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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Can a married couple create a joint revocable trust?
Yes. A married couple can typically create a joint trust agreement, naming themselves as co-trustees. Under this arrangement, the married couple will own the trust assets during their lifetimes. Upon the death of the first spouse, the surviving spouse will retain control of all of the trust assets during his or her life and also have the ability to change the trust’s final distribution. A joint marital trust is not advisable for every situation, such as for those in second marriages and those with separate assets, but it can be useful for many estate plans.
As a follow up question - if my spouse and myself own all of our assets jointly, why should we create a living trust?
While jointly held assets avoid probate upon the first spouse’s death, a trust would still be advisable upon the death of the second spouse. Potential problems then arise if the surviving spouse is incapacitated and could not establish a trust. Additionally, a joint trust eliminates the possibility of a probate upon a simultaneous death. This means that a joint trust can help avoid probate if both spouses die at or near the same time.
We generally create joint living trusts for many situations. Exceptions to this could be second marriage type situations, for instance, where one spouse did not want to leave all of his or her assets to the surviving spouse.
If you want to learn more about creating your estate plan:
- Please download a copy of my free book, the Top 20 Ways to Protect Your Florida Estate
What is private mortgage insurance (PMI)?
Many first-time homebuyers are shocked by the amount of additional costs involved in purchasing a house. Inspections, insurance, closing costs, fees, and taxes can quickly add thousands to the price of the home.
If you're not paying at least 20 percent down, you'll likely have the additional expense of private mortgage insurance (PMI). Our attorneys explore this unique form of insurance and offer tips for homebuyers to reduce or eliminate PMI quickly.
What Buyers Need to Know About Private Mortgage Insurance
Lenders require homebuyers to purchase PMI when their down payments are less than 20 percent of the value of the home. The evaluation of PMI is usually between .03 percent and 1.5 percent, based on the appraised value of the home, your credit score, and the amount of the down payment.
The good news is that PMI is only required until you have gained a certain amount of equity in your home. The bad news is that PMI is an extra expense that does nothing to protect you from foreclosure.
Unlike other forms of insurance you buy, PMI doesn't protect you—it protects your bank and lender if you become unable to pay the mortgage. If you had a low down payment on a conventional loan and default on the loan after just a few years, the bank will likely lose money when it repossesses and re-sells your house.
However, buyers who put down 20 percent or more own a significant portion of the property before they've even moved in, making them less of a credit risk.
Before purchasing PMI, homebuyers should ask lenders about:
- Payment options. The most common way to pay for PMI is by adding the premium to your monthly mortgage payment, but some lenders offer a one-time lump-sum premium paid at closing. Your lender may also offer a combination of both.
- Automatic removal. Lenders are usually required to remove PMI automatically from the mortgage payment once the buyer has paid the loan balance down to 78 percent of the initial value. However, you may want to double-check the lender’s policy and establish the earliest possible time you qualify to have PMI removed. In most cases, buyers can request that PMI is removed when they have paid 80 percent of the home’s value.
- Other options. Borrowers making a low down payment may have other options besides a conventional home loan. Many lenders offer specialized loans, such as an FHA or one tailored for purchasing property in an underdeveloped area. If you qualify for these alternatives, it's worth crunching the numbers to see how these types of loans compare to a conventional loan with PMI. A loan without PMI at a higher interest rate may not save you much money over a conventional option.
It Pays to Get Rid of PMI As Soon As Possible
The only benefit homeowners get from PMI is the ability to secure a loan to buy the house. Since you'll be paying for something every month that doesn’t help you at all, you should keep a close eye on your mortgage balance and have PMI removed as soon as you can.
For example, let's say the appraised value/purchase price of your home is $300,000. You put five percent down, or $15,000, and the bank issues you a loan for $285,000. You make mortgage and interest payments every month, plus the additional amount for PMI. When your mortgage balance reaches $234,000, you've reached the 78 percent value threshold, and the lender will drop the PMI automatically.
