Many of the blog posts come from questions that I've answered for people on AVVO or other legal help websites.
When you have attorney receiving certain percentage on handling your estate and you have bank accounts etc as POD or TOD….
Question:
Does the attorney receive his percentage on those amounts also or does the whole thing go to the POD or TOD?
Answer:
Generally the probate attorney does not earn a fee on assets passing outside of probate. Both Pay and Transfer on death accounts pass outside of probate. There are some practitioners who believe that those accounts should be used to satisfy creditors if the traditional probate estate is insolvent.
Not all attorneys use the statutory fee schedule. The statute provides a baseline of a reasonable fee which cannot easily be challenged. Some attorneys have minimum fees when it comes to probates and others may include POD or TOD accounts (I’ve personally not seen it). You should look carefully at the fee agreement or retainer and see what it says. Usually the PR and attorney are able to work out any fee questions. If you are a beneficiary and did not sign the retainer, you may have an opportunity to object to the fees charged. Just be careful if you are asked to sign a waiver or if you are served with with closing documents. You may only have a short window to object to the fees. If you have more questions, I would suggest sitting down with a probate attorney and discussing your situation in more details.
Can you keep your estate bank account open once the estate has been closed?
Question:
I am the administrator on my aunt’s estate which is almost coming to a close however I am expecting money from other sources under her estate. If the account is closed how would I be able to obtain the funds? Can I keep the account open to cash the checks that would be deposited under the estate. Or can I have the checks written in my name?
Answer:
Once the estate is closed, you no longer have any authority to conduct business on behalf of the estate. As she mentioned you should discuss this issue with your attorney. Your attorney can petition the court to extend time for closing the estate if necessary. If you close the estate now and receive estate funds in the future, you would likely have to pay an attorney to re-open the estate and a re-open fee to the court house. Best thing to do is be patient and don’t close the estate until you are sure all estate funds have been collected and distributed.
Can I fight to get part of my parents house if they left my sister in charge of everything when they pass?
Question:
The house is in my mothers name only. She has left my sister in charge of her estate, my mom gave me a promisary note that I had notorized that the house should be left to the three children. Do I have to fight to get it? Sadly I know this is common that the children start to fight. But my sister has a home, I do not, nor do I want my parents home, but feel I was the care taker most of their lives, and feel I should get a 1/3 of the house. In 2013 I had to pay their taxes on the house cause they couldn’t. I put it on my credit card and they pay me every month, but it will never be paid off God forbid they should pass. They still owe me 7800.00. I also have a note from my mom that it will be paid every month. She refused to continue to pay it, but my dad has taken over that payment.
Answer:
A promissory note cannot direct what will happen to the house after your mother’s passing. That is the purpose of a Will or Trust. She could also deed the house in such a way that it be left to her three children upon her passing. I can’t tell if your parents are married or not. If married and they own the property jointly, it is usually with rights of survivorship. Meaning, your father would be the sole owner after your mother’s passing and vise versa. If married but the house is owned by one party, the spouse who owns the property cannot leave the property to anyone but their spouse. If they do, it violates the law and creates a life estate for the remaining spouse and remainder to children. Florida does not allow one spouse to disinherit another spouse unless it is agreed upon by both spouses.
If the property is owned jointly and your mom passes first, your father would be the likely owner of the property and it would be his Will that would direct where the property will go.
As far as the debt goes, you may be able to file a claim if a probate estate is opened for your mother. If the only asset is the home and it is left to her blood relatives is is protected homestead and not available to satisfy creditors. Unfortunately, what you feel you should get is irrelevant when it comes to your mother’s estate plan. Unless your mother is being unduly influenced by your sister or other third party, she is free to leave her estate, including the house to whomever she wants.
Generally a promissory not is only an agreement by one party to pay a certain amount of money to another party. Unless that note is secured by your mother’s house, the money owed on the note becomes just another potential probate claim.
As you can see, your situation can be more complicated than at first glance. You should sit down and talk with an attorney who practices probate or estate planning. They may be able to lend a little more light after reviewing all the documentation and facts of your case.
My real estate broker tells me I need to go thru probate, costly & lengthy. Senior needs help!!
Question:
Yrs ago my wife bought a pc of property, her name is on that. we bought a unit to put on it, both our names are on it, we lived there 10 yrs. She passed & according to the will (which I have) I am the only beneficiary. Broker says I do not have clear title. I have a buyer & NEED to sell this place soon. What about right of survivorship! I am told I own the house & not the land under. Do I need a lawyer? What do I do.
