 years. When heirs challenge the will, you could be thrown amid depositions and court appearances. Ideally, the role of executor isn't a position for amateurs. If you need help, you should speak to an estate planning attorney in Fort Myers.

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 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.

New IRS Estate Rules May Pose a Problem

Wed, 26 Oct 2011 08:00:00 EST

The IRS has clarified estate rules affecting those who die in 2011 and 2012. According to a Wall Street Journal report, the new rules may be problematic for some people.

In December 2010, the estate tax was reinstated and the amount exempt from the tax was raised to $5 million for individuals and $10 million for married couples. There was also a "portability" provision, allowing surviving spouses to rollover part of the deceased's exemption that had not been used.

In an effort to preserve the spouse's exemption, executors are now required to file an estate tax return that lists assets and the value of those assets, despite how minimal the value may be.

Since estate tax returns have a deadline of 9 months after the death, the deadline may have passed for someone who passed away in January. However, you could request a 6-month extension, but you'd be held accountable for interest on any taxes owed.

Married couples who left everything to each other once faced the dilemma of losing the estate tax exemption upon the death of a spouse. When the 2009 exemption was $3.5 million, for example, the survivor could shield only $3.5 million from the estate tax. The solution involved special trusts, considerable planning, and sometimes significant legal fees.

The new requirement could be problematic because advisers don't always file federal returns if the exemption amount is more than the value of the estate but, even small estates must file a return to hold onto unused exemptions.

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 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.

Deadline Looms for Charity Tax Break

Tue, 25 Oct 2011 08:00:00 EST

According an article in the Wall Street Journal, you have until the end of 2011 to transfer as much as $100,000 from an IRA to qualified charities without counting that money as taxable income, only if you are 70.5 or older.

It is unclear whether this tax provision will be extended beyond 2011, but there is a good chance that it will because of strong support from prominent charitable organizations. Some lawmakers are even considering making the provision permanent.

To qualify for this provision, your transfer must be directly made to charity, the key word being "directly." Charitable organizations are in favor of this provision because it has led to significant donations over the years.

Diana Aviv, who is president and CEO of a coalition of charities, said the provision has become popular for the wealthy as well as those in the middle-income bracket. Gifts have been pouring in from an array of donors, she said.

If you need assistance with your tax planning, you should consult with a Fort Myers tax planning attorney. An experienced tax planning attorney can help you take the proper steps to lower your tax bill, protect your business, and get your financial affairs in order.

Help from a Tax Planning Attorney in Fort Myers is Just a Phone Call Away

Fort Myers tax 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 tax 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.

Could you benefit from low interest rates?

Mon, 24 Oct 2011 08:00:00 EST

The October interest rates that the Internal Revenue Service set for estate-planning transactions and private loans are a record low, the Wall Street Journal has reported. Those rates, issued Sept. 19, will be reset for the month of November.

The October rates are as follows

Short-term rate: down to 0.16% from 0.26%;
Mid-term rate: down to 1.19% from 1.63%;
Long-term rate: down to 2.95% from 3.57%; and
Blended rate (estate-planning techniques) down to 1.4% from 2%.

The figures are good news for taxpayers hoping to take advantage of the low rates. For example, intrafamily loans are looking more attractive. This would be a good time to lend money to a child to buy a home.

It's also a good time to take a closer look at "related party" loans, those between a small business and the owner or between family members. If you informally borrow money from your business, you can now formalize the arrangement at a reduced cost.

You could also set up a GRAT, a grantor-retained annuity trust. You can temporarily transfer assets to a trust through a GRAT, and at the end of the term, you'll get an annual annuity based on interest rates.

To discuss other ways to benefit from lower rates, it would be wise to speak to a Fort Myers estate planning attorney.

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 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.

What You Should Know About Florida Homestead Laws

Sat, 22 Oct 2011 08:00:00 EST

As a homeowner and family member, you should be aware of how you or your family may be affected by Florida homestead laws. To thoroughly understand this complex area of the law, you should meet with an estate planning attorney in Fort Myers, Florida, to discuss your situation.

You should know that if you put your house in a trust, Florida homestead laws will still apply. As long as you have a spouse and minor children living in your home, you can not will it away or trust it away. The rules are different if you are single or if you have adult children.

Estate Planning for Your Florida Homestead

Since these rules are for Floridians only, you can benefit by speaking with an estate planning attorney in Fort Myers, Florida.

Your attorney can explain the specifics of homestead issues such as:

property taxes;
household expenses;
mortgage principal and interest;
protection from creditors;
the allocation of expenses;
wills;
trusts; and
durable power of attorney.

Your attorney can gather background information from you and help you get started on your estate planning to protect your family's future. With the guidance of an experienced attorney, estate planning can be a less stressful process.

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 Florida homestead 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.

History of Codicil on a Will in Florida

Sat, 22 Oct 2011 08:00:00 EST

If you're in a situation in which you need to add or delete someone from your will, you could have a new will drafted or pursue a codicil on a will in Florida. Your first step is to speak to an estate planning attorneys in Fort Myers, Florida, who can provide input on the risks involved with a codicil.

If you're unfamiliar with a codicil, you should know that's it's an amendment to your last will and testament. It amends sections of your will without the necessity of drafting a new will. It could be a few pages, a couple of paragraphs, several sentences or just one word.

Long before the computer era, documents such as wills were handwritten. While attorneys created the documents, scriveners did the actual writing. Since wills were quite lengthy, it made no sense to rewrite a 20-page document just to incorporate minor changes. Thus the codicil came about.

Eventually typewriters were widespread, but they had no memory, so a codicil was still a better option than retyping a 20-page document. Today, wills can easily be saved on computers and recreated, with no need for a codicil.

To get a better understanding of a codicil on a will in Florida vs. a new will, you should speak with estate planning attorneys in Fort Meyers, 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 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.

Codicil on a Will in Florida vs. a New Will

Fri, 21 Oct 2011 08:00:00 EST

You may have been considering a codicil on a will in Florida if you have decided to modify your will. However, you may be better off just having a new will drafted. To understand how you could be adversely affected by a codicil, you should consult with estate planning attorneys in Fort Myers, Florida.

Although codicils have proven to be efficient in the past, that's not the case today. With computers and document programs widely accessible, drafting a new will is just as efficient as creating a codicil. It no longer takes a legal secretary several hours to recreate a will from scratch. Instead, the previous will can be used to make any changes you request.

Additionally, if you have the same attorney who drafted your original will, he or she will know where to make changes that are necessary to conform to any new laws. The rest of the will can simply be reprinted. A new attorney, however, may be hesitant to draft a codicil if there are any concerns about the validity of your will.

Many attorneys have no problem doing codicils for various reasons such as force of habit or lack of document assembly programs. If you're undecided about whether to pursue a codicil on a will in Florida, you should speak with estate planning attorneys in Fort Myers, Florida, for more input.

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 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.

