What Can My Special Needs Trust Pay For That Will Not Affect My Disability Payment?
Video Summary
What can my Special Needs Trust pay for that will not affect my disability payments? Well, that’s actually a really good question. First and foremost, you have to consider what the terms of your actual Special Needs Trust say, because the terms are definitively going to dictate what the trustee of the Special Needs Trust can and cannot provide expenditures for, for the beneficiary. One of the most common terms in a Special Needs Trust allows the trustee to have discretion when it comes to certain things that are not going to be covered by public benefits. Some of those things include rehabilitation equipment. Other things may even include certain expenditures for vacations or things of that nature, if it benefits the well being of the beneficiary.
It’s very difficult to give a general standard as far as what the trustee can do that will not affect your disability, but you’re going to again have to look at the terms that govern the trust. Anything that necessarily would not be covered by the public benefits programs. For instance, let’s say you have a beneficiary who has a severe disability with respect to their physical being. You’re going to be looking at situations where you may have the authority as the trustee to pay for specific surgeries, possibly elective surgeries that would not be covered by those federal programs or even the state programs of which the person is already receiving benefits and entitlement to. Generally speaking, that’s what you’re looking at. There may be certain expenditures for things such as education, even potentially housing allowances. Again, the terms of the trust are going to govern this and Special Needs Trusts, especially if you’re talking about a self-settled Special Needs Trust is going to require court approval in order to get it setup and funded.
If you have any other questions regarding Special Needs Trust or their interplay or the responsibilities or duties of a trustee, please give me a call here at Waller & Mitchell at 727-847-2288.
When Would I Need A Quitclaim Deed?
Video Summary
When Would I Need A Quitclaim Deed? Well, first let’s talk about, “What is a quitclaim deed?” A quitclaim deed says that, “I convey to you whatever interest I may have in the property that I am conveying to you.” It’s not saying that you have any ownership interest whatsoever. Most of the time, quitclaim deeds are the primary purpose whenever lawyers use them, is usually in conjunction with clearing the title to real estate. You simply say, “Well, look. I’m not warranting,” meaning that I’m not asserting that I have ownership, like what you do under a Warranty Deed. You’re simply saying, “Look. Here it is. Whatever problems there are with the title to the property, you’ve got them. Whether there’s liens against it, whatever the situation is, here’s a quitclaim deed. I’m simply transferring the property.”
I find that I field calls all the time, or people suggest to me the solution to their real estate title problems is getting a quitclaim deed, and I suggest to these folks that talk to me about their solution, as far as using a quitclaim deed, is the operative word is a Deed or a Conveyance, so you need to look at the particular circumstance as to what kind of deed do you want to use and the intended purpose. That many people throw that term around, “Well, I’ll just use a quitclaim deed,” and thinking that that is a cure-all to any particular problems. It’s unfortunate that sometimes when people just use a quitclaim deed, not thinking that that could cause them problems down the line. Well, it can, and also the conveyance must comply with the requirements of the Florida Law, and need to show the meritable status, and exactly what they are transferring. A quitclaim deed is simply a deed that does not have any warranties and says that, “Look. Whatever interest I have in property, I am transferring to you.”
I would encourage you if you’re dealing, or looking to buy some property, and the person says, “Oh, we’ll take care of this. We’ll just use, I’ll give you a quitclaim deed to the property, and you give me X number of dollars, or whatever.” Be very cautious on that. You need, particularly, if it’s, usually it’s a substantial investment if it’s a house or property, and you may wind up with nothing. That’s the reason why we have title insurance, and for a few hundred dollars or hundreds of dollars, you can verify that you’re actually getting marketable title to the property, or at least know what the liens are against the property. Don’t take someone’s word for it and simply have them execute a deed, a quitclaim deed, whenever you’re paying them good money for the property. Quitclaim deeds are usually used to clear up people’s interest in property, where you’re not purchasing it from them, and it certainly isn’t a cure-all. If you have any questions about quitclaim deeds, give me a call at 727-847-2288.
- Published in Real Estate, Videos
What Is Adverse Possession And How Does It Work?
Video Summary
What is Adverse Possession and How Does It Work? Well, whenever you ask a Board Certified Real Estate Lawyer about adverse possession, he puts it in the context of real estate. There is a Statute, which allows you if you have, you possess the property adversely. Meaning that you’re living there and you have what they call Open and Notorious Possession of the property. Means that you probably fenced it or it’s been enclosed by a fence, and you’re not there with permission of the owner of the property. That means that you’re possessing the property adversely.
This can happen, particularly if you believe you own the property, and you might have a Deed to it, and so you’re living there, and yet there’s other people who are claiming ownership. Under that scenario, you can then file what they call a Suit to Quiet Title to eliminate the interest of any other parties, because you have what they call Color of Title. Meaning you have a Deed to the property and that you are there, and you have open and notorious possession. Meaning that you’re living there and it’s not like it’s you’re living in another State, but you’re possessing it.
Then, in addition to that, you need to be paying the taxes on the property, and after seven years of paying the taxes, as well as having some sort of Deed to the property, you can then file a Suit to Quiet Title, based upon Adverse Possession. Now, there’s a problem, however, whenever someone moves into the property, and they don’t have the Deed to the property. They can possess the property adversely. Meaning if someone is out of State, or someone’s died, and no one objects, basically a squatter that moves in and takes over the property.
Well, they’re possessing the property adversely. However, that does not mean that they will eventually have a right to claim ownership of the property, just because they have possessed the property adversely or they’re living there, and they can be subject to a cause of action, which would depossess them of the property, and it’s not a defense to say, “Oh, I’ve been living here for seven years, and oh, I’ve been paying the taxes.” Well, that doesn’t work. However, if they live there and there’s a particular form with the Property Appraiser’s Office that you can complete that says that you wish to return the property for taxes. It’s a particular form that you complete and say, “Send me the tax bill. The purpose of this is that I’m going to pay the taxes for seven years, and after seven years, and I’ve occupied the property, well, then I’m in a position to file a suit to Quiet Title.” That’s another way to obtain title by adversely possession of the property.
