Common Questions About Florida Law

Trusts are a common way for people to pass on their property while saving their heirs time, money, and the need to go through probate. However, this doesn't mean that trusts are guaranteed to avoid the courtroom. The good news is that if an interested party has grounds for contesting the trust, there may be a way to resolve the problem without the need to file a lawsuit.

Alternatives to Filing a Lawsuit to Contest a Trust

One of the easiest ways to clear up confusion surrounding a trust is to request a thorough accounting from the trustee. Beneficiaries have the right to see the financial actions taken by a trustee on behalf of the trust and heirs. If the trustee refuses to provide an accounting, the court may compel the trustee to do so.

If the accounting provided doesn't account for all trust assets or contains objectionable transactions, beneficiaries can ask the court for a more detailed accounting. If the beneficiaries are not satisfied, they may enter trust litigation to remove the trustee.

If parties to the trust wish to question the terms or a trust, the actions of a trustee, or the validity of the trust itself, the matter can be resolved without litigation through:

• Settlement Agreement. Nearly any trust matter can be resolved through a binding, non-judicial settlement agreement. All parties work to find an equitable remedy for the problem, giving them more control over the result while preventing the loss of trust assets in litigation.
• Trust Modification. A trust dispute may only need clarification or modification of one or more terms of the trust. Trust modification is allowed only if the effects of the change are consistent with the settlor's purpose for the trust.
• Termination of Uneconomic Trusts. A trustee has the authority to terminate a trust with a total value under $50,000 that contains insufficient assets to justify the cost of administration. If the trustee doesn't terminate an uneconomic trust, the court has the power to modify or terminate the trust, as well as the power to remove and appoint trustees. Once the trust is terminated, the trustee must distribute the trust property in a manner consistent with the settlor's purpose for the trust.
• Trust Reformation. Any interested party may petition the court to reform the trust if certain terms don't conform to the settlor's overall intentions. This is typically done in cases of typos, unclear designations, or other errors that make the instructions significantly different from the settlor's intent. The interested party will need to provide clear and convincing evidence the terms of the trust were created by a mistake.
• Trustee Removal. Co-trustees or beneficiaries may request court removal of a trustee, or the court may remove a trustee on its own initiative. A trustee may be removed for several reasons, including breach of trust, breach of fiduciary duty, or failure to effectively administer the trust. As long as the removal is in the best interests of all beneficiaries, is consistent with the purpose of the trust, and is followed by the appointment of a suitable successor trustee, interested parties don't need extensive proof of malfeasance to remove a trustee.
• Trustee Resignation. A trustee may resign their duties with court approval or resign without court approval long as the settlor (if living), co-trustees (if any), and beneficiaries have been given 30 days notice of the intent to resign.

Let Us Advise You on Your Next Steps

In order for any of these actions to avoid ending up in litigation, it will take an experienced probate and estate lawyer to advise you every step of the way. If you are the trustee or a beneficiary of a trust, we can answer your questions and work to resolve your dispute as efficiently as possible. Contact DeLoach, Hofstra & Cavonis, P.A. to set up a consultation through our quick contact form, or start reading our free guide, The Top 20 Rules for Protecting Your Florida Estate.

Related Links: Common Estate Planning Mistakes You Can Avoid! The Difference Between Qualified and Contingent Beneficiaries What Should I Do First Upon My Loved One's Death?

 

If you were unsuccessful in challenging a loved one's will in court, there are other legal options available to you. One of these is to file a tort action, or lawsuit for a wrongful act that caused you economic harm, under the theory of tortious interference with an expectancy.

What Is Tortious Interference With an Expectancy?

Tortious interference was first recognized in a 1966 court case in Florida, and focuses on protecting the rights of the person who created the will rather than the rights of the person bringing the case. If someone used fraud, duress, undue influence, or other independent tortious conduct to deprive your loved one of the right to dispose of property freely, a beneficiary (you) has the right to seek compensation on your loved one's behalf.

There are a number of requirements needed to establish a claim for tortious interference. For example, you must be able to prove:

• Your loved one had a specific intention to leave a portion of their estate to you
• A third party (the defendant) did or said something to your loved one to reduce or eliminate your share of the estate
• There was a strong probability that your loved one would have carried out their intentions if the wrongful acts of the defendant had not occurred
• The defendant's interference was intentional
• The defendant benefitted by receiving estate assets contrary to the testator's intent, by redirecting your inheritance to benefit someone else, or by depriving you of your portion of the estate
• The defendant's wrongful interference was the reason your inheritance was reduced
• The defendant's wrongful interference caused you to suffer actual monetary damages

Unlike other forms of estate litigation, these actions seek compensation from the defendant personally rather than through funds in the estate. A successful judgment of tortious interference is paid from the defendant's personal assets and could include both compensatory and punitive damages.

