How Does A Guardianship End?
Video Summary
How does a guardianship end? Well, there are several scenarios as far as a guardianship is involved. Let’s first talk about what is a guardianship. That’s whenever you have someone appointed to take care of the ward, and the ward does not have all of their rights, as far as that’s concerned. It could be a minor who cannot have the right to contract till they reach of majority, and so you could have a guardianship for a minor who doesn’t have a right to contract. Then you have the incapacitated person who does not, is mentally not capable of executing their documents or they’re found to be incapacitated and therefore someone’s been appointed as their guardian.
Let’s start with how do you end a guardianship for a minor. Well, that’s fairly easy. Once they reach the age of 18, well then you can terminate the guardianship and you turnover whatever the assets are to the ward. That’s how that would end. Then you go to the guardianship where you have an incapacitated person and it can end if the person who’s incapacitated or the ward, if they petition the court and have their competency or competency hearing to show the court that they have their competency, that would terminate the guardianship. That rarely happens, but that is another way to terminate a guardianship.
The most common way, particularly when you have incapacitated person’s, is whenever they pass away, that would end the guardianship. Then the money would then pass to their state or probate proceedings as far as that is concerned. If you have a guardianship or would like some advice, you can contact our office. We have Erica Muns has joined our firm and has some experience with guardianship’s and would be pleased to meet with you and talk to you about the expense, and whether or not it can be terminated. Guardianship’s are court supervised proceedings. They’re closely monitored by the court, particularly the money involved. If you have any questions, give us a call at 727-847-2288.
- Published in Guardianship, Videos
What Advice Would You Give When Selling A Home?
Video Summary
What advice would you give when selling a home? Well, if you’re thinking about selling your home, I suggest first that you start thinking about where you’re going to go, so that you don’t sell your home, and it may sell quickly in this market, and have no place to go. So, you need to do some planning and think about where you’re going to be going.
The next thing I suggest you do, is that you contact three realtors, and ask each of them to come out and view your home, and provide you with a comparative market analysis. Tell each one of them that you’re presently interviewing realtors as far as deciding on whom to list it with and for how much, and see if they would be interested in coming out and providing you with a CMA, giving you some idea which will provide the marketing … what price they believe they can sell the house at. And also any suggestions they might have as far as what you can do to improve the sale, or the eye appeal, as far as that’s concerned, as far as the home’s concerned.
So once you have interviewed all three of them, you need to have some comfort as to which one you feel the most comfortable with. And the one that necessarily says that they would list it for the highest amount, you want to try and look at that to see if all three CMA’s are realistic, or how broad of a range they are, to come up with some kind of median price. You need to ask them that you would like to have the property sold, say, in two month period, in a 60 day period that you would have a contract.
So you also need to be prepared, particularly if you do have a realtor, to fill out an information sheet about the home, and list any matters that you’ve had done to the house. Particularly if it’s a repaired sinkhole home, be sure you have the engineers report if it’s available. And disclose whatever there may have been any problems, and that that’s an obligation you have as far as a seller.
Once you decide upon the realtor, you need to try and keep your listing agreement down to six months. Also, ask them about if you get unhappy with their services, whether or not you would have a right to terminate the contract, and what you would have to pay them. And take out the provision, or the listing agreement, where they have the discretion of either allowing you in our out of the contract, and don’t sign it for too long of a … six months is usually the time period for a listing agreement. So if things aren’t working out, well then you’re in a position to switch to a different realtor.
Also, you need to look at what their percentage is, whether it’s … usually it runs about 6%, and ask how much they’re going to provide for the selling realtor, since they’re the listing realtor. Whether it’s gonna be a even split, a three and three, or whether they give the [inaudible 00:03:48] percentage, and just how they go about that. You also need to ask each one of them whether or not they’re gonna charge you a transaction fee, as far as your realtor’s concerned.
So that’s, also how they’re gonna go about marketing, whether they’re gonna put it in multiple listing, what kind of advertisements they’re gonna do. So these are all questions that you might wanna write down so you have each realtor be ready to address these, or when you ask them to come out whether they’d be agreeable to giving you answers to these questions. And then, once you review all of that, and your comfort level, well then select your realtor so that you could then go about putting your house on the market, and hopefully having it sold within about a 60 day period. Also having decided, you know where you’re gonna be going, whether or not you’re moving out of state, or whether you already have a place, or just what you need to do.
Whenever you do receive a contract for the sale of the property, tell your realtor that you’d like to have my office handle the title insurance. We charge pretty much the same amount as what any other title company would do, and we would be at the closing table for you. One of the things, and if you would like for me to review the contract, well I would do that. If you wanna engage my services to look at the contract and comment on it prior to your signing it, the attorney fees on that run about $250 to $500.