Some folks are concerned about when their neighbor’s fence is over their property line by a foot, or a few feet, or whatever. They’re concerned about their neighbor trying to claim their property, they’re losing ownership. That doesn’t happen, because they don’t have title, and furthermore, you could consider consent, so that’s the other thing. Is if you let your relative, or anybody else, your friend, or whatever, live on the property and they pay the taxes, or whatever.
They’re living there with your consent, and so they cannot later claim some kind of ownership, because they are not claiming it adversely. Whenever your neighbor’s fence is on your property, probably the worst thing that you could do was to say, “Move your fence,” and then not do anything about it, because then it would show that they’re adversely possessing a part of it. If you just leave it there, well, they can’t say that they were possessing your property adversely, just because you being a good neighbor, and let them maintain their fence.
If you have any questions about adverse possession and trying to build title, you can give me a call at 727-847-2288. Let me remind you, if you’re viewing this out of State, that I’m a Board Certified Real Estate Attorney in the State of Florida. I can’t give you any advice as far as any other State is involved, and so what I say on this video is, “Florida Specific.” My phone number again is 727-847-2288.
- Published in Real Estate, Videos
What Are Squatters Rights?
Video Summary
What are squatters rights? Well, squatters really do not have any rights whenever they simply move into the property and they don’t have any right to move into the property. It could even be considered a crime as far as breaking and entering as far as that’s concerned. We’ve seen a lot of this whenever folks find that houses are in foreclosure and have been abandoned. Sometimes they simply move in and sit there and they’re squatters and there’s no one that files a complaint about breaking and entering in order to have them removed.
If they’ve entered the property and no one really knows when they did it or why they’re there or who is there, well then that’s problematic and you then have to go through an action and it’s called an unlawful detainer action. You simply file an action saying that, “Look, I’m the owner or I’m the property manager or I’ve leased the property,” you have a right of possession and these folks have entered into possession.
You can have them removed the same way as if you have let someone such as a relative move into a house of theirs because they just needed to stay there for a few months until they got on their feet or their house was built or some other reason, and here it is a couple of years later and they’re still there and they don’t want to move and that the rent’s right and that you’re paying everything. You can then turn around and terminate that or give them notice and you can have them removed under the unlawful detainer statute.
You can’t do it under the eviction statute and the landlord-tenant statute because they’re not tenants and they’re not paying you any rent. As far as squatters are concerned, they’re usually complete strangers and they’re just opportunists who have moved in some abandoned property or what appears to be abandoned, and they really have no rights. However you as the owner of the property may be under the obligation to file an action, have them removed.
There was a scam going on out there where some folks had a service that they were trying to claim ownership of the property by posting something on the door and they would claim that they were claiming this by adverse possession and then they would turn around and rent the property to some unsuspecting person when it was simply being abandoned. I think those folks may have had some problems as far as fraud’s concerned. They certainly didn’t understand adverse possession and how that works.
If you’re a squatter, well good luck. You’re not long for staying there whenever the person who is entitled to possession finds out, they can file an unlawful detainer action. If you’ve got some squatters and you need to get rid of them, well give me a call at 727-847-2288.
- Published in Real Estate, Videos
What Is A Qualified Income Trust?
Video Summary
What is a qualified income trust? A qualified income trust is also known as a Miller Trust. The sole purpose for utilizing a qualified income trust would be for qualifying for Medicaid coverage for skilled nursing care. Does everybody need a qualified income trust, also known as a Miller Trust, in order to be eligible for Medicaid coverage for skilled nursing care? The answer to that question is no. The only reason that one would need to employ a qualified income trust would be in the event that the individual who is applying for Medicaid coverage’s monthly gross income is over the allowable threshold with respect to that program.
What is the allowable threshold? Presently, through today, for a single applicant applying for Medicaid coverage for skilled nursing care, the maximum amount of gross income you can have on a monthly basis is $2,199 dollars. That does include your Medicare premium that is usually deducted directly from your income, which generally is deducted from your social security income. In the hypothetical situation, let’s say that your gross monthly income is $2,200 per month, so you’re only over by $1. Even in that situation, you would still need a qualified income trust to be set up in order to be qualified for Medicaid coverage for skilled nursing care.
Essentially, what this special type of trust does is it diverts that excess income that you receive on a monthly basis to the trust. Where does that excess income go? That excess income will build up on a monthly basis within the actual trust account. Once the person who is receiving Medicaid coverage for skilled nursing care passes away, then the primary beneficiary of the Medicaid trust, also again called a Milled Trust or called a qualified income trust, the primary beneficiary is the state of Florida, which would be considered the Agency for Healthcare Administration.
This type of trust does allow a secondary beneficiary, so you could potentially put your children or your spouse or any other person that you would like to provide this additional excess income to. The problem is, from a practical standpoint, generally speaking, the amount that Medicaid has paid far supersedes the amount that’s able to accumulate within the Medicaid trust. Because of this, generally the only beneficiary that’s going to receive all of this excess income once the Medicaid recipient passes away will be the state of Florida.
It’s very very important, though, that you come to speak to attorney and have an attorney draft this specific kind of trust. It is very specific and does have to pass through the legal department of the Department of Children and Family in order to be qualified for Medicaid coverage for skilled nursing care, as it must be approved and must have the provisions that Medicaid is looking for.
If you have questions regarding this specific kind of a trust and whether this is viable for you and your family, please give me a call here at Waller and Mitchell. Our phone number is area code (727)847-2288.