November 2011 Archives

November 30, 2011

2012 Florida Mediaid Eligibility Requirements

The eligibility requirements for Medicaid have changed for Florida as of 1/1/2012. There were changed in the income criteria, maximum amount of assets, and maximum equity in your homestead property.

Florida Medicaid Income Limits as of 1/1/2012.

The Applicant's income limits have increased from $2022/ month to $2094/month. If the applicant for Medicaid has income in excess of $2094, they may use a Qualified Income Trust or Miller Trust to help the applicant qualify for Florida Medicaid Benefits under the Medicaid Asset Test.

Florida Medicaid Asset Limits as of 1/1/2012.

For an individual who is not married, the Applicant can only have $2000 in countable assets. This number is unchanged from 2011.

For an Applicant who is married, their Spouse's Asset limits have increased from $109,560 in 2011 to $113,640 as of 1/1/2012.

If you have more than the maximum assets, we can talk about how to convert countable assets to exempt assets, spend the money appropriately or plan for gifting, loans, or Medicaid compliant annuities to allow you to qualify even if you have significantly more assets than the maximum.

Florida Medicaid Homestead Equity Limits as of 1/1/2012.

An Applicant for Florida Medicaid can have $525K in homestead equity. This value has increased from the $506K which was allowable in 2011. If your home has more than the maximum value of equity, there are ways to reduce the amount of equity to allow you to qualify for Florida Medicaid.

if you or a family member will be looking for Florida Medicaid Benefits, you should consult with a Florida Medicaid Lawyer before you apply for coverage to protect excess income or assets and allow you to qualify properly. Many of these techniques can still be used even if the family member is already in a nursing home.

As you or your family members age, it is important to review your Florida Estate Planning Documents with someone who is familiar with Elder law and estate planning because many of the techniques used for estate planning can cause problems when applying for Florida Medicaid Benefits

November 30, 2011

Probate and WIll Issues

What is a Florida will?

Thumbnail image for Last Will and Testament 1.jpgA will is a written instrument, signed by the decedent and at least two witnesses in each others presence, that fulfills the requirements of Florida law. A will names the beneficiaries for the testator's probate assets. The testator can also designate guardians for minor children and a personal representative to administer the estate. If a will was validly executed in another state, Florida courts will recognize the document as a will except in the case of a holographic will. Holographic wills are wills written entirely in the testators own handwriting and in most states witness signatures are not required. However, Florida law requires that holographic wills be witnessed and signed in the same manner as any other Florida will.

What if there is not a Florida will?

In Florida if someone dies without a valid will they are said to have died 'intestate'. If they have a will when they die, they die 'testate'. If a person dies without a will, Florida statutes direct how their assets will be distributed based on whether the decedent had a spouse, children, children from outside the marriage, parents, siblings and so on. If a person dies without a will or any living relatives then his or her property will escheat to the state (become the property of the state).
If a person dies intestate, the decedent's probate assets will be distributed to the decedent's heirs in the following order of priority:


a) If the decedent was survived by a spouse but was not survived by any lineal descendants, the surviving spouse receives all of the decedent's estate.
b) If the decedent was survived by a spouse and was survived by one or more lineal descendants (all of whom are the descendants of both the decedent and his or her spouse), the surviving spouse receives the entire intestate estate.
c) If the decedent was survived by a spouse and survived by one or more lineal descendants (at least one of whom is not also a lineal descendant of the surviving spouse), the surviving spouse receives one-half of the probate assets, and the decedent's lineal descendants share the remaining half.
d) If the decedent was not married at his or her death but was survived by one or more of his or her lineal descendants, those descendants will receive all of the decedent's estate. If there is more than one lineal descendant, the decedent's estate will be divided among them 'per stirpes' which is the manner prescribed by Florida law. The easiest way to understand per stirpes is to divide the assets at the first generational level where there is a survivor. If any of those individuals pre-deceased the decedent, their share will be split between their descendants, if any. If there are no surviving descendants, their share will not be counted when making the division between their siblings. Basically if you predecease your parents, your children will divide your share of your parent's estate. If you have no children or descendants, your share will go to your siblings.
e) If the decedent was not married at his or her death and had no surviving lineal descendants, the decedent's probate assets will pass to the decedent's surviving parents, if they are living, otherwise to the decedent's brothers and sisters if living, otherwise to the decedent's nieces and nephews.
f) Florida's intestate laws will pass the decedent's probate estate to other, more remote heirs if the decedent is not survived by any of the close relatives described above.

Do I need the original Will in Florida?

In Florida only an original will can be admitted to the court unless there are extenuating circumstances.

What happens if I cannot find the original Will?

A Will that cannot be found that was last seen in the hands of the testator is presumed to have been destroyed by the decedent. If a will has been destroyed by the decedent it is presumed that the decedent intended to revoke the will. It is possible to admit a copy when the original cannot be found and people can testify to its validity. This process is not guaranteed because you have to overcome the presumption that the testator destroyed the will intentionally.