On the other hand, you could call or write your bank when your mortgage balance reaches $240,000, or 80 percent of the home’s value, and request removal of the PMI. It may not seem like two percent makes much of a difference, but in this case it means you could save hundreds in PMI premiums.
Buying a home is one of the biggest financial transactions you will make, and a Florida real estate attorney can protect you both legally and financially throughout the process. If you have questions about buying or selling real estate, please fill out our quick our contact form so you can move forward with peace of mind.
Should I hire a real estate salesperson or listing agent to sell my home?
It can be difficult to say whether homeowners need a listing agent to sell their properties.
While Florida law doesn't require property owners to engage the services of a real estate agent to complete the sale of a home, listing agents offer a significant advantage depending on the location and condition of the property.
Benefits of a Real Estate Seller’s Agent in Florida
Although you may legally sell your home, there's a lot of work involved, and no guarantee you'll be able to get the best price.
Real estate agents may charge hefty commissions, but since they're paid with a percentage of the sale price, it's in their best interest to help you get as much as possible for the property.
Before you put an ad in the paper or list your property on a home-buying website, consider what you may gain from a real estate agent's:
- Knowledge. You know what you originally paid, and you know your improvement costs, but only a real estate professional will know the market value of your home. An unrealistically high asking price may leave your home unsold for months, while underpricing your home can deprive you decades’ worth of assets. A real estate agent can calculate your home’s value and current market trends, and price according to competing listings in your neighborhood. When it comes time to sell, the agent will be responsible for drafting all transfer documents in accordance with Florida laws.
- Marketing plan. While some properties may sell with little marketing, others need a more strategic approach to attract buyers. This includes reaching out to potential buyers through media they are likely to use. Younger families often find starter homes using apps and internet searches, while some buyers rely on newspaper listings. An agent should be willing to take high-quality photos or video walkthroughs for the listing, as well as write a detailed summary of the property that sparks buyers' interest.
- Time and effort. Listing agents are responsible for making your home look attractive to buyers, including staging the property to show its potential and showing the house to prospects. The agent also chooses which prospects to allow to tour the property—such as those who already have loan offers in place—ensuring you only have serious buyers visiting your home.
- Negotiation skills. A good real estate agent is familiar with tiny details that make a big difference when negotiating price. As your agent, he or she knows when it's cheaper to make repairs to a defect or adjust the asking price, and will work to ensure the maximum amount of profit for you.
It May Make More Sense to Hire a Real Estate Attorney for Your Transaction
There are numerous differences between real estate lawyers and agents, and many people choose to involve both in the process. However, there are many instances where legal protection is a major benefit to sellers.
For example, selling a home with known defects in “as is” condition can open a seller up to potential legal action in the future. Some people get into the later stages of a sale before discovering there's an encumbrance on the home. This additional financial burden may stall or sink the transaction.
Even if you love your real estate broker, he or she isn't an attorney. In fact, real estate agents aren't even permitted to answer legal questions posed by their clients—which is extremely problematic given how often legal questions arise during a sale. In addition, while real estate agents can draft sales documents that are legally binding, they aren't necessarily structured to give the seller legal protection. Only a real estate attorney can protect you both legally and financially throughout the process.
Selling a home is one of the biggest financial transactions you will make. We make the process easier for you by offering guidance in our free book, Top 7 Tips for Selling Your Florida Home. Order your copy today!
If you have further questions or concerns, please complete our contact form so you can move forward with peace of mind.
What does a designation of Health Care Surrogate do for a Minor?
A Designation of Health Care Surrogate for a Minor (HCS) provides authorization to a nominated person, other than a natural parent or legal guardian, to give consent to medical treatment on behalf of a minor child. The nominated HCS may complete any consent forms and access medical records. Without the HCS, it can be stressful for a stepparent, grandparent, godparent, or supervising adult. Some examples of when this document is helpful are:
Jill and her stepson, Jack, are involved in a car accident on the way to school. Jack is rushed to the hospital, but Jill cannot get any information regarding Jack’s condition or his treatment. This is because Jill, as a stepmother, has no legal authority until all persons who have priority under Florida law are reached.
