Phone: 727-397-5571

Perspectives on Florida Law
July, 2012

A Living Trust Should be Funded - by Dennis R. DeLoach, Jr. Esq.

The primary purpose of a living trust is to shelter your personal assets to avoid probate of your estate when you die and to establish a mechanism whereby your affairs can be handled should you become incompetent.

The first step is to create the legal entity known as a trust. After your trust is created, the trust needs to be properly "funded". This means that steps should be taken to transfer ownership of your assets from your individual name into the name of the trust to be held under the terms of your trust. This would include real estate, mortgages, stocks, bonds, money market accounts, certificates of deposits, checking and savings accounts. If a person passes away and assets are not held in the trust but are still held in his/her individual name, the probate process will NOT be avoided and all of the time and expense to create the trust will have been wasted. One of the major issues we see concerning living trusts is that the trust has never been properly "funded". Many times individuals create a trust but do not fund their trust. This limits the effectiveness of your trust.

There are some assets which should NOT be placed into your trust such as: automobiles, 401K plans and IRA accounts. If you wish, your life insurance can be made payable to the trustee of your living trust.

Your attorney can help you with the transfer of certain items such as real property, but the transfer of other assets such as bank accounts, mortgages and stock in a closely held corporation or LLC interest will be your responsibility to have transferred to the trust. A qualified elder law attorney can guide you through the process but the burden will remain with you to complete these funding steps.

If you have any questions regarding trusts or the funding of same, please call me, Dennis DeLoach, Jr. or call my son, "Rep" DeLoach. We can assist you in deciding whether a living trust is appropriate for you and can help you in creating and funding your trust.

Should I Get A Property Survey? - by Peter Hofstra, Esq.

When purchasing real property, one of the issues presented is - Should I get a survey?

If you are financing your purchase, the decision will undoubtedly be made for you by your lender. Most, if not all, lenders will require a survey of the property so that the survey exception will be removed from the lender's title insurance policy.

If you are paying cash for the property, you must decide whether or not to obtain a survey. The following are some guidelines for you to follow:

A) If the property is not a platted lot within a subdivision, you should definitely obtain a survey;

B) If the property is a platted lot within a subdivision and the neighboring properties do not have any improvements near the apparent boundary lines of the property, a survey is probably not necessary;

C) If there are improvements near the apparent boundary lines of the property, a survey would be recommended;

D) If you intend to make any improvements to the property post-closing (a room addition or the installation of a swimming pool), you should definitely obtain a survey.

In the last case, once you have the survey in hand, you should visit with the building officials in your city or county to verify that you can, in fact, build what you desire to build upon the property.

The cost of a survey is generally low in relation to the cost of the purchase itself. Therefore, when in doubt, obtain a survey and present it to your closing agent so that your title insurance policy will not contain a survey exception. Additionally, when you sell your property, your buyer may be able to use your survey.

Mass Tort � Pradaxa  - by Colin Colgan, Esq.

There is an area of specialty in a personal injury litigation practice known as Mass Tort practice. Mass Torts are characterized by having many different plaintiffs having similar personal injury claims against a single product.

The lawyers at DeLoach, Hofstra & Cavonis, P.A. have assisted many clients who are participants in mass tort claims for over eight years and we continue to look for clients who may qualify for these types of claims. One of the latest mass tort claims involves the prescription drug Pradaxa. Pradaxa, also known as dabigatran, is prescribed to prevent strokes and blood clots in people who have atrial fibrillation without valvular heart disease. Pradaxa has only been available in the U.S. since the Fall of 2010, and is a new alternative to other anti-coagulants like Coumadin and Warfarin. While those medications require frequent lab monitoring on the patients ingesting them, Pradaxa does not. It is this advantage that has been a key selling point.

However, within weeks of its launch in the U.S., the FDA received an unusually high number of early adverse event reports about Pradaxa regarding its effects on bleeding or clotting events, including hemorrhages (too much anti-clotting effect) and thromboembolic events (too little clot inhibiting effect) such as pulmonary emobolism and deep vein thrombosis. Some of the reports involved fatalities. Additionally, it has been determined that Pradaxa significantly increases a patient's risk of heart attack.

If you or a loved one have suffered a stoke, heart attack, brain bleed, gastrointestinal bleed, or death while taking Pradaxa, please contact our litigation attorneys, Paul Cavonis or Colin Colgan, at 727-397-5571.

Planning for a Disabled Heir - by "Rep" DeLoach, Esq.

Good estate planning makes sure you have effectively planned for any disabled beneficiaries. For a number of reasons, you may notwant your estate to be distributed to a disabled loved one. One reason is that any inheritance may make him or her ineligible for public benefits.

The solution to this may be to create a "special needs trust" for his or her benefit.

A number of factors controls whether a disabled individual can qualify to receive government benefits. Depending on the work history and other factors, a disabled individual may receive Supplemental Security Income (SSI). This program helps the indigent disabled have a minimum standard of living and also provides free healthcare in Florida through the Medicaid program. SSI typically provides a monthly stipend of $698/month to the disabled individual.

In order to be eligible for SSI, you must be considered disabled under a relatively strict set of guidelines. If a disability is present, you must also be indigent and own less than $2,000 in countable assets. There are many other requirements for SSI, but these are the two main qualifiers.

Therefore, if you intend to leave money to support a disabled loved one, you should do so in the form of a special needs trust. If you were to distribute a gift or bequest to that individual outright, then that could make them ineligible for SSI as their assets would exceed the $2,000 limit. Thus, your loved one would be ineligible for SSI (and Medicaid) until the inheritance has been exhausted.

With a special needs trust, you create a trust for the beneficiary's support that will not interfere with their necessary government benefits. The special needs trustee can make a number of distributions to the beneficiary under very strict rules, basically providing for a better lifestyle than the minimum government standards. The special needs trustee can pay for travel, entertainment, and an assortment of other expenses. The main object of this type of trust is to allow for a better standard of living and a higher level of medical care than what government benefits alone provide.

Please let us know if you have an intended beneficiary who is receiving government disability. We will be glad to sit down, review your goals and wishes and create a good estate plan that works for you and your disabled family member.

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