There are some important differences when challenging a will or a trust. First, for a will to be valid you must have an original will and that will must be deposited with the court before the will can be admitted to probate. If you do not have the will, then absent a procedure to prove a lost will, the decedent is presumed to have destroyed a will in his or her possession, and the decedent will be deemed to have died without a will. If you are contesting a will, you cannot have a jury trial and the contest is done in front of a probate judge.

To challenge a trust you must file a complaint in the civil division of the circuit court and you proceed under the rules of civil procedure. This means you must obtain a summons and serve the defendant(s). Further, losing the original trust does not imply the trust was revoked. 

If you have to challenge a will and a trust signed at the same time, be careful that the will does not have a provision that reconstitutes the trust. We have seen lawsuits seeking to challenge the validity of a trust when the plaintiff fails to challenge a will in a timely. If the will is then deemed valid and the will reconstitutes the trust, the trust challenge will be over before any evidence was obtained. Probate litigation and trust litigation are complicated and your chances of success will be improved by having an expert in wills, trusts and estates to guide you. For more information contact Florida Bar Board certified wills, trusts, and estates attorney Matthew A. Linde today at (239) 939-7100.

I get questions like this a lot. There are several issues the court must determine in a guardianship proceeding. Actually, the guardianship proceeding is two different proceedings. The first proceeding is an incapacity proceeding. The court will appoint three mental health care professionals who will evaluate your parent after you have filed a petition to determine incapacity with the court. If the parent lacks capacity then the court will declare your parent to be incapacitated. This prevents a third party from procuring the signature of your incapacitated parent later on.

The next thing the court will do is determine whether there is a less restrictive alternative. If your step-parent will not let you see your father/mother then that is not in your parent's best interest. Under this situation, the court may appoint a guardian (who could be you) and the guardian will have control of the elderly person's social environment. As a child of the incapacitated person, you will have access to their care plans and will be able to see them at reasonable times and places. For more information contact Linde Law Group today. 

For Institutional Care Program (ICP) nursing home benefits in Florida, Medicaid is not available unless the total value of a Medicaid applicant's resources (assets), excluding income, at the time of application and throughout the time he or she is receiving benefits does not exceed $2,000 for an individual and $3,000 for a married couple when they both apply for benefits. The resources of both the institutionalized spouse and the community spouse are considered available to the institutionalized spouse. 

If an applicant has more than $2,199.00 (for 2015) of countable income, then that applicant will not be eligible for Medicaid long-term nursing home benefits unless the applicant establishes a Qualified Income Trust during the month the applicant seeks to qualify for Medicaid. The question becomes what is income?

Under Medicaid rules income is defined broadly to mean any cash or in-kind benefit that could conceivably enable the recipient to obtain food or shelter. Income can be earned or unearned. Income amounts are calculated on a monthly basis. Earned income deemed to be countable (or available) includes wages, commissions, and bonuses, whether paid in cash or "in kind" (i.e., payment in the form of food, shelter, or other kinds of barter, in return for services rendered). Even income earned at sheltered workshops is includible for Medicaid purposes.

All other receipts are categorized as "unearned income," including gifts from any source, interest on investments, alimony, insurance proceeds, Social Security, workers' compensation, unemployment benefits, annuity, and pension income. While all income must be disclosed, only "countable income" will be considered in the eligibility determination. Not counted are medical care, food stamps, other types of need-based assistance, or income received by other members of the family that is not otherwise "deemed" available to the individual. Loans are not income.

That is the basic rule; for more information contact Linde Law Group today.

Here are the general rules. There are lots of qualifications. For more information contact Matthew A. Linde today.

1. Citizenship. A Medicaid long-term care recipient must be a U.S. citizen or a "qualified alien".

2. Residence. The applicant must be a resident of Florida. Residency requirements are usually fairly simple to meet: Physical presence in the state coupled with no current intent to move out of the state is a common test of residence.

3. Medical need. Before qualifying for long-term care assistance, the applicant must need long-term care. Generally, the applicant is scored on a test measuring functional disabilities; the applicant who is unable to complete at least several "activities of daily living" (ADLs) without assistance will usually qualify. Greater medical need will almost surely qualify the applicant under this test.

4. Resources. Except for coverage to those with "low-income" Medicaid under the Affordable Care Act the first of two financial requirements, resource eligibility, generally requires that the applicant have available resources worth less than $2,000 for a single applicant. The rules for married couples, and the exceptions and special rules applicable to both married and single applicants are different in order to avoid "spousal impoverishment". For those with low-income Medicaid (eligible under Medicaid expansion, but not eligible otherwise as being disabled, etc.) there is no resource eligibility test.

5. Income. For 2015 the applicant cannot have more than $2,199.00 of countable income.

The simple answer is to talk to your attorney. Guardians are required to be represented by an attorney. The reason for this is that a guardianship is a court-supervised procedure, and non-attorneys generally do not understand the process. Further, even if you are a guardian who has an attorney, you need to ask your attorney questions. The time to ask whether a guardian can borrow money from the Ward is not 8 months after the guardian has borrowed the money. Further, Fla. Stat. 744.441 specifically lists the authority of a guardian to act AFTER the guardian has petitioned the court for approval to act. Thus, as a guardian when you have any doubt get something in writing from your attorney. For more information contact an attorney at Linde Law Group today.

The answer to this question is maybe. For example, assume your mother just died after a long-term marriage to your father. Assume this was the first marriage for both parents and you have one sibling who is nominated in the will as the personal representative and you trust her completely. Further, she has fully disclosed all the assets. Then I don’t think you need an attorney.

However, now assume that your step-father just died one year after your mother died and you have three step-siblings. Further, your step-father just changed his will two weeks before he died and suddenly only one step-sibling is the personal representative. Now assume that step-sibling is suddenly driving a new car and you do not think that she had the money to buy it.  You receive a Notice of Administration in the mail. Further, the attorney for the personal representative sends you a legal document that is hard to understand. The attorney tells you it is routine and you should sign it. In this scenario, you probably should see an attorney. There are important deadlines in probate and important rights that you can lose by taking no action.  For more information contact Linde Law Group today.

Many lawyers claim to do estate planning. As someone who does a lot of probate and trust litigation, I am frequently appalled by some of the sloppy wills and trusts that I see. Many lawyers simply purchase a computer estate planning program and type your name into the blanks. This can result in a mess after your disability or death.

Laws governing the estate planning process can be complex. Matthew A. Linde is one of approximately 327 (out of over 85,000 licensed) lawyers to be Board Certified by the Florida Bar in Wills, Trusts and Estates. Mr. Linde is also Florida Bar Board Certified in Elder Law. There are currently 11 attorneys licensed in Florida who are board-certified in wills, trusts and estates and in elder law. Mr. Linde has prepared and administered estates worth over $60,000,000.00 and is experienced in the complexities that can arise. Matthew A. Linde is an expert in Wills, Trusts and Estates and has been evaluated for professionalism and tested for expertise. Why would you want anyone other than a Florida Bar Board Certified expert in Wills, Trusts & Estates to prepare your estate plan? For more information contact Linde Law Group today.

Florida statute provides wonderful clarity to this question. Under §736.0708(1) trustees are entitled to “reasonable compensation.” The most comprehensive Florida case that gives guidance on reasonable compensation for a trustee is West Coast Hospital Assoc. v. Florida National Bank, 100 So.2d 807, 811 (Fla. 1958) where the court stated that the following factors determine a reasonable fee:

The following factors may be influential in enabling the court to reach a conclusion as to the appropriate amount of pay which should be granted the trustee in a given case: The amount of capital and income received and disbursed by the trustee; the wages or salary customarily granted to agents or servants for performing like work in the community; the success or failure of the administration of the trustee; any unusual skill or experience which the trustee in question may have brought to his work; the fidelity or disloyalty displayed by the trustee; the amount of risk and responsibility assumed; the time consumed in carrying out the trust; the custom in the community as to allowances to trustees by settlors or courts and as to charges exacted by trust companies and banks; the character of the work done in the course of administration, whether routine or involving skill and judgment; any estimate which the trustee has given of the value of his own services; payments made by the cestuis to the trustee and intended to be applied toward his compensation.

Additionally, corporate trustee fees charged by local banks and trust companies would probably be helpful in deciding what is reasonable. For more information contact Linde Law Group today.

A Form 706 is a form published by the IRS. It is called a United States Estate (and Generation –Skipping Transfer) Tax Return. The purpose of the form according to the IRS is “[t]he executor of a decedent's estate uses Form 706 to figure the estate tax imposed by Chapter 11 of the Internal Revenue Code. This tax is levied on the entire taxable estate and not just on the share received by a particular beneficiary. Form 706 is also used to figure the generation-skipping transfer (GST) tax imposed by Chapter 13 on direct skips (transfers to skip persons of interests in property included in the decedent's gross estate).” For 2013, the exemption from the estate tax is equal to $5,250,000.00 for each spouse.

Issues related to this form are complicated, and if you are a trustee or personal representative of a large estate, you need someone who is aware of the issues. For more information, contact Linde Law Group today!

Under Florida statute §731.301 (31) “probate of will” means all steps necessary to establish the validity of a will and to admit a will to probate. Probate administration involved admitting a will, if the decedent had a will, to probate, noticing creditors, paying creditors and transferring property to the rightful beneficiaries. If a person died in Florida with property in his or her name (with no payable on death provision), then generally you will need some form of probate procedure to transfer the property. We recommend a lawyer even if you are the only beneficiary because the process can be complex. Even with simple estates, creditor issues can become complex very quickly. For more information contact Florida Bar Board Certified expert in wills, trusts and estates attorney Matthew A. Linde at 239.939.7100 today.

