May 2009 Archives

May 28, 2009

Nursing Home Residents May Keep $250 Stimulus Payment

Most people who receive payments for Social Security, Social Security Disability Insurance (SSDI), Supplemental Security Income (SSI), or a Railroad Retirement or Veterans Administration disability pension, will receive $250 as part of the American Recovery and Reinvestment Act of 2009. The extra payment is scheduled to arrive by the end of May.

Those who live in a nursing home and receive SSI are not eligible for the payment.

Medicaid-eligible long-term care facility residents and their families should know that the stimulus payment is not considered income and will not be counted as a resource for 10 months (including the month of receipt) in calculating benefits under Medicaid (or any other federal program or state program with some federal financing). The $250 will also not count as gross income for tax purposes. Recipients can save the payment if they want to, but they should make sure that it will not put their savings over the asset limit for any program benefits they may receive as of February 2010.

Medicaid-eligible long-term care facility residents and their families should know that the stimulus payment is not considered income and will not be counted as a resource for 10 months (including the month of receipt) in calculating benefits under Medicaid (or any other federal program or state program with some federal financing). The $250 will also not count as gross income for tax purposes. Recipients can save the payment if they want to, but they should make sure that it will not put their savings over the asset limit for any program benefits they may receive as of February 2010.

Because the $250 payment will not be counted as income, it will not put a Medicaid-eligible resident over the state's income limit. In addition, a Medicaid nursing facility resident should not see an increase in his or her patient pay for the month the payment is received.

May 28, 2009

Tenants in Common without Right to partition and Valuation Discount

When you own Florida property as Tenants in Common, each owner has a right to enter and use the entire property. Often one owner wants to sell their interest while another may not. This can lead to an action for partition where a court will order the property to be sold.

If the owners have an agreement that binds them and the future owners of the property from using a partition to break up or sell the property, the property will and owners will be protected from loosing their rights to use and access the property.

One additional advantage is that these agreements often reduce the value of one's interest in the property because of the restriction on the ability to partition the property.

If you have Florida property that you would like to protect from being broken up or to reduce the value of you should contact a Florida Estate Planning Lawyer by Email

May 27, 2009

Florida wills and property in Puerto Rico

Recently we ran across a situation where an individual in Puerto Rico died with a Florida Will . PR has some unique laws dealing with property and who will receive it under Puerto Rico's laws that can make a Florida Will or will created in another state invalid or ineffective for transferring property. If you live in PR or have property in PR you should have a lawyer in PR review your estate planning documents to make sure your intentions are carried out.

May 26, 2009

Lady Bird Deeds and stepped up basis (Florida Enhanced Life Estate Deeds)

One of the most common questions people ask about Florida Lady Bird Deeds (Florida Enhanced Life Estate Deeds) is whether upon the death of the grantor, the contingent beneficiaries receive a stepped up basis like they would receive if the property was to transfer under a will.

Under Section 2036 of the IRS code, the life estate portion of the Lady Bird Deed causes inclusion in the estate of the decedent. Because of the taxable inclusion in the state there is stepped up basis under the Internal Revenue Code. It is possible that this section of the code might be changed at some time in the future and you should verify this with your tax professional.

May 21, 2009

FDIC Deposit Insurance extended to December 31, 2013

Today it was announced that deposits at FDIC-insured institutions are now insured up to at least $250,000 per depositor through December 31, 2013. On January 1, 2014, the standard insurance amount will return to $100,000 per depositor for all account categories except for IRAs and certain other retirement accounts which will remain at $250,000 per depositor. (This supersedes the October 3, 2008 changes.)

May 20, 2009

The fertile octogenarian: a reality?

All lawyers who took estate planning in law school learned about the possibility of an 80 year-old woman giving birth to a child. This mental exercise is just one of the unusual circumstances a Florida Estate Planning Lawyer might deal with in the drafting of Florida Estate Planning Documents.

Matthew Curtiss, a Connecticut Estate Planning Lawyer who writes the Connecticut Estate Planning, Probate and Fishing Blog, recently posted a link to a 70 year old woman giving birth. While 70 is not 80, it looks like the hypothetical 80 year-old giving birth could one day be a reality.

May 18, 2009

Probate & Summary Administration

duval-court-old.jpgA Summary Administration in Florida is an abbreviated Florida Probate proceeding where estates with assets of less than $75,000 or those where the decedent has been dead for more than 2 years can simplify the probate process. We often find that the families of people who die with a home or other property do not properly administer their loved one's estate at the time of death and must go back to clear up the title so that the property can be sold or transferred properly at some later date.

When a piece of real property is involved in the estate, we have to ask the court to determine if the property is protected as a Florida Homestead or is subject to the claims of creditors. Once this determination is made the property can be transferred properly.

If you need help clearing up the title of a home or property located in Florida that belonged to a person who died, we can help with a Florida Summary Administration, please Contact a Florida Probate Lawyer for more information on this process.

