Most Asked Questions About Living Trusts
Q: If I have a Will, do I have to go through Probate?
A: If your estate exceeds $10,000, ALMOST ALL individually owned assets must go through Probate.
Q: What are some of the bad features of Probate?
A: 1)The cost. Probate can cost your estate up to 10% of its value. 2) The publicity. All probate proceedings are public records. 3)The time. In practicality it will take six to nine months minimum to do a formal administration.
Q: What's the difference between a Probate Estate and a Gross Estate for federal tax purposes?
A: A Probate Estate consists of those assets which are subject to Probate. On the other hand, the gross estate for federal tax purposes includes non-probatable assets such as insurance (under certain circumstances), pension plans and jointly owned property.
Q: Is there a way to avoid the expense of Probate and still have control of my property?
A: Yes. A Living Trust will afford you the opportunity to avoid substantial Probate expenses and, at the same time, maintain full and complete control over your assets.
Q: Can a Living Trust save Estate Taxes?
A: Yes, for a married couple. A Living Trust can be created such that it includes the provision known as a Marital Deduction Trust which allows for tax-free passing of assets up to 2 million dollars, depending on what the Congress does with the Estate Tax Laws.
Q: Can a Living Trust help if I enter a nursing home?
A: A Living Trust can provide that a Successor Trustee assumes the powers of administrating the Trust for your benefit in the event you become legally incapacitated or impaired - as you may define that term in your trust document.
Q: How can Mark R. Lewis, PA help?
A Living Trust can help you avoid the burden and high cost of the probate of your estate. We conduct free seminars on a weekly basis which are designed for easy understanding and permit you to ask any questions. Call to reserve your place now!
We also offer a complimentary consultation to you to discuss whether you can benefit from this estate planning device. You may call our office to arrange for your FREE appointment at your convenience.
As an added service and to inform you about the benefits of the Living Trust, our office has a video tape available for your viewing, without charge. Simply come in or call our office to reserve a time to view the tape either at our office or in the comfort of your home.
Sunday, August 29, 2010
Corporations and Their Use and Implementation for Small Companies
Incorporation Has Many Benefits
Many individual entrepreneurs choose to incorporate because it affords them protection from lawsuits and creditors. The corporate entity provides a legal barrier against incurring personal liabilities arising from the day-to-day operation of your business. Most residents of Florida who set up a corporation choose a Florida corporation as opposed to other states. Therefore, the incorporator will be subject to Florida's laws governing reporting requirements.
Each year, by May 1st, every Florida corporation must file an annual report and pay the state of Florida a $150.00 fee for renewal of their right to be an active corporation. Failure to timely file this report results in a late charge of $400.00 and temporary suspension of the right to corporate status. In addition, all Florida chartered corporations must have at least one annual meeting of its directors and shareholders. The time and place of any such meetings is spelled out in the bylaws of each corporation.
If your corporation becomes the target of lawsuits or creditor actions, one of the plaintiff attorney's favorite tactics is to attempt to pierce the "corporate veil". They will try to prove that the corporate entity is a sham and that it is not being run as a corporation. They will ask you to produce your corporate records including the directors and shareholders meetings' minutes. Should you fail to maintain such records this fact will be brought to the court's attention as one of the factors "proving" that you are not operating the business as a corporation -rather as a personal business. Should the court agree with that contention, it may permit the lawsuit to proceed against the shareholders personally.
Protect Your Corporate Status
There are a number of simple, easy steps you can take to maintain your corporate status and ensure that you have the protection you need:
1. File your annual reports each year with the Florida Department of State.
2. Prepare special directors' meeting minutes for opening new bank accounts; purchases over $2,500.00; vehicle leases or purchases; election of new officers; business financing; lease of office space; bonuses declared for officers; and other major events.
3. Prepare special shareholders' meeting minutes for sales of corporate assets; election of new directors; mergers and/or sale of the business; and other major events requiring approval.
