What Does It Mean To Administer An Estate?
Video Summary
What does it mean to administer an estate?
To administer an estate relates to a probate proceeding. In order to administer someone’s estate, you need to petition the probate court to have their will admitted to probate, or if they die without a will, you petition to have a personal representative appointed. Then once the personal representative is appointed to administer the estate, they then need to file an inventory showing the assets. They need to give a notice to all the beneficiaries and heirs, so that anyone can challenge the will or have notice.
The personal representative, which used to be called an executor, also sends out a notice to all reasonably ascertainable creditors so that they can file their claims in the estate. The asset, the personal representative is not personally liable for any of the debts, and they are to pay the claims of the creditors out of the assets of the estate. And so once they pay the creditors or claims, and the claim period expires, which is three months, then they are to make distribution out to all of the beneficiaries of the estate and provide an accounting. And if the beneficiaries are in agreement with the expenses and what the personal representative’s done, they can consent or after given notice, the court would then discharge the personal representative from their duties as the executor or personal representative, and they no longer have any liability. So that’s what’s involved, as far as administering an estate, in three minutes or less.
So if you have an estate that you would like to have administered, give me a call at 727-847-2288. Thank you.
Do You Have To Be Married To Be Entitled To A Partner’s Estate?
Video Summary
Do you have to be married in order to be entitled to a partner’s estate?
The answer is yes. The law does not, at this time provide that if you have cohabitated or are in relationship with someone, and you are not married to them, the law does not protect you when they pass away. They treat you as if you are a stranger and therefore you are entitled to no benefits. If you’re married, the law does provide that you’re entitled to certain rights. One is called an elective share; or if there’s no will, you’re entitled to certain benefits, depending on whether or not there’s any children or not. If there’s no children of the decedent, and you’re married to them, then you’re entitled to the entire estate.
Also, this has an effect on your real estate. If it’s your homestead property, as to whether you’re married or not, if you are married you have certain rights in the homestead. If the property is titled in the decedent. If you’re not married, you have no standing, or what we call standing, or right to make any claims against your partner’s estate. So if you – my suggestion is is that you need to set up a will conference or an estate planning conference to address the situation; and that I’ve seen this in the past, where someone’s been together for many years and they’ve lived as husband as wife, and then one of them passes away and they get nothing even though they’ve lived together.
Florida does not recognize common law marriages and that, unless they were established I think before 1964 or ’68. So rarely do you see a common law – I’ve never seen a common law marriage recognized in Florida.
So if you have any questions or like to do some estate planning, that’s the best way to handle it. My phone number is 727-847-2288.
How Do You Know If Someone Is Considered Legally Incompetent?
Video Summary
How do you know if someone is considered legally incompetent?
Well, I’m gonna take the easy road first, as far as that’s concerned. If you’re under the age of eighteen in the state of Florida, you’re not an adult, and so legally you’re not competent to contract. And so you’re not legally competent. And when this comes in to play is whenever you’re to receive a great deal of money, then it may require a guardianship. If the minor is to receive, let’s say from an estate, an inheritance and the amount of money is less than $15,000, then the natural parents can accept this inheritance in behalf of the minor child, or the minor who is legally incompetent.
Also, when it comes to contracting, you can contract with a minor, however it’s not legally binding on the minor. After he turns – any time before age eighteen, he can disavow the contract. After he turns eighteen, he has a reasonable time in which to disavow the contract, or he can ratify the contract after he turns age eighteen.
Now as far as people, other people who are considered legally incompetent, that usually comes with an incapacity hearing; and it’s related to a guardianship proceeding, wherein the judge has a hearing and has a panel of three professional – mental health professionals. I believe it’s a psychiatrist and some other people serve on a panel, and they have a recommendation after they interview the alleged incapacitated person. In a guardianship proceeding, they appoint a lawyer to represent this person, and as a result of being incapacitated, the person loses all of their rights. And so it’s a trial and in order for the judge to consider that, since it’s a drastic measure, many times the judge will not declare somebody totally incapacitated, may still give them the right to do certain things such as vote and other matters. But you tell whether or not someone is legally incapacitated or incompetent by an order, which the judge enters finding that they’re incompetent.
So if you have any questions about capacity, incompetency, give my firm a call. It’s 727-847-2288. My associate, Jaleh Piran-Vesseh is one who handles elder law and guardianships
- Published in Guardianship, Videos
Should I Give My Children My Money Now To Qualify For Medicaid In The Future?
Video Summary
Should I give my children my money now in order to qualify for Medicaid for skilled nursing care in the future?
