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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Do I need an attorney to help settle my mother/father's trust?
People create revocable living trusts in Florida in order to avoid the (mostly) cumbersome probate process. But in avoiding probate, does this mean that the successor Trustee avoids all attorneys? The answer depends on a number of factors. The reality is that "settling" a trust may not be as easy as you may think, but it may not be that difficult either.
One of the first questions on whether an attorney is ended to settle a trust is how complicated are things?
- Are there many beneficiaries?
- Are there a lot of assets?
- Is a charity a beneficiary?
- Did the decedent die with creditors?
- Are there disgruntled (or potentially disgruntled) heirs?
- What is the trustee's capacity to handle financial and legal matters?
These are some of the most important questions on the need for the successor trustee to hire an attorney. Basically, the more complicated matters are, the greater likelihood that the trustee should hire counsel to help them settle a trust. One of the most important reasons is that the trustee has likely never done this before, and they do not know what they do not know. The trustee, importantly, is a fiduciary with a great deal of legal responsibility. The trustee's duties include, but are not limited to:
- Paying the decedent's creditors
- Paying/filing the decedent's last tax return
- Depositing the will with the probate court
- Filing a notice of trust with the local court
- Providing an accounting to all beneficiaries
- Acting as an impartial person, acting on in the trust's benefit
- Acting as a reasonably prudent person would in finalizing matters
In simple situations with a family that all gets along, settling a trust is not necessarily difficult for those who are capable of making sound financial decisions. If this is going to be too difficult for a family member or if the successor trustee is receiving lots of grief from other trust beneficiaries, it would be advisable to hire an attorney. The attorney would be paid from the trust estate, importantly, as this assists the successor trustee.
People who read this may also be interested in:
- Download your free book: Navigating the Florida Probate Process
- A Quick Guide to Revocable Living Trusts in Florida
When am I able to act as the executor for the estate?
When someone dies in Florida, we often get phone calls regarding their loved one's bank or financial accounts. Typically, the family is at the decedent's bank and the bank is telling them that they need to become the executor (also known as personal representative). The family may even have the last will and testament, but what are the next steps?
One important aspect of the Florida probate process is the estate and the ability act for and bind the estate. First, the probate estate extends only to assets in the decedent's own, individual name. These assets are distributed according to the decedent's last will and testament. If the decedent did not have a last will and testament, his or her estate is distributed to the decedent's family in accordance with Florida's law of intestacy.
Next, the last will and testament only nominates the personal representative (a/k/a the "executor"). The personal representative is only able to act upon the estate assets once appointed by the probate court. To confirm, the nominated personal representative is only able to act after petition and appointment by the probate court. This means that one of the first steps to the probate process is finding and hiring the right probate attorney. Once appointed by the probate court, the personal representative is issued "letters of administration" which will now enable him or her to act on the estate's behalf.
The process of having someone appointed as the personal representative by the probate court typically takes 2-3 weeks in Pinellas County. The attorney will generally need the following information in order to prepare the court petition:
- Original Last Will and Testament
- Original Death Certificate (short form)
- Address of all heirs
- General list of assets that needs to be probated
Once this information is gathered, the probate attorney can move forward with a Petition for Administration, which will admit the will to probate and allow the personal representative to act.
If you are dealing with the recent death of a loved one, you may want to read a copy of our free book, Navigating the Florida Probate Process.
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Will my loved one get good care in the nursing home when on Medicaid?
We know that many people end up on Medicaid in the nursing home due to the high cost of nursing home care, which can exceed $9,000 per month. But will Medicaid affect your loved one's care?
First, it is illegal for a nursing home or other care provider to discriminate against a patient due to payor source. This means that the nursing home care providers do not care if your loved one is there through Medicaid or through private pay. I once had a nursing home owner tell me that they preferred Medicaid as a payor source over people privately paying as they knew Medicaid would pay them while the private payers would not always be as forthcoming with the funds.
Next, whether a nursing home accepts Medicaid does not dictate whether it is a good or bad facility. There are 83 nursing homes in Pinellas County, for instance, and all 83 nursing homes accept Medicaid.
Also, Medicaid also will not dictate where your loved one will receive care. This means that you can pick any nursing home you want and the state of Florida does not care. Each facility, however, may have a limit as to the number of Medicaid beds, so depending upon the time of year, there may be a wait list for Medicaid beds.
The truth about Medicaid and Medicaid planning in Florida is that protecting assets with an elder law attorney will not affect your loved one's care, although it may affect placement issues at certain times.
