Florida Trusts Legal Questions

The best way to ensure that you will serve as the Personal Representative of your father's estate is to have your father execute a valid Will naming you as his Personal Representative. This can be accomplished by seeking out an attorney who practices in the field of estate planning. If your father dies without a Will, the person selected by a majority of his heirs at law will be made Personal Representative. Astrid de Parry, P.A. (386) 736-1223 107 E. Church Street DeLand, FL 32724... Read Answer

The Florida Trust Code (Florida Statues, Chapter 736) requires that accountings be provided by the Trustee of a trust unless all beneficiaries waive the requirement.(Sections 736.813 and 736.8135).  The cost of providing an accounting is a normal expense of administering the trust and should be borne by the trust and not attributed to any specific beneficiary's share of the trust. The applicable statute, quoted above, requires that the accounting take place unless all beneficiaries waive the right.  Accordingly, the cost is an expense of the trust and not of the individual beneficiary.  The Trust Code does not impose a burden on a beneficiary for requiring the trust to comply with the statutory requirements of the Trust Code. Randy Coleman... Read Answer

Whether it is a good idea to list your trust as the beneficiary of your 401(k) depends on your objectives, your family situation, and the language in your trust. Generally speaking, there are a number of options with regard to naming your beneficiary.  You could name your trust, a spouse, or, with your spouse's permission, anyone other than your spouse, as beneficiary of a 401(k).  If your spouse is the beneficiary, he or she will have the option of treating the 401(k) distribution as a roll-over.  That means your spouse can "stretch" the distributions from the 401(k) over the spouse's life expectancy, rather than take a lump sum immediate distribution, or take a distribution of the entire balance within five years of the date of death - the other options typically available.  Stretching the distributions over the spouse's life expectancy will reduce the ultimate tax burden and allow the beneficiary to take advantage of the tax deferred growth of the 401(k) account. If your trust has the appropriate langauge, then you can accomplish the same result with the trust with respect to the stretching of the distributions over the life expectancy of the oldest beneficiary of the trust.  However, if the proper language is not in your trust, then the only choices for the trustee of the trust is to either take an immediate distribution of the entire balance of the account, or to complete the distribution from the account within 5 years of the date of death.  Those options could result in substantial income tax liability since, with minor exceptions, the full amount of the distribution from a 401(k) is subject to income taxes. Another consideration, if the beneficiary of your 401(k) is someone other than your spouse, your spouse must sign a waiver of the right the spouse has as the primary beneficiary of the 401(k).  In certain states, if you convert the 401(k) to an Individual Retirement Account (IRA), the spouse's permission to name someone other than the spouse as the beneficiary is not required. Ultimately, the question of whether to name the trust as the beneficiary, assuming your trust has the appropriate language, revolves around who are your intended beneficiaries and how much control do you want, or need, to exercise over the distribution..  If your beneficiaries are minor children, by all means the trust is a desirable option.  Only through naming the trust as the beneficiary can you avoid a court-supervised guardianship over the property of a minor child.  If your spouse is elderly and unable or unwilling to manage the assets appropriately, or may have the need for nursing home care, then the trust is a desirable alternative (with the additional language necessary to create a protective "special needs trust" for the elderly spouse who needs, or may need, protection from nursing home spenddown.  The trust will also provide some protection for adult children, or surviving spouses, from creditors or others who may have the opportunity to take advantage of your beneficiary (protection from predators and creditors). You may find some additional information at our blog: http://blog.thecolemanlawfirm.net/2012/02/29/20120228.aspx C. Randolph Coleman  ... Read Answer