Parent or Child is Traveling
A HCS can also be helpful when parents go out of town, leaving their child in the care of a third party, or a child travels without his/her parents, such as for summer camp or extracurricular activities. When completing a HCS, a legal professional can help ensure everything is done in a correct and legally effective manner. For more information, please call me.
How often should I update my Durable Power of Attorney?
You should update your durable power of attorney at least every 10 years, if not sooner. Why?
- The laws change over time;
- Banks and other financial institutions may decline an older document;
- The people you name may change, particularly with a couple that names each other;
- Legal trends change where you may want to have expanded powers to protect your assets;
- and more!
What about a married couple getting older?
One matter to concern ourselves is with a husband and wife. A husband and wife typically name each other as their attorney-in-fact and/or health care surrogate with a child/children as alternate. As the spouses get older, they may diminish in their capacity. If this is the case, they should likely not be each other's agents as they likely cannot act to help each other. Here, the husband and wife would likely want to bypass each other as agent and go directly to a child as their helper. As an example:
Mom and Dad are both 92 and are both failing mentally and physically. Their older estate planning documents only name each other as power of attorney. If Mom fell and went to the nursing home, who could act for Mom? Only Dad! But Dad has capacity issues himself and may not be able to take charge in this difficult situation. So it is likely Mom and Dad would have wanted to update their powers of attorney and advance directives at this time.
If you want to learn more about estate planning, please review the following:
Buying and Selling a Home: The Difference Between a Real Estate Agent and a Real Estate Attorney
You have a lot of options when choosing a representative for your real estate transaction. Florida law doesn't require an attorney to be present when buying or selling a home, and you may legally perform the transaction without involving a real estate agent.
If you want to have someone represent your interests, you don’t even have to choose between hiring a real estate agent or hiring an attorney—you can have both on your side.
However, there are key differences between real estate lawyers and agents, and these can have a huge impact on the condition and value of your purchase.
Differences Between Real Estate Lawyers and Real Estate Agents
Good real estate agents have knowledge of Florida real estate laws and customs and can guide you through simple real estate transactions. It's their responsibility to:
- Know about neighborhoods and surrounding areas
- Perform market analysis of home values
- Submit and negotiate offers between buyers and sellers
- Look for potential defects in the property
- Negotiate a price for repairs or upgrades
- Draw up closing contracts for the final transaction
However, buyers’ and sellers’ agents aren't lawyers, and cannot provide any legal advice during a real estate transaction.
A real estate attorney can perform all of the duties of a real estate agent, but he or she can also:
- Answer your questions. Every real estate transaction involves an overwhelming amount of complex legal documents that must be read and understood before signing. We can explain the legal terms and technical language used in the purchase contract, mortgage, and any other transaction documents, allowing you to sign with peace of mind. In addition, we review all documents and correct any ambiguous language before you sign them, reducing the chances of a problem after the transaction is complete.
- Offer advice. A real estate attorney may have been hired for your purchase, but he or she can advise you on just about any legal issue. For example, there's more than one way to hold title to residential real estate in Florida. An attorney can tell you whether you would benefit more by holding title as sole ownership or joint tenancy, including how each affects taxes and inheritance after the life of the homeowner.
- Explain your options. Each decision you make throughout the buying or selling process has the potential for you to gain or lose a significant amount of money. If you have offers from a variety of lenders but aren’t sure which to accept, your attorney can compare the offers to find out which one best suits your needs. If you decide against the purchase completely, an attorney can examine the terms under which your deposit is forfeited and get your money back from the seller.