Making Sense of Florida Intestacy Law

Thu, 20 Oct 2011 08:00:00 EST

Failure to prepare a will can cause a lot of problems and confusion when you die. To get a thorough understanding of Florida intestacy law and to get started on preparing a will, you should speak to an estate attorney in Fort Myers Florida.

According to Florida law, property that's distributed to descendants or heirs passes "per stirpes.'' What this means is that, depending who is alive, children or grandchildren can receive portions of the estate.

For example, if the deceased was not married, then his or her descendants will get the entire estate.

If 2 children were left behind, each child would receive an equal distribution of the estate. If both children had 2 grandkids, and one child preceded the deceased in death, the grandkids of the deceased child would split their parent's share of the estate.

The other child would still receive half of the estate, but the grandkids would each receive 25% of the estate.

It's quite obvious that Florida intestacy law is difficult to navigate and understand. To get your questions and concerns answered, you should schedule a consultation with an estate attorney in Fort Myers. The sooner you have a will prepared, the sooner you can rest assured that confusion regarding your estate will be kept to a minimum.

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 Florida homestead 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 Florida Homestead Laws Can Protect Your Family

Wed, 19 Oct 2011 08:00:00 EST

As long as you own a home and have a family, you should consider estate planning, and the sooner you get started the better. To avoid any confusion upon your demise, you should meet with an estate planning attorney in Fort Myers, Florida, to discuss Florida homestead laws and the impact they may have on your family.

Florida homestead rules mandate that if you have a spouse or minor children, your home automatically goes to them when you pass away. As a result, if your family is in debt, they will be protected from creditors.

If, for example, your family has significant credit card expenses or medical bills, those creditors will not be allowed to take their home in an effort to settle debts. However, your family will be responsible for the mortgage, and all property inside the home will not be exempt from the creditors.

It would be beneficial to meet with an estate planning attorney in Fort Myers, Florida, to take steps that will protect your family in the future. Your attorney, who has vast experience in estate planning, can help you understand revisions to Florida homestead laws and the impact they may have on your unique situation.

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 Florida homestead 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.

Pre and Post Nuptial Agreements Are Essential

Tue, 11 Oct 2011 08:00:00 EST

The follow circumstances occur all too often in Florida. Assume that you are a mature (say over 65) man or woman with a sizable estate who is in love. You may have been married for many years and your spouse unfortunately passed away a few years ago. However, before you marry again there is some information you should be aware of. Without a pre or post nuptial agreement, the moment your marriage is final your spouse has the following rights to your estate upon your death if you were domiciled in Florida even if you have a will: (1) the right an intestate share of your probate estate under certain circumstances (pretermitted spouse); (2) the right to receive thirty percent (30%) of your elective estate; (3) a life estate in your homestead property; (4) the right to $20,000.00 of tangible personal property, (5) the right to two vehicles; (6) all qualified tuition programs authorized by Section 529 of the internal revenue code, (7) a family allowance during administration not to exceed $18,000.00; Thus, without proper planning Florida law can act like a wrecking ball on your previously executed estate plans. For more information contact Matthew A. Linde, P.A. today!

Matthew A. Linde, P.A. acquires probatelitigator.com

Mon, 03 Oct 2011 08:00:00 EST

Matthew A. Linde, P.A. has acquired probatelitigator.com. Now floridaprobatelitigator.com and probatelitigator.com are one and the same website. The names of the website are based on the fact that most of the legal services that Matthew A. Linde, P.A. provides relate to trust and estate/probate litigation. This area is Mr. Linde's passion. For more information, contact Matthew A. Linde, P.A. today!

The Florida requirements for a durable power of attorney are changing

Sat, 24 Sep 2011 08:00:00 EST

Section 709.2112 changes the statute relating to compensation. This section will spawn litigation and lots of it. Unfortunately, many attorneys prepare durable powers of attorney (hence "DPOA") without really understanding the terms and conditions of the document. Here is a provision that incorporates a fee provision into a DPOA regardless of whether that provision is contained within the document. Take a situation where there are two daughters. One daughter takes care of the parent, and the parent gives the daughter authority under a DPOA. However, the document is silent concerning compensation. Five years later the parent dies. During the estate administration, the daughter who was an agent files a claim for compensation as the parent's agent. Now under the statute the daughter is entitled to compensation in an amount considered to be reasonable. Litigation lawyers love this type of statute because ambiguity breeds conflict, which can result in litigation. The better result here is to define what is reasonable under the statute or prohibit compensation altogether. For more information contact Matthew A. Linde, P.A. today!

§ 709.2112. Reimbursement and compensation of agent [Effective October 1, 2011]

(1) Unless the power of attorney otherwise provides, an agent is entitled to reimbursement of expenses reasonably incurred on behalf of the principal.
(2) Unless the power of attorney otherwise provides, a qualified agent is entitled to compensation that is reasonable under the circumstances.
(3) Notwithstanding any provision in the power of attorney, an agent may not be paid compensation unless the agent is a qualified agent.
(4) For purposes of this section, the term "qualified agent" means an agent who is the spouse of the principal, an heir of the principal within the meaning of s. 732.103, a financial institution that has trust powers and a place of business in this state, an attorney or certified public accountant who is licensed in this state, or a natural person who is a resident of this state and who has never been an agent for more than three principals at the same time.

Matthew A. Linde is forming an ad hoc committee pursuant to Fla. Bar. Reg. 1-12.1(f)

Mon, 05 Sep 2011 08:00:00 EST

In accordance with the Firm's Mission Statement Matthew Linde is forming an ad hoc committee pursuant to Fla. Bar. Reg. 1-12.1.(f) to suggest improvements to the Florida Bar Board Certification process.

Currently, when a member in good standing with the Florida Bar (the "Applicant") seeks board certification in one of twenty-four areas, that member must demonstrate compliance with four objective areas and one subjective area. The subjective area relates to "peer review." Peer review is generally obtained by sending a "Confidential Statement of Reference" ("CSR") to attorneys competing for business with the Applicant. The Applicant must waive any right to see peer review, and "reviewers" are assured that any comments they make about the member seeking certification will remain secret.

Basically, the CSR lists questions such as "[a]re there any incidents in the applicant's law practice which, in your opinion, reflect conduct which has been undignified or discourteous to the court or towards opposing counsel?" Most questions contain no time reference. The members filling out the CSR may well be a local member of the Florida Bar with one of several reasons to libel the applicant. For example, the reviewer may be someone who has lost several court cases to the applicant. The reviewer may be competing with the Applicant for business in the local market and may not want to have a competitor become board certified because the Applicant who is board certified in an area of law can then market him or herself as an expert. The reviewer may be one of the few certified attorneys in a local market and may not want any more certified attorneys in the local market.

The CSRs are mailed to a committee of nine unpaid volunteer attorneys who decide in secret whether the Applicant has met the requirements for peer review. The Applicant can never see the peer reviews, and the Applicant will never know exactly how the unpaid volunteers meeting in secret determined whether the secret comments were truthful or based on malice, jealousy, based on something that occurred in the distant past or simply not accurate. If the unpaid volunteers decide the Applicant does not qualify based on the secret reviews, the Applicant may appeal. However, the Applicant bears the burden of proving that the unpaid volunteers' opinion based on secret reviews that Applicant cannot see does not comply with Florida Bar rules and regulations. Yes this is really occurring in the United States of America.

