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Matthew A. Linde, P.A. handles cases involving business litigation, probate and trust administration, fiduciary, trust, probate and guardianship litigation and estate planning and elder law. The Firm regularly represents clients in Cape Coral, Bonita Springs, Punta Gorda, Port Charlotte and Naples.  The Firm also has some cases in different parts of Florida.

Appeals of probate, guardianship and trust issues

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

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

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

Business/corporate administration and litigation

Matthew A. Linde, P.A. enjoys assisting business owners with the unique issues relating to closely held and family business interests.  Attorney Linde advises closely-held businesses in litigation and through every stage of their business life cycles, including entity formation such as a C corporations, S corporations, general partnerships, limited partnerships, or limited liability companies; administration issues with a growing business and sale of business or succession planning.  Attorney Linde also has extensive experience dealing with the tax issues may impact on any business decision.

Specific services relate to:
• Choice of business entity decisions
• Shareholder/owner issues
• Mergers/acquisitions and sale of closely-held businesses
• Contract development, negotiation, drafting, and enforcement
• Intellectual property and trade secrets protection and development
• Litigation and dispute resolution
• Tax planning, compliance, and tax dispute resolution
• Estate and succession planning and preservation of wealth

If your business issue deals with an area that attorney Linde does not practice in, he can assist you with locating the appropriate professional to meet your needs.  For more information, contact Matthew A. Linde, P.A. today!

Elder law

Under Fla. Bar Reg. R. 6-20.2(a) Definitions:

"Elder law" means legal issues involving health and personal care planning, including: advance directives; lifetime planning; family issues; fiduciary representation; capacity; guardianship; power of attorney; financial planning; public benefits and insurance; resident rights in long-term care facilities; housing opportunities and financing; employment and retirement matters; income, estate, and gift tax matters; estate planning; probate; nursing home claims; age or disability discrimination and grandparents' rights. The specialization encompasses all aspects of planning for aging, illness, and incapacity. Elder law clients are predominantly seniors, and the specialization requires a practitioner to be particularly sensitive to the legal issues impacting these clients.

ERISA retirement plan beneficiary litigation

Estate & disability planning

Estate planning involves preparing for the management and distribution of assets and minimizing gift and transfer taxes during a person’s life and upon their death. There are many factors involved in estate planning under Florida law.  Matthew A. Linde Esq. has many years of experience and can help you with your estate plan, including creating a will, establishing a trust, tax planning, charitable giving, asset protection, integrated wealth transfer and business succession planning.  Mr. Linde has assisted individuals planning modest estates including individuals with estates that exceed $50,000,000.00.  What is unique about Matthew A. Linde, Esq., is that unlike most estate planners Mr. Linde’s practice involves representing individuals, trustees and personal representatives litigating issues relating to wills and trusts.  Thus, Mr. Linde is well aware of the potential problems that arise with wills and trusts after someone has died.  Mr. Linde will put that experience to work for you in designing your estate plan.  For more information contact Matthew A. Linde today!

Estate tax (Form 706) returns

What is a Form 706?

A personal representative or trustee must file a federal estate tax return, or IRS Form 706, United States Estate (and Generation-Skipping Transfer) Tax Return, only after specific criteria with regard to an estate are met. The specific criteria depend on the date that the deceased person (the decedent) died.  Even so, some estates may be required to prepare IRS Form 706 strictly for state estate tax purposes or electing "portability" of the estate tax exemption, while others should consider filing IRS Form 706 even if a return is not required to be filed.

When must a personal representative or trustee file a Form 706?

For deaths that occur in 2013, Form 706 must be filed for the estate of every U.S. citizen or resident whose gross estate, plus adjusted taxable gifts and specific exemption, is more than $5,250,000.  For 2012, the gross estate, plus adjusted taxable gifts and specific exemption, must exceed $5,120,000.   For 2011 the gross estate plus adjusted taxable gifts and specific exemptions must exceed $5,000,000.00.

For the tax years 2011 and forward, the concept of "portability" of the estate tax exemption between married couples has been introduced. What does portability of the estate tax exemption mean? It means that a surviving spouse of a decedent who dies in 2011 or 2012 can elect to pick up their deceased spouse's unused estate tax exemption (referred to as "DSUEA") and add it to their own $5,250,000 (for 2013) exemption.

If a husband dies in 2013 and none of his $5,250,000 estate tax exemption is used, then his wife can elect to add her husband's unused $5,250,000 exemption to her own $5,250,000 exemption so that when the wife dies she can pass on up to $10,500,000 estate tax free. Or, if only $2,000,000 of the husband's $5,250,000 exemption is used, then the wife can elect to add the husband's remaining $3,250,000 exemption to her $5,250,000 exemption and pass on up to $8,500,000 estate tax free.  According to the instructions for IRS Form 706, United States Estate (and Generation-Skipping Transfer) Tax Return, a surviving spouse can elect to use their deceased spouse's unused estate tax exemption by timely filing a Form 706 for their deceased spouse.