Is a Will valid in Florida?

In order for a will to be admitted to court, it must be a validly executed will under the statutes governing Wills. For a Florida will to be valid, it must be signed at the end by the testator and two witnesses, who each in the presence of the other witness the testator's signature. It is not necessary that the testator sign their name, an X is sufficient. If the will was validly created in another state, Florida Courts will generally recognize the will.

If you are having problems getting a copy of a will or would like your Florida will reviewed to make sure it is valid and does what you want, you should contact a Florida Estate Planning Lawyer to discuss your situation.

November 29, 2011

When is a Probate in Florida required?

Thumbnail image for probate.jpgWhen is a Florida probate required?

If a Jacksonville resident dies owning anything in his or her name individually a probate is necessary in Florida. In addition, if a person living in another state owns real property (a home or land) in Florida there will also need to be a probate case opened in Florida. Some examples of individually owned assets include a checking account, a stock account, an insurance policy payable to the insured's estate or someone who does not survive the decedent, a home or other real estate, or bonds. Just because a Florida will names an asset and a beneficiary, does not mean that the asset will be distributed per the terms of the will. If such asset is jointly owned, for example, it will generally pass to the surviving joint owner (with few exceptions). To carry out the instructions in the will, you must first open a probate. In Florida if there is more than one beneficiary, a lawyer will be required to open the probate. This is because if while you can represent yourself in a probate case, you cannot represent another if you are not a licensed attorney in Florida.

When is a probate not required?

If an asset has a payable-on-death beneficiary or a joint owner it is not subject to probate. If there are no assets that are not disposed of upon death, there is often no need to open a probate in Florida. Property that is generally not included in the probate estate includes life insurance proceeds that are not payable to the decedent's estate, jointly owned property, and property held in an intervivos trust (a trust created during the life of the decedent commonly called a living trust, revocable trust, or revocable living trust). Trust property may be used to satisfy the expenses of estate administration and claims of creditors if the probate property is not sufficient. If you have a trust, a notice that the trust exists is required to be filed with the probate court to give creditors the ability to file claims and notify the trustee that there are debts that need to be paid. If the only property owned that is subject to a probate is upside down or does not have equity, the beneficiaries may choose to abandon the property and not complete a Florida probate. This is happening more and more with many homes having negative equity.

Will a probate be required in state other than Florida?

If the decedent owned real property in a state other than Florida without in their individual name, a probate will be required to dispose of the real property that was owned in the other state. If property is owned in more than one state, a probate will be required in each state that real property was owned. A probate in another state is called an ancillary probate administration.

If you have questions regarding a Florida probate, you should contact a Jacksonville Probate Lawyer to discuss your situation and what makes the most sense given your particular circumstances.

November 15, 2011

Exploitation of the Elderly

Jacksonville Elder Law Attorney.jpgFor those working with Jacksonville Elder Law Attorneys the Florida news that a daughter living with her elderly mother was accused of stealing her mother's money to fuel a gambling and drug addiction was not a shock. In attempting to ascertain the Florida elder mother's mental state, the investigators turned to her doctors.

The medical insight gleaned from treating physicians can lead to tougher charges against those who use their position of trust to scam the elderly. However, many doctors' are hesitant to get involved in the Florida legal proceedings of their elderly patients.

In Florida counties, where the population of elderly over the age of 60 often exceeds 25%, many law enforcement financial crimes units are seeking volunteer licensed physicians. These doctors assist in determining the mental and physical state of a victim at the time of the perpetration and fraud.

Jacksonville Elder Law Attorneys have experience with numerous elderly who are victims of financial exploitation. Jacksonville's elderly victims are described by Florida Statutes as a "person of 60 years of age or older who suffers from infirmities of aging manifested by advanced age or organic brain damage, or other physical, mental, or emotional dysfunction. . . that the ability of the person to provide adequately for the person's own care or protection is impaired."

Many cases of Florida elderly abuse and exploitation are by home health care providers, relatives, guardians, and even opportunistic friends and neighbors.

A Jacksonville Guardianship Attorney can talk to you about the elders in your life who may need assistance. Jacksonville Estate Planning Lawyers have the experience to advise of ways to protect your loved ones before they become victims. Some of these strategies encompass having a trust prepared and consulting with a Jacksonville Medicaid Law Attorney.

November 15, 2011

Choosing Your Executor in a Florida Will.

After you die, you may have money, property, and other assets that were in your own name. Generally the assets which did not automatically become someone else's upon your death are part of your probate estate. Many individuals attempt to make sure that there are no assets in their probate estate when they die. This is often done with the help of a Florida Estate Planning Lawyer and can often include Florida Revocable Trust as well as reviewing ones beneficiary designations.

