Common Questions About Florida Law
It is natural to have many questions and worries when faced with a legal issue or litigation. The experienced lawyers at DeLoach, Hofstra & Cavonis, P.A., ask many common legal questions and provide useful answers to help get you in making the best decisions for you and your family.
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How do I pay my medical bills after a Florida car accident?
Not every injured driver needs to pursue a lawsuit to get injury coverage after a crash. There are several different options available to pay for your medical costs after a Florida car accident, including:
- No-fault car insurance. All Florida drivers are required to purchase Personal Injury Protection (PIP) coverage from an auto insurance company.
Since Florida is a no fault car accident state, all drivers claim their injuries and losses on their own car’s insurance policy. If you're not insured under any auto policy and were injured as a passenger, you can request payment under the PIP medical coverage of the vehicle you were riding in. If you were injured as a pedestrian, you can seek medical coverage from any covered vehicle involved in the accident. PIP will generally cover up to $10,000 of your medical costs.
- MedPay. Medical Payment Insurance Coverage, or MedPay, is an optional benefit that helps cover Florida car accident costs. MedPay covers the co-pay that your PIP requires, which can be up to two thousand dollars. Depending on the coverage you've selected, you may be able to use MedPay for costs that PIP insurance doesn't reimburse.
- Health insurance. If your medical bills exceed the amount paid for through your auto insurance, you can submit claims to your personal health insurance providers. Your health insurance carrier usually wants you to exhaust as much as you can through your car insurance before accessing health care benefits.
- Medicare and Medicaid. If you rely on federal programs such as Medicare or Medicaid, these programs will pay for your medical bills related to a car accident. However, you may be asked for reimbursement for some or all of these costs.
- Workers’ compensation. If your car accident happened while you were performing job-related duties, your employer’s workers’ compensation coverage is required to pay all of your medical bills, including deductibles, co-pays, and transportation expenses incurred while going to and from your doctors’ appointments.
- Injury lawsuit. If your medical costs far exceed the amount of your insurance coverage, you may consider suing the at-fault driver. You still have to pay your bills as your case is being decided, but the settlement you receive should but calculated carefully to include any fees or financial hardship you have endured while waiting for the resolution of your case.
Our attorneys can help determine the best way for you to get medical coverage after your injury. Contact us today for a prompt response from a member of our legal team.
- No-fault car insurance. All Florida drivers are required to purchase Personal Injury Protection (PIP) coverage from an auto insurance company.
What types of compensation can I collect in a Florida injury case?
Financial difficulties are the biggest reason injury victims consider filing a lawsuit. Victims are often unable to work as they go through long and painful recoveries, racking up medical bills with no way to pay for their losses. Pursuing an injury case allows victims to recover a large portion of the costs they have already paid, but also an amount for future losses their injuries may cause.
Different Types of Damages Awarded to Florida Injury Victims
Florida courts can award two types of monetary settlements, also called damages, to injury victims. Economic damages are the award for the costs a victim has already paid, and can be totaled and estimated easily. Non-economic damages are awarded on top of calculable losses, and include additional payments that may not be easily quantified, such as payment for unnecessary suffering.
Injury victims typically seek compensation for:
- Past medical treatment. Emergency room visits, hospital stays, prescription medicines, physical therapy, rehabilitative devices, and any medical bills related to the accident may be recovered. If you were forced to make modifications to your home or vehicle due to the injury, these may also be recompensed.
- Future medical costs. Injuries that have caused long-lasting health problems or permanent disabilities can cost a victim thousands of dollars each year. Courts may assign an additional amount to cover these costs.
- Property damages. Injuries that caused damage to your home, car, or other property may be included in your settlement, such as the replacement value of your vehicle.
- Lost wages. Injury victims may receive payment for the wages they lost while they were out of work. They can also be granted an amount to compensate them for the loss of income they'll suffer as a result of long-term injury or disability.
- Pain and suffering. Pain and suffering is a form of non-economic compensation. It's awarded only in certain cases, such as if a victim has suffered severe physical and emotional pain, inconvenience, mental anguish, disability, disfigurement, or loss of enjoyment of life. Most Florida injury cases that qualify for pain and suffering damages involve permanent injuries or long-term suffering.
- Punitive damages. These are another form of non-economic damages that are meant to punish the wrongdoer for his or her negligence.
Our personal injury attorney can help determine the proper amount for your economic and non-economic damages, giving you the best chance of recovery for your injury. Contact us today for a prompt response from a member of our legal team.