Remember these taxes are on "net" income:

Estate and Trust Income Tax Rates

$ 0 - $ 2,550 15% of the amount over 0

$ 2,551 - $ 5,950 $ 383 + 25% of the amount over $ 2,550

$ 5,951 - $ 9,050 $ 1,233 + 28% of the amount over $ 5,950

$ 9,051 - $ 12,400 $ 2,101 + 33% of the amount over $9,051 and

$ 12,401 - $ 3,206 + 39.6% of the amount over $ 12,400

I have talked to many people who want to create a trust. When I ask people what a trust is, I generally hear "its something to avoid probate."

A trust is a legally enforceable agreement where one person or entity, the trustee, holds property at the request of another personal or entity, the settlor, for the benefit of a third person, the beneficiary. The word revocable simply means that a settlor (the person creating the trust) has the authority to revoke or amend the trust.

The question of whether you need a revocable trust is different. Let's say you have a house, car and small bank account. You are single and have one child. Do you need to spend the extra money to set up a trust under these facts - no.

Let's say you have a second marriage, real property assets in several states, estate tax issues and privacy concerns. In this situation you are more likely to benefit from the extra costs involved in setting up and funding a revocable trust. For more information contact Florida Bar Board certified expert in wills, trusts and estates attorney Matthew A. Linde, at (239) 939-7100 today!

Florida law actually describes what is necessary in order to create a trust.

"§ 736.0402. Requirements for creation

(1) A trust is created only if:

(a) The settlor has capacity to create a trust.

(b) The settlor indicates an intent to create the trust.

(c) The trust has a definite beneficiary or is:

1. A charitable trust;

2. A trust for the care of an animal, as provided in Fla. Stat. §736.0408; or

3. A trust for a non-charitable purpose, as provided in Fla. Stat. §736.0409.

(d) The trustee has duties to perform.

(e) The same person is not the sole trustee and sole beneficiary.

(2) A beneficiary is definite if the beneficiary can be ascertained now or in the future, subject to any applicable rule against perpetuities.

(3) A power of a trustee to select a beneficiary from an indefinite class is valid. If the power is not exercised within a reasonable time, the power fails and the property subject to the power passes to the persons who would have taken the property had the power not been conferred."

For information on what type of trust is right for you, contact Linde Law Group today!

The answer to this question can be very complex and you need to see a tax attorney to fully answer it. However, the basics are as follows:

The taxpayer can give $14,000.00 of a present interest in an asset to each individual, and some trusts, and it will not reduce the $5,490,000.00 lifetime gift tax exclusion (its $5,000,000 as adjusted for inflation. For 2017 the excluded amount is $5,490,000). Thus, if you gave $14,000 to 100 different individuals then you would have no gift taxes. However, if you gave $10,000,000.00 to one person, then you would owe gift tax on ($10,000,000.00 -$5,490,000 -$14,000.00 (annual exclusion))= $4,496,000 in 2017.

If a taxpayer dies and the value of the taxpayer’s gross estate, plus adjusted taxable gifts exceeds $5,490,000 in 2017 then the taxpayer’s estate must file a United States Estate (and Generation-Skipping Transfer) Tax Return commonly referred to as Form 706. Annual exclusion gifts can be an important part of planning to reduce estate taxes especially for older taxpayers. For more information about estate planning to reduce transfer taxes, contact Linde Law Group today.

Yes, if you want to own part of the home. Under Florida Statute §732.401 you have six (6) months from your spouse’s date of death to file an election to take a one-half ownership interest in the marital home. If you do not make this election, then you will receive a life estate in the marital home, and your spouse’s children will receive a vested remainder interest in the home (that means they own the home outright after you die). Having a life estate in a house is not usually a great option because generally you will fight with the children of the deceased spouse over the maintenance of the house, and it is difficult to sell a life estate because the life estate is only valid as long as you are alive. The election must be made by filing a notice of election containing the legal description of the homestead property for recording in the official record books of the county or counties where the homestead property is located. For questions concerning probate or estate administration call Florida Bar Board certified wills, trusts and estates expert Matthew A. Linde today at 239.939.7100!

Florida Bar Board certified expert in wills, trusts, and estates attorney Matthew Linde can explain the advantages of including a trust as part of your Florida estate planning. If you meet any one of the conditions listed below, you may benefit from having a trust: 

• You have significant assets in a business, real estate or an art collection. 
• You want your heirs to have your estate, but you don't want it directly payable to them when you die. For example, you may want certain conditions to be met before they can get their inheritance.
• You want your spouse to be supported, but you also want the rest of your estate to go to any chosen heirs when your spouse dies. 
• Your goal is to maximize estate-tax exemptions. 
• You want to provide for a disabled relative without disqualifying them from government assistance such as Medicaid. 
• Trusts are complex and varied, so before you settle on one, you should discuss your concerns thoroughly with a Cape Coral estate attorney.

Common Advantages of Trusts in Florida Estate Planning

Among the primary advantages of trusts are:

You can put conditions on the distribution of your assets.

Gift taxes and estate taxes can be reduced with advanced planning.

They allow you to distribute assets efficiently without the trouble of probate court.

They provide some protection from lawsuits and creditors.

Trusts allow you to appoint a successor trustee, who can manage your assets if you become incapacitated.

Your attorney can answers any questions you may have about costs, fees and everything a trust entails with Florida estate planning.

Estate attorney Matthew A. Linde understands firsthand the importance of careful estate planning and the complexities of financial legal matters, such as probate, tax litigation and guardianship. For help with your estate planning concerns, contact our Fort Myers office to schedule a one-on-one meeting with a professional who can answer your questions – 1-239-939-7100 or 1-844-357-0572.

Estate planning is a topic that often reminds us of our own mortality. However, there are several reasons to identify your assets and begin your estate planning.

Advantages of Estate Planning in Florida

First, understand that when you set up your estate planning in Florida: 

• You can name those whom you wish to receive your assets;
• You can have minimal taxes siphoned from your estate; and
• You can have peace of mind that your affairs are in order and that there will be no confusion upon your death. 

To get started, you should do inventory on your assets, which may include: 

• Investments
• Business interests
• Retirement accounts
• Bank accounts
• Real estate
• Insurance policies

Then you should decide who will inherit those assets. Next, you may want to discuss your wishes with your heirs. This may reduce the potential for disagreements after you have passed on.

If you fail to identify your assets, you may be creating problems when you die. To protect your heirs and your wishes in call an attorney to assist with your estate planning. Your attorney can help you prepare a solid plan to outline your wishes, minimize taxes and keep your heirs informed. It is best that you contact an attorney now, while you are physically and mentally capable.

Need Estate Planning? An Attorney is a Phone Call Away

Estate attorney Matthew A. Linde is a Florida Bar Board certified expert in wills, trusts, and estates who understands 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.

There are several reasons why you should assign power of attorney as part of your estate planning documents. As you age, the risk of mental clarity diminishing increases. Also, a health crisis could strike at any time, leaving you unable to pay bills, manage investments and make financial decisions. When you grant someone power of attorney, that person will be allowed to manage your affairs if you become incapacitated. For help, you should schedule a consultation with attorney Matthew Linde today!

The person you grant power of attorney to will be known as your agent. This individual or organization will have the authority to sign your name and handle fiduciary duties according to your pre-determined wishes. The durable type takes effect immediately with no need for proof that you are incapacitated. Matthew Linde can sit down with you and discuss any concerns you have about power of attorney and help you decide which type would be best for you and your finances.

In the event that you become incapacitated without having a power of attorney, a court may appoint a guardian, which may prove to be costly for your family.

Florida Bar Board certified expert in wills, trusts, and estates attorney Matthew A. Linde understands firsthand the importance of careful estate planning and the complexities of financial legal matters, such as probate, tax litigation and guardianship. For help with your estate planning concerns, contact our Fort Myers office to schedule a one-on-one meeting with a professional who can answer your questions – 1-239-939-7100. 

One mistake is hiring an attorney who does not know what he or she is doing. We currently have too many attorneys in the U.S. Over the last 10 years I have seen many attorneys who cannot find employment simply rent an office and start advertising. Most of these attorneys are nice people. But this is important technical stuff, and many people hire a lawyer because they were referred by someone who really had no idea if the attorney was qualified.  Further, there are programs attorneys can buy that create documents. Often we see documents that were obviously created by a program that are inappropriate for the married couple. 

Matthew A. Linde, is a Florida Bar Board certified expert in wills, trusts, and estates and in Elder Law. There are only 11 attorneys in Florida who have both these certifications as of January 2017. Attorney Matthew A. Linde understands firsthand the importance of careful estate planning and the complexities of financial legal matters, such as probate, tax litigation and guardianship. For help with your estate planning concerns, contact our Fort Myers office to schedule a one-on-one meeting with a professional who can answer your questions – 239-939-7100. 

The administration of probate in Florida is generally supervised by a circuit court judge in the probate division of the county where the deceased person died. If you are worried about how your estate will be carried out, you should discuss your concerns now with an estate attorney in Fort Myers, Florida. With the guidance of an experienced attorney, you may be able to help your beneficiaries avoid mass confusion upon your death. 

The judge who will supervise the administration of probate in Florida will rule on whether your will is valid or, if you died without a will (intestate), whether there is sufficient evidence to confirm that those claiming to be your heirs are truly your heirs and entitled to your probate estate.

