Legal Question in Wills and Trusts in Florida

HELP! My father passed away and put in his will for my sister and I to both receive Special Needs Trusts to cover expenses not covered by SSDI. My sister receives SSDI. I DO NOT! My father wanted me to apply for disability because of some back problems (He thought it was great that my sister is a ward of the State but she hardly has enough money to take care of herself . I provide for a family.) I am neither interested in nor require public assistance of any kind. I am able-bodied and work full-time. The income I receive from my job is my only income. Probate just started. Is there a way for me to challenge this Special Needs Trust and change it to just a regular inheritance like my two brothers and other (able-bodied) sister received? I have been told conflicting information by the same lawyer representing my father's estate, both that I could change it and that Florida never changes Special Needs Trusts. But I'm not disabled! My brother, the executor of the estate, is very eager to dump my inheritance into the Special Needs Trust and be done with it but I'm afraid once he does that, it will be too late. Help! Am I just out of my inheritance and that's that? What do I do?

Asked on 5/22/13, 12:00 am

2 Answers from Attorneys

David Labovitz Labovitz Law Firm, P.A.
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Hi and thanks for asking your question. The first thing I would do is carefully review the language in the will forming the special needs trust. Most times, it is written in a way to give the personal representative the election to form it - not the absolute requirement to form it. In your case, since there is no need for this trust, there shouldn't be any reason for the PR to create the trust. There should be language in that document or within the will giving the PR discretion to make the decision whether or not to form the trust based on your current situation.

I would think you could successfully challenge this in the probate court.

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5/22/13, 5:08 am
Barry Stein De Cardenas, Freixas, Stein & Zachary
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The creation of a special needs trust is expensive and if the Estate has to do it it will diminish assets. I agree with Mr. Labovitz. Seek some legal guidance with all the proper paperwork. Dont rely on the PR or his attorney alone.

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5/22/13, 5:56 am

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