4. Prepare annual directors' meeting minutes and document the election of officers; ratify all actions taken by corporate officers since the date of the last meeting; ratify salaries paid to all officers during the last fiscal year; and note any discussions or decisions of a material nature.
5. Prepare annual shareholders' meeting minutes and document the election of directors; review and accept a report on the financial condition of the company; and ratify all actions taken by the board of directors since the last meeting.
Our Law Firm and Your Corporation
We have developed a computer system which permits us to prepare your annual reports and meetings' minutes quickly and at a low cost to you. It eliminates the need for you to "remember" to update your corporate records - we do it for you! Give us a call, today, and let us show you how we can help.
Many individual entrepreneurs choose to incorporate because it affords them protection from lawsuits and creditors. The corporate entity provides a legal barrier against incurring personal liabilities arising from the day-to-day operation of your business. Most residents of Florida who set up a corporation choose a Florida corporation as opposed to other states. Therefore, the incorporator will be subject to Florida's laws governing reporting requirements.
Each year, by May 1st, every Florida corporation must file an annual report and pay the state of Florida a $150.00 fee for renewal of their right to be an active corporation. Failure to timely file this report results in a late charge of $400.00 and temporary suspension of the right to corporate status. In addition, all Florida chartered corporations must have at least one annual meeting of its directors and shareholders. The time and place of any such meetings is spelled out in the bylaws of each corporation.
If your corporation becomes the target of lawsuits or creditor actions, one of the plaintiff attorney's favorite tactics is to attempt to pierce the "corporate veil". They will try to prove that the corporate entity is a sham and that it is not being run as a corporation. They will ask you to produce your corporate records including the directors and shareholders meetings' minutes. Should you fail to maintain such records this fact will be brought to the court's attention as one of the factors "proving" that you are not operating the business as a corporation -rather as a personal business. Should the court agree with that contention, it may permit the lawsuit to proceed against the shareholders personally.
Protect Your Corporate Status
There are a number of simple, easy steps you can take to maintain your corporate status and ensure that you have the protection you need:
1. File your annual reports each year with the Florida Department of State.
2. Prepare special directors' meeting minutes for opening new bank accounts; purchases over $2,500.00; vehicle leases or purchases; election of new officers; business financing; lease of office space; bonuses declared for officers; and other major events.
3. Prepare special shareholders' meeting minutes for sales of corporate assets; election of new directors; mergers and/or sale of the business; and other major events requiring approval.
4. Prepare annual directors' meeting minutes and document the election of officers; ratify all actions taken by corporate officers since the date of the last meeting; ratify salaries paid to all officers during the last fiscal year; and note any discussions or decisions of a material nature.
5. Prepare annual shareholders' meeting minutes and document the election of directors; review and accept a report on the financial condition of the company; and ratify all actions taken by the board of directors since the last meeting.
Our Law Firm and Your Corporation
We have developed a computer system which permits us to prepare your annual reports and meetings' minutes quickly and at a low cost to you. It eliminates the need for you to "remember" to update your corporate records - we do it for you! Give us a call, today, and let us show you how we can help.
Saturday, August 28, 2010
Advanced Health Care Directives
An Advance Health Care Directive is an instrument that allows you to appoint someone to make your health care decisions when you are unable to do so. The instrument is authorized in Florida under Chapter 765 of the Florida Statutes “Health Care Advance Directives”. This instrument is only effective when the person who has executed it has become incapacitated or incompetent. Those later two terms mean that the person is physically or mentally unable to communicate a willful and knowing health care decision. The key provision of the Advance Health Care Directive is that the person, making the decision for the patient must make the decision the patient would make were he able to do so. At Mark R. Lewis, PA, we call this instrument a Surrogate Decision Maker Designation.
There was a recent case in Pinellas County, Florida, known as the Schiavo case and many people have heard about it as involved a young woman in a coma or persistent vegetative state (although her parents disputed this) and the question then became and was litigated for years as to what her wishes were. At Mark R. Lewis, PA, we have developed a medical directive which describes various medical conditions and medical treatments and allows the patient to specify when and under what conditions the treatments will be made or refused.