If the deceased nominated a personal representative in their will, the judge will decide whether that individual or institution is, in fact, qualified for the task at hand. If the nominee for personal representative meets all qualifications according to Florida law, then the judge will issue Letters of Administration. They are evidence that the personal representative has the authority to administer the deceased's probate estate.

In the event that disputes or questions arise concerning the administration of the estate, a hearing will likely be held by the judge to seek a resolution. The decision made by the judge will be presented in a written direction, which is an order.

The sooner you meet with an estate attorney in Fort Myers, Florida, the sooner you can have the peace of mind that your probate estate will be handled properly.

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 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 844-357-0572.

If you have been appointed the personal representative of a Florida probate, you will need an attorney for several reasons. To protect yourself, you should schedule a consultation with an experienced probate attorney who will help you understand the probate process and any laws that apply to your case. Further, if you are not the only beneficiary then being represented by an attorney is required by law under Florida Probate Rule 5.030(a) for personal representatives and guardians.

If you don't handle probate cases on a day-to-day basis, you may run into some complexities that you may not be prepared to deal with. When you have good legal counsel by your side, you can have peace of mind that you will be provided guidance to carry out your responsibilities accurately. In nearly all Florida probate cases, it's crucial that the personal representative have legal representation. Even in the simplest probate case, legal issues are likely to arise. As a personal representative, you can count on your attorney to advise you on your rights and duties according to Florida law and to represent you in all estate proceedings. 

You should also know that your attorney will represent only you, not the beneficiaries. Furthermore, be advised that if there is a provision in the last will and testament that mandates a certain law firm or attorney be hired as your attorney, it will not be binding on you as the personal representative.

You will have many responsibilities as a personal representative. That last thing you want to do is make a serious error that could affect any heirs or beneficiaries. Your best bet is to seek the services of Fort Myers probate attorney for guidance.

When You Need Help with a Florida Probate Case

Florida Bar Board certified wills, trusts and estates attorney expert Matthew A. Linde understands firsthand the importance of careful estate planning and the complexities of financial legal matters, such as probate, tax litigation and guardianship. For help with your 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 1-844-357-0572.

There are several entities and individuals who could be named a personal representative in a Florida probate case. If you have been named a representative or if you need help determining who your personal representative should be, you should meet with a probate lawyer in Fort Myers.

Naming a personal representative is not something that should be taken lightly. You want a person or entity you can trust to handle your affairs appropriately. On the other hand, if you have been named a representative, you will need to focus on administering the estate according to Florida law.

Who can be a personal representative?

A personal representative in a Florida probate case could be designated to any of the following: 

• An individual, trust company or bank, but certain restrictions will apply.
• An individual who resides in Florida or is a close relative, such as a spouse, parent, sibling or child.
• A trust company that is incorporated under Florida laws, or a savings and loan that is qualified and authorized to carry out fiduciary powers in the state.

The personal representative will be tasked with many responsibilities upon the decedent's death, and therefore should speak with a lawyer who is familiar with these types of legal matters.

A probate lawyer can discuss any concerns you may have, such as liability issues, which could arise in just about any probate case. You will need an attorney who has vast experience handling probate and estate planning in the state of Florida. 

Help from a Probate Lawyer 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 1-844-357-0572.

There are several instances in which summary administration, which is a faster and less costly form of probate administration, may not be preferable in a Florida probate case. To find out whether summary administration would be a good fit for your case, you should speak with Fort Myers probate lawyers.

When Summary Administration Would Not Be Practical

Even though summary administration may be an option in your Florida probate case, it may not be practical under the following circumstances:

If the will leaves the property to many beneficiaries, each would have to sign the contract to sell, the closing documents and the deed.

If there are minor beneficiaries, guardianships will probably need to be set up, and someone will have to maintain them until the minors become adults. However, with a formal estate, this may be avoidable if the personal representative takes advantage of the Florida Uniform Transfers to Minors Act.

If a beneficiary's whereabouts are unknown, summary administration would not be able to accommodate a missing heir as formal probate administration could.

If a beneficiary refuses to cooperate with other owners, the solution may be formal administration, which could be necessary to sell the property. An alternative is a costly "partition" lawsuit.

After the second anniversary of the decedent's death, if formal administration is necessary, the requirements related to creditors will have changed, but costs and fees shouldn't be much more than those for summary administration. It's best that you meet with a lawyer before you make any decisions about summary administration.

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

Florida Bar Board certified wills, trusts and estates expert Matthew A. Linde understands firsthand the importance of careful estate planning and the complexities of financial legal matters, such as probate, tax litigation and guardianship. For help with your 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 1-844-357-0572.

The two different types of probate in Florida are Formal Administration and Summary Administration. To discuss the pros and cons of each, you should schedule a consultation with Florida Bar Board certified wills, trusts, and estates expert Matthew A. Linde.

Formal Administration vs. Summary Administration

The differences in Formal Administration and Summary Administration are:

Formal Administration: This is the long version of probate in Florida in which Letters of Administration are generally administered, which can take up to a year or longer.

Summary Administration: This is a short version of probate in which Letters of Administration are not necessary. Eligibility requirements include non-exempt assets valued at $75,000 or less or when the deceased died more than 2 years ago. 

If you have been named a personal representative in a will, you generally will not be able to take significant action unless you have a court order. However, this is no reason to assume that you must have Letters of Administration to perform your duties as personal representative. 

Your best bet is to meet with an expert in wills, trusts and estates to discuss your options. While Summary Administration is less costly and quicker than Formal Administration, you may not meet the requirements. For example, if you need authority to collect estate assets you will need Letters of Administration and consequently, a formal administration. Your attorney will be able to review your case and help you decide on the best course of action.

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 1-844-357-0572.Describe the item or answer the question so that site visitors who are interested get more information. You can emphasize this text with bullets, italics or bold, and add links.

There are various reason why you may need to hire a Florida probate lawyer. For instance, if your loved one died without a will, Florida statutes will determine how assets will be distributed. To protect your rights throughout the probate process, which can last months or years, you should hire Florida Bar Board certified wills, trusts, and estates expert Matthew A. Linde. 

When you are in the midst of probate, your stress level will likely be increased due to the fact that you just lost a loved one. If you don't handle probate cases on a daily basis, you may find the process of settling an estate too complex and frustrating.

How a Florida Probate Lawyer Can Help

An experienced lawyer can minimize the frustration by answering your probate questions, helping you understand the process and providing guidance.

In cases in which there is a will and an executor has been named to settle the estate, a lawyer can help protect the executor from financial or legal liability in the event that mistakes are made. Otherwise, the executor could face severe repercussions. 

It's best to hire a lawyer early, especially if the decedent died without a will or if you are the executor of an estate. A do-it-yourself-kit is a bad idea when it comes to settling an estate because of the potential for legal, financial and emotional problems.

Before you hire a lawyer it would be a good idea to write down all of your probate questions and ask them during your consultation. If you are comfortable with your Florida probate lawyer's answers, he or she may be a good fit your case.

Help from a Florida Probate Lawyer is Just a Phone Call Away

Florida probate lawyer 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 844-357-0572.

No. That is no, no, no. There is an article in the Wall Street Journal that discusses this problem and has an example from a grieving spouse in Cape Coral, Florida. It is a good article and you should read it. The link is here:

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 Florida Bar Board certified wills, trusts, and estates expert Linde Law Group today!

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

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

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

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

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

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

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

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

Fort Myers estate planning attorney Matthew A. Linde understands firsthand the importance of careful estate planning and the complexities of financial legal matters, such as probate, tax litigation and guardianship. For help with your estate planning concerns, like advance directives, contact our Fort Myers office to schedule a one-on-one meeting with a professional who can answer your questions - 239-939-7100 or 844-357-0572.

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

Overview of a Florida Trust

The three people involved in a trust are: 

• The settlor creates the arrangement and names a trustee;
• The trustee, who holds the legal title to the assets for the benefit of the beneficiary; and
• The beneficiary, the person for whose benefit the trust is created. The beneficiary can be the settlor and trustee but if that is true then the settlor/trustee cannot be the only beneficiary. 

The trust does not have to be written, but good luck proving a trust if you have nothing in writing, and the testamentary aspects of the trust must be executed with the same formalities of a deed in Florida. 

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

The Benefits of a Florida Trust

Trusts may offer numerous benefits economically:

• Probate avoidance
• Privatizing family finances and assets
• Creditor protection for beneficiaries
• Avoiding guardianships
• Having control of the management and distribution of assets while you are alive and after you die
• Avoidance or reduction of the death tax with additional planning

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

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

Fort Myers estate planning attorney Matthew A. Linde understands firsthand the importance of careful estate planning and the complexities of financial legal matters, such as probate, tax litigation and guardianship. For help with your Florida trust, contact our Fort Myers office to schedule a one-on-one meeting with a professional who can answer your questions - 239-939-7100 or 844-357-0572.

A Florida advance directive is a document that allows you to make it clear whether you would want life-prolonging measures taken if you have an end-stage condition or are at a point in which you are being kept alive through artificial means. You can benefit by having a Florida Bar Board certified wills, trusts, and estates expert help you properly draft an advance directive.

Understanding a Florida Advance Directive

Advance directives, which focus on your right to die with dignity, are not just for the elderly. For example, if you were the victim of a serious accident, would you want to be kept alive with a ventilator and feeding tubes if there was no hope for recovery? If your answer is no, you need an advance directive. Most people feel strongly one way or the other about extended life through artificial means.

When your advance directive meets all legal requirements, it will:

Allow you to predetermine medical treatment; and

Allow you to authorize someone to make medical decisions on your behalf; and

Ensure that CPR will not be performed if you have a terminal condition, as long as your medical team has a copy of the advance directive.

