Video Summary

What is a joint trust and can I establish one?  A joint trust is whenever usually husband and wife sign a trust agreement.  Thereby you’ve gotta have two people, of course, to have a joint trust, particularly whenever they own all their assets jointly, and it’s not – you just need to contact an attorney to be able to establish a joint trust.

If the purpose of the joint trust is to avoid probate, you can do that through titling your assets as husband and wife and that way you avoid probate when the first one passes away.  If the purpose of the joint trust is to establish a… who you want to receive the asset when both the husband and the wife passes away, that is very, very remote on a simultaneous death, and I really don’t recommend it on that basis.

Also if you do set up a joint trust, do not put your homestead property into a joint trust.  There’s all sorts of problems that are associated with that.  Also joint trust destroy what they call tenancy body entirety is to give you a certain amount of protection from creditors if there is a judgment against either husband or wife under Florida law.  So I am not a big fan or I don’t usually recommend folks to set up joint trust.  I think you can title your assets so that they can go to the survivor rather than having a joint trust.  If you don’t want your assets to go to your spouse, you have a prenuptial agreement; you have a second marriage or something like that; then I suggest you have separate trust, one for the husband and one for the wife as far as that’s concerned.  And again, not putting the homestead property in either trust.

So if you have any questions about establishing a trust, joint or otherwise, give me a call at (727) 847-2288.  Thank you.

Video Summary

Hi!  I’m Chip Waller. Does a designated trustee need to hire a lawyer to administer a Trust?

Usually the designated trustee is a successor to a decedent. So the answer is, I suggest that you contact an attorney, like me, and find out what your duties and responsibilities are as a successor trustee as well as can you be held liable if you don’t follow the Florida statute for the Florida Trust Code.

Some of the things that you need to do as a successor trustee is obtain a Federal Identification Number because you’re dealing with monies that are not yours, and you don’t want to have to report any income under your Social Security number because it’s not your money or your income.  And you need to file what they call a Fiduciary Tax Return, a 1041.

Next as a successor trustee you’re required to send a copy of the Trust to all the beneficiaries.  And that’s sometimes not what anybody wants to know about, but particularly if there’s a distribution or if you’re supposed to pay income for life to someone.  But everyone who is a beneficiary under the Trust is to get a copy of the Trust document.

You also usually have many questions about, well, should I pay all the creditors?  Well, and now can I – when can I distribute all this money and not be responsible for the creditors’ claims?  That’s usually a fairly tough question.

And one of the other responsibilities that you have, and potential liability for, is doing an accounting.  So you initially have to prepare an inventory and send out, to all the beneficiaries, an inventory of all the assets.

Once they get that, well then they’re entitled to an annual accounting which sets forth how much income and what transaction took place.  And if you fail to do that, you have liability for many, many, many years to come and have potential liability.

So, as my recommendation, that before – if you’re designated as a trustee of a Trust, that you consult with an attorney to find out what your duties, responsibilities and liabilities are as far as serving as a successor trustee, and decide if you want to undertake those responsibilities and potential liability.

If you have any questions give me a call at 727-847-2288.  Thank you!

Video Summary

What are the duties of a trustee named in a trust?  The most common scenario we see is whenever someone comes in and they set up a trust during their lifetime, which is called a living trust or a revocable trust, where they name themselves, and then they provide who their assets are going to be distributed to under the provisions of the trust, and name a successor trustee.

During the person’s lifetime they can pretty well treat the trust assets any way they want to since it’s for their benefit.  Upon their death, the revocable trust becomes irrevocable, and the successor trustee then assumes the responsibilities, and they are to send a copy of the trust to all the beneficiaries, whether they be income beneficiaries, whether they like the beneficiaries or not, but they’re to send a copy of the trust to everyone.

They’re also to file a notice of trust in the public records.  After having sent out the trust and recorded the notice of trust with the probate court, then they go about obtaining an inventory of all the assets that are in the trust.  Once that’s accomplished, they need to obtain a federal identification number so that an accounting or a tax return can be filed by them so that they don’t have to pay any taxes.

Now during the lifetime of someone who sets up a trust for their own benefit, they’re not required to get a federal identification number, and can use their Social Security number.  However, upon their death, the successor trustee has to have a federal identification number in order to file a fiduciary tax return, and that would govern how the people are to pay taxes on the money that they receive or the income  that they receive from the trust, and that would be something that the successor trustee would want to consult with the attorney about, as far as the administration of the trust and the distribution of the assets, in particular, if there is homestead property involved, if there’s property in the name of the decedent, and we need to go through a probate proceeding in order to obtain those assets to be titled in the trust, and then the trustee must be very careful in reviewing the provisions of the trust to see what they’re directed to do.  If it says simply, “Distribute out at my death as soon as possible to the named beneficiaries,” well, you need to make sure that the creditors are paid, and then have an accounting of everyone, as far as the inventory, to make distribution, and then file a fiduciary tax return with the Internal Revenue Service so that the income can be accounted for, and you can be compensated as trustee in order to be able to fulfill your duties as a trustee.