Matthew Linde believes this process can be improved. If you are an attorney in good standing with the Florida Bar with courage who is interested in taking part in improving this process, then contact Matthew A. Linde, P.A. today.

Courage (noun): mental or moral strength to venture, preserve, and withstand danger, fear or difficulty. Our forefathers who signed the Declaration of Independence as follows had courage: "And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor."

Noticing creditors is a big part of the probate process

Sat, 27 Aug 2011 08:00:00 EST

A big part of the probate process is properly noticing creditors. The process is dictated by Florida statutes. Florida Statute § 733.2121 reads as follows:

Notice to creditors; filing of claims:
(1) Unless creditors' claims are otherwise barred by s. 733.710 [Editors Note: this bars claims if the decedent died two years before the claim was filed], the personal representative shall promptly publish a notice to creditors. The notice shall contain the name of the decedent, the file number of the estate, the designation and address of the court in which the proceedings are pending, the name and address of the personal representative, the name and address of the personal representative's attorney, and the date of first publication. The notice shall state that creditors must file claims against the estate with the court during the time periods set forth in s. 733.702 [ Editors Note: this statute limits the filing of claims to the later of two periods: First claims must be filed within three months after being published in a local newspaper, or if the creditor is "reasonably ascertainable" then the creditor must file a claim within 30 days after being served by mail with a notice to creditors].

(2) Publication shall be once a week for 2 consecutive weeks, in a newspaper published in the county where the estate is administered or, if there is no newspaper published in the county, in a newspaper of general circulation in that county.

(3) (a) The personal representative shall promptly make a diligent search to determine the names and addresses of creditors of the decedent who are reasonably ascertainable, even if the claims are unmatured, contingent, or unliquidated, and shall promptly serve a copy of the notice on those creditors. Impracticable and extended searches are not required. Service is not required on any creditor who has filed a claim as provided in this part, whose claim has been paid in full, or whose claim is listed in a personal representative's timely filed proof of claim.

The important thing to do in a probate proceeding is to promptly publish a notice to creditors as soon as the personal representative is appointed. The police underlying the probate process is the prompt orderly administration of a decedent's estate. If no notice to creditors is published, then the potential creditor has two years after the date of the decedent's death to file a creditor's claim. For more information contact Matthew A. Linde, P.A. today.

Does your trust or estate own your tangible personal property?

Sun, 03 Jul 2011 08:00:00 EST

If you have set up a trust, you must transfer your property to the trust to enjoy one of the benefits of setting up the trust. Thus, how you transfer tangible personal property to a revocable trust is an important question. After the death of the creator of a trust (identified after death as the "decedent"), if tangible personal property has been transferred to a revocable trust, then the successor trustee of the trust will control the tangible personal property. However, if the tangible personal property has not been transferred to a trust, then upon the decedent's death, the disposition of the tangible personal property will be governed by the decedent's will. The will and the trust may not transfer the tangible personal property to the same individuals, and this can be a hotly contested issue if the value of the tangible personal property is significant. Thus, the best way to ensure that the decedent's intent to vest the ownership of the tangible personal property to the trust is clear is to execute a bill of sale transferring the property to the trust. The bill of sale should identify the tangible personal property transferred to the trust with sufficient detail so that there are no problems understanding what property is transferred to a trust and what property is not transferred to the trust. It is also a good idea for the trustee to confirm receipt of the tangible personal property.

Without a bill of sale, it will be very difficult to prove that the decedent intended to transfer his or her tangible personal property to the trust. For additional information, contact Matthew A. Linde, P.A. today!

Attorney Matthew A. Linde has been invited to become a Barrister at the Calusa Chapter of the American Inns of Court

Mon, 30 May 2011 08:00:00 EST

Attorney Matthew A. Linde has been invited to become a "Barrister" at the Calusa Chapter of the American Inns of the Court. The main objective of an Inn of Court is to promote excellence in legal advocacy, as well as professionalism civility and ethics in the legal profession. Attorney Linde is honored to receive this invitation. Attorneys who are most successful understand that professionalism, civility and exceeding the minimum ethical requirements of the Florida Bar benefit the legal system and the litigator's client. These goals are reflected in the Firm's mission statement.

Matthew A. Linde, P.A. adds business page on facebook.

Sat, 23 Apr 2011 08:00:00 EST

Matthew A. Linde, P.A. has added a business page on facebook. This page supplements www.floridaprobatelitigator.com, and you can speak to attorney Matthew A. Linde directly. Matthew A. Linde, P.A. concentrates his practice on probate, trust and guardianship litigation, probate and trust administration, estate planning and elder law. Facebook allows you to see frequent posts directly from Attorney Linde about a given issue.

This will contest demonstrates that it is critically important to have a qualified, experienced attorney prepare an estate plan to avoid endless litigation.

Tue, 12 Apr 2011 08:00:00 EST

As recently stated in the New York Post, will contests can take years. Singer and actor James Brown's old record producer Jacque Hollander is attempting to have a federal court to stop a settlement agreement reached, after three years of litigation, that gives James Brown's children a share of a fortune estimated at some $100 million, including royalties and marketing rights. Brown's original will acknowledged his six children (there are claims that there are more), but the will but left them only personal and household effects.

To see the full story navigate to the website based on the link listed below. This will contest demonstrates that it is critically important to have a qualified, experienced attorney prepare an estate plan to avoid this type of endless litigation. For more information contact Matthew A. Linde, P.A. today!

http://www.nypost.com/p/news/national/godfather_soul_feud_X6eaJP3B7cAciCYkrzMNeM

Elderly couple loses everything through misuse of a durable power of attorney.

Sat, 09 Apr 2011 08:00:00 EST

The following article appeared has appeared in various forms on several local news websites in the Tampa Bay area. This article is a perfect example of what can happen when too much authority is transferred pursuant to a durable power of attorney. In this example, it wasn't even the agent who took the money; it was the agent's spouse. What is really sad is when I sit in my office and hear stories like this with the elderly couple sitting in the room with a look of "what are we going to do?" The couple has a cause of action against their son and their daughter-in-law, but given their lack of capacity, an independent guardian would have to be appointed, and there may be nothing to recover anyway. A durable power of attorney is document with a lot of power, and should never be given to someone without carefully considering the alternatives. In this situation, if the elderly couple had set up a revocable trust with the son as the trustee, then this would have been less likely to occur. For more information contact Matthew A. Linde, P.A.