Copies of your advance directive should be given to as many people as possible, including your family members, neighbors, doctor, and clergy. When your advance directive is properly drafted by a Fort Myers estate planning attorney, it may be transferrable to other states. A legally binding Florida advance directive will provide peace of mind that you will always have control over your medical decisions.

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

Florida Bar Board certified wills, trusts, and estates expert Matthew A. Linde understands firsthand the importance of careful estate planning and the complexities of financial legal matters, such as probate, tax litigation and guardianship. For help with your Florida advance directive, contact our Fort Myers office to schedule a one-on-one meeting with a professional who can answer your questions - 239-939-7100 or 844-357-0572.

Florida Bar Board Certified wills, trust and estates expert Matthew Linde can provide valuable guidance that you cannot get in an online kit. When you hire legal counsel, you get control over your estate planning and can make informed decisions. This means you will understand the options available to accomplish a goal and the pros and cons of various options. 

With an online kit you will get a cookie cutter version of a document that may not apply to you. Imagine a bell shaped curve. Now image where the few Florida Bar Board Certified wills, trust and estates experts are on that curve (about 337 out of over 85,000 licensed). Now imagine some struggling attorney fresh out of law school doing anything to make a buck. Which type of attorney do you think you are likely to get through a referral from an online will factory (hint: it’s not the Florida Bar Board Certified wills, trust and estates expert)?

Your estate must be properly planned in order for you to predetermine how and when it will be distributed. Just having a will isn't good enough. It should be drafted by a Board Certified attorney who has knowledge of ever-changing tax laws and handles estate cases on a daily basis.

Florida Estate Planning When Children are Involved

Additionally, if you have children, you will likely be tasked with setting up trusts or naming guardians.

You should consider: 

• Who will control your children's money until they are of age?
• Whether they should get a lump sum or staggered payments?
• How to proceed if one child is a reckless spender?

If you have a blended family, you may run into even more difficulties. 

An estate planning attorney can even set up trusts that direct assets to someone other than family in a way that ensures your family has access to the money when that non-family member no longer needs it.

However, with the help of an estate planning attorney you can draft a will that addresses your concerns and meets your wishes. An attorney can also serve as a counselor and recommend customized trusts, which can help you protect your children and spouse on several levels, and help you take steps to avoid tax liability.

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

Florida Bar Board Certified wills, trust and estates expert Matthew 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 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 844-357-0572.

If someone dies in Florida with no will, the distribution of the deceased's estate will be subject to rules set forth in Chapter 732 of the Florida Probate Code. To prevent this you should consult with Florida Bar Board certified wills, trusts, and estates expert Matthew A. Linde.

Distributing a Florida Estate without a Will for Guidance

In cases in which the deceased has a living spouse but no descendants, the spouse will be entitled to 100% of the estate. 

Where there is no will and the living spouse has descendants who are also descendants of the deceased, the living spouse will still be entitled to 100% of the estate. Now, suppose the deceased had descendants but were not descendants of the living spouse. In cases such as this, the living spouse would be entitled to 50% of the probate estate and the deceased's descendants would equally share the remainder of the estate.

When the individual dies without a will and there is no living spouse but there are descendants, equal shares of the estate will be split up amongst them. Any children of a deceased child will get the share that was entitled to the deceased parent.

If the deceased was not married and had no descendants, the estate will be distributed to the decedent's grandparents (who are very likely deceased) and then down to the issue (children) of those grandparents. It can get quite complicated. You may have heard the phrase "laughing heirs," which refers to relatives of a deceased person who inherit assets from someone they never knew personally.

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

Florida Bar Board Certified wills, trusts and estates expert Matthew A. Linde understands firsthand the importance of careful estate planning and the complexities of financial legal matters, such as probate, tax litigation and guardianship. For help with your 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 844-357-0572.

There are several individuals or entities that could serve as a personal representative in a Florida probate case. If you're having trouble with a probate case you should schedule a consultation with Florida Bar Board Certified wills, trusts and estates expert Matthew A. Linde.

Requirements for a Personal Representative

A personal representative could be:

• A trust company or bank with operations in Florida
• Anyone who is a resident of Florida
• A close relative or spouse (doesn't have to reside in Florida)

The requirements are located in Florida Statutes 733.302, 733.303, and 733.304.

On the other hand, a personal representative cannot be a non-relative who doesn't reside in Florida.

As long as the decedent had a will, the personal representative named in the will must serve as long as eligibility requirements are met. If that person or entity is unable to serve or doesn't want to serve as the personal representative, then the beneficiaries will choose a personal representative.

If the deceased did not have a will, then Florida law provides that the deceased's surviving spouse may serve as personal representative. In cases in which the deceased was not married, or if the spouse is unwilling or unable to serve, then someone chosen by a majority of the beneficiaries will serve.

Since a Florida probate case can be very complex, it would be in your best interest to have an attorney review your case. An attorney who handles probate cases on a day-to-day basis can help you cut through the red tape and make the probate process as less stressful possible.

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

Florida Bar Board certified wills, trusts, and estates expert Matthew A. Linde understands firsthand the importance of careful estate planning and the complexities of financial legal matters, such as probate, tax litigation and guardianship. For help with your 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 844-357-0572.

(a) Presumption of Undue Influence

In undue influence cases, there is a presumption that undue influence occurred if the proponent of a will or other document (it could be a deed or a check) had a confidential relationship with the author of the document and actively procured the document. You can still prevail on an undue influence claim without a presumption of undue influence, but only if prove that a defendant actively influenced the document author to the point that it was really the defendant that was acting and not your loved one. It is much harder to prove your claim if you do not have the benefit of the presumption because what a defendant does is usually done when only the defendant and the document author were present. Further, to validly assert the legal doctrine of undue influence, the contestant must focus more upon the weak mental orientation of the testator than the motives of beneficiary. See In re Estate of McClenahen, 476 So. 2d 1289 (Fla. 2d DCA 1985).

(b) Active Procurement

When a confidential relationship exists between the beneficiary and the testator, a presumption of undue influence may arise if it can be shown that the beneficiary actively procured the will. The leading case in this respect is In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971).

The Carpenter case defined active procurement as follows:

"Several criteria to be considered in determining active procurement emerge from a study of these cases: (a) presence of the beneficiary at the execution of the will; (b) presence of the beneficiary on those occasions when the testator expressed a desire to make a will; (c) recommendation by the beneficiary of an attorney to draw the will; (d) knowledge of the contents of the will by the beneficiary prior to execution; (e) giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will; (f) securing of witnesses to the will by the beneficiary; and (g) safekeeping of the will by the beneficiary subsequent to execution. We recognize that each case involving active procurement must be decided with reference to its particular facts. Therefore, the criteria we have set out cannot be considered exclusive; and we may expect supplementation by other relevant considerations appearing in subsequent cases. Moreover, we do not determine that contestants should be required to prove all the listed criteria to show active procurement. We assume that in the future, as in the past, it will be the rare case in which all the criteria will be present. We have troubled to set them out primarily in the hope that they will aid trial judges in looking for those warning signals pointing to active procurement of a will by beneficiary." See Carpenter at 702.

Other examples of active procurement can be found in In re Estate of Smith 212 So.2d 74, 76 (Fla. 4th DCA 1968): 

We are concerned with the proper construction to be put on the phrase "active in procuring the will" so as to raise the presumption of undue influence.

In re Peters' Estate, 1945, 155 Fla. 453, 20 So.2d 487, was a case in which the principal beneficiary was a physician and a long-time friend of a 77-year-old widow. Her physical strength was reduced in keeping with her years but her mentality was not shown to have declined. The only connection which the physician had with the procuring of the will was in being present on the occasions when the testatrix expressed her desire to make a will and when she gave here attorney instructions on making the will. The court stated that the law should require a more active or definite participation than this in order to raise the presumption.

In Sturm v. Gibson, Fla.App.1966, 185 So.2d 732, the beneficiary had been a ranch foreman for the testatrix and had occupied the same dwelling house with the deceased for some time prior to her death. His activity consisted of recommending the attorney who drew the will and driving the testatrix to the lawyer's office, but he was not present when the will was executed nor did he know its contents until the death of the testatrix. The court held that this activity was not active procurement of the execution of the will.

In re Knight's Estate, Fla.App.1959, 108 So.2d 629, involved the testator's wife and brother as the principal beneficiaries. Before the testator went to the hospital he informed the brother of his wishes as to the contents of his proposed will, after which the brother consulted a firm of attorneys, gave them the instructions for the preparation of the will, received the draft thereof and kept it in his possession until it was presented to the testator at the hospital. The brother assisted in procuring the formal witnesses to the will, was present when it was executed, received it from the testator and kept it in his possession until it was presented for probate. The court held that this was active procurement of the execution of the will sufficient to raise the presumption of undue influence.

In re Estate of MacPhee, Fla.App.1966, 187 So.2d 679, concerned a testatrix who was 88 years of age when she executed her will five days prior to her death. The principal beneficiary, Rast, held her power of attorney and was her business adviser. Some of these transactions were between the testatrix and Rast, most of which were to the personal benefit of Rast. Mr. Rast carried to the attorneys information as to what the will was to contain, brought the will to Mrs. MacPhee for execution, and secured the necessary witnesses. The court held that this was an active procurement of the will.

Contact Florida Bar Board certified wills, trusts, and estates expert Matthew A. Linde today at 239.939.7100 or 844.357.0572 for more information!

