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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What Happens to the Power of Attorney When Someone Dies in Florida?
In Florida, like in all states, the power of attorney ends when the principal/grantor dies. A durable power of attorney is a useful document that gives your agent the power to help manage someone's legal and financial affairs during their lifetimes. When the principal/grantor dies, the power of attorney ends. This may mean that the decedent's estate/probate takes over or a number of other possibilities.
The next question: who is in charge upon death? This may mean that the decedent's personal representative/executor would then take over. This may mean that the probate process would then take over. If the decedent had a revocable living trust, the successor trustee takes over and manages the decedent's affairs. You may need legal help with this part of the process, or at least a consultation with a good probate attorney.
You can learn more about the probate process with our free handout: Navigating the Florida Probate Process
If you are concerned about the effects of probate upon your death, you may want to establish a revocable living trust for you and your family's benefit.
My Elder is on Medicaid - Can we Sell the Family Home?
If your loved one is in the nursing home or assisted living facility and is on long-term care Medicaid in Florida (i.e., nursing home or assisted living Medicaid), you may know that the applicant is allowed to own a homestead property if the property is less than $603,000 in value (2021). If the Medicaid recipient is single, then all of his or her income, minus $130/month (the personal needs allowance), must go to the facility as part of the patient's responsibility. This means that the Medicaid recipient may own the homestead property but that her or she cannot keep their income to actually pay for the home. The family will have to pay for the home costs if they want to keep it.
But what if there is no family member that is able or willing to pay for the home's upkeep (i.e., taxes, insurance, utilities, maintenance), or the family does not want to maintain the home? This is a very common question that we can help you address.
If the elder/family have decided to sell the homestead property, the proceeds would take the applicant off of Medicaid, only if they keep the funds. Funds retained by the elder will become countable assets for Medicaid purposes, which will eventually take the elder off Medicaid. Importantly, if the homestead property is sold, Medicaid will not take the proceeds away, but the proceeds will take him or her off of Medicaid unless the family acts quickly. This means that with an elder law attorney's assistance, the sales proceeds can be protected.
Once the home is sold and the proceeds come in, the Medicaid recipient must disclose the sale to Medicaid within 10 days as a change of circumstances. In order to keep Medicaid, the sales proceeds must be legally spent or protected by the end of the following month. At or before the sale of the home, this is when you will want to start your work with an elder law attorney. There are plenty of options in protecting the sales proceeds, such as:
- Medicaid spend down planning
- Personal Services Contract (legal way to pay family member for future help)
- Pooled Trust
- Income Producing Real Property (with attorney guidance)
- Paying off creditors/families for legally enforceable debt
Your options in protecting the home sale proceeds depends upon a number of issues, which should be addressed with a qualified elder law attorney before you sell your home. These issues include:
- Having a good estate plan in place, maybe with a revocable living trust;
- Having a good durable power of attorney if the elder is incompetent;
- Hiring the right attorney to help protect the assets and appropriately inform Medicaid
Importantly, you cannot gift the homestead property away within 5 years of a Medicaid application, so planning in advance is very important if you want to provide an inheritance for your children. If you want to protect your home for your children's inheritance before you go into the nursing home or assisted living facility, you may want to download a copy of our free guide to protecting your Florida homestead property.
What if one spouse is in the nursing home on Medicaid but there is a spouse at home?
The sale of the home would not effect Medicaid for the spouse in the nursing home with the caveat that the proceeds from the sale of the home should be placed into the community spouse's name. If an attorney assisted the family with a Medicaid application, it would be best to confirm this possible plan with that attorney.
Also, many people ask will Medicaid take the proceeds from the sale?
No - Medicaid will NOT take the proceeds from the sale of the home during your lifetime, but if you hold onto the proceeds, this will take you off of Medicaid. Basically, once the home is sold, the sales proceeds will take you over the asset cap (only $2,000 for a single person, for instance) and this can take you off of Medicaid. But, if the family/applicant acts to protect the proceeds, (i.e., spend down), the Medicaid applicant will not lose their Medicaid. When the home sales, for instance, the assets should have been legally spent/protected by the end of the month after the sale in order to ensure that Medicaid eligibility has not been disrupted. Also, the rules are different for a married couple under most circumstances.
Can we hold onto the home with Mom/Dad on Medicaid?