I will respond to what I perceive to be two questions. The first is more straightforward.  Tenancy by the entitreties is a form of ownership recognized by 12 states, including Florida. Tenancy by the entireties is ownership by the marital unit, and thus is only available for a husband and a wife. The unique characteristic of tenancy by the entireties is that a creditor of one spouse is not legally allowed to seize assets owned as tenants by the entireties.  Only a creditor with a judgment against both spouses would be able to access the assets owned as tenancy by the entireties. Tenancy by the entireties owned assets must be acquired by the husband and the wife at the same time, and through the same instrument.  For instance, an asset owned by one spouse prior to the marriage will not be a tenancy by the entireties owned asset, unless is it re-conveyed by the owner spouse to both spouses as tenants by the entireties. Generally speaking, tenancy by the entireties ownership is quite effective asset protection for any creditor other than a creditor who has a judgment against both spouses, or, because of their "super creditor" position, the IRS.  In a case out of Michigan a few years ago, a federal court held that the IRS could seize the husband's "beneficial interest" in tenants by the entireties assets. So far, there have been no other cases allowing such super powers to the IRS, and that case was based on Michigan's tenancy by the entireties law. The other issue raised in your question is much more difficult to answer in the limited space and time allowed by this format.  There are a number of techniques available that can be used for asset protection purposes.  Which tool or technique is best or most appropriate for you depends on a number of circumstances, and whether you are seeking protection after a creditor's claim has arisen, or before such claims have arisen. Various forms of trusts and other legal entities, including limited liability companies, limited partnerships, and other methods of ownership (for instance, tenancy by the entireties) can provide significant asset protection.  Florida also has many statutory exemptions from creditor claims.  For instance, all retirement plans (including IRAs) and annuities are exempt from creditor claims in Florida, as is life insurance death benefits, the cash value of life insurance (owned by the insured), disability income, and a wage account. You can learn more at our blog:  The Florida Asset Protection and Estate Planning Blog (blog.thecolemanlawfirm.net). To learn what particular techniques might be most appropriate for you and your circumstances, I strongly recommend that you consult with an attorney in Florida who is experienced in providing asset protection planning. Randy Coleman The Coleman Law Firm, PLLC 9250 Baymeadows Road, Suite 450 Jacksonville, FL  32256... Read Answer

You should seek out an elder law attorney in your area.  It sounds as if you need to file for guardianship. Guardianship proceedings begin by filing a Petition of Incapacity. If it is determined that your mother is incapacitated and the Durable Power of Attorney is being used to financially exploit your mother, the Court will appoint a guardian to safeguard your mother's property. You may also want to contact the Department of Elder Affairs Abuse hotline at 1-800-96-ABUSE (1-800-962-2873). Press 2 to report suspected abuse, neglect or exploitation of the elderly or a vulnerable adult. This toll free number is available 24/7.... Read Answer

You will need to speak to a Florida attorney about this. Normally, you cannot continue to spend from a person's account after they die.  If, however, you are a joint owner of the account, you now own it and can do as you please with the funds.  You may need to open an estate with her will, if she has one, or apply to be appointed ad an administrator.  It may help to call the county register of wills and ask about this.... Read Answer

As your father's agent under the DPOA, you owe him fiduciary duties. This means you must act in the best interests of your father, and not your sisters. You could be held accountable for actions taken that are contrary to the best interests of your father. If you need assistance in determining how to best serve your father's needs, seek out an elder law attorney. ... Read Answer

If your mother in law properly signed a quit claim deed retaining for herself a life estate, and leaving the remainder interest to your husband, and the quit claim deed has been properly recorded in the county where the real property is located, your mother-in-law's last will and testament cannot change the remainder interest and the property will belong to your husband, with full legal title to him, immediately upon your mother-in-law's death.  A will does not control real property that is owned jointly with right of survivorship, or the remainder interest in a properly prepared, signed and recorded life estate deed. Had your mother-in-law signed a lady bird deed, she would have retained the right to change the remainder interest in the property.  However, even with a lady bird deed, it would be necessary for your mother-in-law to sign a new deed to the property to change your husband's remainder interest.  The property that is the subject of a lady bird deed is not controlled by a will, but passes title to the remainder interest automatically at the death of the person signing the deed, by operation of law, unless there is an intervening deed that specifically changes the remainder interest. To be valid, the life estate deed must be properly drafted, must be properly signed, and should be recorded in the public records of the county where the real property is located. If you have additional questions about this matter, you should contact a qualified Florida real estate attorney or estate planning attorney. C. Randolph Coleman  ... Read Answer

If you do not have a family member that you trust or that you believe would be able to handle the position of successor trustee, certain banks and trust companies have trust departments that can handle these responsibilities.  This is a subject that you should discuss with your estate planning attorney.  However, banks and trust companies are qualified to handle these types of matters and are familiar with the legal requirements of each state, including the fiduciary requirements.   Mary E. King, Law Office of Mary E. King, PL   This response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author.  It should not be relied upon as legal advice.  To speak with Attorney Mary E. King, please call (941) 906-7585 or visit www.kinglawpl.com. ... Read Answer

A special needs or supplemental needs trust is one way to prevent the loss of certain government benefits such as SSI and Medicaid when you get a settlement.  It must be established by a parent, grandparent, guardian or court.  Sometimes the court where the personal injury case is settled can handle it, sometimes it will be referred to another court. You will also need someone to act as a a trustee. You could also use a pooled trust administered by a not-for-profit.  You might ask your personal injury attorney to refer you to an elder law or special needs attorney. This response is general in nature and is not legal advice.  No attorney client relationship is formed by it. ... Read Answer