May 12, 2009

Power of Attorney Dangers - License to Steal

gavel.jpgA couple was recently charged with theft and elder abuse for taking money from their elderly parents, under authority of a power of attorney to pay for personal expenses. These included vacations, plane tickets, lodging and meals. Matthew D. Gardner an Iowa Estate Planning Lawyer wrote about this case and the increasing frequency of elder abuse in the past year.

A Power of Attorney grants the agent (attorney-in-fact) broad powers to act in the best interest of he person. Often agents who accept this power do not understand that the money is not theirs to use as their own but the authority grants the agent the power to act in the other person's best interest.

If you suspect that someone is misusing the Power of Attorney granted to them, report the information immediately to the local police who will be able to properly investigate the case. If you have been affected by this misuse you may have a claim against the agent for the harm they have caused you and should Contact a Florida Estate Planning Lawyer

May 9, 2009

Does the HIPAA Privacy Rule allow parents the right to see their children's medical records?

Yes, the Privacy Rule generally allows a parent to have access to the medical records about his or her child, as his or her minor child's personal representative when such access is not inconsistent with State or other law.

There are three situations when the parent would not be the minor's personal representative under the Privacy Rule. These exceptions are:

1. When the minor is the one who consents to care and the consent of the parent is not required under State or other applicable law;
2. When the minor obtains care at the direction of a court or a person appointed by the court; and
3. When, and to the extent that, the parent agrees that the minor and the health care provider may have a confidential relationship.
However, even in these exceptional situations, the parent may have access to the medical records of the minor related to this treatment when State or other applicable law requires or permits such parental access. Parental access would be denied when State or other law prohibits such access. If State or other applicable law is silent on a parent's right of access in these cases, the licensed health care provider may exercise his or her professional judgment to the extent allowed by law to grant or deny parental access to the minor's medical information.

Finally, as is the case with respect to all personal representatives under the Privacy Rule, a provider may choose not to treat a parent as a personal representative when the provider reasonably believes, in his or her professional judgment, that the child has been or may be subjected to domestic violence, abuse or neglect, or that treating the parent as the child's personal representative could endanger the child.

May 8, 2009

Wills and Trusts - What happens with each

Often the decision of whether to use a Florida Will or Florida Revocable Trust depends on issues surrounding distribution of assets, disability, and death. This summary of issues should help you determine which is best for your circumstances.

Privacy

What happens with a Will No privacy. All documents and proceedings after death are public.

What happens with a trust Totally private unless court intervention is required, usually due to improper drafting or lack of funding.

Disability Planning

What happens with a WillNo provisions for mental or physical disability. The disabled person is subject to the court process for guardianship and conservatorship. Can also use powers of attorney.

What happens with a trust Trusts privately handle assets upon disability without court intervention. Disability is determined privately by family members.

Tax Planning

What happens with a Will Available only if assets are correctly titled to pass through the probate process. Funding of trusts through the probate process will generally take longer and cost more than funding a living trust.

What happens with a trust If the trust is properly funded and continually updated for changes in the law and personal situations, tax planning is ensured. Funding of trusts is quicker and easier than trusts funded through the probate process.

Disposition of Assets

What happens with a Will Can be used for disposition of assets upon death either outright to beneficiaries or in trust. This is done through the probate process and generally takes longer and costs more than a living trust.

What happens with a trust Can be used for disposition of assets upon death either outright to beneficiaries or in trust. This is done privately and much faster because the probate process is totally avoided.

Creditor Protection

What happens with a Will None while alive. Creditors have only a specified amount of time to present claims or they are forever barred.

What happens with a trust None while alive. No creditor claim "shutoff" period. However, most trusts provide that valid debts be paid.

Effort Required

What happens with a Will Less now unless you require tax planning and asset protection for your heirs; A great deal of work for your heirs after disability or death.

What happens with a trust More effort to properly design the trust to accomplish all of your goals today, upon disability and after death. Far less effort by heirs later.

Cost Now

What happens with a Will Usually small

What happens with a trust Moderate

Costs to Amend

What happens with a Will Usually small

What happens with a trust Usually small

Cost Later

What happens with a Will Can be small, but generally extremely high due to probate court intervention.

What happens with a trust Usually minimal if the trust has been fully funded and is properly maintained.

May 7, 2009

Keeping Mom and Dad Safe at Home

Generally, elderly parents want to remain living in their own home. However, remaining in the home becomes a concern when children see their parents slowing down, perhaps even having trouble with handling stairs and doing general daily activities. Yet, with parents' mental and physical health currently not creating problems, there seems to be no imminent need to search out support services or other accommodations for aging parents.

This is now the time to evaluate the home to make it safe and secure for your loved ones -- now and in the near future -- in anticipation of aging disabilities that may occur. Help and support are available. The nation as a whole is more aware of elderly needs and services and products are becoming available at an outstanding pace.

Continue reading "Keeping Mom and Dad Safe at Home" »

May 7, 2009

Wills and Trusts- Which is Better for me

In Jacksonville and around Florida we are often asked about the differences between a Florida Will and a Florida Revocable Trust. Although each persons circumstances are unique, generally the following factors tend to determine which is better in relation to disability and death in relation to the cost of a Florida Probate or avoiding Probate in Florida.