My loved one is already in the nursing home. Is it possible to protect assets now?
Yes! When someone is in a Florida nursing home, it can be very expensive, often exceeding $10,000 per month. This means that all but the very wealthy can afford a nursing home for an extended length of time. Importantly, assets can be protected with the correct planning and advice. The first rule is that you cannot give your assets away within 5 years of a nursing home application. The Medicaid transfer penalty rules are very strict. This does not mean, however, that an attorney cannot legally help protect assets. Hiring an elder law attorney will allow you to protect your loved one's assets, legally lowering the elder's assets to below the countable asset limit. We generally call the asset protection process part of Medicaid spend down. Once the family hires a good elder law attorney, the attorney knows legal ways to protect assets without giving the money away. Once the funds are legally lowered, the elder law attorney will apply for Medicaid.
Legal Spend Down Planning
I generally think about "spend down" planning as legal and effective ways to spend money without paying it all to the nursing home. Examples of spend down planning includes fixing up the applicant's home, purchasing irrevocable funeral contracts, paying for burial plots and more. We have more information on Medicaid spend down planning here.
Legal Asset Protection Planning
After legal spend down planning, an elder law attorney can help protect assets. Asset protection here does not mean giving money away (which is bad) but working with an attorney who knows how to protect assets and then apply for Medicaid.
Can Our Law Firm Help?
A nursing home Medicaid application can be very, very difficult. We have made over 500 Medicaid applications at our office, all without a single denial. We are glad to help you and your loved one if they are in a nursing home or assisted living facility, no matter where you are in the state of Florida. We are glad to help and seeinitial consultations to see if we can help.
Read Our Free Book on Medicaid and Long-Term Care!
I have written a book, Don't Lose Your Nest Egg to a Florida Nursing Home, available for download. My book discusses long-term care, Medicaid, Medicare and many other topics that can help the family in a difficult time.
Other Frequently Asked Questions:
- Florida Medicaid Assisted Living Benefits
- Medicaid and Asset Rules in Florida
- My Elder just went to the nursing home - what happens next?
Can I Name My Living Trust As Beneficiary Of My IRA?
There are times when you may want to name your living trust as beneficiary of your IRA or 401k (i.e., your tax deferred qualified plans) upon your death but there are a lot of rules on this. First, you would want to confirm the reason for naming your trust as beneficiary of your qualified plans. Your qualified plans have beneficiaries that avoid probate in the first place, so the main reason you would want them to go to a trust is so that they are held in trust for a beneficiary.
One of the main concepts of estate planning with your qualified plans is making sure they "stretch out" to your beneficiaries upon your death. Upon your death, your beneficiaries do not need to withdraw the funds. In fact, the longer the beneficiaries leave the funds in account the longer the funds can grow tax free. Tax free growth over many years is an amazing way to grow an IRA. The long and short of it is that an individual beneficiary can roll over an IRA into a "beneficiary directed" IRA. The beneficiary can then leave the funds in the IRA, taking out only required minimum distributions over their lifetimes allowing for this amazing growth.
In order for a trust to be able to stretch the IRA out like an individual, the trust must be specifically drafted to recieve the IRA. When correctly drafted, the trust can act as a "see through trust" for IRS purposes, which allows the wonderful stretchout. To qualify as a look-through trust, the following criteria need to be met:
- Must be valid under state law
- Must be irrevocable (or revocable while the IRA owner is alive, provided the trust becomes irrevocable upon the individual's death)
- Must have named identifiable beneficiaries
- Must provide the plan administrator with either a copy of the trust instrument or qualifying documentation of the trust
If your trust is not drafted correctly to recieve your qualifed plan, the opportunity to leave the funds in the IRA (i.e., to stretchout the funds) may be severely limited. This means that the IRA will have to be distributed out quickly, which creates additional taxes. Essentially, a poorly drafted trust is a wealth killer, not a wealth creator.
You may want to leave assets in a trust for a beneficiary. Perhaps the beneficiary is too young, too irresponsible, has creditor issues, has special needs, is in a troubled marriage or more. If you want to create a trust for someone’s benefit, you can name the trust as beneficiary, but the trust must be drafted the correct way.
I am an expert at drafting IRA Trusts, having spent many, many hours researching, attending seminars, and readings on the subject. I am also a member of Wealthcounsel, which has a great standalone IRA trust. If you want to leave your IRA or 401k to a trust for a beneficiary’s benefit, we will be glad to assist you.