Could I File a Tortious Interference Lawsuit?

This type of lawsuit is only available if you were not able to get an adequate remedy for the wrongdoing in probate court. Generally, this means you must have attempted a will contest or other action during probate to get your inheritance reinstated. However, the law doesn't require your attempt to contest the will to be successful, only that you exhausted your options in probate before making a tortious interference claim.

You may also be barred from bringing this lawsuit if:

• Your loved one is still alive. Since tortious interference involves pressing the rights of another person, you can only do so if the other person is unable to assert those rights. Florida Courts will not recognize a tortious interference case before the death of the person who created the will.
• You had a fair opportunity to contest the will. It's understandable for the court to bar a claim because you chose not to seek relief in probate. However, if you did not have a fair chance to file a will contest (you were not properly notified of the death, etc), you may still be able to file a lawsuit.
• You turned down a remedy during probate. The court may decide not to hear your case if there was an adequate and alternative solution offered during probate, but you chose not to take it.

Let Us Help You Through Your Next Steps

It takes an experienced probate and estate lawyer to succeed in a tortious interference with an expectancy claim. At DeLoach, Hofstra & Cavonis, P.A., we carefully examine the circumstances of your loved one's last will and testament, including whether they had the valid testamentary capacity or were unduly influenced by a third party.

Whether you're considering contesting a will or are looking for ways to prove someone placed pressure on your loved one, we can help present your case and makes sure your loved one's true intentions are honored. Set up your consultation today through our quick contact form, or start reading our free guide, The Top 20 Rules for Protecting Your Florida Estate.

Related Links: What You Should Know Before Going through Estate Litigation in Florida The Difference Between Qualified and Contingent Beneficiaries What Should I Do First Upon My Loved One's Death?

 

When executors of a last will and testament (known as personal representatives in Florida) agree to carry out the last wishes of a loved one, their motivations typically aren't financial. They take up the position to honor the deceased person and to make sure everything is done properly and in accordance with the law.

However, the administrative responsibilities of settling an estate can be like a part-time job for the personal representative—one they cannot quit until all the tasks are done. Fortunately, state law allows a personal representative to get paid for their role in the probate process.

Compensation for a Personal Representative in Florida

In order to ensure that personal representatives are fairly compensated, Florida Statutes set strict rules on when, how, and how much you could be paid.

Here are a few things you should know about collecting payment for acting as a personal representative:

• Your fee is for your time and effort. There are a wide variety of duties involved with closing a person's estate, including providing an accounting to the beneficiaries and settling the deceased person's debts. The executor fee compensates you for your time, not your out-of-pocket costs.
• You can recover the full amount of your expenses. If you have incurred any out-of-pocket expenses (such as funeral home costs, flowers, memorial service deposits, mileage and transportation, etc) you have the right to be reimbursed by the estate for the full value of these costs.
• You have the right to be paid before other creditors. State law also outlines the order in which creditors should be paid after a person passes away. Executor fees and probate attorney fees are in the first tier, so you can collect compensation before paying off other debts.
• Your fee is based on the value of the estate. Your commission is based on the inventory value of the probate estate assets, as well as any income earned by the estate during administration. If the estate value is $1 million or less, your fee is 3% of the estate assets. If the estate value is between $1 million and $5 million, your fee is 2.5% of the estate assets. If the estate value is between $5 million and $10 million, your fee is 2% of the estate assets. For assets over $10 million, the fee is 1.5% of of those assets. Keep in mind that assets that pass outside of probate (such as trust assets, 401Ks, or life insurance benefits) are not included in these calculations.
• You may be paid for any "extraordinary services." Florida law allows a personal representative to be compensated for actions going above and beyond normal duties. Such actions might include the sale of real estate or personal property, involvement in court proceedings for tax payments, self-preparing tax returns, the continuation of the deceased's business functions, dealing with a protected homestead, or acting as your own legal representative in litigation involving the estate.
• You can petition the court for a higher fee. If more work has been done, a personal representative can petition the courts for additional payment. Before awarding any more compensation, the court will consider the circumstances and complexity of the estate administration, as well as how quickly and efficiently you performed your duties.
• Your attorney will help you. As part of any formal probate administration, your attorney will help explain what the personal representative is entitled to.

Let Us Guide You Through Estate Administration

As experienced probate attorneys, we know how long a complicated administration can take—and we know how costly an error in the process can be. If you need help, contact us today to set up a consultation and get answers to your questions, or read through our free book, Navigating the Florida Probate Process.