- Protect you at closing. Buyers and sellers may get all the way to closing without an attorney, then enlist the help of a lawyer to review closing paperwork before they sign. The fees that a real estate lawyer charges for a document review are often a fraction of the cost of the potential problems they identify and solve before the transaction is complete.
- Take over from an estate agent. Many real estate transactions that begin with the help of an agent end with a lawyer being called in when legal issues arise. An agent could lose his real estate license by answering a legal question for a buyer or seller—even if he knows the right answer. Given these limitations, a real estate attorney is in a better position to protect all of your interests throughout the buying process.
Ready to Help You
If you experience or anticipate any legal problems with your home purchase, only a qualified real estate lawyer can give you the answers you need.
Our attorneys provide as much or as little legal assistance as clients' need, allowing them to complete their sale or purchase with confidence. Simply fill out the quick contact form on this page to set up a consultation with one of our real estate attorneys.
Why do I need a real estate attorney when buying or selling property?
For many people, buying and selling real estate is the largest financial transaction they will ever make in their lifetimes. In addition to the pressure of inspections, negotiations, and closing, there's also the added pressure of setting a price that will meet your needs. The buyer and seller may attempt to make the transaction on their own, or each one can hire someone to act on their behalf—and hiring an attorney for the process can off many advantages.
What Your Attorney Does During the Course of a Real Estate Transaction
While Florida law doesn't require buyers and sellers to hire lawyers for real estate transactions, deals are usually brokered using either real estate agents or real estate attorneys. A real estate attorney can facilitate price negotiations, as well as help save you money and avoid legal liability or unforeseen costs.
We can protect your interests in a real estate transaction involving:
- Negotiations. First-time buyers are often not sure how to negotiate a fair price for the home or space they want, leading to overpayment or the offer falling through. A good real estate attorney will advise you on the worth of the property and how much you can afford, and will know how to negotiate with a seller or seller’s agent.
- Financing and lease agreements. When buyers need a lender to provide the funds for the sale, attorneys can explain the details and terms in the mortgage contract and communicate with the residential or commercial lender on your behalf. If you're purchasing commercial property, an attorney can help you draft and enforce a lease agreement with your future tenants.
- Commercial transactions. If you're buying commercial property, there are special considerations and additional legal issues that may not arise in a home buying transaction. Buyers must consider environmental issues, easements, federal and state zoning requirements, tenant claims, and other issues. Our attorneys can help you file applications for land use permits, address your current and future liability, and take action to secure the investment on your behalf.
- Document drafting and interpretation. Real estate sales involve the signing of many different documents, any one of which contains ambiguous language that leads to future legal battles. We can draft purchase and sale contracts, transfer deeds, leases, tax withholding documents, closing statements, and other documents in a way that clearly establishes liability and associated deadlines.
- Out-of-town buyers. A seller or buyer from out-of-state may not be aware of Florida’s requirements and regulations for real estate transactions. A local real estate attorney is in a better position to investigate and negotiate tax and transfer requirements that may apply to the property.
- Short sales. Bank-owned properties such as foreclosures and short sales involve specialized buying processed and requirements that can place an undue burden on the buyer. Your attorney can negotiate with the bank on your behalf and review the title to make sure you're paying a fair price.
- Seller disclosures. Sellers have a duty under Florida law to tell potential buyers about known hazards on the property before the land, home, or structure is sold. We'll draft a seller disclosure statement that identifies any potential problems, whose responsibility it is to fix them, and who can be held liable in the future.
It can be difficult to know when to involve an attorney in the real estate process. Some people prefer to have an attorney at their side from the beginning, while others will go it alone until a problem arises.
Even if you don't need a lawyer at the start, you shouldn't hesitate to ask an attorney to examine the closing documents before signing. At the very least, an attorney’s guidance gives you peace of mind that all documents are in order—and if they aren’t, you could avoid paying thousands of dollars in unforeseen costs or living with a bad business deal for the rest of your life.