One final piece to this puzzle is that getting good care in any nursing home or assisted living facility is not easy. Care will vary based upon the nursing home staff, doctors, CNAs, administration, corporate governance and more. This is why we have a care coordinator on staff as part of our life care planning practice. Our care coordinator's job is to help you and your loved one get good care in the right facility. Our care coordinator has been a social worker in local nursing homes for over 30 years and she knows what good care looks like. With our law firm, you will not need to worry about good care for your loved one, or the stress of being an advocate, all alone in the medical system, without help.
If you want to learn more about our Medicaid and life care planning practice, please feel free to attend one of our free educational seminars at our office.
Can I name multiple people as my power of attorney?
Yes, you can name more than one person on your durable power of attorney, but we generally advise against it under most circumstances.
First, there is no legal reason why you cannot name more than one person as your power of attorney - you can name 10 people if you want. The real question is should you name more than one person? The answer is no, unless you have a specific reason. The reason why we do not want more than one is in the event of a conflict. With multiple decisionmakers, there is always the ability for people to conflict on decisions. Conflicts may mean paralysis as each decisionmaker can overrule the other. Who is in charge with multiple powers of attorney if a conflict occurs? Answer: no one! We prefer to name one person at a time in descending order - i.e., start at your spouse and move to children in order of priority.
There is, however, a great exception to this rule: when you have an aging couple, it may be best to name your spouse and a responsible child as attorneys-in-fact. This will help in the event either parent is incapacitated and needs help through the durable power of attorney. An example is as follows:
Mom and dad are age 90 and having a few health issues and memory problems. They are both acting independently and are in charge of all decisionmaking. Due, however to their advanced age, they name their trusted and responsible son as co-power of attorney. We also granted independent signature powers so they can act alone. Our planning in this situation is far preferable to the parents just naming each other because of a possible downturn at or around the same time. This prevents crisis situations and stress for the family, to say the least.
We hope this post has been helpful! Please let us know if you have any further questions or want to attend one of our free estate planning or elder law seminars.
How can Medicaid help pay for long-term care?
Medicaid is the federal program to assist the needy cope with extraordinary health care costs, such as long-term care. Health care providers all across the country give a wide range of services with Medicaid dollars. The Medicaid system is funded from both state and federal dollars. Florida runs the Medicaid program under guidelines provided by the Federal government as administered through the Department of Children and Families (“DCF”), where application is made for any benefits. Florida Medicaid helps the elderly, such as those that help paying for care in the nursing home, assisted living or for in-home care.
Medicaid has a good number of rules for applying if your assets are above the bare minimum. Here is our webpage on the Medicaid Income and Asset Guidelines that discusses more about the assets.
One important aspect to Medicaid is that the elder is not allowed to give away assets within 5 years of a Medicaid application. This is commonly known as the Medicaid "lookback" period. If money was given away, a transfer penalty was created. Here is our guide to calculating the Medicaid transfer penalty.
There are a lot of rules for accessing Medicaid, to say the least, and there is no such thing as an easy Medicaid application, even when the applicant's assets are at or below the asset limit. This is why elder law attorneys exist - to help our clients get good care while protecting the assets for their benefit. We have done hundreds of Medicaid applications for our clients over the many years of our practice. If you or your loved one is in the nursing home or assisted living, it is never too late to protect the assets. Also, if you do good planning, their is no Medicaid lien to consider.
If you want to learn more about Medicaid and asset protection planning, you are welcome to attend one of our free monthly educational seminars!
You may also find the following information helpful:
How are Jointly Held Assets Counted for Medicaid Purposes in Florida?
When someone it looking to apply for Medicaid for a loved one, one of the inevitable questions we get usually sounds something like this:
"I am a joint owner on my mother's bank accounts. Are half of the accounts mine for Medicaid purposes?"
The short answer here is that it is only an asset if the other account owner contributed monies to the account(s). The question here is rooted in ownership of the bank account. It is very common for an elder, rightly or wrongly, to add a child as co-owner of their bank accounts in the event they have a decline in health and need someone to pay their bills.
For Medicaid purposes, a joint owner on a bank account is not considered a partial owner for Medicaid purposes. The law presumes that if the Medicaid applicant is on the financial account, they are a 100% owner. Of course, this is usually true as the account is usually the elder's asset and the child was added for convenience purposes. If, however, the child could show that some or all of the money was the Medicaid applicants, then the asset can be excluded.