When Are Form 706 and the Estate Tax Payment Due?

In general Form 706 must be filed and any tax due must be paid within nine months after the decedent's date of death. However, an automatic 6-month extension of time to file the return is granted for all estates by filing IRS Form 4768, Application for Extension of Time To File a Return and/or Pay U.S. Estate (and Generation-Skipping Transfer) Taxes, but this does not delay the time to pay any tax that may be due. In addition, under certain limited circumstances additional time to file the return may be granted.

When Should a Nontaxable Estate Consider Filing Form 706?

Some estates that are not required to file a federal estate tax return should still consider filing one to lock in the date of death fair market values of the estate assets. This includes estates that utilize multiple sub-trusts after the death of a spouse.  The reason is that it will be much easier to settle the estate of the surviving spouse or non-spouse beneficiary when they later die since the starting fair market values and step-up in basis of the estate assets (this means that the cost of an asset is deemed to equal its fair market value when the assets was owned by a deceased personal at their date of death) will be clearly stated on the initial decedent's IRS Form 706. Imagine trying to settle the estate of a beneficiary 10, 15 or 20 years after the person who the beneficiary inherited their estate from died.

Attorney Linde has assisted personal representatives and trustee with preparing and filing Form 706 for taxable estates exceeding $50,000,000.00 dollars and is familiar with the issues that arise.  It is very important to have experienced counsel to assist you with all the issues you must consider when dealing with taxable estates.  Contact Matthew A. Linde, P.A. for more information today!

Federal trust and estate tax planning, audits and litigation

The tax practice of Matthew A. Linde, P.A. involves individual, trust and estate income tax planning, audits and litigation, tax planning with charitable and exempt organizations, and federal estate tax planning, audits and litigation.  Most people understand that given the complexity of the U.S. tax code it is very important for individuals to structure their affairs to minimize the tax burden.  However, many people do not realize that the same diligence is necessary to minimize the income tax burden for irrevocable trusts and the estate of a deceased person. 

Furthermore, although the estate tax burden has been reduced (at least for the next two years), it is still 40% for estates over $5,250,000.00 for single individuals.  Consequently, if you have a larger estate, planning is still necessary to prevent over one-third of your estate from being transferred to the federal government upon your death.

Fiduciary litigation

According to Black’s Law Dictionary:  a fiduciary is: (1) A person who is required to act for the benefit of another person on all matters within the scope of their relationship (ad defined by law or contract); one who owes to another the duties of good faith, trust, confidence and candor; (2) one who must exercise a high standard of care in managing another’s money or property.

Litigation is the process of prosecuting or defending a lawsuit.  Thus, fiduciary litigation generally involves prosecuting or defending a lawsuit relating to the breach of a fiduciary duty.  This usually involves a personal representative of a decedent’s estate, an individual acting under a durable power of attorney, a trustee of a trust, a corporate money manager, a corporate officer, an individual that has accepted duties under a contract or simply a person who has been trusted by another person to perform a given act when the person has accepted that trust.
 

Attorney Linde has practiced law for twenty years and has prosecuted and defended hundreds of lawsuits relating to the breach of a fiduciary duty.  For additional information contact Matthew A. Linde, P.A. today!
 

Incapacity and guardianship administration and litigation

Under Florida statute 744.102(12) an incapacitated person "means a person who has been judicially determined to lack the capacity to manage at least some of the property or to meet at least some of the essential health and safety requirements of the person.

      (a) To "manage property" means to take those actions necessary to obtain, administer, and dispose of real and personal property, intangible property, business property, benefits, and income.

      (b) To "meet essential requirements for health or safety" means to take those actions necessary to provide the health care, food, shelter, clothing, personal hygiene, or other care without which serious and imminent physical injury or illness is more likely than not to occur."

Adult guardianship begins with incapacity issues, and the reason for this is that if the person has capacity, then they can do what they want to do much to the chagrin of their children sometimes.

Probate and estate administration

Matthew A. Linde, Esq. spends a significant part of his practice dealing with simple and complex probate issues.  Mr. Linde has practiced probate law for many years.  What is probate?  Probate (also known as estate administration) is a process where assets that are owned in the name of a deceased person are transferred to the proper beneficiaries as determined under Florida law.  Probate can be testate (with a will) or intestate (without a will).  The process involves admitting a will to probate, appointing an administrator, noticing potential creditors, paying proper claims and distributing assets to the proper beneficiaries.  There are many issues that can arise in probate and that is why you need someone involved who knows the process.