Yes. Medicaid will not take the home or force the home sell if the elder is in the nursing home or ALF and on Medicaid. No matter how long the elder is not living at home, the home will not lose its homestead. The main problem is that the family should not rent the home and all of the elder's income is going to the nursing home as part of their patient's responsibility, so the family is stuck with all of the costs to keep the home.
Finally, can DeLoach, Hofstra and Cavonis P.A. help us protect the proceeds?
Yes. It does not matter where you or your elder is located in Florida. Medicaid is a statewide system and we are glad to work with and help families from all over and out of state. We have helped hundreds of clients in situations just like this and we are glad to help you out now.
People who read this article may want to read the following:
- Can we protect assets with the elder already in the nursing home?
- My loved one just went to the nursing home - what will happen next?
How Much Do We Charge for Probate?
Many people are often shopping for attorneys upon a loved one's death. Our preferred method on starting any probate is to get together for a free initial consultation. In our initial consultation, we will likely send you a questionnaire to complete to assist everyone. We would review the completed questionnaire, review the decedent’s assets, the estate planning documents (i.e., will and/or trust), and then quote you a fee for our services.
Our office general charges a fee in accordance with Florida Statutes 733.6171. Under the Florida Statutes, an attorney is entitled to a “reasonable fee” to act as the estate’s attorney. Generally, a reasonable fee under the Florida Statutes is 3% of the probate estate’s inventory value on the first $1,000,000. An example is as follows:
The estate inventory showed a gross value of $200,000, which consisted of bank accounts, stocks and bonds. According to the statute, a reasonable attorney’s fee would be $6,000 (3% of $200,000).
Every situation is different so we will be more than happy to meet, review the probate, and quote you a fee for our services in our initial meeting so that there are no surprises.
People who have read this may want to read:
How can I make sure my estate wishes are followed after my death?
The thought of losing control over a home or business can be a great worry to most people, especially after they've invested so much of their time and effort into building their legacy. While it's possible to pass everything on to your loved ones, there are several precautions you'll need to take along the way—especially if your estate plan has been left open to technicalities that can rob your heirs of their inheritances.
Provisions for the Future
In order to make sure the correct beneficiaries inherit and that your property is divided according to your wishes, your attorney should make the proper additions to your estate plan during your lifetime. Depending on your goals, these provisions may include:
While most attorneys merely create the financial framework for their clients, the experts at DeLoach and Hofstra help clients fund their estate plans with IRAs, 401ks, and transferring assets into trusts. We also advise you on the best use of revocable and irrevocable trusts, IRA trusts and special needs trusts to make the transmission of your holdings as painless and accurate as possible.
The beneficiaries you choose to inherit your property will vary over the course of your lifetime, and the provisions you make for your relatives may change as you get older. Children who have come of age may no longer need the trusts that you established for them, while former spouses may still collect on your life insurance policies if their names haven't been removed. We can help you select the beneficiaries who are most likely to adhere to your wishes.
Notating Gifts and Loans
If one of your children, dependents, or beneficiaries has taken a loan from you, it may be worth notating it in your estate plan. An unpaid loan at the time of death may affect the amount each person inherits; while classifying the loan as a gift may carry tax implications.
Anticipating and avoiding common sources of conflict during inheritance helps keep family members together as grief and tensions run high. Clearly outlining the manner of your funeral arrangements and interment in advance—and notifying affected parties while you are alive—can go a long way toward preventing disruptions later. We include funeral wishes as part of our estate planning binder.
Division of Personal Property
In addition to carefully choosing the people who will inherit your holdings, our estate planning binder contains separate lists to name who should inherit your cherished personal property. These items may be called into question if they're not signed and dated, or do not contain enough detail to fully describe each item.
Unlike other attorneys, the experts at DeLoach, Hofstra & Cavonis offer a review of your estate plan every five years to make sure your estate plan is current and your wishes will be followed. As part of this process, we can review the designations in your healthcare directives, decide who to designate as power of attorney, remove deceased inheritors, and add provisions for new inheritors, such as new spouses or children born after the previous estate plan was established.
The provisions enforced in an estate plan are final, and you won't be able to apologize or explain any of your choices to avoid hurt feelings after your passing. However, failing to make an estate plan in order to avoid potential negativity often creates more problems than it solves, and forces loved ones to deal with court battles and family arguments while they're trying to grieve. A thorough estate plan tells your loved ones they are special to you, and allows you to be remembered in the way that would please you most.
We Help You Maintain Control of Your Florida Estate Plan
The best way to avoid surprises and learn your best options is to prepare your plan with an experienced estate planning and elder law attorney. Use the convenient contact form on this page to schedule a consultation to speak to an attorney about the best way to protect your future wishes.
