Skip to main content
Carl Randolph Coleman
Avvo
Pro

Carl Coleman’s Answers

13 total


  • Are the forms for last will and testament you can buy at Office Depot are they legal if you have them witnessed and notarized.

    and those forms from Office Depot once I feel them out get them witnessed and notarized do I file them at the county courthouse or keep them

    Carl’s Answer

    In 2014 the Florida Supreme Court ruled on a case in which an estate was administered where the will was purchased from E-Z Legal Forms. In short, the case was a mess because an important clause was missing from the legal form.

    Concurring Supreme Court Justice Barbara Pariente saw the ruling as a cautionary tale. “While I appreciate that there are many individuals in this state who might have difficulty affording a lawyer,” Pariente said, “this case does remind me of the old adage ‘penny-wise and pound-foolish.’ …

    “I therefore take this opportunity to highlight a cautionary tale of the potential dangers of utilizing pre-printed forms and drafting a will without legal assistance. As this case illustrates, that decision can ultimately result in the frustration of the testator’s intent, in addition to the payment of extensive attorney’s fees—the precise results the testator sought to avoid in the first place.”

    You can read more about this case here: http://www.abajournal.com/news/article/e-z_legal_form_proved_to_be_complicated_in_litigation_over_wills_missing_re

    I urge you to not be "penny wise and pound foolish" when preparing your estate planning documents. An experienced estate planning attorney is well worth the cost to ensure that your estate goes to the people you want to receive it, at the least possible cost and the most certainty.

    See question 
  • Can executors sign checks made out to the Estate?

    My mom"s will didn't go into probate, she owned no real estate, no vehicle & no insurance policies, also no money in her checking account . If a check is made out to her estate but no estate checking account & the executors are her two daughters ...

    Carl’s Answer

    A check payable to an estate can only be negotiated, legally, by the personal representative of the estate. The personal representative of an estate is appointed by the probate judge pursuant to filing a petition for administration of the probate estate. If the check is greater than $75,000, then the only legal course of action is to file a formal probate administration.

    If the check is less than $75,000 you can use a form of probate called a summary administration. A summary administration is much quicker, simpler and less expensive.

    A non-legal option might be to contact the company who wrote the check and ask if the check can be re-issued payable to the two daughters. If you are dealing with a major financial institution, it is unlikely that the institution will agree to re-issue the check because there is potential liability for the institution if it pays the money to the wrong party, or if there are creditors of your mother's estate.

    If the maker of the check will not agree to re-issue the check, you will have no choice except probate.

    You will need to consult an experienced probate attorney to handle the probate of either a summary administration or a formal administration.

    You can learn more about probate and the probate process at our website: http://www.thecolemanlawfirm.net/Florida_Probate_Law.html

    See question 
  • Can a provision for payment to a HEALTH PROXY person be put into a POUROVER WILL?

    WE JUST CREATED A TRUST BUT DID NOT INCLUDE ANY PROVISION FOR PAYMENT TO OUR HEALTH PROXY PEOPLE.

    Carl’s Answer

    When you created your trust, even though it may not specifically provide for compensation to your health care proxies, your successor trust was give the authority to retain and compensate others to assist with providing for your care. Usually, the language used in such trusts is broad enough to cover those who assist with you health care.

    Be aware that your successor trustee only has control over the assets that are titled to your trust. Any assets that are not properly titled to your trust will be controlled by the person you have designated as your power of attorney, or, if you have not signed a durable power of attorney, and you have health care needs that require access to your personal assets, it may be necessary for a family member or friend to seek to establish a court supervised guardianship for you so that your assets can be used to provide for your care.

    Accordingly, it is quite important that your properly fund your trust by transferring your assets to the ownership of the trust, and it also is important that you have designated a trustworthy family member or friend as your power of attorney so that non-trust owned assets can be used to provide for your care. Again, typically, a properly drafted durable power of attorney will allow the person appointed as your power of attorney to compensate those who provide services to you, such as your health care proxy.

    The pour over will, in most instances, will not be a suitable vehicle to provide for payment of health care proxies during your lifetime. The pour over will have no legal effect until you have died. A health care proxy could file a claim against your estate after your death, but compensation for a health care surrogate during your lifetime is best provided for through the provisions of your revocable trust.