How Long Does the Probate Process Take in Florida?
The Florida probate process takes a different amount of time based upon the type of probate. There are two main types of probate in Florida: a formal probate administration and a summary probate administration. There is also a disposition without administration that is available in very limited circumstances.
The formal probate administration usually takes 6-9 months under most circumstances - start to finish. This process includes appointing a personal representative (i.e., the "executor"), a 90 days creditor's period that must run, payment of creditor's claims and more. One important distinction on probate is that the personal representative, once appointed by the probate court upon petition by an attorney, has the ability to manage and sell the estate assets. This means that while the probate process can take a number of months, the estate assets can be sold and managed effectively. Once the 90 day creditor's period runs (starting at the date of publication in a newspaper), the estate can generally start to be closed down with the personal representative following a strict process to close the estate.
The summary probate administration, usually reserved for small estates worth less than $75,000 that have no debt, can take less than a month under the right circumstances. In the summary administration, you need all of the beneficiaries to consent to the petition (under most circumstances). Once you have everyone's consent, once the summary petition to the court is submitted, the order of summary administration generally takes about 2-3 weeks (depending upon the county) to get back from the court. The order of summary administration will give the heirs access to the assets subject to the court order. An example of the court order is as follows:
Mom's last will and testament gave assets equally to the 2 children. Mom died without any debt (credit cards, medical bills, etc.). She owned a bank account with $20,000 and a life insurance policy of $8,000 that did not have a beneficiary. Upon petition to the probate court (typically done with an attorney), the court will grant the Order of Summary Administration. With the order, the bank and the life insurance company will release these funds equally to the two children.
If your loved one died with assets in their own, individual name, then they will likely need to seek an attorney to deal with the probate/process. We have a lot more information on the Florida probate process on our website. In the formal administration, you must have an attorney. In the summary administration, getting an attorney's assistance would be very, very helpful. Summary administrations can be complicated so an attorney's help would make things so much easier for families.
If your loved one passed away and someone is telling you that assets need to be probated, you may want to download our free book on Navigating the Florida Probate Process. This book will walk you through the Florida probate process, how to hire an attorney, if you need to hire an attorney, and other helpful hints.
Should I have a Revocable Living Trust?
Most people want to avoid probate upon their deaths. This means that they may want to have a living trut based estate plan over a will based estate plan. But does this mean that you should create a living trust as part of your estate plan?
There is no simple answer to this question. Creating a living trust would generally mean that you have assets that would go through probate. When assets go through probate, the heirs have to hire an attorney. The attorney usually gets paid a fee of 3% of the probate assets. The probate process also takes from 6-9 months under most circumstances. Thus, revocable trust planning could save your heirs both time and money.
One of the first quesitons is if you want to save your heirs both time and money. Some people do not have close families that they want to try and save money for. Some people may not have a lot of probate assets in the first place, so there may be other ways to avoid probate that are even better than through a living trust. The other aspect of trust planning is that trusts are generally more expensive than wills, which means that if you want to spend less money with an attorney at this point in your life, you may want a will based estate plan.
The best way to know if you should have a living trust based estate plan is to sit down with an attorney who will review your assets, your goals and the best way to accomplish your goals. Our estate planning process will help you decide which way is best for you and your family.
We have a free guide to living trusts in Florida to help you make an educated decision as part of your estate plans.
What is the difference between a Living Will and a Do Not Resuscitate Order in Florida?
There is a huge difference between a living will and a Do Not Resuscitate Order in Florida. As part of your estate and incapacity planning, you should have a durable power of attorney, designation of healthcare surrogate and a living will. These documents will prepare you and your family to take care of your legal and financial decisions. Our handout, Four Essential Estate Planning Documents, can help you clarify these documents.
Your living will is the written statement of your end-of-life wishes. It says that if you are in an end-stage condition, a terminal condition or a persistent vegetative state, you would not want certain life-prolonging procedures. Life-prolonging procedures can include withholding life support such as tube feeding, ventilation, surgery, dialysis, pacemakers and more. Chief among these procedures is whether you would want to be resuscitated if you were sick and close to the end of your life. Thus, your living will is the written statement that would say that you would want a Do Not Resuscitate Order.
The Do Not Resuscitate Order, on the other hand, is a physician's order for medical providers to not provide CPR to you. This Florida form is always on yellow paper so that it can be easily identified by everyone. Your physician signs this document and is typically not provided from your attorney. If you have a DNRO and are home, you would typically hang it on your refrigerator as EMS responders are trained to look for this paperwork.