HERNANDO COUNTY -- A Hernando County woman's gambling problem has landed her in a lot of trouble. According to the Hernando Sheriff's Office, Jennifer Dennison stole more than half a million dollars from her in-laws to support her gambling habit. Officials said along the way, she spent a little more than $14 million at the Seminole Hard Rock Casino in Tampa. According to the sheriff's office's report, Dennison, 42, took approximately $513,535 from her in-laws' accounts. Officials said her husband Scott had Power of Attorney for his 88-year-old father and 73-year-old mother with advanced dementia, but that Jennifer handled the finances. "The information I got from the Seminole Casino was she would spend $200,000 to $300,000 a day at the casino," Economic Crimes Detective Irene Gray said. Hernando County Sheriff Al Nienhuis said Dennison's husband didn't know she was stealing his parents' life savings until another family member noticed a check didn't clear in their account. "Obviously this was a shocker for the family," Nienhuis said. "And it was even a little surprising to us. It was a considerable amount of money." A five-month investigation yielded that the older couple's finances, including savings and checking accounts, CD's, annuities, life insurance and retirement funds, had been wiped out. The sheriff's office report said of the $14 million Dennison lost gambling during a two-year period, she won most of it back. Her winnings' were about $13 million, leaving her at a loss of a little more than $700,000. Dennison teaches sonography at Sanford Brown College in Tampa, where two students say she bragged about the gambling. Former college student Gina LaBruno says she complained to an administrator months ago about Dennison and another teacher. "They would brag about winning Blackjack," she said. "They were great at Blackjack. That's what we heard about all the time." The college is actually just a short distance from the casino and LaBruno says Dennison and another teacher actually let classes out early to go gamble. "They released our classes an hour to two hours early many days when they knew they had students failing," she said. "But yet they were more interested in heading out to the casino." Dennison turned herself in to authorities Tuesday and was booked into the Hernando County Jail. She has been charged with exploitation of the elderly, organized scheme to defraud, forgery of checks, and uttering forged checks. She bonded out of jail Tuesday night. Dennison has an attorney and chose not to talk to Hernando County investigators about the allegations. Sanford Brown College spokesperson Mark Spencer said the last class Dennison taught was in December and she wasn't scheduled back for another month. He also said they had no knowledge of her gambling allegations.

Details of 2010 changes to estate, gift and GST tax law

Wed, 23 Feb 2011 08:00:00 EST

Matthew A. Linde, P.A. has explained the basics of the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 (hence the “2010 Estate Tax Relief Act”) that was signed into law by the President on December 17, 2010 (PL 111-312, 12/17/2010). This law changes the gift and estate tax law through December 31, 2012. To review these changes follow this link.

See a video of attorney Linde's personal experience with undue influence

Wed, 09 Feb 2011 08:00:00 EST

Attorney Matthew Linde adds video telling the story of how his own father Lee Linde was subject to undue influence, and how living through that experience has helped attorney Linde advise you concerning the legal, emotional and practical issues that you face when deciding whether to pursue an undue influence case.

Florida appellate court holds that husband and wife can waive homestead rights by signing a joint deed.

Wed, 09 Feb 2011 08:00:00 EST

Editor's Note: This blog was left on the website to illustrate an important point: this website should be used to help you understand general issues necessary to ask appropriate questions when selecting an attorney. The website is not a legal source or legal advice. That is the reason for Terms and Conditions at the bottom of every page. In this case the decision described below was withdrawn by the 3rd District's own motion on May 17, 2011 at 2011 Fla. App. Lexis 8989. The court stated as follows: "Upon the Court's own motion, and upon consideration of a settlement of this appeal before the issuance of a final opinion, the non-final opinion issued February 9, 2011, 2011 Fla. App. LEXIS 1528, 36 Fla. L. Weekly D 300, is hereby withdrawn." This is one of many reasons that you need qualified counsel to assist you. For more information contact Matthew A. Linde, P.A. today!

The holding of this recently decided case [Habeeb v. Lindner 36 Fla. L. Weekly D300c (3rd DCA Case 3D10-1532, 2011)] is interesting to attorneys in Florida who practice in real property and probate because of a question that the case answers concerning homestead waiver between a husband and wife.

The scenario in this case is this: Husband (H) and Wife (W) sign a deed transferred property from H and W as tenants by the entireties to H or W or H or W’s trust. Both H and W sign the deed. Then W dies. W’s will gave H a life estate, but the remainder of the property passed to W’s sister. H’s nephews sued after H’s death claiming that because the property was H and W’s homestead, and the homestead rights were not specifically waived, W’s will could not devise the homestead except to H in fee simple. The question is whether by signing the deed, H & W waived their rights to the homestead property within the meaning of Florida Statute §732.702 or whether a separate waiver required.

As the Third District Court of Appeals stated:

“The question presented, apparently one of first impression in Florida, is whether the 1979 warranty deed accomplished a complete transfer or waiver of Mitchell's [Husband’s] homestead rights under article X, section 4(c) of the Florida Constitution. Expressed another way, the appellant argues that no such transfer or waiver of Mitchell's [Husband’s] homestead interests was effectual in 1979 because the warranty deed failed to satisfy the requirements of section 732.702(1), Florida Statutes (1979).”

“The statute itself contemplates that a “written contract, agreement, or waiver” may be used to memorialize a relinquishment of a spouse's homestead rights. These alternatives demonstrate that “waive” is not a talismanic word within the statute, so that a contract or agreement may accomplish the same result. Neither the statute nor any interpretation of the statute supports the appellant's argument that Mitchell was required to execute a second “contract, agreement, or waiver” after (1) title had vested exclusively in Virginia's name, (2) she “formed the intention that the property would be her domicile or permanent residence,” and (3) he survived her. To the contrary, the Florida Supreme Court has concluded that a spouse's single agreement under section 732.701(1) “is the legal equivalent of predeceasing the decedent, for purposes of article X, section 4(c).” City National Bank of Florida v. Tescher, 578 So. 2d 701, 702 (Fla. 1991). In that case, as here, the surviving spouse had waived homestead previously and no minor children survived the decedent.”

Thus, it appears that husband and wife can alienate their homestead property in a joint deed without having to prepare a separate waiver. For additional information, contact Matthew A. Linde, P.A.

Matthew A. Linde includes videos at floridaprobatelitigator.com

Tue, 08 Feb 2011 08:00:00 EST

What is it like meeting attorney Matthew A. Linde? To answer that question please review the new video provided by Matthew A. Linde to floridaprobatelitigator.com. Check back often because new videos will be added all the time with general outlines of legal issues within the practice areas of Matthew A. Linde, P.A. This specific video provides you with a general idea of the purpose of the website.

Second District Court of Appeals rules that joint tenancy property is not automatically converted to decedent's homestead because decedent had minor children.

Sun, 30 Jan 2011 08:00:00 EST

A Florida appellate court has held that property held by a decedent with his mother as joint tenants with right of survivorship is not the decedent's homestead despite the fact that the decedent owned one-half of the home and had minor children. In a probate proceeding, an administrator ad litem appealed a trial court’s decision that property owned by the decedent with his mother as joint tenants with right of survivorship was not homestead property despite the fact that the decedent has minor children. The administrator ad litem has asked the court to declare that one-half of the home was the decedent's homestead and belonged to the decedent's children.