Of course, there are legal ways to protect assets in the event your elder is in the nursing home. Please call us today for a free consultation on paying for long term care, Medicaid or VA benefits.
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What should I do first upon my loved one's death?
While you may already be doing this, you should take care of important family matters such as planning the funeral, visitation, obituary, family communications and more. This is always the most important priority.
You may also be dealing with the funeral home. At this time you will want them to help you obtain original death certificates for your loved one. We typically tell families to get four original short form death certificates and four original long form certificates. The short form death certificates do not have the cause of death – the long form death certificates are generally used with life insurance policies. If the assets are very simple or the estate very small, you may not need this many death certificates.
It generally takes about 10 days to get the death certificates from the funeral home. Typically, the original death certificate is necessary to get legal and financial matters started.
After you have the funeral and have obtained the death certificates, you can start with the financial aspects such as claiming life insurance policies, annuities, trust settlement and probate, when necessary.
If you want to learn more about probate, what probate is, and other legal aspects, you may want to download a free copy of Navigating the Florida Probate Process, our book written by attorney D. "Rep" DeLoach, III.
How Much Do We Charge For Revocable Living Trusts?
In creating your estate plan, we often look at whether you have a trust based estate plan or a will based estate plan. Part of whether you should have a trust based estate plan is how much money you should spend on an estate plan at this point in your life. The older you get the more likely you are to die and the more useful a trust based estate plan would be beneficial to your family. In our free initial consultation we will review your assets, your goals and your options. If a trust based plan works for you, we will quote you a fixed fee for our services. Importantly, our trust planning fees start as follows:
- Single person trust planning: $2,495
- Married couple trust planning: $2,995
These basic estate plans include the following documents:
- Last will and testament (a/k/a "pour over" wills)
- Durable power of attorney (with Medicaid planning powers, when applicable)
- Designation of healthcare surrogate
- Living will and review of end of life wishes
- Deed of property to trust
- Trust binder for future reference
- Scan of documents for future reference
- Trust Transfer Guidelines (directions on trust funding)
- Guide to Family Members upon Incapacity or Death
This is the base price for our trust planning, and we have other options based upon your desires and other complexities. The reality is that most people who create revocable living trusts do not actually "fund" their trusts. We have price planning options for us assisting with your trust funding, for protecting your children's inheritance from angry in-laws, creditors and Medicaid, and more.
There are no hidden costs and you will know our fee before we proceed. We do not charge by the hour, and we do not charge by the document. We will also not try to sell you annuities or other financial products, as will the “traveling trust salesmen” that come through our community.
More Cost Upfront, Less Cost in the Long Run
We charge a fair price for the value of the services we provide: our counseling, knowledge, continuing training and the unique process we use to assist you to solve your problems and address your concerns. Our initial fees may be a little higher than other attorneys in our community who charge for mere document preparation. However, mere document preparation is certainly not estate planning. Estate planning is a thoughtful process in which, through counseling and informed choices, we co-create a plan with you that addresses your problems and concerns to your satisfaction, and make sure you transfer your assets to your trust.
Elder Law and Estate Planning Together
Not all estate planning attorneys are created equal. The truth is that many estate planning attorneys know next to nothing about elder law, Medicaid planning, VA benefits planning and Special Needs Trusts. We see inadequate trusts, durable powers of attorney and advanced directives all the time that are not even close to the level of documents we create. As we do Medicaid and asset protection planning, we know all the best ways to create your estate plan to make sure your assets do not disappear to the nursing home. We also deal with end of life issues and health care advocacy, making our advanced directives better and more concise. We constantly train and attend continuing education to not just stay on top of the legal trends but to actually create them for other attorneys.
Integration of Estate Planning with Your Assets
The further reality of estate planning is that most people to not actually "fund" their estate plans. This means that many people do not transfer their assets to their trusts and do not change the beneficiaries to their life insurance/IRA/401k/annuities. Your estate planning documents and your assets must work together, and our experience is that many attorneys do not help their clients in this area, where we do.
We look forward to sitting down with you, to discussing your goals and working together to not just create good estate planning documents, but to creating a great estate plan.
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- Should my IRA go to my Living Trust?
- How is DeLoach, Hofstra & Cavonis Different From Other Estate Planning Attorneys?
My Mother/Father Died and They Had a Living Trust. Will I Need an EIN from the IRS?
When a loved one dies with a revocable living trust, we receive this question all the time.