In looking at CPR (cardiopulmonary resuscitation), it is important to remember how traumatic this is on the body. CPR often means broken ribs, internal bleeding and immediate placement on a ventilator afterward. CPR is also very ineffective in actually helping you live longer. Statistics show that a healthy person has a less than 15% chance of full recovery after receiving CPR while an older person with multiple health issues has a less than 2% chance of recovery from CPR. Thus, having a DNRO would be very, very important to allow you to pass away quickly without the trauma of CPR.
If your loved one is experiencing end of life issues, our life care planning team can help advocate to make sure your loved one is taken care of and their wishes followed.
Do I need to re-do my last will and testament if I just moved to Florida?
Moving to another state means that you should have an attorney review your existing estate planning documents to make sure they are correct. Importantly, just because you moved it does not mean that your last will and testament must be redone. You should, however, have a knowledgeable attorney review your will and other documents, just in case there are Florida specific rules that you should know.
One reality is that your estate planning documents may be older and may have some long awaited updates, so it can never hurt to review the documents before you visit an attorney. It is also more likely that your incapacity planning documents, meaning your power of attorney, designation of healthcare surrogate, and living will, should be changed as the documents are more state specific.
If you would like to have your out of state documents reviewed, call (727) 397-5571 to schedule a consultation.
Should I name Co-Powers of Attorney?
When we meet with clients they sometimes want to name their children as co-powers of attorney. Sometimes they want to divide the workload for their children, or they could be concerned about one child travelling, or they want one child to be able to watch over another child. Regardless of the motives, we generally DO NOT like to name co-powers of attorney. The reason is that in the event the powers of attorney had a conflict, then who is in charge? Answer - they both are! This could certainly be a recipe for disaster.
Our preferred method for incapacity planning is naming an agent and then his or her alternates in descending order. For instance, you would likely name your spouse first, then your most trustworthy, responsible and local child as alternate to your spouse, then name a third or fourth alternate as well. We sometimes see incapacity planning documents that are not flexible enough as they are not able to age well. Family members may move, for instance, and your documents need to take possible future events into account.
We do, however, have one important exception to this rule. Sometimes with an aging couple, it may not be best to name your spouse as your power of attorney, or perhaps you would want to name your spouse and your trusted child as co-powers of attorney. Here is an example of our planning:
Husband and Wife are both 88 years old. The husband is having a few memory issues but is still very competent. The wife is mentally competent but having some health issues and is not able to get around very well due to her osteoporosis. They have a trusted child who lives very close and helps matters on a weekly basis.
In this fact pattern, we think it highly appropriate for each spouse to name each other as their power of attorney and also the trusted child. This way, due to the elder's possible future decline, both mentally and physically, we are better prepared to help take over and help them, when necessary.
As each situation is different, we will be glad to discuss your incapacity planning with you so you and your family are best prepared for the future.
Will My Living Will Be Effective at End of Life?
A living will is a written statement expressing your end of life decisions. Most everyone agrees that they would not want to "be a vegetable" but living wills have more nuance than this. Studies have shown that living wills have not been effective in helping us die better deaths in the United States. Statistics have shown, for instance, that people with living wills and people without living wills die in the hospital at the same percentage rate. One can argue that this means living wills are ineffective because most people would not want to die in a hospital but would rather be at home with their loved ones.
If living wills are ineffective, what are the reasons for this? The answers are generally as follows:
- The family/care providers never had a copy of the living will;
- The living will is vague and not specific;
- The patient changes their mind on withholding medical procedures at end of life;
- The healthcare surrogate did not know what the principal wanted;
- The healthcare surrogate does not enforce the living will, maybe through family pressure;
- The doctors do not discuss end of life issues clearly enough with family;
- The family does not understand that their loved one is actually at end of life;
- The surrogate/family are not realistic in medical expectations and medical futility (i.e., they do not want to give up hope);
- And more . . .
If living wills are generally considered ineffective, what are the options for improving that you die in accordance with your wishes while avoiding unnecessary medical procedures?
- Communicate your wishes with your surrogate AND family. Some people do not even talk with their surrogate about their end of life wishes or experiences. A good discussion with these people will make sure your wishes are known for all, which will reduce the likelihood of family conflict and confirm that the surrogate will be able to enforce your end-of-life wishes.