The appellate court ruled that the Florida constitution does not prevent a person with minor children from taking property as a joint tenant with a right of survivorship with someone else. The Florida homestead laws only attach if the house is actually the decedent’s homestead, and the Florida’s homestead laws do not prevent a home owner from purchasing property as a joint tenant. This was a harsh result becasue the decedent's chilidren had no interest in the house and the decedent's mother owned the house outright. This case also creates planning opportunites because now someone can avoid Florida homestead laws by initially taking the property with someone else as joint tenants with right of survivorship.
For additional information contact Matthew A. Linde, P.A.

See In Re Estate of Francis A. De Rosa 36 Fla. L. Weekly D214a (2nd DCA 2011).

Matthew A. Linde becomes second attorney in Florida to pass both Elder law and Wills, Trusts and Estates Board Certification Exams in the same calendar year.

Mon, 10 Jan 2011 08:00:00 EST

According to the Florida Board of Legal Specialization and Education, as of January 10, 2011, only one (1) other attorney (out of over 90,000 licensed to practice in Florida) has ever taken and passed both the certification exam for Elder law, and the certification exam Wills, Trusts and Estates in the same calendar year. While Mr. Linde cannot claim he is board certified unless he is actually deemed to be board certified by the BLSE, passing both these exams demonstrates Mr. Linde’s desire to relentlessly pursue perfection in the passionate and ethical practice of law. For more information, contact Matthew A. Linde, P.A. today.

The court has authority to sanction meritless claims in probate disputes.

Mon, 13 Dec 2010 08:00:00 EST

In JACQUELYN BENNETT and BOBBIE SUE MILLER v. MARIE-CHRISTINE BERGES, CHRISTIAN DeVOCHT, JEAN-LUC DeVOCHT, LUDOVIC J. DeVOCHT, M.D., LTD. PROFIT SHARING PLAN, and JOHN L. DeVOCHT, Trustee, (4th District; Case No. 4D09-3129; Fla. L. Weekly D2689a; decided December 8, 2010), the appellate court reaffirmed a sanction against the appellate (person(s) who file the appeal) for making false claims against the decedent’s children.

As with many probate disputes, this case involved the surviving spouse of the decedent (the person who passed away) and the decedent’s surviving children. The procedural history of the case is convoluted. However, at one point the surviving spouse told the judge at a hearing that the three children has converted assets held in a profit sharing plan. The court asked the surviving spouse for any evidence that the children had wrongfully converted assets from decedent’s profit sharing plan. The surviving spouse could not produce any proof to substante her allegation. The court continued the hearing to allow the surviving spouse additional time to present to the court evidence that the children converted assets from a profit sharing plan. The surviving spouse did not bring any evidence at the next hearing.
The trial court then granted the children’s motion for an award against the surviving spouse equal to the amount of attorney’s fees the children had to pay their attorney for attending the two hearings. The appellate court remanded the case back to the trial court because the trial court did not present detailed findings of fact to support its decision. Further, the court held that an award of fees against a party personally cannot come from Florida Statute 733.106(3) because that statute does not allow for personal liability. However, the Florida Supreme Court has stated that a trial court has inherent authority to impose attorney’s fees against an attorney or party to the litigation for bad faith conduct, but the trial court must specifically find that the award of sanctions is specifically related to the conduct that the court finds is engaged in with bad faith.

The lesson from this appellate case is that when litigating it is always important to tell your attorney and the court the entire truth. A skilled attorney will then argue how, based on the law, the truth in your dispute requires the judge to rule in your favor. For more information contact Matthew A. Linde, P.A. today.

Florida court holds property held in trust is decedent's homestead

Sat, 30 Oct 2010 08:00:00 EST

In Florida, Article X, Section 4, of the Florida Constitution treats improved real property that the Decedent (i.e., the person who has died) lived in as her or her domicile (place where he or she intended to reside permanently) at his or her death, as the Decedent’s “homestead” property. Section 4 of Article X of the Florida Constitution is printed below.

§ 4. Homestead; exemptions
   (a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the following property owned by a natural person:
   (1) a homestead, if located outside a municipality, to the extent of one hundred sixty acres of contiguous land and improvements thereon, which shall not be reduced without the owner's consent by reason of subsequent inclusion in a municipality; or if located within a municipality, to the extent of one-half acre of contiguous land, upon which the exemption shall be limited to the residence of the owner or the owner's family;
   (2) personal property to the value of one thousand dollars.
(b) These exemptions shall inure to the surviving spouse or heirs of the owner.
(c) The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner's spouse if there be no minor child. The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift and, if married, may by deed transfer the title to an estate by the entirety with the spouse. If the owner or spouse is incompetent, the method of alienation or encumbrance shall be as provided by law.

One advantage of having improved real property treated as “homestead” property is that creditors of the Decedent’s estate cannot force a sale of the homestead if the homestead property was willed, or transferred by operation of Florida intestate (intestate refers to the estate of a decedent who died without a valid will) statutes to the Decedent’s heirs. However, since the late 1980s, revocable trusts have become very popular. Among the Florida legal community, many articles have been written indicating that since Section 4 states that property must be “owned by a natural person” property held in a revocable trust is not owned by a natural person and therefore not homestead property and could be subject to creditors.

This issue is becoming more common because many Floridians are dying while their homestead property is owned by the trustee of a revocable trust. What is also more common in this economic environment is that Floridians are dying owning some improved real property where the debt exceeds the value of the property. Thus, creditors are searching for assets and are trying to claim that trustee owned homestead property is not really the decedent’s homestead.
The Third Circuit Court of Appeals recently addressed that issue in James Aronson, et. Al. v. Doreen Aronson, Third District Case No. 3D09-773 filed on October 27, 2010. In Aronson a married individual had died, and at the time he died the condominium he was living in was owned by himself as the trustee of his revocable trust. At the time of his death, the trust become irrevocable, and his two children of a prior marriage became trustees. The widow filed various claims and the trial (lower) court declared that the condominium was not exempt from a forced sale. The Third District disagreed without much discussion and reversed the trial court’s determination that the condominium owned by the trust was not the Decedent’s homestead. Thus, Florida lawyers now have at least one decision that specifically states that property held in a revocable trust at the decedent’s death is the decedent’s homestead property. For more information contact Matthew A. Linde, P.A. today!

The lawyer made a mistake drafting the will and dad signed it, and now dad has died! (Part 1)

Sat, 25 Sep 2010 08:00:00 EST

A will, or any part of it that is the result of a mistake is void pursuant to Fla. Stat. §732.5165. However, the word mistake is not defined in the statute. Under Florida law a will can be set aside because the person signing the will actually thought he was signing a prenuptial agreement or some document other than a will. This is generally referred to as a “mistake in execution.” A will that is the result of a mistake in execution will be set aside by the court.

