Ruth Elaine McMahon's Answers

How can I obtain a petition to remove an executor/trustee of a trust in FL? The Clerk of Court office does not have any forms.

You will need an attorney to petition the court if you wish to remove an executor (this is probate court for the Will) or a trustee (this will most likely be a trust action separate from probate). When you hire an attorney, you should provide him or her with a copy of the will and a copy of the trust and any written information you have that indicates why you want to remove the executor/trustee. The trust may have language in it on how tor why he trustee could be removed.

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Power of attorney?

You can probably use a limited power of attorney. That is a power of attorney that is limited to a particular matter, such as selling a car. It should be notarized.Most likely would not have to be recorded - but that depends on who purchase the car. You should consult an attorney to prepare the limited power of attorney so that it will be properly prepared and executed. If it does not contain all of the specifics required to sell the car, you won't be able to sell it while your wife is away. Be...

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My lawyer has been disbarred. Do I need to get my living trust rewritten?

I think you are wise to pick up your file and choose your own lawyer. The disbarrment of your lawyer does not make your trust illegal. However, as a precaution, I suggest that you ask your new lawyer to review the trust to make sure that it meets your needs and that it was executed properly.

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Brother died without a will

If your brother lived in Florida, there is a procedure called "Summary Administration" for an estte that does not exceed $75,000 in value. It is easy, but you must have an attorney. If your brother's bank account has only a few hundred dollars in it, this type of administration may not be worth the effort. There is also a procedure under Florida law (F.S. 745.301) "Disposition without administration" if the value of the non exempt property does not exceed the sum of the amount of preferred...

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If i am a court appointed Co-Guardian for my mother, do I have the legal right to access her credit report?

You should be able to obtain your mother's credit report, especially if you are the co guardian of her property (as opposed to being the co guardian of her person). You may need to send a certified copy of your letters of guardianship to each credit reporting agency. They can be obtained from the court for a fee. If you believe that there has been identity theft, you should notify the court and take whatever steps are necessary to address it. As co-guardian, you are represented by an attorney....

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Can an "X" be used as a signature on a Florida Durable power of attorney if there are witnesses present.

It would be better for your father to use a power of attorney form drafted by a Florida attorney who could indicate in the signature section that your father has limited motor skills and will sign with a mark. [it doesn't have to be an "X"] This could also be added by a notary public who notarizes the power of attorney. I am not a fan of downloaded forms because they can be used by anyone in any state. To be safe, a Florida power of attorney should be witnessed by two individulas who are not...

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My mother has a trust agreement that was signed in 1992 when she lived in her Ohio home. Since then she sold the home

It would be a good idea for your mother to see an estate planning attorney to review her Ohio documents. The Ohio documents may be fine - but an amendment to the trust may be appropriate to clarify her new residence. It is also important for your mother to have Florida documents such as a living will, designation of health care surrogate and power of attorney. Florida law re: a durable power of attorney was amended as of October 1, 2011. Although prior powers of attorney may be accepted, the...

Can a spendthrift and/or a holdback clause protect a trust distribution from creditors of a beneficiary in bankruptcy?

The answer to this question may be found in the trust instrument. Who is the trustee? What is the trustee instructed to do? If the trustee is an independent trustee who has no real relationship to your sister and if the trustee has discretion to pay income or principal to her, the trustee may be able to hold her distribution for longre than 180 days. If the trustee is instructed to pay the income to your sister but has discretion to pay principal, the income should be available to creditors but...

Florida Law when husband dies

There are many aspects that need to be considered in order to fully answer this question. Was the husband a resident of the State of Florida? Was the property his homestead (where he regularly lived)? If the husband and wife were residents of the State of Florida and lived in the property, the wife may inherit the property - but, if they had minor children, the wife would be entiteld to a life estate and the minor children would receive the property on the wife's death. If the property is...

I wont to obtain legal guardianship over a 16 year old boy wit his moms permission,

It appears that the boy's mother is his natural guardian. If you became the boy's guardian, you would be taking full responsibility for him and this would be taking something away from the mom. In Florida, there are two types of guardianship - guardianship of the person and guardianship of the property. If you were to file for guardianship of either (or both), you would need an attorney and you would have to go to court. Guardianships end when a minor reaches age 18, so a guardianship would be...