- Have a good, specific living will. We like to use the Empath Choices for Care living will as it is specific and broad at the same time.
- Do not use the Florida Statutory living will. Our opinion is that this living will is too vague for many end of life situations - doctors and other caregivers do not like vague documents in the least.
- Make sure your surrogate and family has a copy of your living will. This only makes sense. At our office, we scan in all estate planning documents so our clients can share them easily with their family.
- Review your living will often to make sure it meets your wishes.
- Confirm that your healthcare surrogate is strong enough to enforce your wishes, which could mean dealing with bad medical advice or overly emotional family members.
- Make sure you know the difference between a living will and a Do Not Resuscitate Order. Among other differences, the living will is prepared by your attorney while the Do Not Resuscitate Order is signed by your physician. We also have an FAQ on the differences between living wills and Do Not Resuscitate Orders in Florida.
I have spent many, many hours studying living wills and end of life issues in order to help my clients the best I can. If you want a good elder law attorney who knows about living wills and advanced directives, and not one who is just filling out a form, I am glad to help you and your family as part of our incapacity planning. You are also welcome to attend one of our free monthly seminars on estate planning and Medicaid/asset protection planning as well.
Do I need to hire an attorney to probate assets in Florida?
Under most circumstances, you will need to hire an attorney to assist you in the probate process. First, you will know you have to probate an asset when it is in the decedent's own, individual name. This includes bank accounts, stocks, bonds, land and more. The family will not be able to take control of these assets without following the exact rules as set forth in the Florida Probate Code. We have more on probate assets here.
There are four main types of probate, some of which you will need an attorney:
- Formal Administration: This main probate process will definitely need an attorney. The process is described in greater detail below.
- Summary Administration: The family will likely need an attorney due to the complexity.
- Disposition without Administration: This process is designed to operate without probate.
- Ancillary Administration: This is either a summary or formal administration depending on the size and complexity.
To review, a Formal Administration definitely need an attorney while a simple summary administration should have an attorney due to the complexity. We have seen many people over the years try to go to court without an attorney and they just create problems and frustrations for themselves.
Also, the probate process is difficult and you will need a professional to help you. The following is a list of the general steps of a formal probate administration which can be quite complex, even to professionals. Not every estate will need every step, but this is a good outline for the entire formal probate process:
Step 1: Locate Original Will (when applicable); list probate assets and addresses of beneficiaries;
Step 2: Obtain original death certificate from funeral home;
Step 3: Find and hire a reputable probate attorney;
Step 4: Petition the probate court for appointment of Personal Representative;
Step 5: The probate court issues Letters of Administration and a bond for the Personal Representative;
Step 6: Send notice of administration to all heirs;
Step 7: Collect information from all heirs to administer the estate;
Step 8: All outstanding bills are collected, sometimes over a period of months;
Step 9: The Personal Representative publishes in a newspaper notice to creditors, and provides direct claims notices to any known creditor of decedent;
Step 10: Assets gathered and consolidated by the Personal Representative, typically placing the assets with the attorney’s office for accounting purposes;
Step 11: Assets inventoried within sixty (60) days of the appointment of Personal Representative;
Step 12: Determine if estate tax return is needed;
Step 13: Wait ninety (90) days for the published notice to creditors;
Step 14: Decide on the validity of any estate claims; dispute those that are invalid and pay those that are valid;
Step 15: File the Declaration of Homestead after the ninety (90) day creditors’ period runs;
Step 16: Gather receipts from creditors after paying valid claims;
Step 17: Defend/settle lawsuits from creditors who sue the estate;
Step 18: Sell/dispose of property, at Personal Representative’s discretion;
Step 19: Pay any specific bequests to beneficiaries, if money allows;
Step 20: Determine final distribution percentages;
Step 21: Calculate attorney’s fees;
Step 22: Calculate Personal Representative’s fee;
Step 23: Pay all outstanding estate costs;
Step 24: Account to the beneficiaries on all costs, outstanding bills, and fees;
Step 25: Either receive consent from beneficiaries or wait thirty (30) days after final accounting sent to the beneficiaries; and
Step 26: Petition to close estate and follow plan of distribution as submitted to heirs and the probate court.
As you can see, the probate process, with all of these required steps, can be quite cumbersome, although a good probate attorney would generally make the process relatively painless under most circumstances.
If you would like to know more about the Florida Probate process, please download our free book, Navigating the Florida Probate Process today.
Why Do We Need To Review Your Assets In Creating Your Estate Plan?