Answer:
To start with Probate isn’t necessarily costly and/or lengthy. That of course is all relative to the situation. If you want the property sold tomorrow than a couple months could be a long time. When you say you bought a unit to put on the land, I’m assuming you are talking about a mobile home that has title. When you purchased it you probably titled it “Jack or Jane.” That way it would pass without the need of probate.
As for the land. Rights of survivorship in land situations can be achieved in several ways.1. Jack and Jane with rights of survivorship
2. Jack and Jane as husband and wife
3. Jack and Jane my wife
If it just says “Jane” or “Jack and Jane,” then you will probably need to go through some sort of probate, even if you are the only beneficiary. If it was her homestead and there are no other significant assets, summary administration may an option. It is generally less costly and much quicker than a formal probate administration.
You should at least have a consultation with a probate attorney. There may be other variations of the above that allow the property to pass to you with the necessity of probate. Your realtor may be correct, but you would be wise to seek a legal opinion.
I won a $5,000 cash prize in the state of Florida. I am collecting Social But will it affect my disability payments and Medicaid?
Question:
I just won this contest at the beginning of November. I just want to make sure that it won’t affect my Medicaid and disability payments. And do I have to pay income tax on it? And how will it affect me at tax time? I currently don’t even make enough to have to file income tax.
Answer:
If you have SSI, the winnings will affect your benefits. You are required to report it. It is considered unearned income. If you are single, you can have $2,000 or $3,000 if married. Your best bet is to spend some of the money before the end of this month until you are back below one of the above amounts. If spending, be careful not to purchase countable resources such as a jet ski or second car. You cannot gift or transfer the funds as that would result in a transfer penalty. Once back below the assist limit you need to report that you received the funds and wha you did with them.
Technically you are over income for November and there is nothing you can do about that. Usually if you get back below the asset limit SS does not penalize the individual if everything is back in order by the next month, but SS could always claim an overpayment and require payback of November’s SSI check. It would be paid back in small amounts.
You probably still don’t have enough taxable income if your only income is SSI and the $5,000 winnings but you would do well to ask someone specifically. In any event you would be wise to sit down with an attorney to discuss a proper spend down and report to SSI
If we sell a jointly owned condo will my sister lose her 1/3 share to pay Medicaid, Medicare or her medical bills?
Question:
While condo was in probate after dad passed away we established a Irrevoc special needs trust for my sister with brother as trustee, with EIN and bank account. She lives in a nursing home. Probate placed his condo in our 3 names although we petitioned for placement of her 1/3 into the trust. we plan on doing a disbursement from sale into the trust at closing.
Answer:
It sounds like you created a third party special needs trust in your father’s probate for your sister. her share should have been put into the trust during the probate process. This trust would not count as an asset and would not have a payback provision to the State of Florida upon her passing. Ownership would have been A, B & Trust for C. If her 1/3 interest was in the trust, then the sale of the condo would not cause any issues. Any unused funds in the trust would have been payable upon her passing to those named in the trust as remainder beneficiaries.
If your sister’s interest was not put in the trust it wouldn’t affect her benefits as the condo is a jointly owned asset and not countable for Medicaid. Unfortunately, if you sell the condo, her 1/3 share becomes a countable asset. If that amount is greater than $2,000, it would cause her to become ineligible for Medicaid. The proceeds could be put into a special needs trust, but it would have to be a first party trust. A first party trust has a payback provision in it that says the State of Florida will get paid back up to the amount of medical assistance paid on behalf of your sister. If your sister has been in a nursing home, that amount will increase by $5,000-6,000 per month. There will likely not be any money left over for remainder beneficiaries if she has been in the nursing home for any period of time.
If the property is titled in the name of the three individuals, you may be able to re-open the probate or do a corrective deed if it was intended that your sister’s share goes into the trust created in the probate. The proceeds from the sale cannot go into the trust if the trust is a third party trust (no payback) and the condo was in your sister’s name. Those funds would be first part funds. Please see an elder law attorney or go back to the attorney who did the probate and get clarification.
Staying in my Mothers home (Deceased) while going through probate. I'am 53 and building a home. Need to stay here.
Question:
My mother passed away in 2013. She willed me her home and I’m going through probate currently. The park is a 55 and over. I'am 53 now. I need to know if their is anything in Florida’s law that allows me to stay here even though I"am only 53 years old. I only want to stay while my home is being built. I know I will have to go through a application process still. I would just think because of this particular situation that I would be allowed.