My Elder Just Went to the Nursing Home - What Will Happen Next?
Part of our elder law practice involves helping people after a change of health, such as their parent or spouse having a medical downturn (stroke, fall, etc.) and going to the hospital. After a hospital stay, an elder is typically discharged to get rehabilitation in a skilled nursing facility. This is a very difficult and confusing time, which we call the “long-term care maze.” Navigating this maze is difficult because:
- You have likely never done this before;
- You and your family may not be prepared (can you ever?);
- People (friends, family, neighbors) come at you with bad advice on things you should be doing;
- You are concerned about Medicare, Medicaid, powers of attorney and more; and
- You do not know what the next steps are.
So now that your loved one went to the hospital and is in the nursing home getting rehab, what questions should you be looking at?
- How long will they be there?
- What type of health insurance do they have?
- How expensive will rehab be?
- How are they responding to rehabilitation?
- Are the proper incapacity and estate planning documents in place?
- Should we apply for Medicaid?
- Will VA benefits help?
- What will happen next?
Let’s discuss each of these questions in a little more detail:
How long will he/she be there?
Generally, the elder’s ability to stay in rehabilitation is based upon their ability to get stronger and improve. The purpose of rehabilitation at this point is to get as strong as they can or to prevent further decline. At some point, whether through a decline in health, dementia or just general improvement, the elder's health insurance (i.e., Medicare or HMO) will stop paying for their stay in the rehabilitation facility.
What type of health insurance do they have?
This is very important as it may tell us how long the elder will be able to stay in rehab. The elder will likely either have Medicare with a supplement or a Medicare replacement policy (HMO or PPO). Medicare will pay up to 100 days of rehab with a co-pay of $185.50/day (2021) for days 21-100. The co-pays may be picked up by the Medicare supplemental policy depending on the Medigap plan; plans A and B do not cover the skilled nursing co-pay. An HMO or PPO will have a similar payment program based upon the individual policy. Generally, Medicare is more generous in allowing rehab days than HMOs. Regardless of health insurance, it is extremely rare that the elder will stay the full 100 days in rehab covered by their health insurance, which means now is the time to start planning on where they will go next. Learn more about Medicare and Long-Term Care here.
How is the elder responding to rehabilitation?
Health insurance only pays to get the patient stronger and will not pay if he or she is not willing to participate, is too sick, or cannot participate in rehab due to dementia. The family must work with the facility to make sure the elder is participating and getting stronger. If the elder cannot or will not participate in their therapy, for instance, the health insurance will stop covering the rehabilitation.
How much will skilled nursing cost?
The cost for skilled nursing will vary based upon the health insurance, but it can get very expensive if you are not working with the business office and social worker to keep track of how the elder is progressing, the type of health insurance, and other factors. When the health insurance (i.e., Medicare or the HMO) stops paying, the cost for long-term nursing care is around $300-$350/day. When the health insurance stops paying for rehabilitation, this generally means that the elder is now in the skilled nursing facility for long-term care.
Are the proper incapacity and estate planning documents in place?
Now is definitely the time to make sure the elder has a last will and testament, durable power of attorney (done by an elder law attorney), designation of healthcare surrogate and living will. It may be time to update these documents if they are over 5 years old, or at least reviewed by an elder law attorney for accuracy, proper execution and relevance. Not all powers of attorney are created equal, for instance, and some do not allow the elder to protect their assets from the high cost of the nursing home.
Will VA benefits help?
A wartime veteran or his/her surviving spouse may be eligible for VA benefits when there are unreimbursed medical benefits. Please see our page on veteran's benefits and long-term care. At this point, it is likely that the VA will not help with nursing home/rehab costs, but it can never be too early to look for the veteran's military discharge paperwork, for instance. We can generally say that VA benefits will provide the most help when a veteran is trying to stay home or looking for help with the cost of an assisted living facility.
What will happen next?
When the rehabilitation portion ends, the elder has three choices:
- Go home if they are well enough;
- Go to an assisted living facility; or
- Stay in the nursing home (very expensive!).
The ability to do any one of these may be very difficult. Will they be safe at home? Will Medicaid pay for home care? Will Veterans benefits help? What is the right facility? All of these questions, and more, are a part of the long-term care maze.