Probate litigation and will contests

Matthew A. Linde of Matthew A. Linde, P.A. offers experienced representation and concentrates a large part of his practice on trust, probate and guardianship disputes and litigation.

Litigation is commonly defined as the procedure of bringing a dispute in front of a judge or jury for resolution.  There are many different issues that can result in litigation in a probate proceeding including: (1) whether a will is valid (proper execution, invalidity because of mistake, insane delusion, fraud or undue influence), (2) determining the meaning of an ambiguous provision of a will, (3) determining who should serve as personal representative, (4) determining who the heirs of the estate are, (5) determining the assets of the estate, (6) determining whether the personal representative has properly managed the trust assets, (7) determining whether a creditor has a valid claim against the estate, (8) determining whether the personal representative and agents of the personal representative have been paid excessive amounts, (9) removal of a personal representative, (10) proper payment and allocation of estate and income taxes, (11) asset distribution issues.

There are many different issues that can result in litigation in the administration of a trust including: (1) whether a trust is valid (proper execution, invalidity because of mistake, insane delusion, fraud or undue influence), (2) determining whether a trustee or beneficiary should seek judicial modification of a trust provision, (3) determining the meaning of an ambiguous provision of a trust, (4) determining who should serve as trustee, (5) determining whether the trustee has properly managed the trust assets, (6) determining the assets of the trust, (7) determining whether a creditor has a valid claim against the trust – usually through the estate, (8) determining whether the trustee and agents of the trustee have been paid excessive amounts, (9) proper payment and allocation of estate and income taxes, (10) asset distribution issues.

Revocable and irrevocable trust administration

In Florida, once your loved one (the decedent) passes away, questions often arise concerning what has to be done to pay bills and transfer property in the decedent’s trust to the proper beneficiaries.  Briefly, administration of a person's trust estate involves making sure all decedent's property is transferred to the trust, noticing and paying valid creditor claims and taxes, inventorying the decedent's trust assets and distributing the decedent's assets pursuant to the trust to the proper beneficaries.  Trust administration can be quite complicated and you should never attempt to administer a trust without the advise of an experienced trust attonrey.  For more information regarding trust administration, contact Matthew A. Linde today.

Trust and estate federal income (Form 1041) tax returns

A trust is created when a person (the grantor) transfers property to a person or entitle (the trustee) for the benefit of a third person (the beneficiary). An estate is the assets and liabilities a deceased person leaves at death. Both a trust and an estate are separate, legal, taxpaying entities, just like any individual. Income earned by the trust or estate property is income earned by the trust or estate.

Who is liable for taxes on income earned by a trust depends on who receives or retains benefits from the trust. Who is liable for taxes on income received by an estate depends on how the income is classified such as income earned by the decedent, income earned by the estate, income in respect of the decedent (such as an IRA) or income distributed to beneficiaries.

In general, trusts and estates are taxed like individuals. General tax principles that apply to individuals also apply to trusts and estates. A trust or estate may earn tax−exempt income and may deduct certain expenses. Each is allowed a small exemption ($300 for a simple trust, $100 for a complex trust, $600 for an estate). However, neither is allowed a standard deduction. The tax brackets for income taxable to a trust or estate are much more compressed and can result in higher taxes than for individuals.

Every estate or trust has income tax issues that a trustee, personal representative or beneficiary should be aware of.  For example, failure to follow simple rules can result in the loss of a S election, the loss of deductions or the paying more taxes than necessary.  Contact Matthew A. Linde, P.A. for more information.
 

Trust contests and trust litigation

What is a trust?  Generally, a trust is a legally enforceable contract between a settlor or grantor (the person who creates the trust) the trustee (the person(s) or entity that carries out the instructions of the settlor or grantor) and the person who received the benefits of the trust (the beneficiary – the settlor can also be a beneficiary, but the settlor cannot be the sole beneficiary).  A trust agreement is a written agreement that lists purposes of the trust, the powers and duties of the trustee and the circumstances that must be met in order to distribute assets from the trust.  
 
Litigation concerning trust issues generally involves whether a trust instrument is valid.  For example, a trust can be set aside because it was procured by fraud, undue influence or mistake of the settlor.  Other litigation issues related to whether the trustee has acted properly under the trust instrument such has collecting all assets, properly investing assets or following the terms of the trust agreement.  Attorney Matthew A. Linde, Esq., has many years of experience litigating various trust issues and is pleased to assist you.  For additional information, contact Matthew A. Linde, P.A. today!
 

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