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Carl Randolph Coleman
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Carl Coleman’s Answers

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  • How does probate find relatives of a person who dies without a will and how long will the courts take to do so.

    Have an 88 yr old aunt without a will and trying to inform her of what happens should she pass with out one....I understand that it goes to probate but don't know how they find potential family members and is it any blood relative no matter how fa...

    Carl’s Answer

    When someone dies in Florida, owning assets but without a will, the deceased persons estate must go through probate. The probate judge will appoint a personal representative ("executor") of the estate. The personal representative of the estate must have a Florida attorney representing him or her in the probate proceeding. It is the personal representative's responsibility to determine whether there are any creditors of the deceased person, and to collect all of the assets belonging to the deceased person.

    After collecting all of the assets and determining valid creditors, the legitimate creditor who is owed money by the deceased person will be paid from the assets in the probate estate. The personal representative is entitled to a reasonable fee for his or her services, and the probate attorney for the personal representative is entitled to reasonable compensation for services rendered.

    All assets remaining after paying creditors, the personal representative and the probate attorney will be distributed to the deceased person's heirs at law, as determined by Florida Statutes, Section 732.101 - 732.106. If the personal representative is unable to locate any of the deceased person's legal heirs, then the remaining assets in the estate escheat to the State of Florida pursuant to Florida Statutes, Section 732.107.

    If you aunt is capable of understanding the extent of her assets and other resources, and who are her legal heris, then she may still be competent to sign a will. In the will she can identify the people who she wants to receive her assets upon her death. If she has significant assets, she may want to consider a revocable living trust that may allow her to avoid probate.

    I strongly encourage you and your aunt to consult with an estate planning attorney in your locality as soon as possible.

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  • Mom passed away, was listed as beneficiary on her account, bank says I "was" but no longer am. what are my options?

    My Mother passed away suddenly on April 28th, 2016, my father last year on May 17th. I was always listed as a beneficiary on their bank account. After my Father passed away, since they had a join account, they only removed my Father and only my Mo...

    Carl’s Answer

    Unfortunately, your only option is a formal probate administration. Since the amount of the account exceeds $75,000, summary administration is not available as an option for you.

    You should consult with a local probate attorney to explore your options in the probate court.

    Since you are the closest heir, as her daughter, you should have no issue with being appointed as the personal representative of the estate. The formal probate administration should not last more than four or five months, if there are no creditor claims filed.

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  • Estate Planning Questions.

    Hello: I have not done any estate planning. I have my investments, checking, and savings payable on death to all of my children. However, my paid off home is not designated to anyone and my wish is to leave it to one child out of my four chi...

    Carl’s Answer

    It sounds like you're due for an estate planning consultation with an experienced estate planning attorney. Without a will, all of your assets will be distributed to your surviving spouse, if there is one, or if you have children from a previous marriage, then 1/2 to your surviving spouse and 1/2 to your children from the previous marriage. Any asset with a beneficiary designation will be distributed to the named beneficiary. Any asset titled to your and someone else, with right of survivorship, or with your wife as tenants by the entireties, will be distributed to the surviving joint owner.

    All of the asset for which there are beneficiary designations or joint ownership will go outright to the named beneficiary or the joint owner, without any protection for them from creditor claims against the beneficiary that may be pending at the time of your death, or potentially subject to claims of divorcing spouses, or if any of those individuals are incapacitated, either temporarily or permanently, their assets may end up in a court supervised guardianship. Another uncertainty is what happens if someone you have named as a beneficiary should predecease you? Where will those assets go?

    You also should consider who is to make health care decisions for you when your are unable to communicate to your physicians, and who will be responsible for handling your financial and business affairs in the event you become incapacitated, temporarily or permanently.

    You can avoid all of the uncertainty with proper estate planning. You should meet with an experienced estate planning attorney who can assist you with achieving your goals and objectives, and dealing appropriately with your concerns.

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  • Do I need a Living Will?

    Will it be too bad if I buy a pre-printed Living Will at Office Depot and fill it out to say I leave everything to my special needs 3 year old son versus having a an attorney write a testament/estate? What would be the difference? I'm really not ...

    Carl’s Answer

    You have a host of issues that dictate that you consult with an experienced estate planning attorney.

    First, a "living will" is a document that relates to end of life decisions, and has no effect on the distribution of your assets at death.

    Second, when dealing with a special needs child, there are all kinds of issues that need to be addressed to ensure the special needs child actually benefits from his or her inheritance. I've provided a link to our website discussion of special needs trusts that can be used to ensure a child with special needs can benefit from an inheritance without losing any public benefits the child may be entitled to receive.

    Third, when dealing with blended families, there are a number of issues that must be addressed to avoid potential mistakes that can devastate an estate plan.

    The needs you have for estate planning exceed your concerns with the value of your estate. Where special needs and blended families are concerned, you have very particular estate planning needs that dictate you consult with an experienced estate planning attorney. Do not try to do this kind of planning without the assistance of an experienced attorney.

    Good luck with your planning.

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  • Volusia co fla. brother is heir to a will. he died. are his heirs entitled to his portion ?

    the person who wrote the will died recently. large disbursements have been made to other family members with the exception of my brother. there is no provision in the will or codicils denying his rights should he precede will makers demise. are hi...

    Carl’s Answer

    The answer to your question depends on the language used in the will. Your question also highlights why it is important to work with an experienced estate planning attorney when implementing wills and trusts.

    If the language in the will says that your brother is entitled to a distribution "per stirpes" then if your brother predeceases the will maker then his children would be entitled to his distribution, in equal shares for each of his children.

    If the language of the will says "per capita" then your brother's share lapses (goes away) if he dies before the will maker.

    Even better would be for the will to specifically provide instructions on what happens if a named beneficiary predeceases the will maker.

    I suggest that you obtain a copy of the will and meet with an experienced estate planning or probate attorney to determine what rights, if any, your brother's children might have in the estate.

    Good luck.

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  • Can Medicaid seize unclaimed Social Security benefits of Florida decedent 2yrs. after date of death?

    Decedent, 59, died Oct. 2013, indigent Florida resident. Social Security deposited $9,000 in decedent's name. These disability benefits were disbursed prior to death but not used. Decedent was on Medicaid and had $130,0...

    Carl’s Answer

    The short answer to your question is that Medicaid probably cannot recover the funds based on Florida Statutes ("FS"), Section 733.710.

    FS, Section 733.710 provides: (1) Notwithstanding any other provision of the code, 2 years after the death of a person, neither the decedent’s estate, the personal representative, if any, nor the beneficiaries shall be liable for any claim or cause of action against the decedent, whether or not letters of administration have been issued, except as provided in this section.

    Paragraph 2 of that statute provides that this section will not apply to a creditor who has submitted a claim within the two years following the death of the decedent, and also complied with the requirements of Section 733.702. Case law provides that a Medicaid claim filed with the clerk of the court as a caveat by a creditor constitutes a timely filing of a claim against the estate, and complies with the requirements of Section 733.702. There are no cases establishing whether F.S. 733.702 or F.S. 733.710 will be the controlling statute in your factual circumstances. The creditor (Medicaid in this instance) also has the right to request that the court grant an extension of the time for filing under 733.702 on the basis of estoppel or fraud.

    However, there are cases dealing with other creditors that establish FS 733.710 should prevail over the requirements of FS 733.702.

    You should consult experienced probate counsel in the community in which the decedent presided to more carefully examine the facts involved in your situation to determine the most appropriate course of action.

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  • 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.

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  • 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

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  • 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.

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  • 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.

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