Related Links: How Long Does the Probate Process Take in Florida? What Is the Difference Between a Will and a Trust? What Should I Do First Upon My Loved One's Death?

 

Family members may live their entire lives planning for—even depending on—an inheritance from a relative. However, many discover after the relative's passing that the terms of their loved one's last will and testament are not what they expected. If you believe your inheritance rights have been violated, you need to act quickly in order to bring your claim to court.

Time Limits on Challenging a Will in Florida

Although everyone has the right to distribute their property to heirs as they see fit, you may challenge a will if you have reason to believe that it was not made in accordance with the law. Just as there are a limited number of legal reasons to contest a will in Florida, there are also strict deadlines for filing a will contest.

In order to challenge the will, you must:

• Meet the filing deadline. Florida law mandates a strict filing deadline for will contests. Any interested person must file a formal lawsuit contesting the will within 90 days after the filing of the Notice of Administration—the document filed by the estate's personal representative notifying the decedent's heirs of probate court proceedings. If you received a Petition for Administration by formal notice, you only have 20 days to contest the will.
• Have legal standing to bring a claim. Only certain people are allowed to contest a person's will in Florida. Our attorneys can tell you if you meet the requirements for legal grounds and standing.
• Have proper evidence to prove your claim. In order to prevail in your case, you will need to collect supporting documentation, testimony, and other evidence to convince the probate court of your right to inherit.

The estate litigation attorneys at DeLoach, Hofstra & Cavonis are standing by to discuss your legal concerns and help you fight for what you deserve. Simply fill out the quick contact form on this page to set up a consultation and get answers to your questions.

Related Links: Requirements for a Last Will and Testament to Be Legally Valid in Florida What Happens If You Die Without a Will in Florida? What Should I Do First After My Loved One's Death?

 

As the personal representative to an estate, you have many duties to perform during estate administration. One of the most important responsibilities is to pay off any outstanding creditor claims. The state requires that these debts be paid based on their priority, and Florida statutes include the order in which creditors’ claims must be settled.

Tiers for Paying a Family Member’s Debts During Florida Probate

In Florida, a deceased person’s debts are paid according to certain tiers. During the probate process, you should settle these debts starting with the first tier, ensuring that all debts falling under each group are settled before moving on to the next tier.

• Tier 1. Any expenses incurred as a direct result of estate administration, any attorney fees required to assist in the closing of the estate, and your compensation for acting as personal representative are all paid first from the estate account.
• Tier 2. Florida law allows a payment of up to $6,000 from the estate for funeral and burial expenses. These costs are usually paid by you (or another family member) before probate starts, but you can collect reimbursement after Tier 1 costs are covered.
• Tier 3. Tier 3 covers your loved one’s outstanding federal income tax payments, estate taxes, and unpaid court fees, fines, or expenses. It also encompasses debts with a preference under federal law, including debts owed to Medicaid or other government assistance programs.
• Tier 4. Payment for any necessary and reasonable medical care that your loved one received in the 60 days prior to death is paid out under this tier. In addition, a family member may collect payment at this time if they acted as a carer or tended to your loved one at the end of their life. If your loved one passed away in a nursing home, hospital, hospice, or other treatment facility, any costs not covered in care incurred in the last 60 days will also be paid.
• Tier 5. Tier 5 is reserved as a family allowance for your loved one's surviving spouse and children. Surviving family members can receive up to $18,000 to supplement their income and help them maintain their household. This amount doesn’t have to be settled immediately, but can be paid for up to a year after your loved one's death.
• Tier 6. This tier covers the payment of any outstanding or past due child support payments (arrears) your loved one owed at the time of death.
• Tier 7. If your loved one owned a business and owed outstanding payments to suppliers, customers, or creditors, these would be paid after child support arrears. This amount is not paid with your loved one’s personal assets, but settled using any assets owned or acquired by your loved one’s business.
• Tier 8. Any claims that fall outside of Tiers 1 through 7 are paid out in this tier. For example, court judgments against your loved one would be settled last. If there are still funds in the estate at this stage, Tier 8 may also cover any excess on burial expenses and your loved one’s medical care.

What If Paying All of the Creditors Leaves Nothing in the Estate?

Under Florida law, if the debts are settled in order but the estate is insufficient to pay the entirety of the next tier, the creditors in the latter tiers shall be paid ratably in proportion to their respective claims.