I have a letter from my probate attorney that allows me to rent the home for season etc. Park mgmt has a copy of this letter and everything is ok as long as one person is 55.
Answer:
As far as I am aware there is no statute that says you have a right to live in the community. I believe once you own the property, you’d have the right to rent it to someone over age 55.
The statutes allow 55+ communities to allow some under age individuals to live in the community, but it is capped at 20%. If more than 20% of the residents are over 55 years old, the community may jeopardize it’s status as a 55+ community. You may very well try to keep the probate open and continue renting from the probate estate until your home is built if the park management is ok with that arrangement. I’m not sure how that relates to the 20% issue. I’d try not upsetting the apple cart if things are going well. Most courts don’t mind extending probates if there is good reason and as long as the file is not being neglected.
If there is a quitclaim deed on a property, said property originally owned by Tom and quitclaim deeded to Jerry 1)why does Tom
Question:
still pay taxes (and always has) on property and Jerry’s name not found in regards to any property taxes? Now, house is being sold
2) Why does Jerry have to sign a 1099 form? What if Jerry is not getting any of the money from the sale, both Tom and Jerry signing all paperwork but Tom thinks money is going to him. Doesn’t Jerry actually own house?
3)What if Jerry is in agreement that all the sale money should go to Tom, is there another form that needs to be filled out?
Any information would be greatly appreciated
Answer:
If there is a properly executed deed transferring the property to Jerry, then Jerry owns the property. Tom didn’t have a duty to pay the taxes upon transfer of the property. I can only assume Tom had other motives for paying taxes such as not allowing property to be sold to pay tax lien.
Jerry’s name may not be on the tax bill because 1) the deed was never recorded or 2) no one informed the tax collectors office of the change of ownership. Some offices automatically get notification if a deed is filed, some do not.
If Tom wants money to be paid to him, Jerry needs to transfer property back to Tom. Be careful if Tom or Jerry are on government benefits such as SSI or Medicaid, or if either one has significant creditors, especially the IRS or other taxing agency. If there are no other details than what is included above, a simple quit claim deed back to Tom should resolve the problem. If there are other details or reasons why transferring property back to Tom is not possible, you should see an attorney.
How can I avoid probate court? My mother passed away and left land and home to me. The house was reversed mortgaged.
Question:
My brother wants to purchase the place, but they are requiring us to go to probate because it was willed to me. My brother got approved to buy the place and we can’t afford the costs of probate court. Is this avoidable?
Answer:
If your mother’s name was the only name on the deed then it would have to go through probate. Probate is the process to transfer property titled in the name of a deceased person to someone else. If she owned it jointly with rights of survivorship, it would pass to the other owner(s) automatically. There are steps that can be taken to avoid probate while someone is living, however once the person passes away, you are stuck with what is. Summary administration can be used when the probateable assets are below $75,000. Your mother’s home doesn’t count against that number. If the land is part of the homestead it’s value may not count. If the land is separate, then it would count toward’s the $75,000. Summary administration also requires that there are no creditors. If your situation qualifies for summary administration you may be able to save some money. If not, you’ll be forced into a formal administration which generally does cost more and takes longer. Don’t be afraid to sit down with more than one attorney and discuss your situation. Some attorneys may discount their fee if they don’t see any trouble with case. Good luck.
Prevent wills/trusts from being contested ?
Question:
do children and or grandchildren have to mentioned/listed in trust/will, then disinherited therefore not being able to contest our wishes ?
Answer:
This is a common question. It is not required to name or mention people in a Will if you are planning to disinherit or not leave them anything in your Will. It is common practice to name a spouse and/or children within the first couple paragraphs of a Will. There may be personal reasons for not naming them though.
A good reason to name people is so that it becomes harder to question one’s capacity or undue influence later. The person challenging the Will cannot say they were forgotten about if they were named earlier in the Will.
Challenging the validity of a Will is usually pretty difficult, especially if prepared by an attorney. In most cases, there is going to be some level of expectation that the attorney drafting the Will made sure that the testator (person signing the will) had the capacity to sign the Will and that they were not under the influence of another person. Of course this is only a generality and capacity issues can be covered up especially if there is a bad acting third party.
It is unlikely that the wishes of the testator will be challenged, however if the testator wants to be extra cautious, they can name each party and state that they are to receive nothing from the estate. No reason has to be given.
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