    To be sure that your trust contains appropriate language to fulfill your objectives and desires, and deal with your concerns, you should consult with an experienced estate planning or elder law attorney.

    See question 
  • In the event that I am sued for an incident, which assets are protected?

    There are no more details, this is only for planning purposes

    Carl’s Answer

    • Selected as best answer

    There are certain assets that are protected from creditor claims in Florida that are provided by statute. The statute providing the exempt assets is Chapter 222 of the Florida Statutes. The following assets typically are exempt from creditor claims: your homestead, retirement accounts including IRAs, the cash value of life insurance and annuities, your wage account, death benefits from a life insurance policy or annuity, disability income.

    Depending on whether you are married and whether your spouse is sued by the same party, certain assets owned jointly by you and your spouse may be protected. The form of ownership required is "tenants by the entirety," which is different than "tenants in common" or "joint tenants with right of survivorship."

    Properly structured LLCs can also provide asset protection from creditor claims. Various types of trusts can be used to shelter assets from creditor claims.

    Asset protection planning should be important to anyone and everyone who owns assets. Most asset protection planning, to be effective, should be implemented before the creditors' claims arise. Many of the asset protection tools are removed from consideration is the planning is sought after the claim arises.

    Asset protection, if not properly designed and implemented, can fail. It is important for you to consult with experienced counsel to determine what asset protection tools may be available for your individual circumstances, and to ensure that your asset protection plan is properly implements so that it provides the protection sought.

    See question 
  • I live in Florida, what is the difference between an Unlimited POA, and a Durable Unlimited POA (effective immediately)?

    I am looking into the paperwork for myself and my husband, to complete our estate planning.

    Carl’s Answer

    Pursuant to the Florida Statute governing powers of attorney (Fla. Stat. 709.2201 - 2202), if the person giving the power of attorney wants certain specific powers to be included and effective for the power of attorney, there is a specific requirement of inclusion of those powers (i.e., signed in the margin of the paragraphs providing for those powers). The manner in which a power of attorney is signed is of significance as well.

    You can find more information about durable powers of attorney at our website: http://www.thecolemanlawfirm.net/Powers_of_Attorney.php

    You probably should consult an experienced estate planning attorney to ensure the proper requirements are met to deal with your particular circumstances.

    See question 
  • We are taking care of my father, who is ill. We wanted to know, when we have to put him in a nursing home willthey take his home

    I know they take his soc, security and pension. I was wondering about his home, which is in his name and still has mortgage?

    Carl’s Answer

    In Florida, the primary residence (the "homestead") is exempt from claims of creditors, including Medicaid, even when the owner is residing in a nursing home, so long as there is an "intent to return to the homestead" should the nursing home resident recover. The "intent to return" is presumed unless there are facts and circumstances that suggest otherwise. If the home is transferred to another person(s), the transfer will likely result in a penalty period during which no Medicaid benefits will be paid. If the home is rented, it loses its homestead status and the rental income will be directed to the nursing home as a part of the resident's patient responsibility. When converted to a rental home, unless appropriate action is taken to protect the home after the owner's death, the home may be an asset subject to Medicaid recovery at the owner's death.

    I encourage you to consult with an experienced Medicaid planning lawyer, or elder law attorney to determine the most appropriate action for your father.

    See question 
  • How to handle business affairs after a loved one pass away

    When a loved one pass away? What should be done to find out and handle business (mortgage, car note, pension from employer, etc) there is no will and no one will communicate with me. What must I do?

    Carl’s Answer

    • Selected as best answer

    As previously expressed, take some time to deal with your grieving first. All of your loved one's assets are likely to stay in place until proper action is take by a party with the legal right to handle the affairs of the deceased loved one. If there is no will, it is necessary that you file a probate action so that proper title to all of the assets will be transferred to the proper person(s).

    If you are the next of kin, or a person interested in the affairs of the decedent, you will, or may, have the right to initiate the probate proceeding. When it is initiated, the court will appoint a personal representative who will receive letters of administration from the probate court. With those letters of administration, the personal representative will have the legal authority to deal with all parties with regard to the deceased person's assets, liabilities, and all other issues involving the decedent and the decedent's affairs.

    It will be necessary for you to retain an experienced probate attorney to work with you, unless you are the only beneficiary of all of the decedent's assets, and there are no other interested parties involved. Since you have identified some liabilities of the decedent you most likely will be unable to proceed without the assistance of an attorney.