It’s vital to understand that not all of your loved one’s debts will necessarily have to be paid. Once you have notified all creditors about your loved one’s death, creditors are required to file claims for payment with the probate court within 30 days (occasionally this period is extended to 3 months). If any creditor allows this period to expire without a response, the estate may not have to pay any amount outstanding.

You also have the right to dispute any creditor claims that don't have merit. This is where our experienced estate administration attorneys can really make the difference. We carefully investigate each claim, including the balance on the debt, the validity of any fees, and whether the creditor engaged in unethical collection practices. We may be able to negotiate the outstanding amount owed or force the creditor to surrender the right to collect.

If you need help with your responsibilities as a personal representative, our attorneys can guide you through the necessary steps of closing the estate and ensure everything is done in accordance with the law. Contact us today to set up a consultation and get answers to your questions, or read through our free book, Navigating the Florida Probate Process.

Related Links: How Long Does the Probate Process Take in Florida? What Is the Difference Between a Will and a Trust? What Should I Do First Upon My Loved One's Death?

 

If you are the nominated personal representative to an estate, you will probably be looking for a probate attorney to help you in this difficult time. You need an attorney for a formal probate administration - i.e., when the probate estate exceeds $75,000 - to assist you.  In this situation, you may be wondering about attorney's fees, among other matters. In Florida, the probate attorneys generally gets paid a fee of around 3% of the probate inventory, as explained a little better below.

Estimating the Cost to Hire a Florida Probate Attorney

Florida's probate rules were created to help define a reasonable attorney's fee based upon the size of the estate/probate. It's worth noting that the "value" of the estate includes only the assets that go through probate (and any income they earn during the probate period). The value of a homestead property and assets that avoid probate may not be counted.

Florida statutes set forth what are considered reasonable fees for Florida probate attorneys at the following rate:

• $1,500 for estates up to $40,000
• $2,250 for estates between $40,000 and $70,000
• $3,000 for estates between $70,000 and $100,000
• $3,000 plus 3% of the value over $100,000 for estates between $100,000 and $1 million
• $3,000 plus 2.5% of the value over $1 million for estates between $1 million and $3 million
• $3,000 plus 2% of the value above $3 million for estates between $3 million and $5 million
• $3,000, plus 1.5% on the value above $5 million for estates between $5 million and $10 million
• $3,000, plus 1% of the value above $10 million for estates over $10 million

Many attorneys have a minimum fee to do a probate that may exceed this schedule. One key to understanding the attorney's fee portion is that attorneys may be up for negotiating their fee depending on the size/complexity thereof. If the family is talking to a good probate attorney, that attorney will discuss the nuances of the work, their fees, expected costs, etc., before that attorney is hired. The 3% fee as mentioned above is not binding on the attorney or the family but it is a starting point for what is reasonable under most situations.

Extraordinary Fees

The fee schedule mentioned above is what is considered a reasonable fee, but fees may rise for what are considered extraordinary services. This may include dealing with taxes, litigation, real estate matters, how good the attorney is, etc., among other matters. The rules for all of this are set forth in Chapter 733, Florida Statutes, if you want to learn more.

Probate and Homestead

Generally speaking, the 3% fee does not include the value of the homestead property. While this can be pretty complex, the decedent's homestead is not part of the probate process so the attorney's fee is not based upon the value of the homestead property. Here, attorneys will charge a fee to declare the property as homestead, but that fee is generally not based upon the home value.

Other Costs of Probate?

The costs of probate include more than just attorney's fees, although that would typically be the most expensive fee. In going to court, the estate will generally need to have other costs, which may include court filing fees, bonds, publication fees, etc., In Pinellas County, we generally estimate the hard costs for the estate to be around $1,000 in most circumstances.

Contact the legal team at DeLoach, Hofstra & Cavonis, P.A. today to have us explain your options to you, or download our free book, Navigating the Florida Probate Process.

Related Links: Does a Last Will and Testament Avoid Probate in Florida? What Happens If You Die Without a Will in Florida? What Should I Do First Upon My Loved One's Death?

 

If you are the personal representative to an estate, it falls to you to file the deceased person’s Last Will and Testament with the Florida probate court. But what if you locate two different Wills—or three, or more? Or a family member comes forward with a drastically different version of the Will?

Which Will Is Valid?

It’s not uncommon for a person to create multiple Wills over their lifetime. However, only one Will can be valid at the time of a person’s death. The existence of multiple Wills is not only confusing, it's more likely to lead to estate litigation from disinherited beneficiaries.