What a court will generally not do is set aside a will that is the result of a “mistake in inducement.” Assume that dad goes to a lawyer and hires lawyer to prepare a will. Also assume that mom predeceased dad, and dad intends to split all his assets between his kids upon dad’s death. The lawyer sits at his computer and pulls up a will that he made for Mary Smith. The lawyer changes the name of Mary Smith throughout the document to dad’s name, but forgets to change the part of the document that sets up a trust for dad’s children through each child’s life, and gives the balance of that child’s share to the child’s children upon the child’s death.

Dad never reads the whole document and does not realize that on page seven of the will is a trust for the benefit of each of dad’s children (you and your sister) through each child’s life. Further, Greedy Bank is named as trustee. Dad signs the will without reading it fully, and then dad dies a year later. You, one of dad’s children now read the will and realize that Greedy Bank is the trustee of a trust for you throughout your life. You know that dad never intended this, and you also know that dad did not always read everything that he signed. You want to void the part of the will setting up a trust for you and your sister because dad did not fully understand what he was signing (i.e. he made a mistake). This is a form of a mistake in the inducement, and if the clause creating the trust for you and your sister is clearly written, the court will not set the provision aside if you claim that dad made a mistake when he signed the will creating the trust. The same problem would occur if the will gave four parcels of real estate to one child but only two parcels of real estate to the other child. The child would not be able to set the will aside by claiming that dad mistakenly left an extra property to one child if the provisions disposing the property were clearly written. What then can you do in that situation? See Part II.

But should I choose an attorney off the internet?

Thu, 19 Aug 2010 08:00:00 EST

Recently I (Matthew Linde, Esq.) was speaking with a potential client about estate planning. I always ask people I am privileged to speak with how they found me. This person said “I found you on the internet, but that is not a good way to find an attorney.” This surprised me and I asked her how should you find an attorney? She really did not have an answer. This got me thinking, how should you choose an attorney?

No one can do everything. What should you look for when choosing an attorney? First, just because someone is an attorney, that doesn’t mean they can help you. For example, attorneys who practice many different areas (i.e., personal injury, business, estate planning, and immigration law) cannot be very knowledgeable in any one area. Personal injury has nothing to do with estate planning and when you see this type of breadth, there is a good possibility that the attorney is trying to be all things to all people. A jack of all trades and a master of none is not who you want to solve your legal problems. I concentrate my practice on a few areas that are all interrelated.

Just because the attorney has been doing that a long time does not mean that the attorney has been doing it right. Just because any attorney concentrates his or her practice in a few areas that does not mean that the attorney is technically competent. Years of experience can be one way to judge technical competence, but doing something incorrectly for many years is unlikely to solve your problem. For you the consumer, how do you tell if someone is technically competent? One way to tell is what steps has that attorney taken to demonstrate he or she is technically competent? For example, in 2010 Matthew Linde, Esq. passed the 2010 Florida Elder Law Board Certification Exam and the 2010 Florida Wills, Trusts and Estates Board Certification Exam (this is a very difficult exam and many fail it) in the same year. Out of over 74,000 attorneys in the state of Florida, there is (as of January 10, 2011) one (1) other attorney attorney that passed both of these exams in one year. While Mr. Linde cannot claim he is board certified unless he is actually deemed to be board certified by the BLSE, passing both these exams demonstrates Mr. Linde’s desire to relentlessly pursue perfection in the passionate and ethical practice of law as reflected in the firm's mission statement.

Law is complicated; if you feel compelled to ask how long your potential attorney has been working then . . . Of course, just because an attorney has been practicing only a few years that does not mean that he or she cannot assist you in solving your problem. If you have a simple task (i.e., evicting a tenant who did not pay rent) then why pay a higher hourly fee when a less experienced attorney with a lower hourly rate can solve your problem? However, if you have a complicated estate dispute with estate tax implications, then you need someone with significant experience. I started practicing law over 17 years ago.

Great, but do you currently have time to handle my problem? Ding! Ding! Ding! Ding! This is the question that you should always ask a competent, experienced professional who concentrates his or her practice in the area that you need legal assistance in. Many lawyers can be blessed (sometimes it seems like cursed) by his or her own success. Just because a lawyer is qualified, that does not mean the lawyer has the time to help you. All experienced professionals at one time or another are too busy to help you. Thus, always ask the professional if they have time to help you now.

In summary, what is important is not how you meet the lawyer, but what factors you should consider when deciding whether a lawyer is qualified to help solve your problem. Please note that the factors listed above is not an all inclusive list. Contact Matthew A. Linde, P.A. today for more information.

What does it mean that the person executing the will lacked capacity?

Sat, 14 Aug 2010 08:00:00 EST

A will may be invalidated if the person executing the will (called the testator (male) or the testitrix (female)) lacked the capacity to execute the will. Generally, the person executing the will has "sound mind" when he or she has the ability to mentally understand in a general way:(1) the nature and extent of the property to be disposed of; (2) the testator's relation to those who would naturally claim a substantial benefit from his will; and (3) a general understanding of the practical effect of the will as executed.

In a will contest for lack of capacity, it is important to know that the burden to prove that someone lacked capacity is on the person wanting to invalidate the will. The law presumes that the person executing the will had capacity. The standard that has to be met is that the person challenging the will has to demonstrate that it is more likely than not that the person who executed the will lacked capacity. It is also important to note that even if someone lacks capacity, that person can still execute a will if the person has a "lucid moment." In practice, it is difficult to prove someone lacked capacity unless the person is quite incapacitated. What happens in a trial is that each side will hire an expert. Most of the time the proponent of a will can find an expert that will testify that it is not clear that the decedent lacked capacity. When you hear that type of testimony, you have a problem because the person attempting to invalidate the will has the burden of proof on the issue. However, it is also true that someone who appears to have capacity can actually lack capacity because sometimes only someone skilled in this area of law understands the issue. Thus, if your relative executed a will under suspicious circumstances then contact Matthew A. Linde, P.A. for more information.

Matthew A. Linde passes 2010 Wills and Trusts Board Certification Exam

Wed, 28 Jul 2010 08:00:00 EST

In October of 2009 Mr. Linde filed an application to become a Board Certified Wills, Trusts and Estates Attorney. The Board of Legal Specialization & Education of the Florida Bar administers the certification program. No new applicant can be board certified in Wills, Trusts and Estates unless the applicant passes the board certification exam. Matthew A. Linde has passed the 2010 Wills, Trusts and Estates Board Certification Exam. However, Mr. Linde is not a board certified Wills, Trusts and Estates attorney unless and until he meets all requirements for certification and is actually certified by the Florida Bar Board of Legal Specialization & Education. To be board certified an attorney must meet the following requirements:

(1) A minimum of 5 years substantially engaged in the practice of law; (2) A satisfactory showing of substantial involvement in the particular area for which certification is sought during 3 of the last 5 years preceding the application for certification; (3) A satisfactory showing of such continuing legal education in a particular field of law for which certification is sought; (4) Passing an examination applied uniformly to all applicants to demonstrate sufficient knowledge, skills, and proficiency in the area for which certification is sought and in the various areas relating to such field; (5) Peer review shall be used to solicit information to assess competence in the specialty field, and professionalism and ethics in the practice of law. To qualify for board certification, an applicant must be recognized as having achieved a level of competence indicating special knowledge, skills, and proficiency in handling the usual matters in the specialty field. The applicant shall also be evaluated as to character, ethics, and reputation for professionalism. An applicant otherwise qualified may be denied certification on the basis of peer review.