    You can learn additional information about the probate process at our website below.

    See question 
  • We have questions about paying for assisted living facilities for our mother who is having memory problems.

    She has money in savings, but her only income is Social Security of less than $2000 per month. The state (Florida) Elder Care Resource Center has told us she would not qualify for Medicaid due to her savings. One Assisted Living facility told us t...

    Carl’s Answer

    There are a number of options available for spending down your mother's remaining assets so that she can qualify for Medicaid benefits. Some, such as the earlier recommendation to consider a pre-paid funeral contract, are relatively easy to implement. Others are more complex and you should consider retaining a Florida elder law attorney to assist you.

    One issue you will want to consider is that there are limited Medicaid benefits for assisted living facilities in Florida. Most of the Medicaid benefits are for skilled nursing facilties. That's why you should explore whether your mother is entitled to VA benefits. If she or her spouse was a member of the US armed forces for at least 90 days, and at least one day of which was served during a period of time during a declared conflict (WWII, Korean War, Vietnam War, Desert Storm, Iraq, Afganistan, etc.) then she may well be entitled to benefits that can help pay for the assisted living facility. You can learn more at our website.

    See question 
  • In filing for " Custody by family member w consent", Does it require both parties financial affidavit?

    My Mom and Step dad adopted my little brother at 7 mo old. My mom passed away in 2005. My little brother is now 12 years old. My step dad is 73 and has Parkinsons disease real bad. He wants me to file for " Custody by Family member with consent. ...

    Carl’s Answer

    The financial affidavit required will be yours, since you are the person seeking custody. What you are actually seeking to do is become the guardian of the person and property of your little brother. There is a court supervised procedure for doing that and your father's consent will be helpful, but if he is incapacitated and unable to care for your little brother, then his cooperation is not absoutely necessary. If you step-dad needs assistance with caring for himself, as well, you may also want to consider seeking appointment as his legal guardian. If you are appointed by the court as his legal guardian, then you will have the legal authority to handle his personal affairs as well.

    To obtain an appointment as your step-father's guardian, it will be necessary that he first be determined to be legally incapacitated. The court will appoint a three person "examining committee" to review his situation and make a recommendation to the court as to whether he no longer has legal capacity. If that is then determined by the court to be the case, the court will appoint someone to act as his guardian of the person and his property. If you are the appointed guardian it will be necessary for you to report to the court periodically providing your step-father's condition, and you will be required to file an accounting of all of the financial activities associated with your step-father's financial affairs. The court's approval will be required for significant financial transactions.

    As your step-father's guardian, you would also be responsible for the care of your little brother. You would have access to your father's financial resources to assist in that endeavor.

    You're looking at taking on a lot of responsibility. Good luck.

    See question 
  • My father passed away, how can his family gain access to his checking account?

    He did not leave a will, and his checking account has only his name on the account. And I am affraid that if we hire an attorney, he/she will end up taking a majority of the money for his/her fees. Can't I just go down to my local courthouse and d...

    Carl’s Answer

    In Florida, if the bank account is in your father's name alone, and its value is less than $75,000, and your father's estate has no outstanding creditor claims, then you can use a simplified probate procedure call "summary probate administration." In a summary administration, a simple petition, signed by all of your father's heirs, or with waivers from heirs who will waive their right to participate in the checking account, is filed with the court and an order is entered immediately directing the bank to turn over the checking account to the proper person.

    You will need to hire an attorney to represent the person who is petitioning the probate court for the summary administration. You should expect fees and costs in the area of $1000 for filing a petition for summary administration.

    Since your father had no will, if he had a spouse at the time of his death, she will be entitled to participate in the checking account. If his children are all her children also, then she is entitled to the first $60,000 plus one half of any remaining balance. If he has children that are not also her children, then she is entitled to one half of the balance and the children are entitled to the remaining one half, in equal shares for all of the children.

    You may have one other option. If the funds in the checking account are less than the funeral expenses, and you have receipts for the funeral expenses, you may be able to obtain an order from the court directing that the bank pay the funds to the person who did pay for the funeral expenses, without the necessity of hiring a lawyer. You should contact the probate clerk of court in the county where your father resided at the time of his death for assistance in this procedure.

    Good luck.

    See question