We're Here for You
Whether you're buying a home, a lot of land, or a commercial space, your purchase is a significant investment. Our attorneys tailor services to your specific needs, allowing you to get the right price, financing, and location that works for you.
In addition, we take the time to explain your options in a way you can understand, allowing you to make choices about the future with confidence. Simply fill out the quick contact form on this page to set up a consultation with one of our real estate attorneys.
When are housing associations allowed to take action against a resident?
A homeowners' community association (HOA) has the right to levy fines against a member who commits a violation of the governing agreement. Examples might be failure to comply with aesthetic regulations, or failure to pay for agreed-upon services.
However, Florida homeowners’ association laws set statues about the type of action and amount of fines that can be levied against a community member.
Adverse Actions That May Be Taken Against Florida HOA Members
A refusal to comply with governing documents of the community or the rules of the association is grounds for action by the association, or a member against another member. The other member must own a parcel within the community, or be a member’s tenants or guests who use the common areas.
Under state law, an HOA can take the following actions against members:
- Fines. An association is allowed to charge reasonable fines of up to $100 per violation against a member—or any member’s tenant, guest, or invitee—for the violation of provisions in the association bylaws or regulations in the governing documents. Fines may continue to be levied by the board for each day that the violation continues, as long as the total assessed for the violation doesn't exceed $1,000.
- Use of common areas. If a member hasn't paid a fee, fine, or other monetary obligation to the association within 90 days of assessment, the association may suspend the member or guest’s right to visit common areas or use facilities until the fee is paid in full.
- Voting rights. The HOA may suspend the voting rights of a member who hasn't paid fees or fines that are over 90 days delinquent. A suspended member won't have the right to participate in voting during an election to the board, approve an action, or form a quorum until he or she has remitted full payment of all financial obligations due to the association.
- Liens. A housing association typically has a right of lien on each parcel within the property to secure the payment of fines and assessments. Associations cannot file a claim of lien for fines or outstanding debts of less than $1,000. Once the claim is filed, the lien may be used to secure any unpaid assessments as well as interest, late charges, and reasonable costs incurred in the collection process.
Before an HOA can file a record of lien, it must provide the parcel owner with a written demand that totals the amount of past due assessments; the reason for the assessments; and notify the owner of intent to assert a claim of lien. The notice must be mailed or handed to the owner at least 45 days before the lien may be foreclosed to allow the owner an opportunity to make payment for all amounts due.
Options for Members in Financial Disputes With an HOA
While the HOA has a right to collect unpaid assessments from members, members also have rights in disputes with the association. For instance, a member can take action against an association—even if he or she hasn't paid an assessment—for:
- Failing to provide notice. In most cases, a member cannot be assessed a fine or denied rights unless he or she was given at least 14 days’ notice to address and correct the problem.
- Failing to convene a hearing. Florida law requires members to have an opportunity for a hearing before a committee of at least three impartial members of the HOA board. If the majority of the committee doesn't approve a proposed fine or suspension, it may not be imposed on the member.
- Imposing or enforcing the fine. If a member takes the HOA to court over a fine or lien and prevails, the member is entitled to recover court costs, reasonable attorney fees, and other litigation expenses from the association.
Our Expertise Can Help You
If you're involved in a dispute between a homeowners' association and a member, please give us a call today. Our attorneys have over 30 years of experience representing homeowners and their associations through all aspect of their business operations. Simply fill out the quick contact form on this page to set up a consultation.
Why would a community association need a lawyer?
A community association does much more for homeowners than perform lawn maintenance and collect rent checks. Members of associations governing condominiums, neighborhoods, cooperatives, or other communities have a number of fiduciary duties and responsibilities set forth by the law.
No matter what kind of community association you belong to, you should have qualified legal counsel to represent your interests.
How Attorneys Protect Homeowners’ and Community Associations
A homeowners’ association allows members to take an active role in maintaining a high standard for the community.
