How Does Implementation Of Estate Planning Prevent The Need For Guardianship?
Video Summary
How does the implementation of estate planning prevent the need for a guardianship?
Essentially, estate planning documents will typically enable you to name a person to act on your behalf in the event of incapacity. There are two very specific documents that pretty much go to this point. The first document would be a durable power of attorney. A properly drafted durable power of attorney will not only name a primary agent to act on your behalf, but it will also name a successor agent to act on your behalf in the event that the primary agent either becomes incapacitated themselves or should predecease you or be unable to act. That’s really important. If you do have a power of attorney, make sure that you take a look at it and do ensure that it does have a provision for a successor agent.
Essentially, a guardianship will need to be established for a person in the event that they are incapacitated and that they do not have any known advanced directives, such as a power of attorney whereby they have named somebody previous to their incapacity to act on their behalf. That’s why a lot of times a guardianship is necessary for someone that simply doesn’t have a power of attorney.
I’ve also encountered situations where a person may have a power of attorney but unfortunately that power of attorney did not name a successor agent and the primary agent has predeceased the actual principal, i.e. the person needing somebody to act on their behalf. That’s why it’s really important that you execute estate planning documents early in life, that way you already have that set up in the event that something should happen.
The other document that I was referencing is called a “Declaration of Pre-Need Guardian.” That document is a document that you execute while you have capacity, which essentially allows you to name the person that you would like to act on your behalf in the event that a guardianship of your person, property, or both, is necessary to protect your best interest. That is also a part of our estate planning documents here at the law firm of Waller and Mitchell.
If you have any questions regarding the implementation of estate planning documents or you would like to have your current estate planning documents reviewed please give me call here at the law firm of Waller and Mitchell at 727-847-2288.
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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 Do You Apply For Homestead Exemption?
Video Summary
When do you apply for Homestead Exemption? Well, first off, let’s talk about what you have to have in order to be entitled to Homestead Exemption. You must own and occupy the property before December 31st to apply for Homestead for the following year. In addition to that, you must be a resident of the state of Florida, and furthermore, that you’re not receiving any Homestead Exemptions or any entitlement as a result of being a resident of another state. You need to be sure to do that. If you do, you have until March 1st of the following year in which to apply.
If you buy your property, or acquire this property, it become homestead during the year, you don’t have to wait to apply. You can apply at any time as soon as we get title to the property. I suggest to most folks that I deal with, particularly in a closing, I suggest that they go ahead and do it right away. Get their driver’s license changed, particularly from out of state, to show what their new address is, and tell them to apply right away so it doesn’t slip through the cracks. By getting Homestead Exemption, it exempts the first $25,000 of your tax valuation, or your assessed valuation, or taxable value that the property appraiser puts on your property, from taxes.
That will save you about $500. You pay tax on the taxable value of your property between $25,000 and $50,000. Then, from $50,000 to $75,000, you again exempt everything but school taxes. That saves you about another $300, so there is an immediate savings of $800. If you’ve seen those info commercials, there’s even more when you have Homestead Exemption. Under the Florida Constitution, there’s the Save Our Homes Amendment, which says that once you have Homestead Exemption, your assessed valuation will not increase by the lesser of cost of living or 3%, whichever is less.
As the property value increases and the assessed valuation increases, your taxable value, which I have mentioned a couple of times, stays at a very low level. The whole idea is to keep you in your home so the taxes don’t price you out of it. The question is, be sure if you bought your house, you moved into this home, and you’re not getting exemption from any other state, you need to hustle on down to the property appraiser and apply for a Homestead Exemption. If you’re not a dinosaur like me, and you’re involved with computers or whatever, I believe that you can go online and apply for Homestead Exemption.
Don’t be tempted to fudge as far is if you’re getting exemption in another state, or make sure you’re not. The penalties of getting Homestead Exemption and they find out are very severe. They put a big lien against your property if you do have Homestead in another state, and you have interest. It’s not pretty. Be sure you don’t have … If you have property in another state, that you’re not getting any exemption because you have to swear to that when you apply for Homestead Exemption. Get out there and get your Homestead Exemption before March 1. I’m not sure whether you can apply on March 1 or it has to be before. I think you can apply as late as March 1, but don’t procrastinate. If you have any questions, give me a call at 727-847-2288.
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Can A Person Fight Eminent Domain?
Video Summary
Can a person fight eminent domain? The answer to that question is absolutely yes they can. Florida has a very good statute as far as eminent domain’s concerned. What it provides for is that when there’s a taking by a governmental entity or someone authorized to go through eminent domain, they make an offer to you and if you say, “No, I don’t want to sell it for that.” Then you can fight the eminent domain, however, if you later settle, you don’t have to pay your attorney fees and the attorney is entitled to, I believe it’s 1/3 of the difference between whatever the initial offer was by the governmental agency taking your property, and how much you actually receive. You receive the net amount and the attorney fees are paid by the condemning authority.
Challenging the condemning authority is very difficult to accomplish, but yes, you can do that and you can have a trial as far as that’s concerned. Usually the governmental, the condemning authority, has what they call a quick take program and they go in there and try and take the property right away, but if you’re going to fight the eminent domain, you need to show that they don’t have to take your property and it’s not necessarily in the best interest and probably your attorney who, if you call me I will be glad to send you the right direction as far as the attorney to do that, to try and negotiate with the condemning authority as to whether or not their plans can be modified or why they need to take your property.
Of course, by the time they get around to … Hopefully they’re starting the process of trying to take your property before all the plans are put in place, because you can imagine what the engineering is for a major highway or whatever and then you want them to change the plans and not take your property. The answer to your question is yes, you can fight eminent domain. The good news is is the governmental agency pays your attorney fees if they are successful and so the attorney gets paid in addition to you getting paid if the governmental condemning authority is successful.
I’m not sure how they measure the attorney fees if you are successful in defeating the taking itself. If you have a question, or have an eminent domain situation, give me a call at 727-847-2288 and I’ll head you in the right direction. Thank you.
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