It is not the same as a health care power of attorney as that is authorized by a different Chapter of the Florida Statutes, to wit, Chapter 709 and a health care power of attorney does not require the incapacity of the patient.
There was a recent case in Pinellas County, Florida, known as the Schiavo case and many people have heard about it as involved a young woman in a coma or persistent vegetative state (although her parents disputed this) and the question then became and was litigated for years as to what her wishes were. At Mark R. Lewis, PA, we have developed a medical directive which describes various medical conditions and medical treatments and allows the patient to specify when and under what conditions the treatments will be made or refused.
It is not the same as a health care power of attorney as that is authorized by a different Chapter of the Florida Statutes, to wit, Chapter 709 and a health care power of attorney does not require the incapacity of the patient.
What Everyone Should Know When Selling His House
Q. Is there a standard real estate contract?
A. There is a contract (approved by the Florida Association of Realtors and The Florida Bar) known as the FAR-BAR contract. There is also a contract approved by the Florida Association of Realtors only which is known as the FAR contract. In addition many real estate companies have their own pre-printed forms. In many instances that contract has not been approved by any attorney and is written to benefit the Buyer and/or the Real Estate Agent. The real estate agent who locates the Buyer (not usually the Listing Agent) will put the initial offer on his company's pre-printed form which will not be the same as the pre-printed form used by the Listing Agent.
Our firm recommends the FAR-BAR contract which we can prepare for you in one conference and at a fixed small fee.
Q. What closing costs should the Seller pay?
A. Unless your Buyer is financing his purchase through either a VA or FHA mortgage, the law does not require that you pay any particular costs and, as a result, costs are negotiable between you and the Buyer. The following are costs that are customarily paid by the Seller of a residential homesite in Pinellas County, Florida.
a. Documentary Stamps
b. Owner's Title Insurance
c. Termite Inspection
d. Real Estate Commission
e. Seller's Attorney Fees
Q. Whom does the Real Estate Agent represent?
A. In Florida, this depends on what kind of arrangement was entered into at the time of the listing and what kind of relation the agent who brought the Buyer to the property entered into when he met the Buyer. In Florida there can be a Buyer's Agent, a Seller's Agent or a dual agency. The kind of agency arrangement determines who (the Buyer or the Seller or both) the Agent represents. Therefore, when dealing through a real estate agent always establish at your first meeting what kind of agency is being created. Problems can arise if this is not clearly established at your first meeting, especially if you list your house with a large broker and another agent in that broker's office is the agent who brings forth the ultimate Buyer. In that case there can be difficulties since the second agent will have established a natural camaraderie between himself and the Buyer and that can be counterproductive to your ultimate interests.
Q. What warranties must a Seller give a Buyer in the sale of real estate?
A. A recent decision by the Florida Supreme Court requires that a Seller must disclose to a Buyer any latent (not easily discoverable or readily apparent) defect in the property which affects its fair market value. In addition, many pre-printed contracts include in their terms a representation that "the appliances, air conditioning, plumbing, etc., shall be in good working order at the time of closing". While most Buyers want this type of representation from the Seller, it should be limited by an additional clause which does not appear in most pre-printed contracts, i.e., "Seller's liability under this clause shall not exceed $_______. If the cost of curing any defect exceeds $______ then either party may elect to pay such excess. If neither party elects to pay such excess then this Agreement shall terminate."
Q. How much real estate commission should I pay when selling my house?
A. The customary residential real estate sales fee in Pinellas County, Florida, is 7-1/2% of the sales price. (Some firms have reduced this to as low as 6%). This fee, when paid, is normally split between the Listing Agent and the Selling Agent (the agent who locates the Buyer). Many times, by limiting what is expected of the Listing Agent, you can reduce the amount of commission that will be paid to the Listing Agent. For example, if you advise the Listing Agent that you merely want the agent to list the property in the Multiple Listing Service of the local Board of Realtors and to answer availability questions with little or no advertising and no open houses, that agent may be willing to reduce his share of the commission from 3-3/4% to 2%.