When deciding which version of a Will is valid, the court will consider:

• The most recent document. In general, the most recently created Will is considered to reflect the deceased’s thoughts and wishes at the time of their death. But in order for the newest Will to be valid, the deceased must have legally revoked any previous Wills.
• Whether previous Wills were revoked. Under Florida law, a person can revoke a Will in two ways: by writing, or by a physical act. For example, the most recent Will may explicitly state that any prior Wills are invalid. Or, the person can physically destroy the previous Will to revoke it.
• Codicils. It’s possible to make changes to an existing Will rather than create multiple Wills that could cause conflict later. In order for any modifications to be legal, the deceased would have had to create a codicil, which is a separate legal document that must be written, witnessed, and signed according to Florida law. Codicils typically change only one or two things in the document (such as replacing a deceased beneficiary), and shouldn’t be used to rewrite the entire Will.
• Evidence of destroyed or missing documents. Florida law allows the admission of a lost or destroyed Will for probate, as long as an interested person can establish the full and precise terms of the Will. However, two disinterested witnesses must be able to testify to the specific content of a lost Will. If an heir can provide a copy of the lost Will to the court, it may be supported by one disinterested witness.

If you aren’t sure which version of a Will is legally valid, the dedicated attorneys at DeLoach, Hofstra & Cavonis, P.A. can answer your questions. Simply fill out the quick contact form on this page to set up a consultation and have us explain your options to you.

Related Links: Does a Last Will and Testament Avoid Probate in Florida? What Happens If You Die Without a Will in Florida? What Should I Do First Upon My Loved One's Death?

 

Florida law requires formal probate proceedings for any estate worth more than $75,000. If the estate is worth less than $75,000, or if the person has been deceased for over two years, it may qualify for a shorter version of probate called Summary Administration.

How to File for Simplified Probate in Florida

Summary Administration is a probate shortcut that allows survivors to receive a deceased relative's property more quickly. The probate court waives many formalities and notices that must be given during formal administration, shortening the timeframe for heirs to get their inheritances.

To create a summary administration, you must:

• Petitioning the court. You must file a document called a Petition for Summary Administration with the court. The document should include a copy of the Will, a list of the deceased person's assets (and their estimated value), a list of who inherits each asset, and a declaration that the estate qualifies for summary administration.
• Asking heirs sign the request. The petition must be signed by the surviving spouse and all beneficiaries. If any beneficiary cannot be located or doesn't consent to the petition, the court may require you to serve notice on the heirs.
• Notifying potential creditors. When you post a public notice of administration, creditors have three months to try to make a claim on any debts. This isn't necessary if the person has been deceased for over two years, since creditors are barred against bringing any further claims after two years have passed. Importantly, if there are exisiting creditors, the summary administration must make sure the creditors are paid before heirs get any remaining funds.

When is a Summary Administration Not Available?

Summary administrations are not a good option, or are not available at all, in a number of scenarios, such as:

• The decedent had creditors that must be paid. Essentially, the summary administration is not a good way to address estates with creditors under most circumstances. 
• When the assets are not known - essentially, you must have almost perfect knowledge of the decedent's assets to have a summary administration. 
  • As an example, Dad passes away and leaves his one bank account to his son. The son cannot find any information on the account and the bank will not share information with the son. The bank tells the son - you need letters of administration but does not tell the son what is in the account. Because the son cannot get any knowledge of the account, the summary adminstration will not be available as the judge will need to know the account value and number before entering a court order.
• The heirs do not get along. All heirs must sign off on the petition for summary administration, so if one heir cannot be found or is difficult, a summary administration may be impossible.

Do you Need an Attorney for a Summary Administration?

While you don't need an attorney to file for Summary Administration, it's a good idea to have legal representation. If some assets are overlooked or there are mistakes in the petition, you and your family may be tied up in probate for much longer than necessary.  We have many people come see us after trying to do a summary administration on their own - we are always glad to help them because probates, even the "easy" summary administration, is still not easy!

If you need help going through probate in Florida, the legal team at DeLoach, Hofstra & Cavonis can walk you through all the necessary steps of closing the estate. Contact us today to set up a consultation and get answers to your questions.

Related Links: Requirements for a Last Will and Testament to Be Legally Valid in Florida What Is the Difference Between a Will and a Trust? What Should I Do First Upon My Loved One's Death?

 

When your loved one is having health issues, it can be difficult to make the decisions on getting good care and thinking about how government benefits, such as Medicaid, can help. Medicaid is a part of our social safety net to help the needy pay for the cost of long-term care. Medicaid can help pay for nursing home care, assisted living or in-home care, but the asset and income rules, among other matters, are strict for those applying. 