This is a defined term under the Florida Probate Code: Section 731.201:

(28) "Personal representative" means the fiduciary appointed by the court to administer the estate and refers to what has been known as an administrator, administrator cum testamento annexo, administrator de bonis non, ancillary administrator, ancillary executor, or executor.

Now that you know what the terms means, contact Florida Bar Board certified wills, trusts, and estates expert Matthew A. Linde today at 239.939.7100 to assist you with understanding what that means in your situation.

A Florida probate case generally involves, appointing a personal representative (referred to as an executor in some states). The personal representative ("PR") is appointed because he/she was named in the will or in an intestate estate (intestate means without a will) the person who the courts appoints as PR. Once a PR is appointed, the PR collects assets, notices creditors and pays valid creditor claims and distributes the assets according to the will or in accordance with the Florida intestacy statues. If you have any concerns regarding a probate matter you should contact Florida Bar Board certified wills, trusts, and estates expert Matthew Linde. 

The probate system in Lee County is conducted in a division of Circuit Court in the majority of Florida counties, and at least one probate judge is tasked with overseeing the court.

Any creditor or beneficiary can start the probate process, but it's usually the executor or personal representative, who initiates the process. This person will file the original will and a petition for administration. If the deceased did not have a will, one of the descendant's close relatives who expects an inheritance will file the petition for administration

As long as you have a valid will, it will determine how and to whom your estate is transferred. In the absence of a will, or if your estate is just partially covered by a will, Florida laws will mandate how your estate will be distributed.

Generally, the Florida court follows the same process:

• Admitting the will and appointing the personal representative
• Notifying the public, creditors, heirs that the decedent has died
• Taking inventory on the decedent's property
• Distributing the property

If you find yourself amidst a Florida probate case and have run into any complicated factors, you can get help from an estate 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 844-357-0572.

There are several circumstances under which a will can be challenged in Florida, but you should first know that other than in a guardianship, a will can be challenged only after the testator/testatrix has died. Since it can be very difficult to challenge a will, you should seek the guidance of Florida Bar Board Certified wills, trusts and estates expert Matthew A. Linde to assist you. 

Before the testator/testatrix has died, any facts regarding the document can be preserved for future litigation. Once the individual dies, the designated personal representative will be responsible for issuing a notice of administration. Once you receive that, you will have three months to challenge the will.

Grounds under Which a Will Can Be Challenged in Florida 

Undue influence (my favorite if you have the right facts).

If a will wasn't properly signed, drafted, or witnessed, it can be contested. For example, if a so-called witness was in another room at time of the signing of the will, the will could be declared invalid. It's imperative that the witness be in direct presence of the testator.

A will can also be tossed out if forgery can be proven or if there's solid evidence that someone tampered with it. Additionally, when a will is made, the testator must be of sound mind. If not, a will can be voided.

However, to prove lack of capacity, there must be evidence of psychosis, dementia, delirium which is normally defined to me that the testator/testatrix did not understand, in a general way, the nature of the assets in his or her possession, the natural objects of his or her bounty, and the consequences of the instrument he or she is signing. 

Florida Bar Board certified wills, trusts, and estates expert Matthew A. Linde understands firsthand the importance of careful estate planning and the complexities of financial legal matters, such as probate, tax litigation and guardianship. For help with your 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 844-357-0572.

Whenever you receive something from the personal representative's attorney you need to be aware of timing issues.  Virtually everything in probate is on a time table.  If you receive an accounting, other than a final accounting, then under Probate Rule 5.345(c), you have 30 days from the date or receipt to object to the accounting.  If you do not object, then you are deemed to have waived your objections.  

The same time frame applies to objections for final accountings pursuant to Florida Probate Rule 5.401(d).  If you have any questions related to the accounting, then your rights are waived it you don't act.  For additional information, contact Florida Bar Board certified wills, trusts and estates attorney Linde Law Group today at 239.939.7100!  Describe the item or answer the question so that site visitors who are interested get more information. You can emphasize this text with bullets, italics or bold, and add links.

Florida homestead statutes are laws that govern how homestead property will be distributed upon your death. According to the Florida Constitution, there are limits on who is entitled to homestead property when the owner dies if survivors include a spouse or minor child. To get a thorough understanding of homestead statutes, you should consult with a Florida Bar Board Certified wills, trusts and estates expert Matthew A. Linde.

A Closer Look at Florida Homestead Statutes

According to Florida Statute 732.401, for example, if the deceased is survived by at least one descendant and a spouse, the surviving spouse will be entitled to a life estate in the home, and a vested remainder will go to the descendants. This can be a trap. If you deed your house to child A (assume you have two children), but you are survived by a spouse, then under this statute your spouse takes a life estate and the remainder interest in the homestead passes to your two children equally - oops and a possible malpractice action against the estate planning attorney. 

Based on that same statute, the surviving spouse can elect to take a 50% interest as a tenant in common in the property rather than a life estate. This would give that spouse some ownership interest, allowing him or her to set in motion the process of selling the property. Consequently, if the home is sold, that spouse will typically be entitled to 50% of the proceeds. 

The aforementioned election can be exercised by the surviving spouse or, with a court's approval, an attorney in fact or guardian of the surviving spouse's property. Before the election can be approved, however, the court must decide if the election will be in the best interests of the surviving spouse.

It's obvious that Florida Homestead statutes are very complex and may be difficult to understand if you don't handle homestead cases on a daily basis. To ensure that your legal rights are protected, you should discuss any concerns you may have with a Fort Myers, Florida 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 844-357-0572.

In any probate litigation (as with any litigation) one of the first questions that I ask individuals who call me is: "(1) were you served with a Notice of Administration, and (2) if the answer is yes, when where you served with a Notice of Administration?"

Florida Statute §733.212(3) reads as follows:

(3) Any interested person on whom a copy of the notice of administration is served must object to the validity of the will, the qualifications of the personal representative, the venue, or the jurisdiction of the court by filing a petition or other pleading requesting relief in accordance with the Florida Probate Rules on or before the date that is 3 months after the date of service of a copy of the notice of administration on the objecting person, or those objections are forever barred.

 I cannot stress how important it is to file objections within the three month period is the objection related to any issues listed above. Concerning personal representatives, the Florida Supreme Court recently held: 

For the reasons explained below, we hold that section 733.212(3) bars an objection to the qualifications of a personal representative, including an objection that the personal representative was never qualified to serve, if the objection is not timely filed under this statute, except where fraud, misrepresentation, or misconduct with regard to the qualifications is not apparent on the face of the petition or discovered within the statutory time frame.

See Hill v. Davis 2011 Fla. Lexis 2048, 36 Fla. L. Weekly S 487 (Fla. 2011). 

This is signification decision because Fla. Stat. 733.3101 reads: 

Any time a personal representative knows or should have known that he or she would not be qualified for appointment if application for appointment were then made, the personal representative shall promptly file and serve a notice setting forth the reasons. A personal representative who fails to comply with this section shall be personally liable for costs, including attorney's fees, incurred in any removal proceeding, if the personal representative is removed. This liability shall be cumulative to any other provided by law.

So what happens if a personal representative knows or should know that he or she is not qualified but the reason for the lack of qualification was clear on the face of the Notice of Administration? The Florida Supreme Court decision above appears to foreclose a challenge to the personal representative. The lesson here is that when you receive mail from a law firm in a probate matter if you don't understand what it means YOU MUST CONTACT AN ATTORNEY OR RISK LOSING IMPORTANT RIGHTS. For more information contact Florida Bar Board certified wills, trusts, and estates expert Linde Law Group today at 239.939.7100.

According to Black's Dictionary (Ninth Edition), a contract is "an agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law. A contract is a promise, or a set of promises, for breach of which the law gives a remedy, or the performance of which the law in some way recognized as a duty." 

There are many volumes written on the term contract. Basically, to create the agreement, there must be an offer to contract, and acceptance of the offer, and consideration between the parties. Thus, a contract is an agreement. The contract can be oral or in writing, but obviously a contract is much easier to enforce if it is written. For more information, contact Linde Law Group today.

A "will" is a defined term in the Florida Probate Code. Under §731.201(40) a will "means an instrument, including a codicil, executed by a person in the manner prescribed by this code, which disposes of the person's property on or after his or her death and includes an instrument which merely appoints a personal representative or revokes or revises another will."

Generally, the will execution problems that I see arise when a will is executed by someone other than a licensed attorney. Given that the procedure to execute a will is also governed by Florida statues, the process is easy if you simply follow it. Florida statute §732.501 states the following:

Every will must be in writing and executed as follows:

(1) (a) Testator's signature.

1. The testator must sign the will at the end; or

2. The testator's name must be subscribed at the end of the will by some other person in the testator's presence and by the testator's direction.

(b) Witnesses. --The testator's:

1. Signing, or

2. Acknowledgment:

a. That he or she has previously signed the will, or

b. That another person has subscribed the testator's name to it, must be in the presence of at least two attesting witnesses.

(c) Witnesses' signatures. --The attesting witnesses must sign the will in the presence of the testator and in the presence of each other.

(2) Any will, other than a holographic or nuncupative will, executed by a nonresident of Florida, either before or after this law takes effect, is valid as a will in this state if valid under the laws of the state or country where the will was executed. A will in the testator's handwriting that has been executed in accordance with subsection (1) shall not be considered a holographic will.

(3) Any will executed as a military testamentary instrument in accordance with 10 U.S.C. s. 1044d, Chapter 53, by a person who is eligible for military legal assistance is valid as a will in this state.

(4) No particular form of words is necessary to the validity of a will if it is executed with the formalities required by law.

(5) A codicil shall be executed with the same formalities as a will.