During your loved one's lifetime, their living trust was most likely a "grantor" trust, meaning the trust operated under their own Social Security number. This made things simple and easy for your loved one. But upon the grantor's death, his or her Social Security number cannot be used to manage the trust. The successor Trustee of the trust will need to get an EIN/TIN from the IRS in order to claim the trust's assets and generally manage the trust.
Once you receive an EIN from the IRS, the successor Trustee will be able to gather the trust's assets from the bank and other financial institutions. Without an EIN, the financial institutions will most likely not allow any movement of the assets.
In settling the trust, the trust may need to file a tax return upon/before final distribution on all assets. A trust needs to file a tax return if it has more than $600 in income during a taxable year. This means that simple trusts with outright distributions to beneficiaries will need an EIN, but may not need to file a tax return. Ultimately, we generally have our successor trustee clients work with a trusted CPA to confirm the tax issues.
If you are the successor trustee of a trust, you may need legal help to confirm your duties as trustee. If so, we have helped trustees settle many trusts, helping make sure our clients follow their legal duties and do not make mistakes in the process.
People who read this question may also look to the following questions:
- Do I need an attorney to help settle a living trust?
- What should I do first upon a loved one's death?
- How long does the Florida probate process take?
Can My Estate Plan Protect My Children in the Event of Divorce?
Many estate plans leave the decedent's assets outright to their children, typically with the focus on avoiding the Florida probate process. But when you leave your assets to your children, will their spouse be able to take it away in the event of a divorce? The short answer is maybe. Each state is different in this, but when assets are inherited by a child, the assets typically do not become part of the marital estate. But this does not mean that your child is protected. The best way to plan for your children’s inheritance is to set up a Personal Asset Trust® (a “PAT”) which allows your heir(s) to use and benefit from the Trust’s assets for their lifetime(s). This type of trust is the best of all worlds: the heirs can use the trust funds as needed and desired, but the money is protected and cannot be taken away in the event of a divorce, a lawsuit, or bankruptcy, or if they ever had to be in the nursing home.
The Personal Asset Trust®, a relatively new legal concept, is based upon over 100 years of asset protection law. The Personal Asset Trust® is so unique that only a small number of attorneys throughout the country offer it—those who have taken the time to study and integrate it into their practices, like our law firm. A Personal Asset Trust® includes the following provisions:
- Heirs manage the trust assets during their lifetimes; i.e., they serve as trustees of their own trusts—this simplifies trust administration
- Heirs are free to decide the use of the money, without outside intervention or control; Monies held within the trust are generally exempt from creditor claims;
- Monies held within the trust are not considered “marital assets,” and are not subject to divorce claims or consideration during divorce proceedings;
- Assets in a Personal Asset Account are not considered “countable” in calculating the asset limitation for Medicaid nursing home eligibility.
- Heirs are able to make necessary changes to the Personal Asset Trust® to accommodate health, financial, or marital status changes.
- We typically create a Personal Asset Trust in your own Revocable Living Trust.
Thus, the Personal Asset Trust® protects your (and your heirs’) assets from “outsiders,” provides your heirs with optimal freedom of use, and offers administrative flexibility for your direct heirs and future generations.
Our law firm is one of the few in the Pinellas County area that regularly uses the PAT in their estate planning documents. If you want to protect your children the best way possible, we would be glad to meet with your to discuss your estate plan.
If you want to help make sure your children are protected upon your death so you are not making your ex-in-law wealthy, you will want to use our law firm to help you.
How is DeLoach, Hofstra & Cavonis Different From Other Estate Planning Attorneys?
It is not easy finding the right estate planning or elder law attorney. We know this because we see people come in with terrible estate plans, inadequate documentation and more. The reality is that many attorneys, in our opinion, are mere "document preparers." Document preparers may (or may not) create good estate planning documents but they frequently do not help their clients "fund" their estate plans. Estate planning document do not work in a vacuum, meaning that your wishes may not be followed upon your death or incapacity. Our goal is to not just prepare sound documents but also make sure your assets work in conjuction with your planning.
Advantages of Working with DeLoach, Hofstra & Cavonis, P.A. :
FREE review of your goals, family and assets to make sure our plans all work together upon your death or incapacity.
FREE telephone support in between office visits. If you have simple questions or concerns, your estate planning fee includes free questions as you are now a client of our firm. We want to be your attorney and help you in any way reasonably possible.
FREE subscription to our newsletter. Stay on top of the law, legal changes and other important practice developments that could affect you and your family.