Sometimes, the elder is living at home and the family cannot help any longer or the elder is just too needy to be home safely. This may mean that the elder must go directly to a nursing home due to their long-term care needs. But can an elder apply for long-term care Medicaid before moving to a nursing home? The basic answer is NO.

 

Nursing Homes May Not Accept a Medicaid-Pending Resident

In the best-case scenario, a person will apply for Medicaid well before they need care, but there is a wait-list for long-term care benefits at home. This may mean that the elder does not come off the wait-list before needing to transition to a nursing home, which may mean that you cannot apply for Medicaid until the elder is actually in the nursing home.

When someone applies for Medicaid, this is generally known as being "Medicaid pending." But you cannot be Medicaid pending until you are:

• In a nursing home (i.e., skilled nursing facility/rehabilitation facility); and
• You have actually applied for Medicaid. 

Unfortunately, most long-term care facilities will not someone who comes into the facility unless the are private paying. All of this is confusing but the big picture is that if the elder does not have money, placing into a nursing home is difficult without private paying.  The reasons are as follows:

• The nursing home might not be reimbursed. There's no guarantee that a pending application will be approved. Nursing homes may be unwilling to take on a resident without a guarantee of benefits from the government to offset their costs.
• Approval may not be retroactive. Even if a resident is approved for Medicaid, there's no guarantee that they will receive retroactive benefits. If benefits are only provided for the future, the resident and their family will have to pay for any costs incurred between the date of admission and the date of approval.
• Eligibility may be deferred. Many Medicaid applications contain errors, discrepancies, or incomplete information, causing problems that defer eligibility. Medicaid generally won't cover any delays due to application mistakes, so costs will fall on the resident for care received during this time.

Of course, there are many situations where families may be unable to wait for government assistance before moving an elder into a nursing home. If your loved one's care needs are changing, our legal team can answer your questions and help you secure the benefits you need. When an elder law attorney is helping the family apply for Medicaid, a long-term care facility may accept someone Medicaid pending as the facility will trust the elder law attorney's representations that the elder will get Medicaid.

If you want help, simply fill out our quick contact form or call DeLoach, Hofstra & Cavonis at (727) 397-5571 to set up a consultation.

Related Links: What's the Difference Between a Medicaid Specialist and an Elder Law Attorney? How Can I Stop My Loved One From Writing Checks? How Your Estate Plan Can Help Prevent Elder Exploitation

 

Probate is the process of gathering the assets of a deceased person (decedent) and ensuring that their property is legally passed on to others. The personal representative to the estate is responsible for communicating with the probate court, and the court approves each step until the decedent's assets are transferred and the estate is closed.

The Role of the Florida Probate Court

In most types of probates, the court serves as a supervisor over the process to make sure everything is done in accordance with the law. The court has many duties throughout probate, including:

• Ensures that the Will is valid. Once the Will is filed with the court, it will be examined and recorded (along with the statements of witnesses) to make sure its provisions are valid.
• Clears creditor claims. The personal representative is required to notify any creditors of the decedent's passing to give them a chance to collect their debts. Court supervision is necessary to determine which claims are valid and how they will be settled.
• Checks the personal representative's accounting. The court examines all documents deposited by the representative for accuracy, including receipts for expenses taken from the estate during probate and an accounting of the decedent's assets.
• Approves the inventory of assets. Once the court has ensured that the personal representative has correctly gathered and valued all of the deceased person's property, the assets can be distributed to beneficiaries.
• Oversees the distribution of assets. The court makes sure that each asset is distributed to the person or entity that's supposed to receive it according to the law and the intention of the deceased.  All beneficiaries must be made aware of this process in certain ways, but the court will make sure the beneficiaries either must consent to the plan of distribution or that the beneficiaries were made aware of the plan of distribution and did not consent.
• Hears cases involving estate litigation. If a relative challenges the terms of the Will or has a problem with the personal representative's management of the estate, the case will be brought before the probate court.

If you have questions about probate or the terms of a loved one's Will, the dedicated legal team at DeLoach, Hofstra & Cavonis can explain your legal options. Simply fill out the quick contact form on this page to set up a consultation and get answers to your questions.

Related Links: Requirements for a Last Will and Testament to Be Legally Valid in Florida What Happens If You Die Without a Will in Florida? What Should I Do First Upon My Loved One's Death?

 

Broadly speaking, asset protection using estate planning protect your assets from creditors, taxes or the cost of long-term care. Not every estate planning attorney is an asset protection attorney as there are a lite of different levels of expertise in this field of law.

Who Needs Asset Protection?