For more information contact Linde Law Group today.

If there is a properly executed will, then the person named in the will has priority to be appointed as long as the named individual is not otherwise disqualified [There are several ways to be otherwise disqualified. For example, felons are otherwise disqualified, and so are minors, those deemed mentally unfit or nonresidents unless related by blood or marriage to the decedent.] from serving as personal representative. The courts have very limited authority to disregard the will and appoint someone else if the appointed person is qualified.

The named person files a petition for administration, a designation of resident agent and an oath, the will to be admitted, the filing fee and the order admitting the will. A petition to waive bond can also be filed, but in Lee County the court will probably require some type of bond, and the judge has sole discretion to determine whether a bond is required. If a bond is required, the amount of bond will be dependent on the assets listed on the petition for administration. A bond of $100,000.00 would probably cost $150.00 to purchase and there are companies that routinely issue probate bonds. Large bonds will require a credit check upon purchase, and bad credit can prevent the person named in the will from obtaining a bond, which means that somebody else has to be appointed. The person named in the will once appointed by the court is identified as the personal representative [in some other states this person is identified as the executor or executrix].

The person named in the will has priority to be appointed. Thus, under the Florida Probate Rules that person does not have to notice anybody when the petition for administration is filed with the court. However, assume that the person nominated in the will as personal representative has died and there are four siblings [You would have to follow the same procedure if there was no will and someone died and there were several individuals of equal degree of consanguinity to the decedent.]. Now assume that one sibling wants to be appointed personal representative. That person has to serve via certified mail a copy of the petition on the other siblings at the time that the person filed the petition for administration with the court. If none of the siblings object, then twenty days after each sibling was served with a copy of the petition for administration, the decedent’s child seeking to be appointed can file the proof of service [the green card for certified mail] with the court and the court will appoint that person by signing the order previously filed with the petition for administration.

If a bond is required by the court the person appointed as personal representative must purchase the bond and file the original bond with the court. Then the court will sign “Letters of Administration.” The Letters are the personal representative’s authority to act on behalf of the decedent. That wasn’t so bad was it? For more information contact Linde Law Group.

This is an important question. After the death of the creator of a trust (identified after death as the "decedent"), if tangible personal property (i.e., jewelry, artwork, furniture, collections et cetera) 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. 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 Linde Law Group today!

When a relative dies (hence the "decedent"), there is always an issue concerning what happens to the relative's tangible personal property. Tangible as the name implies is what you can see and touch. Examples of tangible personal property include the furniture, the decedent's jewelry, guns, coin collections, paintings et cetera. Disputes can arise when a decedent dies and the tangible personal property has not been secured. Frequently, potential heirs have the view that "finders are keepers" and valuable tangible personal property can disappear.  What is interesting is that the personal who converted the tangible personal property always has justified why that person is "entitled" to the property.

Tangible personal property is treated somewhat uniquely under the Florida Probate Code. For example, under Florida Statute §732.515:

A written statement or list referred to in the decedent's will shall dispose of items of tangible personal property, other than property used in trade or business, not otherwise specifically disposed of by the will. To be admissible under this section as evidence of the intended disposition, the writing must be signed by the testator and must describe the items and the devisees with reasonable certainty. The writing may be prepared before or after the execution of the will. It may be altered by the testator after its preparation. It may be a writing that has no significance apart from its effect upon the dispositions made by the will. If more than one otherwise effective writing exists, then, to the extent of any conflict among the writings, the provisions of the most recent writing revoke the inconsistent provisions of each prior writing.

This allows a person to on a piece of paper to dispose (transfer) their tangible personal property without going through all the requirements of signing a will. There are several requirements here. First, the written statement or list must be referred to in the decedent's will. If the statement is not referred to in the decedent's will then any statement disposing of the decedent's tangible personal property must be executed in the formalities of a will (i.e., the executor executes the will at the end in the presence of two witnesses who then sign the will in the presence of the testator and in the presence of each other).

Section 735.201 of the Florida Probate Code provides that an estate may qualify for summary administration if it meets the following requirements: (a) the value of the entire estate subject to administration in this state, exclusive of property exempt from creditors' claims, must not exceed $75,000, or, the decedent must have died more than two years beforehand; and (b) if the decedent has left a valid will, the will must not direct formal administration in accordance with Fla. Stat. Ch. 733.

The estate must qualify under Fla. Stat. § 735.201 for summary administration. If it does not meet the requirements of that section, then the probate court is without authority to order summary administration. An order of summary administration that is entered based upon some error in procedure may be vacated, but unlike a void judgment, it has legal force and effect unless it is vacated.

Because exempt property, and real property located outside Florida are not included within the computation, summary administration is available when the value of the decedent's other assets does not exceed $75,000.  Furthermore, since the decedent's homestead property is not defined as an asset of the estate (See Florida Statute §733.607) a beneficiary can petition the court for summary administration even if the decedent's homestead is worth several hundred thousand dollars. Realize if the estate has creditors, then in addition to a Petition for Summary Administration, the beneficiary will want to file a homestead petition and publish notice to creditors if less than two years has passed since the decedent died.

Summary administration is instituted by the filing of a petition. The Petition for Summary administration must be signed and verified by the surviving spouse, if any, and any beneficiaries seeking the relief. See Fla. Stat. § 735.203(1).  However, a petition for summary administration is not required to be signed by a beneficiary who will receive a full distributive share. The petition for summary administration must be filed in the circuit court in which venue for the probate proceedings is proper. Venue, for purposes of summary administration, is determined in the same manner as for formally administered estates. As you might have guessed, a summary administration costs less than a regular administration, and is usually much quicker. For more information contact Linde Law Group today!

Believe me, our justice system is the best in the world. However, justice in the United States does not move at light speed. I have had many individuals not familiar with the process ask me the question listed above.

Understand that the process we have in litigation has evolved over many years. Lawsuits in probate and guardianships (identified as adversarial proceedings), and civil (trust litigation et cetera) lawsuits are all governed by the Florida or Federal Rules of Civil Procedure. The process starts with a complaint or petition, an answer (if no motion to dismiss is filed) an affirmative defenses (or maybe also a counterclaim) and a reply (a pleading that identifies why affirmative defenses are legally insufficient). This process can take months to complete because filing a motion to dismiss can take months to resolve.

Once the pleadings are closed (i.e., the process above is complete), a party can always seek to amend their pleadings, which can delay the process further. However, if no one amends the pleadings, then the next step is to conduct discovery. Discovery is generally conducted through examinations in guardianship incapacity proceedings, written questions, requests to produce documents and depositions. This process itself can take months. Once a party has conducted discovery, the next step is to notice the matter for trial in a civil proceedings or set the matter for an evidentiary hearing in a probate or guardianship proceeding.

Along the way, if a party wants the court to take some action, the party files a motion or petition. Because our courts are very busy, it may take a month or two to set the matter for hearing. When the matter eventually gets to trial, then the judge or jury hears all the evidence. Because the typical civil judge (at least in Lee County state courts) has over 5,000 (note a typo) matters assigned to him or her at any given time, judges do not take the time to review a file before the matter is set for a hearing in front of the judge. Each judge simply does not have the time. For more information please contact Florida Bar Board certified wills, trusts, and estates expert Matthew A Linde, P.A. today at 239.939.7100.

If you have decided that it is necessary to petition the circuit court to have someone, usually a close family member, declared incapacitated so that you can establish a guardianship, a common question is how long will this take?

The length to time depends on the judge that the case is assigned to. For example, in Lee County, there are five different civil judges. The time it takes: (1) to appoint an attorney for the alleged incapacitated person, (2) to appoint three examining committee members to examine the alleged incapacitated person, (3) for the examining committee to examine the alleged incapacitated person and file a report with the court, and (4) schedule the hearing at a future date after the examining committee reports are filed varies from four to eight weeks depending on the specific judge's work load.

However, what happens if you need something done right now?

Florida Statute §744.3031 describes the situations that a judge may appoint an emergency temporary guardian for an alleged incapacitated person. The court will hear a petition to appoint an emergency temporary guardian anywhere from two days to several weeks. The advantages of an emergency temporary guardianship are: (1) if a greedy family member is exploiting the alleged incapacitated person, greedy person does not have to be notified of the emergency hearing, (2) you do not have to wait for the examining committee to evaluate the alleged incapacitated person, and (3) the emergency guardian can be appointed much quicker.

However, you must file a petition to determine incapacity and a petition to appoint plenary or limited guardian before you can file a petition to appoint an emergency temporary guardian. The emergency temporary guardian can be for the person or property of the alleged incapacitated person. However, under §744.3031(1): “The court must specifically find that there appears to be imminent danger that the physical or mental health or safety of the person will be seriously impaired or that the person's property is in danger of being wasted, misappropriated, or lost unless immediate action is taken.” Thus, your attorney needs to collect admissible evidence that can be presented at a hearing to appoint an emergency temporary guardian. The hearing on an emergency temporary guardian can last anywhere from a few minutes to several hours. However, sometimes it is absolutely necessary to have an emergency temporary guardian appointed. For more information contact Linde Law Group today!

Ancillary or supplementary administration is usually necessary when the decedent [the person who died owning the property] dies owning property within the state of Florida, and a primary or domiciliary probate has been commenced in another state. Since so many banks have merged, usually an ancillary administration is only necessary when the decedent died domiciled in another state owning real property or a closely held business within the state of Florida. The same is true if the decedent died in Florida owning property in another state.