Importantly, our law firm is here to help you navigate the long-term care maze. With our health advocate on staff, we help make sure the elder is in the right place, getting the right care and then taking the next steps, through the maze, together.
Should we apply for Medicaid?
This answer will depend on a number of factors such as where the elder goes next, their mental condition, their assets and their income. Now would be the time to meet with our law firm to make sure you are prepared to navigate the long-term care maze, protect assets, apply for benefits, and be prepared for will come next. Also, see the our list of Seven Lies Your Friends Tell You about Florida Medicaid. You may want to lean about effective spend down planning as well.
What about moving to assisted living?
If the elder has been declining or may not be safe to go home, the family may want to take advantage of the elder's time in the nursing home and apply for Medicaid. Please read our report on obtaining Florida Medicaid for the assisted living facility. Veteran's benefits, such as "Aid and Attendance" may also be helpful in paying for your elder's assisted living facility as well.
When your elder has experienced a downturn in health, our law firm can help you answer all of these questions, and more, to make sure your elder gets the proper care, the assets are protected, and the family gets the help they need in making the right decisions.
Can Our Law Firm Help?
We may be able to help, yes. Medicaid is a statewide program and we have helped families protect assets and apply for Medicaid across the state of Florida. We offer consultations to see what we can do. Importantly, the elder will need to participate or the family must already have a good durable power of attorney to protect assets.
Download our Free Book!
I have written a free book available for download that will address issues such as Medicare, placement issues, long-term care options, Medicaid and more. Don't Lose Your Nest Egg to a Florida Nursing Home is available for free download.
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How Often Should You Revisit Your Florida Estate Plan?
It's important to review your existing estate plan regularly. A good rule of thumb is to go over all of your documents every three-to-five years, although residents who have a large number of assets may wish to review their estate plans more often. However, you shouldn't wait to make changes to your documents if you've experienced a life event that could significantly impact your future wishes.
Life Events That Can Affect Your Florida Estate Plan
A person’s needs, family members, and possessions change considerably over the years. Florida law allows for the protection of children, spouses, businesses, and even pet care planning, but these protections will only remain in place as long as you keep the designations on your estate plan current.
Major life events that can impact your estate plan include:
- Marriage or divorce. While the law allows some direct inheritance of shared property for spouses, your spouse will not automatically become your beneficiary. If you want your spouse to inherit your property; have access to your life insurance and brokerage accounts; and make end-of-life decisions for you, you must specifically name him or her in your estate plan. In addition, any former spouses whom you no longer wish to inherit assets or make decisions on your behalf should be removed from these documents as soon as possible.
- Birth and adoption. As your family grows, you may wish to expand your estate plan to accommodate new family members. Not only should you specifically name your children and grandchildren as heirs, but you should stipulate who will care for minor children if you die before the child turns 18. There are additional protections available if your child or grandchild has special needs; requires funds for education; or if you wish to provide for a child from a previous marriage.
- Buying a home. Any significant acquisition of property, real estate, or other assets should be included in an estate plan. For most people, a home is the largest life purchase they will ever make, and an estate planning attorney can advise them on how to pass on the property to a surviving spouse or children after their death. You should also update an existing plan if you move to another state; purchase real estate in another state; or wish to minimize the amount of estate taxes your beneficiaries will owe.
- Opening or closing a business. If you're a partner in a business concern, you can outline your wishes for succession; who should receive your holdings; and who should take over the day-to-day operations of the business. If the opening of the business involved borrowing a large amount of money, an attorney can prevent bill collectors from seeking debt repayment out of your personal holdings. If your business was sold or dissolved, an attorney can excise any professional beneficiaries from your will.
- Changes in your health. If you've been diagnosed with a degenerative condition or another health concern that can affect your decision-making ability, carefully consider who should care for you if you become incapacitated. Your estate plan should include powers of attorney for finances, designations of health care surrogate, and a living will—for both you and your spouse. Updating your documents may also allow your family to protect your assets in the event you need long-term care from Medicaid.
- Changing insurance policies. Update your estate plan any time you buy a new insurance policy or make a drastic change in your coverage. Beneficiaries designated in life insurance policies generally take precedence over those named in wills or trusts, but ensuring that all documents agree can save confusion and possible court costs later.
Changes to the Law
Many estate plans do not age very will due to changes in the law, so we generally say that you should review your estate plan with your attorney every 5 years. For instance, Florida drastically changed their durable power of attorney statute in 2011 and also changed the Designation of Healthcare Surrogate in 2015. While the Federal estate tax exemption is now very high (i.e., $5.49 million per person in 2017), your older estate planning documents may need drastic changes as well.