Anyone who has high-value assets or anyone who is considering protecting their assets from the nursing home should have some form of asset protection. Our estate planning attorneys create personalized asset protection measures based on your unique situation. We review your assets and income to discover what's currently protected (and what's not protected), as well as your debts and your likelihood of being named in a lawsuit. Then, we determine the best way to secure your unprotected assets, and make sure your plan will work as intended.

Without asset protection, your life savings and holdings could be lost to:

• Divorce. If you separate from your partner, the court may order you to give half of your property to your ex-spouse. Also, your estate plan could protect your children's inheritance from divorce, as well.
• Court judgments. If someone sues you or your business, you could be held personally liable for whatever amount the court awards. Asset protection can make some of your income and property exempt from collection.
• Nursing homes. It's possible to qualify for Medicaid to pay for long-term nursing care while keeping your assets safe to pass on to your children. However, you will have to create an irrevocable asset protection trust several years before entering a nursing home. Otherwise, you may have to pay for long-term care out of pocket.
• Taxes. There are a variety of tax planning strategies to avoid the federal "death tax," but which one will best achieve your goals? We can hel establish protection methods so that everything you worked hard for will go to your family, not to the government.

If you have questions about your Will, your estate plan, or your eligibility for Medicaid, the attorneys at DeLoach, Hofstra & Cavonis can explain your options. Simply fill out the quick contact form on this page to set up a consultation and get answers to your questions.

Related Links: Requirements for a Last Will and Testament to Be Legally Valid in Florida What Happens If You Die Without a Will in Florida? What Should I Do First Upon My Loved One's Death?

 

Medicaid can be a lifesaver when it comes to paying for nursing home care. Unfortunately, the various requirements for the program can be extremely confusing, and you may need help with the application process. Elder lawyers and Medicaid specialists can both help you apply for Medicaid, and the right one for you will depend on your specific circumstances.

What Do Medicaid Specialists and Elder Law Attorneys Do?

First, let's talk about Medicaid specialists. These can be individuals or whole firms that specialize in Medicaid eligibility and application. For a fee, they can gather the documents you need to apply, submit your application, and follow up with you as the application moves through the system.

However, Medicaid specialists are not lawyers. They don't help with the many issues that usually arise along with the need for Medicaid, and can't offer legal advice if something goes wrong.

An elder law attorney does all of the above, plus:

• Protects healthy spouses. If your loved one is married, but their spouse does not require long-term care, the spouse's assets may be counted against Medicaid eligibility. An elder law attorney can protect spousal income and assets over the Medicaid limit and ensure a spouse can continue living in the family home.
• Helps your relative create an estate plan. Without an attorney's help, families may spend their loved one's life savings on care—but it doesn't have to be this way. An elder attorney who practices estate planning can set up trusts and other structures to ensure that there's something to pass on to heirs.
• Performs incapacity planning. Attorneys can create an enforceable plan using durable powers of attorney and designation of healthcare surrogates if your loved one becomes unable to make decisions on their own.
• Helps you through life care planning. There are invaluable legal services related to aging, such as choosing the facility that will preserve your loved one's dignity and independence, securing in-home care, preventing elder abuse, and ensuring the best care for the best price.

At DeLoach, Hofstra & Cavonis, our goal is to help your whole family through the most difficult times in their lives. We have completed thousands of Medicaid applications while protecing our clients and protecting assets. If you need help qualifying or applying for Medicaid, simply fill out our quick contact form or call us at (727) 397-5571 to set up a consultation.

Related Links: What Is the Difference Between Medicare and Medicaid? Will I Have to Divorce My Spouse for Medicaid Purposes? Calculating the Florida Medicaid Transfer Penalty

 

Insane delusion is one of the lesser-used reasons to contest a will in Florida. Much like a lack of testamentary capacity, a will can be declared void if the court finds that the testator suffered from insane delusion at the time of the will's execution.

What Is Insane Delusion and When Does it Apply?

The Florida Supreme Court has defined insane delusion as "a fixed false belief without hypothesis, having no foundation in reality." In 2004, a Florida court expanded the definition, proclaiming an insane delusion to be "spontaneous conception and acceptance as a fact of that which has no real existence, and is persistently adhered to in spite of evidence and reason."

Simply put, a will that was created or amended based on a testator's delusion should not be legally enforceable. Delusions may arise for many reasons, including:

• Dementia. Evidence of mental illness or having suffered from delusions in the past may not be enough to invalidate the will, unless there is evidence that the testator was suffering from an insane delusion at the time of signing.
• Effects of medication. The effects of certain medications can cause patients to hear voices or become susceptible to suggestion. In this condition, they may agree to the terms of a will without the ability to understand its purpose or the effects it will have on their heirs.
• Effects of medical conditions. Organ failure, brain injuries, and other end-of-life conditions may cause patients to hallucinate or believe things that are demonstrably untrue (or impossible).