Associations are required to comply with construction standards and laws governing the soundness of the buildings and structures in the community, thus ensuring the safety of owners and children who live on the property. In addition to taking part in the community development process, associations must set forth the governing principles of the community and clearly outline the duties of both the association and the homeowner.
The contract between homeowners and associations can provide protection to each party, but it can also give rise to disagreements. An experienced homeowners’ association attorney can perform a number of services that both solve and prevent problems in the community, including:
- Document drafting. Your association is built on the enforceability of its contracts, and we ensure that all documentation is legally sound and drafted in a language that leaves little room for interpretation to minimize potential problems. Our attorneys take a personal approach to the creation of association rules and bylaws, allowing clients to implement regulations and restrictions that establish the character of the community without encroaching on the legal rights of the owners.
- Assessment collection. If an owner fails to make payment, an association has to enforce its rights to impose fines carefully in order to avoid liability for legal action. Under Florida law, there are specific procedures that must be followed before an association can take action against a homeowner. An attorney can guide the association through this process without exposing the association to litigation.
- Statutory interpretation. Association statutes and bylaws that were created decades ago may contain vague or ambiguous language, making it difficult to know when and how they can be enforced. Our attorneys can help interpret the language in governing documents to help each party understand its rights, as well as prepare amendments to governing documents to avoid future confusion.
- Protection and enforcement. Some associations may require occasional legal advice for disputes, while others rely regularly on counsel for day-to-day operations. Our law firm provides as much assistance as each client requires, advising association members on the use of their enforcement options—including fines, evictions, and suspension of voting rights; reviewing governing documents and articles of incorporation for potential errors or liability; or preparing to resolve a matter in court. We also take over the responsibility of informing owners of alleged violations, requesting payment or response from an owner who has committed a violation, and assume the duty of securing the owner’s corrective action.
- Dispute resolution. As the trusted legal representation for nearly 100 different homeowners' associations, we know that it's not always possible to avoid disputes among association members. Our attorneys work to resolve these conflicts with a minimum of interruption in the community while ensuring that the association’s guiding principles are respected.
- Litigation and mediation. If a conflict arises and an owner is threatening legal action, our attorneys can step in to provide mediation and arbitration services to avoid the necessity of going to court. If an owner has already filed a lawsuit against the association, our law firm can aggressively represent the association during settlement negotiations and in the courtroom.
If you belong to a homeowner's association or a condominium association and have questions about contracts, association by-laws, or compliance issues, please give us a call today. Our attorneys have over 30 years of experience representing homeowners and their associations through all aspects of their business operations. Simply fill out the quick contact form on this page to set up a consultation.
How is VA Pension counted for Medicaid purposes?
This is not an easy answer as you may think!
When someone is on Medicaid in Florida, there is both an income and asset limit for eligibility. The financial guidelines are provided at this link. Medicaid counts the applicant's gross income for qualification purposes. When income exceeds the income cap, a qualifed income trust is necessary in order to qualify for Medicaid.
But what about when the Medicaid applicant is receiving VA Pension? VA Pension can be very helpful for paying for an elder's assisted living or in-home care. VA Pension Benefits are outlined here. The highest Pension benefit is known as "aid and attendance," with monthly benefits as follows (2020):
- Married Veteran: $2,266/m
- Single Veteran: $1,912/m
- Surviving Spouse: $1,228/m
But if someone is applying for Medicaid, how much of the Pension income is countable for gross income purposes? The answer is NOT ALL! Medicaid excludes "aid and attendance" income from the gross income calculation. But the answer does not even stop there! Aid and Attendance is only the highest level of VA pension benefits. Lower levels are "base pension" and "housebound." Interestingly, the very base pension amount is countable as income for Medicaid purposes. For 2020, base pension levels are as follows:
- Married Veteran: $1,501/m
- Single Veteran: $1,146/m
- Surviving Spouse: $ 767/m
An example is as follows:
Surviving spouse of a wartime veteran is receiving $1,228/m in VA Pension Aid and Attendance (the maximum). Her Social Security income is $1,500/gross per month. Her income for Medicaid purposes towards the income cap ($2,349/m in 2020) is $2,267/m. This means that she does not need a QIT to obtain or keep Medicaid benefits. ($1,500 plus $767 (the base pension amount) = $2,267/month, which is lower than the Medicaid income limit). Notice that only the $767/m counted as income for Medicaid purposes, not the full $1,228/m that she receives from the VA.