Q. Who is liable for any termite damage?
A. Because of our climate, almost all sales of homes will include a provision for a termite inspection. The FAR-BAR contract provides for the cost of the inspection to be paid by the Buyer. The Seller is usually required to pay any expense of treatment or damage, but the contract should provide a limit on how much a Seller is required to pay in the event infestation or damage is found in the building.
Q. Should I help the Buyer purchase my house by carrying a mortgage?
A. Whether you are going to carry a mortgage on the sale of your property will depend on your own financial situation. If you do carry a mortgage, you must include in the contract the provisions you want in the mortgage. Some of the provisions which should be included are the interest rate (which should be variable if the term of the mortgage is greater than three years); the term of the mortgage; late fees for any late payments; grace periods; whether the mortgage is assumable in the event the property is sold; and whether there is any penalty for prepayment.
Q. Do I need an attorney in the sale of my house or real property and, if so, when should I get him involved?
A. For most individuals, the sale of their home or other real property is one of the biggest financial events of their lives and involves substantial legal issues which can only be adequately handled by a licensed attorney specializing in Real Property Law. As a result, it is extremely important to have an attorney review any contract before you sign it. While a real estate agent may be valuable in assisting with the marketing of your property, it is important to have an attorney whose sole interest in the drafting of a contract is your protection. Your real estate attorney can also handle the closing of the sale of your home by issuing title insurance at basically the same rates that you would incur with a title company.
At Mark R. Lewis, P.A., we concentrate a large part of our practice in the area of real estate law and have done so for over 30 years. We can prepare the contract, handle the closing and protect your interests.
Q. Do I need a real estate agent to sell my house?
A. No. If you decide to sell the house yourself, our office can write the contract and handle the closing, including writing the title insurance and the other little things that go with selling your house. But even if you do have a real estate agent, our office can write the contract or review it after it is presented by the Buyer or real estate agent, write the title insurance and close the transaction.
A. There is a contract (approved by the Florida Association of Realtors and The Florida Bar) known as the FAR-BAR contract. There is also a contract approved by the Florida Association of Realtors only which is known as the FAR contract. In addition many real estate companies have their own pre-printed forms. In many instances that contract has not been approved by any attorney and is written to benefit the Buyer and/or the Real Estate Agent. The real estate agent who locates the Buyer (not usually the Listing Agent) will put the initial offer on his company's pre-printed form which will not be the same as the pre-printed form used by the Listing Agent.
Our firm recommends the FAR-BAR contract which we can prepare for you in one conference and at a fixed small fee.
Q. What closing costs should the Seller pay?
A. Unless your Buyer is financing his purchase through either a VA or FHA mortgage, the law does not require that you pay any particular costs and, as a result, costs are negotiable between you and the Buyer. The following are costs that are customarily paid by the Seller of a residential homesite in Pinellas County, Florida.
a. Documentary Stamps
b. Owner's Title Insurance
c. Termite Inspection
d. Real Estate Commission
e. Seller's Attorney Fees
Q. Whom does the Real Estate Agent represent?
A. In Florida, this depends on what kind of arrangement was entered into at the time of the listing and what kind of relation the agent who brought the Buyer to the property entered into when he met the Buyer. In Florida there can be a Buyer's Agent, a Seller's Agent or a dual agency. The kind of agency arrangement determines who (the Buyer or the Seller or both) the Agent represents. Therefore, when dealing through a real estate agent always establish at your first meeting what kind of agency is being created. Problems can arise if this is not clearly established at your first meeting, especially if you list your house with a large broker and another agent in that broker's office is the agent who brings forth the ultimate Buyer. In that case there can be difficulties since the second agent will have established a natural camaraderie between himself and the Buyer and that can be counterproductive to your ultimate interests.