When new or returning clients come into our office to create their estate plan, such as through wills, trusts or other legal instruments, we typically ask them to bring a list of all their assets. We do this for a number of reasons as we need to know if your estate is taxable, whether you have a large or small estate that will provide for long-term care and other contingencies as necessary, and we need to know the types of assets you own. All of these may drastically affect our approach to planning to meet your desires and how we implement your plan.
To help tailor an effective estate plan for your specific situation, consider the following general rules regarding distribution of your assets:
- Assets in your own, individual name are distributed according to your last will and testament. These could, potentially, include land, stocks, bonds, bank accounts, etc. Without proper planning these assets are distributed through the probate process after your death.
- Assets that are jointly held are generally distributed to the survivor/co-owner. Examples of these include land and a residence owned jointly by a husband and wife. Upon your death, ownership simply transfers to the survivor and are not subject to the probate process.
- Assets with beneficiary designations, such as life insurance policies, IRAs, 401Ks and annuities are distributed to the named beneficiary, regardless of the will's contents.
- Assets that are in your trust remain in or are distributed according to the trust, outside of the probate process.
With these four rules, you will note that your last will and testament may actually cover few of your assets. It is very common for people to include joint owners on land, bank accounts, etc., and have few assets in their own, individual name. This process, while it limits those assets that may be subject to the probate process, does carry some risk/reward implications which should be carefully reviewed with an attorney.
In conclusion, please make sure that you know how all of your assets are titled and how they would likely be distributed upon your death and not just the assets that are subject to your last will and testament. This can be a complicated subject and we are more than happy to sit down, review your assets and make sure your wishes are followed.
What Is a Title Examination?
A title is a legal document that indicates your ownership of a property. Title examination is a process where the chain of title is researched and reviewed to determine that the current seller has clear or marketable title to the property being transferred.
What Is the Difference Between a Will and a Trust?
A will and revocable trust are similar in that they both allow you to specify exactly how you want your property distributed to your heirs after you pass away. However, there are major differences that everyone should know, the following being the most important:
- Your last will and testament directs probate assets to specific heirs throught the probate process;
- While the revocable living trust directs trust assets to specific beneficiaries without the necessity of probate in the first place.
When creating your estate plan, you should consider whether you want a will based estate plan or a trust based estate plan. The general rules for these types of plans are as follows:
- A will based estate plan is good for:
- people who want to spend as little money as possible at this point in time;
- people with fewer assets;
- people with very simple estates;
- people who do not care as much about avoiding probate for their heirs.
- A trust based estate plan is best for:
- More complicated estates;
- People with more assets;
- People want to spend more money to help save their children even more money;
- People with land in other states;
- People who want to save money and make things easier for their children.
If you want to learn more about wills and trusts, please feel free to attend one of our free monthly estate planning seminars where I will discuss probate, wills, trusts, incapacity planning and more. We promise that it will be worth your time!
Does a Last Will and Testament Avoid Probate in Florida?
Having a last will and testament in Florida does not ensure that your assets avoid probate upon your death. A last will and testament distributes your probate assets to the correct beneficiaries. Assets that are in the decedent's own, individual name are assets that go through probate in Florida. Your last will and testament tells where your probate assets are distributed upon your death. Florida has three types of probate:
- Formal Probate Administration
- When assets exceed $75,000 in value and/or debts exist
- Attorney definitely needed here
- Summary Probate Administration
- Assets less than $75,000 and there are no debts
- Attorney advised but not completely necessary
- Disposition without Administration
- For very small estates in order to pay back someone who paid for a funeral bill, typically
In creating your estate plan, you need to know where your probate and non-probate assets are distributed upon your death. Non-probate assets include jointly held property (land, bank accounts) or assets with beneficiary designations with payable on death designations (life insurance, annuities IRAs). These assets are not distributed according to your last will and testament but are instead distributed according to the beneficiaries thereon. This means that the last will and testament does not control these assets, which can lead to unintentional consequences with unplanned estates. As an example:
Mom has a falling out with her daughter and wants to disinherit her. Mother changes her last will and testament with her attorney so that daughter is disinherited. Mother does not change the beneficiary of her individual retirement account (IRA) which still names the daughter as a beneficiary. Upon mother's death, while her probate estate may not go to her daughter, the IRA will. The reason is that the last will and testament did not effect the IRA beneficiary designation.
If you want to learn more about probate, please see the following:
- Formal Probate Administration