When you are applying for Florida Medicaid and VA Pension benefits are already coming in (mostly meaning Aid and Attendance) then these calculations will be very important.
It is also important to note is that if the elder receives Medicaid in the nursing home, the VA will need to be notified and then his/her VA Pension (including Aid and Attendance) will eventually be reduced to $90/month, which is not countable as income for Medicaid purposes.
VA Pension income does not include any VA Disability payments. VA disability payments (based upon an injury while serving our country) is all countable income for Medicaid purposes, so it is important to know what type of VA income is being received.
VA Aid and Attendance from DIC Benefits
VA "aid and attendance" is a difficult subject because the names for VA benefits programs are not always helpful. We mostly look at Pension benefits for helping our veterans, but the VA program also provides benefits known as "aid and attendance" for those veterans that were injured in service and for his or her surviving spouse. The program for a surviving spouse, known as DIC (Dependency and Indemnity Compensation) provides $1,340.14 (2020) to the surviving spouse of a 100% VA disabled person. The surviving spouse can also get an addtional $332.00/month when they need help with their activities of daily living (eating, dressing, bathing, toiletting and transferring). This payment of $332.00/month is not countable income for Medicaid purposes
If you want to learn more about Medicaid benefits in Florida, please look here.
If I am on Medicaid, will Florida take my home upon death?
The basic answer is "no." If you die and your home goes to your heirs-at-law (i.e., family members) then the state of Florida cannot take your homestead property. It is true that Florida has a claim in the decedent's estate as part of estate recovery laws, but in Florida, your homestead property is exempt from your creditors, even upon death. There are a few caveats here:
- Your last will and testament must not direct that your home be sold; and
- Your home must not have been rented during your lifetime, which would cause it to lose its homestead status.
The homestead property can be sold and the proceeds can be protected, importantly. Another issue is that the home may be sitting there for a long time, which creates more issues. It may be best to protect your homestead property in advance with an irrevocable asset protection trust.
You may also ask:
- What happens to my homestead if I go on Medicaid in Florida?
- My elder is on Medicaid - can we sell the homestead property?
If you want to learn more about asset protection in Florida, download a free copy of my book, Don't Lose Your Nest Egg to a Florida Nursing Home. This book will explain ways to protect your assets and pay for your long-term care, among other important aspects.
What happens to my home if I go on Medicaid?
The rules for Medicaid and homestead property in Florida have different rules depending on if you are single or married.
- Married Couple: With a married couple and one spouse applying for Medicaid, Medicaid does not look at the value for the home. The at-home spouse (the "community spouse") can live in the home, no matter the value, and it will not effect the Medicaid applicant spouse. Further, the cost of the home may help the community spouse keep more income. We may be concerned if the spouse at home - the community spouse - were to predecease the Medicaid recipient, but that is another issue.
- Single Person: If the Medicaid applicant is single and needs Medicaid in the nursing home or assisted living facility, the applicant is allowed to own a home of up to $603,000 in value (2021). Even if the applicant never returns to the home, the homestead is protected and will never be made a countable asset for Medicaid purposes (unless rented!). Upon the applicant's death, the homestead is protected from creditors, including the state of Florida, if it descends to your heirs at law (i.e., your family). We have more on Medicaid estate recovery here. Problems can occur though because all of your income goes to the nursing home as part of your patient's responsibility. This means that your family will have to pay for the home's mortgage, upkeep, insurance, taxes, etc., as your assets have been depleted and your income goes to the nursing home! Renting the home is possible but this removes the homestead protection, so that can be an issue as well.