Ancillary administration is commenced by filing a petition in the Florida circuit court, or for a decedent domiciled in Florida, in the state where the decedent’s property is located. In Florida, the petition must be accompanied by authenticated [this means each copy must have a court seal from the court where the document was filed by the clerk of courts stating it is a certified or authenticated copy of the original] copies of the foreign will, the petition for probate and the order admitting the will to probate and appointing the personal representative. According to §734.104, “If no petition is required as a prerequisite to the probate of a will in the jurisdiction where the will of the nonresident was probated, upon proof by affidavit or certificate that no petition is required, an authenticated copy of the will may be admitted to record without an authenticated copy of a petition for probate, and the order admitting the will to record in this state shall recite that no petition was required in the jurisdiction of original probate.”

If the petitioner has been nominated as the personal representative or executor [in Florida the term personal representative is used, but in many other states, the term executor is used instead] in the foreign state, then when the proper documents are filed, the foreign personal representative will be issued Florida Letters of Administration [“Letters” is simply a piece of paper that says "Letters of Administration" and also is signed by the judge and authenticated with the proper seal from the clerk of courts] after a bond, if required by the court, has been filed with the court. Once the foreign personal representative receives letters of administration, then the probate proceeds as any other Florida probate.

There are abbreviated procedures available when the gross value of property in Florida is less than $50,000.00 or when the ancillary procedure is commenced more than two years after the date of the decedent’s death. For further information, please contact wills, trusts, and estates Florida Bar Board certified expert Linde Law Group today at 239.939.7100!

This is a good question. As the population grows, I have seen more and more attorneys claim to practice “elder law.” The next time an attorney tells you that, ask him or her exactly what “elder law” is. Since the attorney practices “elder law” one would hope that attorney can tell you what elder law is. However, because you read this Frequently Asked Question, you know the answer - at least according to the Florida Bar. Elder law is a term defined by Section 6-20.2(a) of the Rules Regulating the Florida Bar as:

“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.”

The answer is the person designated by the Florida legislature as the “proxy.” Listed below is the Florida Statute 765.401(1). Please note this is not an exact quote of the statute as I have made some minor edits to make this more readable, and I have added some points to consider in italics. 

(1) If an incapacitated or developmentally disabled patient has not executed an advance directive, or designated a surrogate to execute an advance directive, or the designated or alternate surrogate is no longer available to make health care decisions then health care decisions may be made for the patient by any of the following individuals, in the following order of priority, if no individual in a prior class is reasonably available, willing, or competent to act:

(a) The judicially appointed guardian of the patient or the guardian advocate of the person having a developmental disability as defined in Florida Statute 393.063 who has been authorized to consent to medical treatment, if such guardian has previously been appointed; however, this paragraph shall not be construed to require such appointment before a treatment decision can be made under this subsection;

(b) The patient's spouse [LLG Note: Is the spouse from a subsequent marriage when you have children of a prior marriage? If so an advance directive is a good idea to prevent fights over dad or mom’s care. If there is no surrogate and the second spouse starts to make decisions, the children can always petition for a guardianship under paragraph (a) above, and if there is no surrogate then, the guardian would make the decisions.]

(c) An adult child of the patient, or if the patient has more than one adult child, a majority of the adult children who are reasonably available for consultation [LLG Note: Again, this is a good reason for an advance directive. Do your children get along? If the answer is no then this is not a good time for a fight over mom or dad’s care in a guardianship court proceeding.];

(d) A parent of the patient;

(e) The adult sibling of the patient or, if the patient has more than one sibling, a majority of the adult siblings who are reasonably available for consultation;

(f) An adult relative of the patient who has exhibited special care and concern for the patient and who has maintained regular contact with the patient and who is familiar with the patient's activities, health, and religious or moral beliefs; or

(g) A close friend of the patient [LLG Note: Another reason for a health care surrogate; do you really want the hospital to interpret this statute and decide who “a close friend” is?]

(h) A clinical social worker licensed pursuant to chapter 491, or who is a graduate of a court-approved guardianship program. Such a proxy must be selected by the provider's bioethics committee and must not be employed by the provider. If the provider does not have a bioethics committee, then such a proxy may be chosen through an arrangement with the bioethics committee of another provider. The proxy will be notified that, upon request, the provider shall make available a second physician, not involved in the patient's care to assist the proxy in evaluating treatment. Decisions to withhold or withdraw life-prolonging procedures will be reviewed by the facility's bioethics committee. Documentation of efforts to locate proxies from prior classes must be recorded in the patient record. [LLG Note: If you haven’t been convinced to designate a health care surrogate to make health care decisions for you yet, then this paragraph should do it.]

For more information Contact Linde Law Group today.

Generally, assets that were transferred before the decedent's death can be set aside or revoked based on the same grounds that a will could be set aside. Those transfers could be set aside (an action for rescission) based on fraud, undue influence, mistake or lack of capacity. Another option is to initiate a cause of action to establish a constructive trust. However, the standing to bring these actions belongs to the personal representative. What does one do if the personal representative is the abuser? First, the litigant could petition the court to appoint an administrator ad litem. Generally, an administrator ad litem is appointed by the court when the personal representative has an interest that is adverse to the estate (such as when the personal representative sold assets from the decedent before he or she died). Another option is to petition to remove the personal representative based on a conflict of interest with the estate. 

Further, the litigant always has the option to petition the court to issue a temporary injunction with or without notice freezing the assets transferred to Liaretta. However, courts are generally hesitant to issue this type of injunction. Further, the litigant has to follow a specific procedure that can become expensive. It should be obvious that it is critically important to have an advocate who is very proactive in discovering assets that may have been taken from the decedent before he died. Contact Linde Law Group.

Under Florida Chapter 710 (cited as the Florida Uniform Transfers to Minors Act), a person having the right to designate the recipient of property transferable upon the occurrence of a future event may nominate a custodian to receive the property for a minor. See Florida Statute 710.104(1). In the absence of a will or under a will or trust that does not authorize transfer to a custodian, the personal representative, trustee, or other conservator may nevertheless make a transfer to a custodian without court approval unless the property exceeds $ 10,000. See Florida Statute 710.107. Any other obligor who holds property of a minor not having a guardian of the property may transfer the asset to an adult member of the minor's family or to a trust company unless the property exceeds $ 15,000 in value. See Florida Statute 710.108. A transfer under Chapter 710 saves the expense of establishing a guardianship of the property under Florida Chapter 744. However, there are disadvantages. First sometimes a guardianship of the property is necessary such as when the minor is to receive proceeds from the settlement of a claim under the Florida Wrongful Death Act. Further, under 710,116, a custodian can spend money in a custodial account without the court knowing about it if the custodian considers it advisable for the use and benefit of the minor.

Thus, you could find yourself in a situation where a divorced father of your child is a custodian of property belonging to your child, and when the child turns 18, the property is gone because the divorced father of your child spent the money (from an actual case). That would not happen with a guardianship of the property of a minor. Thus, careful consideration is necessary before setting up an account under the Florida Uniform Transfers to Minors Act; contact Linde Law Group for more information.

I wish I could force every man and woman who gets married (usually a second marriage) after setting up an estate plan to read the answer to this question. This situation arises from a variety of circumstances. First, we have the scenario where a man and a woman move to Florida from another state. The estate plan was fine in their other state, but now they are in Florida and the Florida Statutes change their estate plan in ways they never imagined. Then there is the scenario where the husband and wife are happily married for many years. The husband (obviously this can happen either way, but men have a shorter life expectancy) dies and the surviving wife goes to see a lawyer and changes her estate plan. Then, she meets a nice gentleman and gets married. The new husband tells her (mom) over and over again that he does not want her money. 

She thinks she is fine because her estate plan does not give him her money anyway. Then she dies and the children are in for quite a surprise. First, the surviving second spouse was married after the will was signed and is not mentioned in the will. Thus, he is considered a pretermitted spouse and he is entitled to a share equal to one-half of the probate estate. But wait, that is not all. He is also entitled to a life estate in the decedent’s homestead property. But wait there is more fun in store. The decedent's will gave her homestead to her son because of previous gifts to her daughter. Now because of Florida Statute 732.401, the remainder interest in the homestead property vests in all mom's descendants at the time of her death. This means the daughter gets a vested remainder of one-half of the house that was supposed to be devised only to the son. Further, now son and daughter are fighting about everything. The daughter tells her brother that it is not her fault that Florida law changed mom's estate plan, and the son wants her sister to "do the right thing."

Hold on there is more. That car that mom promised to her son is now going the surviving spouse along with the other car that mom used from time to time. In addition, the second spouse also gets up to $20,000.00 of tangible personal property within the house. Finally, if that is not enough, that surviving spouse who did not want any of mom’s money can receive a family allowance during the probate of up to $18,000.00. To avoid this heartbreaking mess, contact the Linde Law Group today for more information.

The person who initially pays for the proceeding is generally the person seeking to establish the guardianship. There are exceptions to this. When a professional guardian is involved, the fees and costs for the guardianship proceeding generally come directly from the alleged incapacitated person’s assets after an emergency or plenary guardian is appointed. The type of guardianship referenced in this question is a guardianship for an individual 18 or older when there has been a finding of incapacity. Once the court has made a finding of incapacity, there can be a guardian of the person or the guardian of the property or both (generally referred to as plenary guardianship). The cost of a guardianship proceeding will vary greatly. Generally, if no one contests incapacity, no one contests who the guardian should be, no one contests the inventory or the initial guardianship report and there are no complications with the examining committee, then a guardianship proceeding will cost approximately $3,500.00, which includes the filing fees and the fees for the three examining committee members. This is an estimate and the actual cost could be more or less than this.

