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.
- Published in Real Estate, Videos
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.
- 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.