Mr. Linde believes that a professional must never be satisfied with his or her performance. Thus, Mr. Linde continues to take steps to increase his knowledge and skill.

Is congress creating an incentive for death?

Sat, 10 Jul 2010 08:00:00 EST

For individuals who die in 2010, the estate tax rate is zero (0). However, under the current law, if an individual dies in 2011 (or one minute after midnight on January 1, 2011) the tax rate increases to 55% with an exemption of $1,000,000.00. The failure of congress to act creates great uncertainty for individuals with estates that exceed $1,000,000.00 or couples with estates that exceed $2,000,000.00. See the following link for an interesting article from the Wall Street Journal.

It is becoming increasingly likely that Congress will not act before the end of the year. Thus, in 2011, the estate tax becomes roaring back with a vengeance. Most estate planners (I would have to include myself) were convinced that even our dysfunctional Congress would not let this happen. However, it is prudent at this point to plan for the worst and hope for the best. Individuals and families with estates that would have been sheltered under the old law should have their estate planning reviewed especially if the individual or family will owe estate taxes if the current law scheduled to take effect in 2011 is not changed.

Do I need a trust?

Sat, 03 Jul 2010 08:00:00 EST

I am often asked whether an individual or couple needs a trust. Most people are not sure what a trust is, but they have heard that a trust may help them “avoid probate.” Before deciding whether you (individual or couple) need a trust it is helpful to know what a trust is. Basically, a trust is a legally enforceable agreement between the settlor (person or persons creating the trust), the trustee (the person(s) or entity that has certain duties) and the beneficiaries. The duties the trustee has to manage the trust property and the duties the trustee has toward the settlor and the beneficiaries are defined in the trust agreement and by state (Florida) law.

A trust can provide many benefits for the settlor and the beneficiaries. For example, a trust is not supervised by a court and generally provides more privacy for a settlor because there are no public records where some outside person will be able to determine who the beneficiaries are. A trust provides for centralized management of assets. Properly funded, a trust can avoid the probate process and may be a less expensive way to transfer assets. A trust is an excellent vehicle to plan for various contingencies such as if a primary beneficiary dies or become disabled. A trust can be used to minimize estate taxes or minimize income taxes among several beneficiaries. I usually set up one joint trust between a husband and wife so a husband and wife do not have to actually split assets when setting up an estate plan. Generally the larger the estate, the more likely the settlor(s) will benefit from a trust.

However, a trust is not for everyone. For example many times individuals with a modest or small estate consisting primarily of their homestead property do not need a trust. When a settlor dies there are still duties for the trustee to perform, and trust administration can be a complicated a probating a large estate. I know several one attorney in town to tries to convince every individual to set up a complicated dynasty trust no matter what the size of the individual's estate. If you do not understand that a 50 page trust says or why you need it, then you should never set one up. Contact attorney Matthew Linde today for more information.

Matthew A. Linde passes 2010 Elder Law Board Certification Exam.

Tue, 01 Jun 2010 08:00:00 EST

In August of 2009 Mr. Linde filed an application to become a Board Certified Elder Law Attorney. The Board of Legal Specialization & Education of the Florida Bar administers the certification program. No new applicant can be board certified in Elder Law unless the applicant passes the board certification exam. Matthew A. Linde has passed the 2010 Elder Law Board Certification Exam. However, Mr. Linde is not a board certified elder law attorney unless and until he meets all requirements for certification and is actually certified by the Florida Bar Board of Legal Specialization & Education. To be board certified an attorney must meet the following requirements:

(1) A minimum of 5 years substantially engaged in the practice of law; (2) A satisfactory showing of substantial involvement in the particular area for which certification is sought during 3 of the last 5 years preceding the application for certification; (3) A satisfactory showing of such continuing legal education in a particular field of law for which certification is sought; (4) Passing an examination applied uniformly to all applicants to demonstrate sufficient knowledge, skills, and proficiency in the area for which certification is sought and in the various areas relating to such field; (5) Peer review shall be used to solicit information to assess competence in the specialty field, and professionalism and ethics in the practice of law. To qualify for board certification, an applicant must be recognized as having achieved a level of competence indicating special knowledge, skills, and proficiency in handling the usual matters in the specialty field. The applicant shall also be evaluated as to character, ethics, and reputation for professionalism. An applicant otherwise qualified may be denied certification on the basis of peer review.

Mr. Linde believes that a professional must never be satisfied with his or her performance. Thus, Mr. Linde continues to take steps to increase his knowledge and skill.

A Will can be rescinded if testator executed it based on irrational belief

Wed, 26 May 2010 08:00:00 EST

I have often run into cases where an elderly person changes a will or trust because of a belief the elderly person expressed to third parties that turned out to be false. An all too common situation is that Child 1 is taking care of Parent and stealing Parent’s money. Child 1 tells Parent that Child 2 (who is innocent) is after Parent’s money and is stealing it. Parent then goes to attorney and tells attorney to cut Child 2 out of the will. Parent then dies and Child 2 finds out that she has been cut out of the will. In this scenario Child 2 can always sue to set aside the will after Parent’s death by claiming the will was the product of undue influence. But sometimes undue influence is not a strong case. For example, if Child 1 did not procure the will that cut out Child 2, then undue influence can be hard to prove.

However, there are other options to have the will revoked. Child 2 could seek to set aside the will because Parent was suffering from an “insane delusion” when Parent requested that attorney change the will. To establish an insane delusion, Child 2 would have to prove that: (1) the will would not have been executed but for the delusion, (2) the delusion is defined as a belief of a fact which has no basis in fact, and (3) the belief (leading to the change of the will) is persistently adhered to despite all evidence and reason. What is interesting about the concept of insane delusion is that it originates from some very old cases, but is still followed by the Florida courts. If you suspect this is happening to your loved one or someone you know, contact Matthew A. Linde, P.A. for more information.

Matthew A. Linde P.A. creates floridaprobatelitigator.com

Thu, 20 May 2010 08:00:00 EST

Matthew A. Linde, P.A. is pleased to announce the creation of floridaprobatelitigator.com. While most law firm web sites are all about the attorneys, floridaprobatelitigator.com is all about the problems that consumers face concerning probate and trust litigation, probate and trust administration, estate planning, guardianship administration, durable power of attorney litigation and Medicaid qualification and related asset protection planning. Many times consumers are not sure what questions to ask about a legal problem the consumer is facing. Floridaprobatelitigator.com is designed to provide the consumer with background information necessary so the consumer can ask intelligent questions. This allows you the consumer to make for fully informed decisions. Check out floridaprobatelitigator.com today!