Q. What warranties must a Seller give a Buyer in the sale of real estate?
A. A recent decision by the Florida Supreme Court requires that a Seller must disclose to a Buyer any latent (not easily discoverable or readily apparent) defect in the property which affects its fair market value. In addition, many pre-printed contracts include in their terms a representation that "the appliances, air conditioning, plumbing, etc., shall be in good working order at the time of closing". While most Buyers want this type of representation from the Seller, it should be limited by an additional clause which does not appear in most pre-printed contracts, i.e., "Seller's liability under this clause shall not exceed $_______. If the cost of curing any defect exceeds $______ then either party may elect to pay such excess. If neither party elects to pay such excess then this Agreement shall terminate."
Q. How much real estate commission should I pay when selling my house?
A. The customary residential real estate sales fee in Pinellas County, Florida, is 7-1/2% of the sales price. (Some firms have reduced this to as low as 6%). This fee, when paid, is normally split between the Listing Agent and the Selling Agent (the agent who locates the Buyer). Many times, by limiting what is expected of the Listing Agent, you can reduce the amount of commission that will be paid to the Listing Agent. For example, if you advise the Listing Agent that you merely want the agent to list the property in the Multiple Listing Service of the local Board of Realtors and to answer availability questions with little or no advertising and no open houses, that agent may be willing to reduce his share of the commission from 3-3/4% to 2%.
Q. Who is liable for any termite damage?
A. Because of our climate, almost all sales of homes will include a provision for a termite inspection. The FAR-BAR contract provides for the cost of the inspection to be paid by the Buyer. The Seller is usually required to pay any expense of treatment or damage, but the contract should provide a limit on how much a Seller is required to pay in the event infestation or damage is found in the building.
Q. Should I help the Buyer purchase my house by carrying a mortgage?
A. Whether you are going to carry a mortgage on the sale of your property will depend on your own financial situation. If you do carry a mortgage, you must include in the contract the provisions you want in the mortgage. Some of the provisions which should be included are the interest rate (which should be variable if the term of the mortgage is greater than three years); the term of the mortgage; late fees for any late payments; grace periods; whether the mortgage is assumable in the event the property is sold; and whether there is any penalty for prepayment.
Q. Do I need an attorney in the sale of my house or real property and, if so, when should I get him involved?
A. For most individuals, the sale of their home or other real property is one of the biggest financial events of their lives and involves substantial legal issues which can only be adequately handled by a licensed attorney specializing in Real Property Law. As a result, it is extremely important to have an attorney review any contract before you sign it. While a real estate agent may be valuable in assisting with the marketing of your property, it is important to have an attorney whose sole interest in the drafting of a contract is your protection. Your real estate attorney can also handle the closing of the sale of your home by issuing title insurance at basically the same rates that you would incur with a title company.
At Mark R. Lewis, P.A., we concentrate a large part of our practice in the area of real estate law and have done so for over 30 years. We can prepare the contract, handle the closing and protect your interests.
Q. Do I need a real estate agent to sell my house?
A. No. If you decide to sell the house yourself, our office can write the contract and handle the closing, including writing the title insurance and the other little things that go with selling your house. But even if you do have a real estate agent, our office can write the contract or review it after it is presented by the Buyer or real estate agent, write the title insurance and close the transaction.
Medicaid for Elders Who Are or Will Be Nurisng Home Patients
Most Asked Questions About Medicaid
Q: What is Medicaid?
A: Medicaid is a federally funded state administered plan for the payment of medical expenses. There are several programs available through Medicaid but the plan that we will be discussing here is the Institutional Care Program (ICP).
Q: What is the Institutional Care Program in Florida?
A: The ICP in Florida is part of the Supplemental Security Income (SSI) program. It pays Nursing Homes for care of the aged and disabled persons who are in need of institutionalized care. The eligibility for ICP is a little different than for SSI as more income is allowed for ICP than for SSI.
Q: How does one become eligible for ICP?
A: Eligibility is determined based on three factors -
i. Medical Needs - basically the applicant needs professional nursing services among other things
ii. Aged or Disabled - Age 65 or disabled as defined by the regulations issued by Florida Department of Children and Families (DECAF)
iii. Financial - income and resources
Q: What are the financial limits for qualifying for ICP?