Many people come to my office and ask this question. The answer to that question is an emphatic no. You should absolutely not give your children your money in order to qualify for Medicaid for skilled nursing care, and here’s the reason why. Medicaid has a five year look-back period. Well what is included in that five year look-back period? One of the things that Medicaid examines in reviewing your bank statements, which are required as a part of the application process is has the applicant made any improper transfers and/or gifts in the preceding five years. If you give your children your money, that is going to be considered an improper gift and/or transfer, which will affect your eligibility for Medicaid for skilled nursing care.
Let me give you a little bit of an example. Let’s say that Mom wants to gift $56,000 to her son, and we’ll use the son as John. Well John takes the $56,000 and let’s just say that John takes this a year before Mom actually needs to apply for Medicaid for skilled nursing care. In that situation, Mom is looking at a penalty period of seven months of ineligibility to be qualified for Medicaid for skilled nursing care. Well how do we get that number? Well, Medicaid uses a divisor of approximately $8,000 in order to calculate this ineligibility period. So when you take the $56,000 gift, divided by the $8,000, you get seven months of ineligibility. So that’s one of the main reasons that you don’t want to gift away your assets to your children or siblings or family members in order to qualify for Medicaid for skilled nursing care. There are many avenues in order to qualify for skilled care through Medicaid in which you do not have to deplete all of your resources by providing the money to the nursing home, and there are viable what’s called “spend down” methods.
If you have questions about these spend down methods, or are interested in creating a Medicaid plan that is best for you and/or your family member, please give me a call here at Waller and Mitchell, as I’m sure I can assist you with your needs. Call me at 727-847-2288.
- Published in Medicaid Planning, Videos
What Is A Trustee And Who Should Be A Trustee?
Video Summary
What is a trustee, and who should be a trustee? A trustee is the person who is in charge of a trust. As the word trust means, you are in – you’re trusting somebody with your assets, and the person that you’re trusting with your assets is called a trustee. And so they’re the ones that have certain powers – usually to invest the money – and they are given directions under the trust instrument to decide or given direction as to how they should spend the money or use the money. Sometimes a trust provide for discretionary disbursement, so the trustee uses their own judgment as to how much money should be distributed out to a beneficiary, such as a minor child, for their care or for their education.
So that’s – and the trustee can be anybody. A trustee can be a bank, which – financial institutions. They really go out and look for that – trust departments – however, your estate needs to be sizable in order for them to serve and to take charge of your estate. I believe that they start at about $500,000.00. Smaller estates usually have individuals who are concerned.
So, well, who should you designate as the trustee? Well, many times, whenever we do estate planning documents, you start by naming yourself, which is a little hard to explain whenever you’re trusting yourself with the trust – with your own assets, but that’s really what the trust instrument says. You direct yourself as the trustees to use the money for your benefit, and you’re the one who established the trust as the settlor or the grantor of the trust. However, it’s usually an estate planning tool, and then you designate what you want done with your assets when you pass away.
Course, when the trustee passes away, there needs to be a successor trustee. Well, who should you name? Well, usually, in the estate planning scheme of things, or whenever you prepare a trust for estate planning purposes, customarily you name a family member. Sometimes you might name a professional, such as your attorney, your accountant, or financial advisor – they have some restrictions as far as doing that – but many times it’s a family member who you believe has good business sense and will follow your directions.
A lot has to do with whether or not the term – under the terms of the trust you just want make distribution immediately upon your death rather than having it held for an extended period of time over, let’s say, a minor’s time until they reach age 25. Well, if they’re gonna pay out money, well, then you want someone that’s sort of sensitive to raising a child and understanding how, whenever you’re 18 years old or younger, that you’d like to have a brand-new Corvette or some other high-performance automobile. So you would want the trustee to think like you would do and say, “Well, a Toyota Camry – a used Toyota Camry with about 60,000 miles will do just fine to get you to and from school, and be dependable transportation.”
But you sorta understand you need to look at what the circumstances are as to who you appoint as your trustee. You can name multiple trustees and have one be responsible for the financial investments. There’s any number of people who you can name, and why you would name them, but I usually see where a family member is designated. And sometimes. in the absence of a family member, they may ask their attorney or accountant to serve. If they ask the attorney to sign, then a disclosure must be initialed at the time the document’s signed advising you that there can be additional charges to serve as a fiduciary – whether it be a trustee or personal representative – by the attorney, that you’ve been explained that you can designate anybody you want, including a bank or family member.
It’s very hard to say, well, who should serve as trustee. It depends on your individual circumstances and what family members or persons you know that are available to be able to do what you would like done after you pass away.
So if you’d like to set up a trust, or have some questions about a trust, give me a call at (727) 847-2288.