Generally, the documents necessary to start a guardianship are (1) a petition to determine incapacity, (2) a petition to appoint a plenary or limited guardian, (3) an oath, (4) an application for appointment as guardian and (5) the filing fee. The process, depending on which civil judge the petition is assigned to, will take anywhere from four to eight weeks if there are no complications. Many times assistance is needed sooner than that. One option is to petition the court to appoint an emergency temporary guardian. If the court finds that there is imminent danger to the person or their property is in danger of being wasted or misappropriated, then the court can appoint an emergency temporary guardian. This process generally adds another $1,500.00 to the overall cost, and this assumes no complications.

Under Florida law, a guardian or an attorney who has rendered services to the ward or to the guardian on the ward’s behalf is entitled to a reasonable fee for services rendered. Thus, if a family member is successful in establishing a guardianship for a loved one, that family member will be reimbursed for money spent. However, this assumes that person who is deemed incapacitated has money to reimburse the family member establishing the guardianship. Further, if there are objections to a fee petition, then the courts will hold an evidentiary hearing to rule on any fee dispute. Contact Linde Law Group for additional information.

I get this question a lot. Generally, the context of the question is that the settler (person who created the trust) has died and the trust is being administered for the benefit of the beneficiaries. The trust terms can require that assets are distributed outright, or the trust terms can hold assets in trust for varying lengths of time. Regardless of the length of the trust, the trustee is required to provide “qualified beneficiaries” with certain information, and this information requirement cannot be waived by the trust. For example, Florida statute 736.0813 requires the trustee to give qualified beneficiaries the following: 

The trustee shall keep the qualified beneficiaries of the trust reasonably informed of the trust and its administration.

(1) The trustee's duty to inform and account includes, but is not limited to, the following:

(a) Within 60 days after acceptance of the trust, the trustee shall give notice to the qualified beneficiaries of the acceptance of the trust and the full name and address of the trustee.

(b) Within 60 days after the date the trustee acquires knowledge of the creation of an irrevocable trust, or the date the trustee acquires knowledge that a formerly revocable trust has become irrevocable, whether by the death of the settlor or otherwise, the trustee shall give notice to the qualified beneficiaries of the trust's existence, the identity of the settlor or settlors, the right to request a copy of the trust instrument, and the right to accountings under this section.

(c) Upon reasonable request, the trustee shall provide a qualified beneficiary with a complete copy of the trust instrument.

(d) A trustee of an irrevocable trust shall provide a trust accounting, as set forth in s. 736.08135, to each qualified beneficiary annually and on termination of the trust or on change of the trustee.

(e) Upon reasonable request, the trustee shall provide a qualified beneficiary with relevant information about the assets and liabilities of the trust and the particulars relating to administration.

If the trustee violates a duty the trustee owes to a beneficiary, then the trustee has committed a breach of trust and a qualified beneficiary can sue the trustee. Contact Linde Law Group for additional information.

Get ready to be shocked; many medical doctors have very little understanding whether your loved one has legal capacity or is incapacitated. Further, understand that capacity is a legal not a medical term. I have had several cases where the children or grandchildren were convinced that dad/grandpa et cetera was not the same person, but the doctor said dad/grandpa was fine. In one case I distinctly remember, the general practitioner was convinced that grandpa had capacity, but after the grandson filed a petition to determine incapacity, it became very obvious that grandpa lacked capacity and had impaired functioning. The court found grandpa lacked capacity and the court prevented a wealthy 92-year-old man from marrying a 56-year-old caretaker earning $12.00 per hour. If you have questions it pays to talk to a qualified guardianship attorney to understand your options. Contact Linde Law Group today.

While I personally do not know any seminar guy named “Fred,” I am surprised how many times I am speaking to someone about estate planning when suddenly the potential client tells me about what that person “knows” based on what was said at a seminar. Estate planning seminars are very popular in Florida. Generally what happens is that some financial planning agency or brokerage will contact a bunch of people and offer a “free” lunch. Then during the time you are eating, someone will speak about how great so-and-so agency is. Usually, there will be a self-professed “expert” who will speak about a given estate planning topic.

It is very important that you understand that unless you get something in writing from the speaker (not likely) than the advice you receive may or may not be correct. Many times people will tell me what they heard at a seminar and what they heard is simply wrong. I would never rely on what somebody said at a seminar. Here the phrase “you get what you pay for” is very true. Further, even if you clearly remember what somebody told you, unless what you were told is in writing, the speaker can always simply say that “that is not what I said” or “that is not what I meant.” Therefore, if you have questions and you need to rely on the advice received, set up an appointment with Matthew Linde at Linde Law Group. Generally, with potential estate planning clients, I provide a 15 minute free consultation.

Under Florida statute 765.101, and “advance directive” means a witnessed written document or oral statement in which instructions are given by a principal or in which the principal’s desires are expressed concerning any aspect of the principal’s health care, and included, but is not limited to, the designation of a health care surrogate, a living will, or an anatomical gift made pursuant to chapter 765.

When someone dies in Florida with assets titled in their own name (as opposed to assets held in trust, in joint tenancy with right of survivorship, in a tenants by the entirety, in a pay-on-death or transfer-on-death account) those assets generally cannot be transferred except through a probate proceeding. The court appoints a personal representative to take charge of the decedent's property. The personal representative has many different duties under Florida law. Thus, litigation can involve who is the personal representative. When a will has been properly executed with an attestation clause, then generally the court must appoint the person nominated in the will if they are otherwise qualified. However, if there is no will, then before a person can be appointed personal representative; all individuals with an equal right to be appointed must be noticed of the proceeding by certified mail (commonly referred to as “formal notice”).

Even if a will is properly executed, a beneficiary under the will can challenge the will within three months after that person has received a notice of administration from the personal representative. Will challenges can involve, mistake (although not mistake of the inducement), insane delusion, undue influence or lack of capacity.

A properly executed will can be ambiguous if the will was not written very well. There can be latent ambiguities or patent ambiguities. Thus, litigation can involve a proceeding to interpret that meaning of a phrase in a will.

One of the first tasks of a personal representative is to inventory the assets of the estate. Once this is done, the personal representative files an inventory with the court and serves the inventory on the beneficiaries. If the beneficiaries disagree with the inventory, then litigation can result from objections to the inventory. Sometimes there are claims that before the person died, that person was manipulated by someone determined to steal money. This happens a lot in Florida.

Once a personal representative has been appointed, the personal representative must send out a notice to creditors. The notice to creditors is published and creditors have ninety days (90) days to file a creditor claim. If the creditor is “reasonably ascertainable” to the personal representative then the personal representative must send that creditor a notice and the creditor has the later of thirty (30) days from the notice or ninety (90) days from the original publication to file a claim. If the creditor files a claim, then the personal representative may object to the claim. If that happens, the creditor generally has thirty (30) days to file a lawsuit on the claim. Thus, litigation can involve creditor claims.

When the creditors have been paid, tax returns have been filed and the estate is ready to close, the personal representative must serve an accounting on all beneficiaries unless waived. Litigation can result from objections to the accounting if the personal representative wasted assets or paid attorney too much money et cetera.

These are just some examples of issues that can result in probate litigation. Please contact Linde Law Group today to answer any questions that you have. For more information contact Florida Bar Board Certified wills, trusts and estates expert Matthew A. Linde at 239.939.7100 or 844.357.0572 today!

We have seen some of the biggest problems develop from this simple question. The context of this question is that you are a beneficiary of a trust or estate. You called the attorney to ask him/her some questions, and the paralegal or secretary told you that your own attorney would just increase the cost. It is possible that could be true, but remember that the trust/estate attorney does not represent you. The trust/estate attorney represents the personal representative/trustee. If the attorney is knowledgeable, then that attorney will know that there is case law that suggests that the attorney has a fiduciary duty to the beneficiaries as well as the personal representative or trustee. But often what happens is that the attorney for the personal representative/trustee is not that knowledgeable, and that attorney who purportedly represents the personal representative/trustee ends up acting as the representative for the personal representative/trustee in their individual capacity. This can result in the attorney taking positions that are directly adverse to your interests. You will now know when this happens unless you have your own advocate. You should never sign something if you do not understand what you are signing and the larger the estate/trust the more important it is that you have someone that can advise you whether the estate/trust is being administered correctly. We have seen beneficiaries lose millions of dollars because the beneficiaries trusted the attorney for the estate/trust and signed a document waiving important rights or failed to assert claims in a timely manner.

A “will contest” is generally a proceeding under Chapter 733 of the Florida probate code to have all or part of a will that has been sent to the court for a probate declared void. For example, assume that Jane has two siblings: Mean and Greedy. Mean and Greedy were able to have mom change her will just before she died leaving all of her probate estate to Mean and Greedy and cutting out Jane except for a gift of $1,000.00 out of a two million ($2,000,000.00) dollar estate. Mean and Greedy file a petition to have the will admitted. Because the purported will names Mean and Greedy as the personal representatives, Mean and Greedy do not have to send the petition for probate to Jane before sending it to the court. If the will was signed by mom, two witnesses, and if the will has an attestation clause, then the probate court will admit the will to probate usually after requesting a bond, but without noticing Jane. Once the will is admitted, Mean and Greedy are required to send a Notice of Administration to (1) the surviving spouse if there is one, (2) beneficiaries, (3) the trustee of a revocable trust, (4) individuals entitled to exempt property. Once Jane receives the Notice of Administration, Jane has three months to object to the validity of the will, the qualifications of the personal representative, the venue, or the jurisdiction of the court. If Jane did not receive a Notice of Administration, then other limitations apply.