A: The income of the applicant, and the resources (assets) of the applicant and the applicant's spouse must not be in excess of certain limits. The amount of income and resources change on a yearly basis. Effective January 1, 2009, the maximum income amount for an applicant is $2,022.00 a month. The applicant can have only $2,000.00 of non exempt resources. The applicant's spouse can only have $109,560.00 in non exempt assets.
Q: What are exempt assets and nonexempt assets?
A: Exempt assets are defined by the Department of Children and Families’ Integrated Public Assistance Manual. Exempt assets do not count towards the asset or resource limit for eligibility for Medicaid. All other assets are nonexempt.
Q: Does the income of the applicant's spouse, who stays at home when the applicant is residing in a Nursing Home, count towards the maximum allowable income?
A: No
Q: If the applicant's income exceeds $2,022.00 can he still become eligible for Medicaid?
A: Yes. If he creates an Irrevocable Trust known as a Qualified Income Trust, he can be eligible for Medicaid. Sometimes it is called a Miller Trust but that is a misnomer.
Q: How do I create a Qualified Income Trust?
A: Call the law offices of MARK R. LEWIS, P.A., 6830 Central Ave., Suite D, St. Petersburg, Florida 33707; Tel: 727/381-1946; fax 727-384-4633; e-mail: mark6073@yahoo'.com
Q: What is a Lady Bird deed?
A: A deed for real property to avoid probate, but should be used with caution. I don’t like them unless the deed is transferring property that is not homestead or if homestead then to an unrelated transferee.
Q: What is Medicaid?
A: Medicaid is a federally funded state administered plan for the payment of medical expenses. There are several programs available through Medicaid but the plan that we will be discussing here is the Institutional Care Program (ICP).
Q: What is the Institutional Care Program in Florida?
A: The ICP in Florida is part of the Supplemental Security Income (SSI) program. It pays Nursing Homes for care of the aged and disabled persons who are in need of institutionalized care. The eligibility for ICP is a little different than for SSI as more income is allowed for ICP than for SSI.
Q: How does one become eligible for ICP?
A: Eligibility is determined based on three factors -
i. Medical Needs - basically the applicant needs professional nursing services among other things
ii. Aged or Disabled - Age 65 or disabled as defined by the regulations issued by Florida Department of Children and Families (DECAF)
iii. Financial - income and resources
Q: What are the financial limits for qualifying for ICP?
A: The income of the applicant, and the resources (assets) of the applicant and the applicant's spouse must not be in excess of certain limits. The amount of income and resources change on a yearly basis. Effective January 1, 2009, the maximum income amount for an applicant is $2,022.00 a month. The applicant can have only $2,000.00 of non exempt resources. The applicant's spouse can only have $109,560.00 in non exempt assets.
Q: What are exempt assets and nonexempt assets?
A: Exempt assets are defined by the Department of Children and Families’ Integrated Public Assistance Manual. Exempt assets do not count towards the asset or resource limit for eligibility for Medicaid. All other assets are nonexempt.
Q: Does the income of the applicant's spouse, who stays at home when the applicant is residing in a Nursing Home, count towards the maximum allowable income?
A: No
Q: If the applicant's income exceeds $2,022.00 can he still become eligible for Medicaid?
A: Yes. If he creates an Irrevocable Trust known as a Qualified Income Trust, he can be eligible for Medicaid. Sometimes it is called a Miller Trust but that is a misnomer.
Q: How do I create a Qualified Income Trust?
A: Call the law offices of MARK R. LEWIS, P.A., 6830 Central Ave., Suite D, St. Petersburg, Florida 33707; Tel: 727/381-1946; fax 727-384-4633; e-mail: mark6073@yahoo'.com
Q: What is a Lady Bird deed?
A: A deed for real property to avoid probate, but should be used with caution. I don’t like them unless the deed is transferring property that is not homestead or if homestead then to an unrelated transferee.
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