If this is a continuing trust, meaning that you must pay the income to a beneficiary for an extended period of time, then you need to consult with an attorney concerning your investment responsibilities and financial responsibilities, and that you’re governed under the Prudent Investor Act.  There’s a whole trust code, a bunch of rules and laws as to what you’re obligated to do, and I would urge you to consult with an attorney about a trust administration.

If you have any questions, give me a call at 727-847-2288.

Thank you.

Video Summary

Good afternoon.  My name is Tom Mitchell.  I’m a partner at the law firm of Waller & Mitchell.  We’re located at 5332 Main Street in Downtown New Port Richey, Florida.  I specialize in elder law.  That is: I deal with wills and trusts, powers of attorney, healthcare surrogates, living wills, will and trust administration, public benefits qualifications, guardianship, and asset protection for seniors.

Hey there, 50 and 60-year-olds.  How are your 70 to 90-year-old parents doing?  Are you concerned that they’ll have enough money to live to the end of their lifetime and have quality of life?  Are they concerned that they’ll have enough money to live to the end of their life and have something left to give to their children and grandchildren?  If so, you need to consult with Waller & Mitchell.  We can help you with this.

The average cost for a nursing home in the State of Florida, in the West Pasco area, is about $6,500.00 a month.  If one of your family members – your parent, mother or father – is looking at the prospect of going into a nursing home in the near future, there are several things that we can do to help them get qualified at an earlier time, and to help preserve funds for the senior generation to pass to the junior generation.

One of the techniques that we use in this circumstance is called a “caregiver trust.”  It’s specifically referred to in the Florida statutes, and it allows the spouse who is living at home – the well spouse, as we refer to it – to set up a trust for the benefit of the spouse who’s living in the nursing home, which we call the “institutionalized spouse.”

If that trust that’s set up by the well spouse contains at least 30 percent of the assets that are owned by the husband and wife team, then the money can be in the trust, and the nursing home spouse is not disqualified from receiving public benefits.

So if you’d like to look into something like this, please contact Waller & Mitchell at 727-847-2288, and I can help you.

Video Summary

Good afternoon.  My name is Tom Mitchell.  I’m a partner in the law firm of Waller & Mitchell, and we’re located at 5332 Main Street in Downtown New Port Richey, Florida.

Did you know that ten percent of the families in America have a family member who is disabled, as defined by federal regulations?  This could be a minor child who suffered malpractice at birth.  It could be an adult who has been injured in a traffic accident or an industrial accident.  It could be a senior citizen who has suffered neglect in a nursing home and incurred serious injuries.

If this describes anyone in your family, we at Waller & Mitchell can help you.  There are federal and state programs designed to assist individuals who have these kinds of injuries and require special assistance.  These programs are all means-tested.  That means that you cannot have more than a certain amount of money and be qualified for these programs.

When these types of injuries happen to someone, typically there is a lawsuit filed on behalf of the injured party.  And this lawsuit can result in hundreds of thousands or, in some cases, even millions of dollars that are to be made available to that person.  The problem is twofold.

First, that money has to last for the entire lifetime of the individual.  And, second of all, if they receive that money in their individual names, they will be disqualified from public assistance benefits because of the means testing that I mentioned earlier.

There is, however, a special kind of trust authorized under federal law that’s called a Special Needs Trust.  In a Special Needs Trust, the money from the lawsuit settlement can be deposited to the trust account, and a trustee can be named, and the trustee can then pay for the special needs of the individual.  The public benefits are still qualified for the individual, and they will pick up the basic nursing home and medical care.

What this allows for is that the special needs of the individual can be met – such things as advanced medical care, special caregiver services, education, entertainment.  Any of those things would qualify.

In addition, with a Special Needs Trust, you can have a trust that’s set up by a third party.  For example, a grandparent who has a disabled grandchild.  In that circumstance, the grandparent sets up the trust, puts the money in the trust, and then the trustee administers the trust for the benefit of the injured party.

The injured party continues to receive their public benefits, so we don’t have any problem with the money being diverted or expended unnecessarily.  And the good thing about the third public trust is that after the death of the beneficiary, the disabled child, the original person who set up the trust can put in the trust where that money is to go if there’s anything left.

So if you’re interested in any of these concepts, give me a call.  I’m Tom Mitchell.  My number is 727-847-2288.