FREE educational seminars for you and your children. We hold periodic seminars that may interest you, your friends and family, discussing various elder and estate planning topics. The best estate plan is the plan that is up to date and current with the law – stay on top of legal changes with our office.
FREE consultation with your heirs in the event of your death. Most family members have never been involved with the death of a loved one and the family has no idea where to go or what to do. Your estate planning fee includes our meeting with your family upon your death, reviewing the options, and discussing the next steps. Your children will feel better knowing that their parents’ attorney will be there for them as well in a difficult time.
FREE meeting with your children in the event you are experiencing advanced health problems. If you become sick and need long-term care, or your family becomes worried that you are not safe at home, we will provide your family with a free office conference in order to protect your assets and discuss how to get you the best care possible.
FREE scan of your estate planning documents for future use and reference. Having your documents scanned and ready for you and your family’s review can be invaluable at the right time.
FREE binder to hold all of your estate planning documents and other important information in an orderly manner.
Please call us today to set up your free initial consultation.
How Can an Attorney Help My Elder Get Good Health Care?
Helping your elderly loved one can be very, very difficult. When your loved one is no longer able to stay at home safely, your loved one enters the long-term care "maze." You, as the caregiver, are forced to navigate this maze, often alone.
As part of the long-term care maze, you are going through three general areas with your loved one:
- Legal Issues: Wills, powers of attorney, estate plans and more.
- Financial Issues: This generally deals with Medicaid and Medicaid planning.
- Healthcare Issues: This is trying to find good care for your loved one. Here, may be dealing with nursing home placement, care concerns, doctors, rehabilitation, assisted living and much, much more.
Our goal in our life care planning practice is to not just placed your loved on Medicaid, but to help you navigate the long-term care maze. We will help you get good care for your loved one with our elder care coordinator. Our care coordinator will make your elder's life better by giving them good care while helping the primary caregiver make the right decisions.
The reality is that you generally would not think about going to an attorney to get good health care, but that is what a life care planning attorney does. We provide not just legal and financial advocacy, but health care advocacy as well!
IF you are having difficulties making the right decisions for your loved ones, which almost everyone does, we will be glad to help you protect their assets, help make sure their legal issues are taken care of, and making sure your loved one gets good health care.
How Much Do We Charge For Last Wills and Testaments?
In our free initial consultation we will review your assets, your wishes and the best way to make sure you and your heirs are provided for. We will send you a questionnaire to complete that will show your family picture, your goals and your finances. In our meeting we will quote you a fee based upon the work and complexity involved. The key to any estate planning is to know that having a will, or a trust, is not mere document preparation, but seeing how your assets work with your written documents. Having a well written will is very important but, even more importantly, you need to know how all of your assets are distributed upon your death as your will may control few of your assets.
Our basic fee to complete a last will and testament is $400 for a single person, $500 for a couple. Our pricing includes an analysis of your wishes, review and execution of your document(s), discussion of assets and beneficiaries, and among other matters.
Please call us today to help you!
Who should serve as my health care surrogate in Florida?
Choosing your Healthcare Surrogate in Florida is one of the most important decisions you can make in estate an incapacity planning. Your health surrogate is the person who will make your healthcare decisions and generally advocate for you as you age or experience a disease process. While we typically associate your surrogate with helping with end-of-life issues associated with your living will, the surrogate’s duties are broader than this. The surrogate may need to help you move to assisted living or nursing home, may need to help arrange home care, may need to attend doctor's appointments and much, much more.
Choosing a surrogate may not be as easy as you think. To help you make the right decisions, you should review the following list of questions to as part of the decision tree. Ask yourself, does your nominated HCS have the following attributes:
1. Would be willing to speak on your behalf?
2. Would be able to act on your wishes and separate his/her own feelings from yours?
3. Lives close by or could travel to be at your side if needed?
4. Knows you well and understands what’s important to you?
5. Is someone you trust with your life?
6. Will talk with you now about sensitive issues and will listen to your wishes?
7. Will likely be available long into the future?
8. Would be able to handle conflicting opinions between family members, friends, and medical staff?
9. Can be a strong advocate in the face of an unresponsive doctor or institution personnel.
In choosing the best surrogate, you should name alternate surrogates as well. This way, if one surrogate is not able to serve, or is not reasonably available, the other surrogate can serve.
As part of our estate planning we will review all of your options, making sure your wishes are followed during your lifetime and upon your death.