One of the things that you will see in most contracts, which I don’t know that there’s much you can do about it is, usually there’s a very small deposit. So, the buyer puts down a $1,000 deposit, or $2,000 or $3,000, even it’s a cash deal. So whenever the closing comes about, and let’s say the buyer just decides they don’t wanna to go through with the deal, the downside of this is that they can walk away and the most that you’re gonna be able to get is the amount of the deposit. So if it’s merely a $1,000, particularly if you have moved out or whatever you’ve done, then you’ve got a real problem, in that you have … the transaction’s gone through.
If possible, try and negotiate a little higher purchase price, or if you are concerned, let’s say it’s a 100% financing, or 97% financing, I suggest that you put in the contract that the buyer will request the lender to order an appraisal right away, to see if the property will appraise so that they can get their financing, and so it doesn’t fall through at the last minute, and they get their deposit back and you still own your home. But make arrangements to possibly remain in the property for a short period of time after closing, so that you haven’t moved out, and then the deal falls through at the last minute. Unfortunately it’s very difficult to know that you’ve got a deal until it actually closes and you put the money in the bank, so there’s just a few things that you can look at to do.
So, those are just a few things to think about whenever you’re getting ready to sell the house, and [inaudible 00:07:36] you’d like some advice, or like for me to represent you, I’ll be pleased to. If you sell the property on your own, I can prepare the contract and take care of the closing. I am a title agent, and I’ll write the title insurance and close the transaction. So if you have any questions about selling your home, give me a call, it’s 727-847-2288.
- Published in Real Estate – Selling, Videos
What is a Miller Trust and Why Do I Need One?
Video Summary
What is a Miller Trust? Well a Miller Trust is also known as a Qualified Income Trust, also known as a d4a trust. A lot of times people have confusion as to whether or not a Miller Trust is a viable planning tool for them when it comes to estate planning. However, a Miller Trust is only specifically utilized for one thing and that is with respect to qualifying for Medicaid coverage for skilled nursing care, within the State of Florida. Well why would I potentially need a Miller Trust in the event that I needed Medicaid for skilled nursing care?
Well, the whole purpose of a Miller Trust is to divert excess income that the recipient is receiving on a monthly basis. Let me explain how this works. Right now the allowable threshold for income on a monthly basis from Medicaid for skilled nursing care is $2,205 per month. Let’s say you have a situation … I want to be very clear here, this is the gross monthly income. There’s a lot of misnomers where people … 2,205 net within my bank account each month from my social security. Unfortunately, Medicaid does not consider what your net income is. Medicaid only considers what your gross monthly income is. Let’s use the hypothetical example that you have an individual whose gross monthly income is $2,206 per month, so $1 over the allowable threshold for Medicaid. In that situation, if you just applied for Medicaid based upon what your income was, you would be denied, and a lot of people say, “Well, a dollar, that’s not very much at all,” but that’s the requirement.
In order to essentially divert that excess money, that dollar each month, a Miller trust is created and funded in the same month that you are trying to attain Medicaid coverage, in order to divert that excess income. A Miller trust is only a viable planning tool in the event that you do have more than $2,205 on a monthly basis as far as your gross monthly income, in order to qualify for Medicaid for skilled nursing care. If you have any other questions regarding a Miller trust or if a Miller trust is a viable planning tool for you, please give me a call here at the law firm of Waller & Mitchell at 727-847-2288.
- Published in Medicaid Planning, Videos
May A Trustee Sell Assets Without the Knowledge of the Beneficiary?
Video Summary
May a trustee sell assets of a trust without the knowledge of the beneficiary? The answer is yes, they can. The trustee is in a fiduciary. Has a fiduciary obligation to the beneficiaries. As part of a trust administration, the trustee is supposed to supply a copy of the trust or offer a copy of the trust to all the beneficiaries. In addition to that, they should provide you with an inventory, the assets and the estate and every year provide you with an annual accounting. That way you can monitor what actions have been taken by the trustee.
They do have the obligation to treat this or handle these things on as a prudent investor or someone who has the beneficiary’s interest at the forefront. That’s the reason why you should be getting an annual accounting. You say, “Well, the trustee hadn’t given me any information. The trustee hadn’t given me an inventory or an accounting or anything else and they’re selling off assets.” Well, that’s where you need to probably consult with an attorney to see about making demand on the trustee and possibly filing a petition to have the trustee removed and force them to provide you with an accounting.
If you get an accounting and you believe that the trustee has sold assets for less than fair market value, well then the trustee can be charged and surcharged and removed for dissipation of the trust assets. The trustee does have the power to sell trust assets and does not have to consult with the beneficiary. They are responsible if they act irresponsibly and liquidate these assets.
My philosophy is always to try and be as transparent as possible with the beneficiaries and let them know what’s going on. Just because the beneficiary disagrees with the trustee, if the asset is being sold at market value or close to it, I think the trustee is protected.
Hopefully that answers your questions. I could certainly have heard where some trustees just go ahead and do whatever they need to do and they don’t tell anybody about it and may abuse their ability or the right to sell trust assets. If you have any questions, give me a call at 727-847-2288.