We have more information on Florida Medicaid income and asset guidelines here.
If you want to learn more, please see the following:
- Our Free Guide to Protecting Your Florida Homestead.
- Selling your homestead in the event you are in the nursing home
- Florid Medicaid Spend-Down Planning
If my spouse is in on Medicaid, how much of my income can I keep?
If your spouse is in the nursing home on Medicaid (the "institutionalized spouse"), you are allowed to keep ALL of your income. Medicaid allows the spouse at home (the "community spouse") to keep all of their income.
The next question is what income can the community spouse keep of the institutionalized spouse? The big picture is that the community spouse can divert up to $2,030/month (2018) from the institutionalized spouse's income with a maximum amount diverted up to $3,020.50/month. The amount diverted depents upon the community spouse's own income and the amount of housing costs the community spouse has.
When your spouse is in the nursing home, it can be a very stressful time. Find our more about the Florida Medicaid and Spousal Diversion on this webpage.
If you are reading this, you may want to read:
What is the difference between Medicare and Medicaid?
When you or your loved one has gone to the nursing home for rehab, which frequently occurs after a three day hospital stay, the family has to learn the difference between Medicare and Medicaid!
Simply put, Medicare is a form of health insurance for those over age 65 and the disabled. Medicare pays for someone's doctors, hospital stay, medical supplies, etc. No health insurance is long-term care insurance and Medicare is no exception. Medicare can pay for up to 100 days of rehabilitation in a skilled nursing facility after the patient had a three-day qualifying stay in the hospital. The point of the rehab is to get the patient stronger through therapy. When the patient is no longer getting stronger, Medicare will typically end. Medicare completely covers days 1-20 while co-pays of $176 (2020) are for days 21-100. If the patient has a Medicare supplement (i.e., a Medigap policy), the policy may pay for the co-pays during the patient's stay. Most people who work during their lifetimes will get Medicare.
If the elder has to stay in the nursing home after Medicare ends, the patient may need to apply for Medicaid. Medicaid is the government program that helps the indigent pay for their care in a long-term care facility, such as the nursing home or assisted living facility. In order to qualify for Medicaid, the applicant must pass a strict test looking at the applicant's income and assets. We have the most recent Medicaid income and asset numbers for Florida here. When the elder is in a nursing home, now may be the time to protect assets for his or her care, which is done through a good elder law attorney.
If your loved one just entered the nursing home, or may not be safe at home, you may also want to read:
- Questions to ask when your elder just entered the nursing home
- Will my loved one get good care on Medicaid?
Finally, we have a free book that may be be able to help. Please download Protect Your Nest Egg from a Florida Nursing Home today.
My Elder is receiving VA Benefits - can we sell or rent the homestead?
If your elder is receiving VA pension benefits, which typically means Aid and Attendance, he or she is allowed to own a home as a non-countable asset. A problem may occur if the elder is not living and home and the family wants to sell or rent it. Selling or renting the home will most likely stop the VA pension benefits as you would be converting a non-countable asset into a countable asset. The VA cross-references with the IRS and they will find out about the home sale, so you should do something to help.
It is likely that the best solution to selling or renting the home when an elder is on VA benefits is to place the property into an irrevocable trust. This trust has a lot of potentially positive benefits in the right situation, such as:
- Avoiding probate upon the elder's death;
- Allowing the property to be sold tax free (if it has appreciated less than $250,000);
- Allowing rental or the property while the elder is in a nursing home/assisted living;
- Allowing a step-up in basis upon the elder's death so heirs can sell it tax free;
- Starting the Medicaid five year "look-back" period;
- And more . . .
If your elder is looking to apply for VA benefits, or if you just want to consider protecting the homestead property from the nursing home, please fee free to download a copy of my free report on protecting your Florida homestead property.