Legal Trends May Change
While most estate planning tries to save your family time and money by avoiding probate, other trends have recently emerged in estate planning. For instance, your estate plan can help protect your children's inheritance from their creditors, ex-spouses or even the high cost of long-term care. If you want to protect your assets from the high cost of nursing home care, you may want to consider an irrevocable asset protection trust as well.
We Can Help With Important Decisions
Failure to update wills and trust documents can cause confusion and financial problems for your family members down the road. For example, if you've named a guardian to your children who has predeceased you, your surviving family members may be forced to choose a guardian amongst themselves.
Reviewing your estate plan at regular intervals helps ensure that your wishes are followed and that your beneficiaries receive proper care after your passing. We can review the designations in your will, trusts, and healthcare directives, and advise you of changes in state or federal inheritance laws to minimize your tax liability. Contact us today to discuss your future wishes with a member of our legal team.
Will I have to pay income taxes on my Florida Inheritance?
If your loved one recently died, you may be concerned about probate, trust settlement and other issues. Among those includes tax issues - both estate taxes and income taxes. On income taxes, the receipt of an inheritance is not income to the beneficiary. Our income tax system is based solely upon working for your income. An inheritance is not something that you worked for, so the receipt of an inheritance is not taxed to you as income.
One possible exception to this rule is the receipt of an IRA or an Annuity. Once monies are removed from an IRA or an annuity, there may be taxable consequences to the beneficiary as the assets have likely appreciated in value.
The likely tax return that an heir should be concerned with is the estate tax, but an estate tax only applies if the decedent's estate is worth more than $11.20 million (2018). Most people do not need to worry about this as most estates, by far, are below level.
If you want to learn more about probate and the probate process, feel free to download our Free Guide to Navigating the Florida Probate Process.
How can I avoid probate court proceedings in Florida?
Under Florida law, certain assets must go through probate court proceedings after an individual’s death. This is a way to keep track of all of the deceased person’s assets; pay any outstanding debts or taxes; and ensure that property is legally transferred to beneficiaries. The biggest drawbacks of the probate process are that it can take a long time for the beneficiaries to gain possession of assets due to a fairly cumbersome court process.
Some Assets Do Not Go Through Probate in Florida
It is our general opinion that good estate planning generally tries to avoid probate, although there are worse things than actually having assets go through probate. In our opinion, what is much worse than probate is having assets go to the wrong people or having heirs fight over assets upon your death. Compared to probate, having these two things happen can be much worse than the probate process!
In order to know what assets go through probate, you need to look to how each asset is held:
- Probate Assets. Probate assets in the decedent's own, individual name. These assets are distributed according to the decedent's last will and testament if they had one, and if not, then according to the Florida laws of intestacy (i.e., the decedent's family) if no will existed.
- Joint tenancy property. Property that is owned jointly by the deceased and someone else may be passed directly to the surviving owner under a law called the right of survivorship. This can be a house that is owned by a couple, or a joint bank account with two named owners. In order to avoid probate, the survivor must have his or her name listed on the joint tenancy property and no other beneficiaries are on the title.
- Should you add your children to your property? Generally, the answer is a NO! Adding children as co-owners of your property is frequently (but not always) a bad idea. Before you add a child to your assets, including your home, speak with your estate planning attorney first.
- Beneficiary-designated accounts. Florida law allows residents to add a payable-on-death designation to checking accounts, savings accounts, retirement accounts, certificates of deposit, and life insurance policies. As long as the deceased person has designated a beneficiary, the money in the account may be transferred to the named person without probate.
- Should I do this on all of my assets? Generally, this can be a mixed bag and very problematic in certain situations. With all of the assets having beneficiary designations, who is in charge of the funeral expenses? Who is in charge of the decedent's taxes? Hiring the accountant? Paying household bills? If nothing goes through probate, this may create huge problems! One advantage to having assets that go through probate, or assets being owned by a living trust, is that someone can be in charge of your assets and make sure your final expenses/taxes/costs can all be paid from one common pot of money before being distributed to beneficiaries. One misunderstood easpect of estate planning is that the executor ("personal representative" in Florida) is nominated by your last will and testament but appointed by the probate court. If no assets go through probate, no one is in charge of anything, which can be problematic with families that do not get along, for instance.