A Will tends to be the best tool if these issues fit your circumstances:

Limited cash flow
Limited assets, including life insurance

A Trust tends to be the best tool if these issues fit your circumstances:

Older clients
Large qualified retirement plans (IRA, 401k, 403b, etc.)
High cost / difficulty death probate state
Simple, outright disposition of assets at death
More sophisticated disposition of assets at death
Privacy issues
Possible or probable mental disability
Desire to make everything as easy and inexpensive as possible for heirs
Out-of-state real estate or timeshares
Complicated disposition issues
Out-of-state executors, trustees or guardians
Tax planning
Protection of inheritance for spouse, children and grandchildren
Planning for couples on second or subsequent marriage
Medicaid planning or qualification issues
Planning for beneficiaries with "special needs"


To find out which is best for your particular situation Contact a lawyer in Florida who is familiar with Florida Probate and Florida Estate Planning

May 6, 2009

Advantages of Using a Trust for Estate Planning

Estate planning can help deal with the proper use and distribution of your assets upon a disability or your death. Below are several of the advantages of using a Florida Revocable Trust for Disability and Death Planning.

DISABILITY PLANNING

No probate, so everything remains private.
You decide the criteria for your disability and you pick those who will determine whether that criteria have been met.
You decide how your want your health care needs handled and you decide who will take on those duties.
You decide how you want your assets handled and you decide who will take on those duties.

DEATH PLANNING

No probate, so everything remains private.
By making your trust the centerpiece of your estate plan, you assure that distributions to your loved ones are exactly as you had planned.
You leave your assets to loved ones with certain protections. Unfortunate catastrophic illness expenses, divorces, accidents caused by your loved ones, or creditor problems will not cause the assets you leave your loved ones exposed to depletion as those issues are resolved.
By what you say in your trust (and by example), you leave your values to the next generation.
You achieve maximum federal estate, gift, and income tax savings.

To discuss how a properly drafted and implemented Florida Revocable Trust can help protect you in the case of disability or death, Contact a Florida Estate Planning Lawyer

May 5, 2009

Efforts to Avoid Probate Can Cause Problems

In Florida all sorts of clerks, customer service people, insurance sales people, brokers, account managers, and other employees of financial institutions give customers advice about how to title accounts and name beneficiaries. In an effort to avoid probate, these seemingly harmless changes can cause many problems with estate plans.

Most new account forms at financial institutions ask you to name a beneficiary. This does not have to be completed and sometimes you are better off to leave it blank than to fill in a name or attempt to name a proper beneficiary.

Often when filling out beneficiary designations people do not understand how a share of the assets will be treated if that person predeceases them. Will the share go to their descendants or to other named beneficiaries and is that what was intended.

Other problem can happen when there are future children born who were not contemplated at the time the account was created or if all of the beneficiaries do not agree.

There are good ways of avoid Florida Probate , and it can often be dealt with through proper beneficiary designations, use of a will, or use of a Florida Revocable Trust.

Often a Florida Revocable Trust or Florida Will can simplify the need to change designations in the event of changes in your life such as a divorce, marriage, or birth or death of a family member. With a Florida Revocable Trust or Florida Will you can simply modify one document and it will take care of all of the accounts that are under it. Sometimes it is difficult or impossible to make changes when a spouse becomes incapacitated.

If you would like to review your Florida Estate Planning you should Contact an attorney familiar with Florida Estate Planning

Update:
Jacksonville Probate Lawyer, David Goldman has put together a Florida Probate Handbook that is being offered free to readers and visitors of his websites. If you would like a copy, visit the Free Florida Probate Handbook web page, fill out the form, and one will be sent to you within 24 hours by email.

May 4, 2009

Abuse of Florida Durable Power of Attorney

elderly300x247-380.jpg Recently we have begun seeing more cases involving agents who abuse their power of attorney in order to benefit themselves.

Most people do not realize that once they have become an agent for an individual, their duty is to act in the best interest of the individual and not for their own benefit. Sometimes agents make gifts to themselves or change the way bank or stock accounts are title so that the become the beneficiary upon the death of the individual. These actions are violations of the agents fiduciary duty and self dealing. Often what is done interferes with someone's right to an expectancy as a beneficiary or owner of an account.

In addition to creating liability to the beneficiary or the decedent's estate, in Florida such actions can also create criminal liability under Florida's Elder Abuse Statutes. If you have been accused of actions like these it is important to coordinate your defense with a Jacksonville Criminal Defense Lawyer who is familiar with Florida Abuse of the Elderly.

It is important to file a caveat or lis pendens as soon as possible to prevent the assets from being transferred to those who are without notice of these potential claims. Filing a caveat can make sure you receive notice prior to a will being admitted and a personal representative being appointed by the Florida Probate court.

If you believe your inheritance has been adversely affected by the actions of an agent acting under a durable power of attorney please Contact a Florida Estate Planning Lawyer to discuss an action against the agent or the estate.