Formal Notice in Probate Requires Informed Response

Wed, 19 May 2010 08:00:00 EST

Probate proceedings are “in rem” proceedings. What this basically means is that the probate court has jurisdiction over the property subject to the probate proceeding. Further, the probate court has jurisdiction over YOUR property interest in the probate proceeding regardless of whether the probate court has personal jurisdiction over you. In Florida, many probate proceedings require that the personal representative or other interested party serve you with certified mail, return receipt requested. This is commonly referred to as “formal notice.” If you have been served with formal notice, then generally you have twenty (20) days to respond to the formal notice. If you fail to respond then under Florida Probate Rule 5.040(a)(2), “the pleading or motion may be considered ex parte as to that person, unless the court orders otherwise.” This means that the court can sign an order adversely affecting your interest in probate property. I have seen individuals lose hundreds of thousands of dollars by failing to take action. Thus, if you do not understand what to do, contact Matthew A. Linde, P.A. for more information.

Common Signs of Undue Influence

Mon, 17 May 2010 08:00:00 EST

Florida courts have held that the following behaviors may demonstrate undue influence. If you suspect that your relative’s will, trust, deed et cetera was changed improperly, do any of these look familiar?

1. Confidential (i.e. private) relationship between the testator and the person allegedly exerting undue influence. In re Estate of Carpenter, 253 So. 2d 697, 701 (Fla. 1971);

2. Fiduciary Relationship between the testator and the person allegedly exerting undue influence. Jordan v. Growney, 416 So. 2d 24, 25 (Fla. 4th DCA 1982);

3. Presence of the person allegedly exerting undue influence at the execution of the will or trust. Carpenter, 253 So. 2d at 702;

4. Presence of the person allegedly exerting undue influence on those occasions when testator expressed a desire to make the will or trust. Id.;

5. Recommendation by the person allegedly exerting undue influence of counsel to draft will and relationship between counsel and the person allegedly exerting undue influence. Id.; Herman v. Kogan, 487 So.2d 48, 49 (Fla. 3d DCA 1986);

6. Knowledge of the contents of the will or trust by the person allegedly exerting undue influence prior to execution. Carpenter, 253 So. 2d at 702;

7. Giving instructions on preparation of will by the person allegedly exerting undue influence to the attorney drawing the will. Id.;

8. Payment of will or trust preparer by the person allegedly exerting undue influence. Id.;

9. Securing witnesses to the will by the person allegedly exerting undue influence. Id.;

10. Safekeeping of the will by the person allegedly exerting undue influence subsequent to the execution. Id.;

11. Execution of will or trust is kept secret from will contestants by the person allegedly exerting undue influence. In re Estate of Burton, 45 So. 2d 873, 875 (Fla. 1950);

12. Age of the testator or settlor. Id.;

13. Opportunity for the exercise of undue influence. Id.;

14. Weak mental and physical health of testator or settlor. In re Estate of Reid, 138 So. 2d 342, 349-50 (Fla. 3d DCA 1962), overruled in part on other grounds, Carpenter, 253 So.2d at 698;

15. Beneficiary caring for testatrix during final months of testatrix's life. Elson v. Vargas, 520 So. 2d 76 [Fla. 3d DCA 1988], review denied, 528 So. 2d 1181 [Fla. 1988];

16. The person allegedly exerting undue influence meeting alone at the attorney's office and instructing the attorney to prepare the testatrix's will designating the beneficiary as the sole beneficiary and personal representative. Id.;

17. The unnatural disposition of testatrix's property. Burton, 45 So. 2d at 875;

18. The person allegedly exerting undue influence taking complete charge of testatrix's estate, thereby placing herself in a fiduciary capacity. Clark v. Grimsley, 270 So. 2d 53, 58 [Fla. 1st DCA 1972];

19. The person allegedly exerting undue influence treating the will execution process as an urgent matter. Carpenter, 253 So. 2d at 702;

20. The person allegedly exerting undue influence is the sole, not just a substantial beneficiary. In re Estate of Van Aken, 281 So. 2d 917, 918 [Fla. 2d DCA 1973];

21. The person allegedly exerting undue influence arranging the appointment with the beneficiary's attorney. Id;

22. A dramatic change from former testamentary intentions. Newman v. Smith, 77 Fla. 667, 675 82 So. 236, 248 [Fla. 1919], rehearing denied, 77 Fla. 688, 82 So. 236 [Fla. 1919]; and

23. Opportunity and motive or interest. Gardiner v. Goertner, 110 Fla. 377, 386, 149 So. 186, 190 [Fla. 1932].

Adversarial Probate Proceedings

Mon, 17 May 2010 08:00:00 EST

Florida Probate Rule 5.025 defines an adversary proceeding. The full rule is listed below. Many inexperienced probate litigation attorneys do not understand that a formal probate is not an adversarial proceeding. However, adversarial proceedings can exist within the formal probate proceeding. In a large probate, there could be many different adversarial proceedings between different interested parties at one time (although with a small probate there may not be any adversarial proceedings). Adversarial proceedings are generally more formal and proceed under the rules of civil procedure (different rules that generally deal with procedure in civil trials). It is critical to understand when you are in the middle of an adversarial proceeding because the burden of production and burden of proof is generally different. Here is the rule:

“(a) Specific Adversary Proceedings. --The following shall be adversary proceedings unless otherwise ordered by the court: proceedings to remove a personal representative, surcharge a personal representative, remove a guardian, surcharge a guardian, probate a lost or destroyed will or later-discovered will, determine beneficiaries, construe a will, cancel a devise, partition property for the purposes of distribution, determine pretermitted share, determine amount of elective share and contribution, and for revocation of probate of a will.
(b) Declared Adversary Proceedings. --Other proceedings may be declared adversary by service on interested persons of a separate declaration that the proceeding is adversary.
   (1) If served by the petitioner, the declaration shall be served with the petition to which it relates.
   (2) If served by the respondent, the declaration and a written response to the petition shall be served at the earlier of:
      (A) within 20 days after service of the petition, or
      (B) prior to the hearing date on the petition.
   (3) When the declaration is served by a respondent, the petitioner shall promptly serve formal notice on all other interested persons.
(c) Adversary Status by Order. --The court may determine any proceeding to be an adversary proceeding at any time.
(d) Notice and Procedure in Adversary Proceedings.
   (1) Petitioner shall serve formal notice.
   (2) After service of formal notice, the proceedings, as nearly as practicable, shall be conducted similar to suits of a civil nature and the Florida Rules of Civil Procedure shall govern, including entry of defaults.
   (3) The court on its motion or on motion of any interested person may enter orders to avoid undue delay in the main administration.
   (4) If a proceeding is already commenced when an order is entered determining the proceeding to be adversary, it shall thereafter be conducted as an adversary proceeding. The order shall require interested persons to serve written defenses, if any, within 20 days from the date of the order. It shall not be necessary to re-serve the petition except as ordered by the court.
   (5) When the proceedings are adversary, the caption of subsequent pleadings, as an extension of the probate caption, shall include the name of the first petitioner and the name of the first respondent.”