While any one of the above could have caused the testator to suffer an insane delusion, that alone is not enough to contest the will. You must be able to show that the insane delusion caused the testator to dispose of their property in a way that they otherwise would not have.

If you are defending a will or attempting to have a will voided in a Florida estate based on insane delusion, the estate litigation attorneys at DeLoach, Hofstra & Cavonis can examine the specifics of your case and explain your legal options. Simply fill out the quick contact form on this page to set up a consultation and get answers to your questions.

Related Links: Requirements for a Last Will and Testament to Be Legally Valid in Florida What Happens If You Die Without a Will in Florida? What Should I Do First Upon My Loved One's Death?

 

People often seek out elder lawyers when they are in the midst of a dire situation. They may need immediate help to protect a senior’s health and finances, or are looking for ways to pay for long-term care without sacrificing their life savings.

While these are certainly matters an attorney can handle, they are capable of doing far more—especially if you meet with them sooner rather than later. An experienced elder law attorney doesn’t just help you, they can give you the answers you need to help your entire family.

Working With an Elder Law Attorney Now Will Benefit Your Kids Later

Unfortunately, those who fail to plan ahead unknowingly place the burden of their care and debts on their children. The bulk of your estate may be used to pay for medical bills and nursing home care, leaving your heirs without an inheritance. An elder attorney’s advice is well worth having, especially if they can save your family thousands of dollars and avoid future legal headaches.

Our elder law services can help you:

• Qualify for Medicaid. We use a variety of estate planning methods to plan for future care needs, such as creating a trust to safeguard your property while Medicaid pays for assisted living. Simply put, elder law attorneys know how and when to protect assets, either in a time of crises or 5 years before Medicaid is needed.
• Provide for a surviving spouse. We can create a plan for married couples to ensure the surviving spouse will have money left over once the estate is settled.
• Save your family’s home and assets. We ensure all documentation is compliant under Florida state law, and that your plan will work correctly if you become incapacitated or pass away. This prevents potential legal battles over your estate that could drain your assets.
• Secure your health and wealth. Creating the right legal documents now ensures that the right people will have decision-making authority over your funds and healthcare. A power of attorney, living will, and guardianship designations are just a few ways to protect an older relative now and at the end of life.

At DeLoach, Hofstra & Cavonis, we help whole families through the most difficult times in their lives. Simply fill out the quick contact form on this page to set up a consultation and get answers to your questions.

Related Links: My elder is in the nursing home - what should I do now? How Much Do We Charge to Create a Last Will and Testament? What Happens If You Die Without a Will in Florida? Our Easy Estate Planning Checklist

 

Sometimes, a person's trust document may have provisions that are not in line with the creator's true intent. Trust reformation is the process of legally modifying a revocable or irrevocable trust to reflect the creator's wishes. If the settlor (the person who created the trust) is still living, they may be able to amend the trust without reformation. If the settlor is deceased, reformations may require agreements among beneficiaries or court proceedings.

Provisions That Can Be Changed Through Trust Reformation in Florida

Under the Florida Trust Code, a trust can be reformed to correct a mistake by the settlor even if the plain language of the trust is unambiguous. In simple terms, the document says something contradictory to what the settlor would have wanted. To reform a trust, you will need to provide clear and convincing evidence of the settlor's original intent.

Reformation may be used to correct many types of errors in a trust document, including:

• Mistakes of law. A trust may need to be modified to reflect any changes in state or federal inheritance and tax laws.
• Mistakes of fact. Reformation may be needed if the trust document was not updated after the birth or death of family members, changes in the settlor's or family's financial condition, or revisions in the settlor's personal beliefs.
• Drafting and printing errors. Florida does allow reformation to correct printing, signing, or drafting errors in an otherwise valid trust. However, it can't be used to correct an invalid trust document if the proposed changes would make the trust valid.

Trust reformation has its limits. For instance, it can be difficult or impossible ot make any modifications that are contrary to the interest of the settlor. In addition, reformation may not make it easier to make additional changes to the trust terms in the future.

The estate litigation attorneys at DeLoach, Hofstra & Cavonis can meet with you to discuss your legal concerns and help you fight for what you deserve. Simply fill out the quick contact form on this page to set up a consultation and get answers to your questions.

Related Links: Do I Need an Attorney to Help Settle My Mother or Father's Trust? Requirements for a Last Will and Testament to Be Legally Valid in Florida What Should I Do First Upon My Loved One's Death?