- Revocable Living trusts. In Florida, assets that are held in a living trust may pass to beneficiaries without probate court proceedings. These trusts must be created before your death, and all assets—including real estate, antiques, vehicles, and so on—must be transferred into the trust under the terms of the trust document. You'll remain trustee until your death, at which time your named successor will be control the assets in the trust. Generally speaking, trust planning is usually the best way to create your estate plan if you want to avoid probate upon your death.
- Enhanced Life Estate Deeds. Florida is one of the few states that allow enhanced life estate deeds, sometimes referred to as "Lady Bird deeds." These deeds allow residents to preserve their eligibility for Medicaid during their lifetimes while keeping valuable assets in the family. After death, the real property named in a Lady Bird deed pass automatically to beneficiaries without probate—meaning that assets cannot be taken by the state to recoup any Medicaid benefits used by the decedent.
- We sometimes use enhanced life estate deeds for simple estate matters and living trusts for more complicated matters. Basically, enhanced life estate deeds do not cover contingent beneficiaries very well. As an example, Mom creates and enhanced life estate deed transferring her home to her three children upon her death. If one of the children dies before Mom, that child's 1/3rd share would need to be probated. Living trusts cover contingencies while deeds simply do not.
Florida generally has two different types of probate - one is easy, one is much more complicated - and probate can take 5-8 months under most scenarios. Some estates won't need to go through formal probate at all. If a deceased person had no assets in their own, individual name, then no probate is required. If a person leaves behind few assets, beneficiaries may be able to go through a shortened version of probate known as summary administration. If the holdings of the estate aren't eligible for either of these simpler method of administration, beneficiaries must go through formal probate. The key here is seeing a good probate attorney to direct you when the time comes.
Let Us Help With Your Estate Planning
The best way to protect your holdings and provide for your family members is to create a Florida estate plan tailored to your specific needs. Contact us today to speak to a member of our legal team about your ideas for the future.
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 our law firm 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 generally no, unless you have a specific reason and considered the potential problems. The reason why we do advise more than one is in the event of a conflict. With multiple named attorneys-in-fact, there is always the ability for people to conflict on decisions. Conflicts may mean paralysis as each decisionmaker can overrule the other and the only way out would typically be a guardianship proceeding. Who is in charge with multiple powers of attorney if a conflict occurs? Answer: no one (or everyone)! 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 or what have you.
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 to their advanced age, however, they name their trusted and responsible son/daughter as co-power of attorney so he/she can step in and help when or if they have a problem at the same time. 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 can help prevent crisis situations and stress for the family, to say the least
Consultation with a good attorney may help you figure the right way for your own situation, of course. If your children travel and are all trustworthy, for instance, then naming children and co-attorneys-in-fact with independent signature power can be just fine. If you do not do things the right way, the power of attorney may not be able to prevent a guardianship, so think about things thoroughly!
What about Co-Health Care Surrogates?
Also, while you are here, you may want to think about your advance directives (health care surrogate and/or living will). Remember, your power of attorney is for financial and legal decision making while your health care decisions are subject to your advance directives. Now, we do not want you to name co-health care surrogates - that is generally a bad idea. You do not want co-surrogates to make decisions on your end-of-life decision making.
Making it Easier on your Children?
Sometimes people think about spreading the potential burden around been family members, and that can be helpful in the right situation. For instance, you name your financially savvy daughter as your power of attorney but your son who is in the medical field as your designation of health care surrogate. This way, one can pay the bills while the other can do all the doctor/care management work. A lot of factors go into the decisionmaking of who to choose as your health care surrogate.
How does a Living Trust Work?
Planning with a revocable living trust is very common in Florida. A trust is an excellent way to avoid probate and prepare for your incapacity and can be recommended under a variety of situations. Learn more about how durable powers of attorney interact with revocable living trusts here.
Why use an attorney to help with your incapacity planning?
Your incapacity planning may be the most important estate plannind decision you make and you should not use on-line forms to assist you. Simply put, the training a good elder law attorney receives, plus the experience of working with elders on a daily basis, cannot be replaced by forms. Do not put your faith in on-line forms!
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. You may also want to download my free book, the Top 20 ways to Protect Your Florida Estate.
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.
If the money is the elder's you cannot give it away in order to protect the funds. Please see this page on the Medicaid Transfer Penalty. Of course, there are legal ways to protect assets in the event your elder is in the nursing home. We have a great deal more information on Medicaid spend down planning in Florida.
If you liked this FAQ, you may also want to read:
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.