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Carol Anne Johnson
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Carol Johnson’s Answers

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  • Florida Disclaim for Distressed Trust Real Estate: Can it be done?

    I and my siblings are named as beneficiaries to a piece of real estate via a family trust created by our Grandmother's will. The trust was designed to terminated upon my youngest sibling's 21st birthday, but it has remained in effect, due to lapse...

    Carol’s Answer

    If the property is the only thing of value in the Trust, then you probably should. You may have an action against the Trustee for "waste" of resources, but it depends on the directions within the Trust instrument and if there were sufficient other assets to fund the upkeep and mortgage payments within the Trust corpus for the Trustee to be able to properly care for the property. If you believe that the Trustee has used gross negligence or willful misconduct in handling his / her duties as Trustee, then they may be personally liable for the failure to maintain the property for the benefit of the beneficiaries.

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  • Can I sue my adoptive parents for continuing to receive and use ssi checks and adoption subsidy checks after kicking me out?

    In May 2010 at the age of 16 my adoptive parents kicked me out but they continued to get and use my ssi checks until I was 18 and adoption subsidy checks until I turned 21 this year, can I sue them for this?

    Carol’s Answer

    Yes, you can (and probably should) - but, this will take a civil litigation attorney. SSA should also be notified to stop sending them the checks, but they are often slow to respond and will need substantial follow-up on your part.

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  • Can a attorney legally advise his client to intentionally & willfully deprive an heir and/or designated P.R. of reading a Will?

    Just wanted to know...Please don't respond to the ethical nature of such advise as anyone knows such behavior is unethical.

    Carol’s Answer

    There is no such "deprivation" - what a lawyer advised their client to do is usually between the lawyer and client, but other than on TV, there is no "reading of the Will" as part of the probate process. The will, if properly filed, is available, as public record, at the probate court. So, the answer to your question is "No law is violated if an attorney advises against a 'reading of the will'." If no will has been properly filed with the court by the sibling, you can have your attorney issue a demand letter to have the will produced and filed.

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  • Is a Will better or a Trust, in Florida?

    I have a Will, but not a Trust.

    Carol’s Answer

    Wow. That question can spur a lot of debate around these parts! It all depends upon a) your estate planning goals, (i.e., do you have minor children / grandchildren that would be beneficiaries? a spendthrift?), b) the size of your estate, c) your desire to avoid probate, and d) whether any of your potential heirs are disabled and on means-tested government benefits. The best place to start is with an estate planning attorney who also does special needs (if appropriate) and have them walk you through the various estate planning strategies that can best help you achieve your goals.

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  • Am i intiteld to reed my grandmothers will if i am the only grand child left and my father past away?

    I live in belgium and grandmother past away in lakeland but has apower of atterney who thinks i am desrespectfull, if i ask of my grabdmothers will. How can i find my recently deseaced grandmothers lawyer. I am her grandson and my father p...

    Carol’s Answer

    If you're sure that your Grandmother passed away in Lakeland, that is in Polk County, FL. You can go to their probate clerk's website and see if the will has been filed. Florida law requires that a will MUST be filed with the probate court within 10 days of a testator's death. If that was properly done, the will is public record and can be (usually) obtained on-line, or by calling the clerk's office and having a copy made and sent to you. Good luck.

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  • Which State do I file probate?

    My 94 year old Father, who lived (and owns property) in the Seattle, Washington area, fell on 1/28 and my brother and I (his POA and Executrix) flew to Seattle and brought him back with us to Naples, Florida, where he died 90 days later under in-h...

    Carol’s Answer

    I am very sorry to hear of the passing of your father! Technically, the death certificate has to state WHERE the decedent passed away, but should have listed his actual residence with his WA address, unless there were some documents that may have effected his change of residence. Probate is supposed to be opened where the decedent was residing at the time of his / her death. In this case, your father was residing here in FL with you. Are his belongings and homestead still in WA? If so, you should be able to approach the local probate court and ask that jurisdiction be transferred to his home state and have an attorney there handle the probate proceeding. If he has real property in WA, even if his probate is administered in FL, an ancillary proceeding would have to be started in WA to take care of assets and real property there.

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  • Is it true that grantor/beneficiary of Mallinckrodt Trust cannot deduct mortgage interest payments and real estate taxes paid by

    paid by trust?

    Carol’s Answer

    A Mallinckrodt Trust (aka Section 678 Trust) is basically a Grantor Trust where the Grantor has given over to a third-party "ownership" of the trust for tax purposes. Thus, to the extent the trust, or any portion of it, if owned by the third-party, the income and deductions (including for items paid by the trust) are items that are reportable on the third-parties tax return. This is based on how the trust is defined and which powers are granted to the third-party, whether or not the Grantor has reserved any powers to themselves, or if there is a pre-existing obligation of support that would belong to the holder of the power. A review of the trust and the rights and powers granted would be necessary to determine the extent the income and deductions are reportable on a given person's tax return. See 26 USC Section 678 et seq.

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  • I would like to leave my estate to my three show dogs and have my partner designated as trustee of my estate.

    My partner of 40 years is also a co owner of the dogs. He is 58 years of age and his currently on SSI and Medicaid. His SSI check each month is $733.00. I believe that under SSI He is unable to use any of his funds to RENT a home and there is n...

    Carol’s Answer

    You need to speak with an elder law attorney who has experience with special needs trusts to ensure that the pet trust is properly drafted and that making him the Trustee of this pet trust will NOT jeopardize his SSI / Medicaid - which are both means-tested. Also, you were misinformed about not being able to use SSI to pay for rent or other home expenses. Again, speaking with a qualified elder law attorney will allow you to address and understand how best to care for the dogs AND your partner's needs.

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  • What is the proper procedures for notifications all persons that have interests concerning a Summary Administration?

    My brother-in-law's attorney sent my wife Petitions to Detrmine Homestead Status & Exempt Property. We thought there would be a court hearing so waited to be notified of a hearing date by the court. Three months later my wife received a call from ...

    Carol’s Answer

    I think you have already asked this question. In addition to my previous answer, I have an additional question - did your wife hire an attorney and file for probate? Was she given letters of administration by the court to act as PR? If so, did her attorney advise her as to her rights to object to the Petition? If not, why not? It could be that the other beneficiary was tired of waiting for the probate proceeding to "proceed" and took matters into his own hands. As to her "consent" being needed in the matter - when a petition is served on all parties it is incumbent upon those served to file an "answer" or objection to the action being proposed. To do nothing implies consent. So, because she did nothing - she, in fact, did provide her consent.

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  • What is the proper procedures for notifications all persons that have interests concerning a Summary Administration?

    My brother-in-law's attorney sent my wife Petitions to Detrmine Homestead Status & Exempt Property. We thought there would be a court hearing so waited to be notified of a hearing date by the court. Three months later my wife received a call from ...

    Carol’s Answer

    • Selected as best answer

    In your comment to Attorney Foster's comment, you make some accusations against the brother-in-law - did your wife begin a probate proceeding? Was she named the PR? If so, why didn't she have her attorney file the homestead determination? Didn't her attorney explain the petition to her? Lack of response to a petition is considered by the court to be consent to its contents. If she was in disagreement, then she had a limited amount of time to present her objections. It sounds like all proper procedures were followed, except by your wife's attorney, if she had engaged one, who should have advised her as to her rights in the matter.

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