A will is where you would typically define who will be the personal representative or the Executor of your estate. While the many estate plans in Florida will not need a PR or executor, many individuals do not fully plan to deal with all of their assets and a Florida executor is needed. Generally the executor is someone in whom you can put the utmost trust. Your Executor will be the person in charge of making sure all your assets including your money are gathered, kept safe and distributed according to state law and your desires. There are certain people who will get paid before any distributions are made. Generally, the PR, court costs, and lawyers are paid first, then the burial expenses are paid (up to $6000 is a priority claim). After these bills are paid, the creditors are paid and only after the bills are paid, do the beneficiaries receive what is left from the probate estate.

Florida Statute 733.707 discusses the priority that claims are paid. In general they are paid in the following order:

Class 1 - Costs, expenses of administration, and compensation of the personal representative and their attorneys fees

Class 2 - Reasonable Funeral, interment, and grave marker expenses, whether paid by a guardian, the PR or any other person not to exceed $6000. (Additional costs are treated as an unsecured creditor.

Class 3 - Debts and taxes with preference under federal law.

Class 4 - Reasonable and necessary medical and hospital expenses of the last 60 days of the last illness of the decedent, including compensation of persons attending the decedent.

Class 5 - Family allowance.

Class 6 - Arrearage from court ordered child support.

Class 7 - Debts acquired after death by the continuation of the decedent's business, but only to the extent of the assets of that business.

Class 8 - All other claims including those founded on judgments or decrees rendered against the decedent during the decedent's lifetime, and any excess sums allowed in the Class 2 and Class 4 claims.

After paying the expenses in Class 1 - Class 7, if the estate is insufficient to pay all of the Class 8 claims, the Class 8 claims shall be pro-rated. If the probate estate does not have sufficient assets, any revocable trust's assets can be used.

How your Executor determines your heirs, should have been designated by you while you are alive through a will. The will is governed by Florida state law which mandates your Executor has a fiduciary duty to distribute your money and assets to whomever you state in your will should get the money or assets. The fiduciary duty is one of the highest duties one person can owe another. The fiduciary duty imparts on the person owing the duty (your Executor) the obligation of good faith, impartiality, honesty, and diligence. This basically means your Executor must act as if he or she was you making the decision while you were alive.

November 9, 2011

More Estates Need Estate Tax Returns in 2010

Jacksonville Probate Lawyer IRS Form 706 for Estate Tax ReturnWhile many of you may be thinking that fewer Florida Probate cases will involve federal estate tax returns in 2011, the opposite is actually true. It seems with the new $5 Million estate tax exemption that most estates will not need to file a tax return. What most people do not realize is that by failing to file an estate tax return in 2010 (Form 706) the spouse of a decedent will lose the portability of the unused portion of the estate tax exemption that is available to the surviving spouse. Form 706 was just released by the IRS and if you know someone who passed away in 2011, you should have them ask their CPA or Tax Attorney about the benefits of filing a Form 706 and the risks and potential tax liabilities if one is not filed.

November 8, 2011

Who gets to make funeral decsisions in Florida?

probate.jpgWho gets make the funeral arrangements for our parents? Why was Dad or Mom Cremated? How can I stop my mom, step-parent, parents significant other, or sibling from the improper disposition of my relatives remains?

These are all questions dealing with the same issue: Who gets to make the decision about the disposition of a person who has recently died? As a Florida Estate Planning Lawyer we always talk to our clients about the importance of discussing your desires with those who will make the decisions, but what if someone takes over and does something that was not wanted? Can it be stopped? In most cases, the damage may be done before you have knowledge of what is happening, but in some cases there is time to stop arrangements. Florida statutes define the legally authorized person who can make the decisions regarding disposition of a body. In doing so there is a priority list that starts with the decedent, as it should.

That means if you make arrangements regarding your disposition, your decisions should be followed - as long as they are known, and able to be learned of prior to alternative arrangements being carried out.

Next a person listed on your Department of Defense Record of Emergency Data (DD Form 93) for those who die while serving in military service.

If there are no documents, the surviving spouse, even if not living as husband and wife, an adult child, a parent, an adult sibling, an adult grandchild, a grandparent, and if you exhaust that list it can be any person in the next degree of kinship. The Florida Statutes even provide that if there is no family member, the guardian, the personal representative, the attorney in fact, health surrogate, a public health officer, medical examiner, county commission, or basically any one willing to assume the responsibility as the legally authorized person.

If the decision is made my someone in a class of people (one of several adult children) to cremate a body, the funeral establishment can rely on that one person as long as the person represents that she or he is not aware of any objection to the cremation by others in the same class or any person in a higher priority class.

A Florida Estate Planning Lawyer can help educate you on how to property draft documents to make sure you understand how to address these issues properly, while you can and before it causes problems between your family members. Does your Florida Estate Planning address the following?

How do I make sure my wishes are carried out? and
How to I educate those whom will make the decision as to how to make sure that my wished are carried out?

November 7, 2011

Florida probate Hanbook Updated

I recently updated the Free Florida Probate Handbook to deal with many of the changes from this year's legislature. If you have a previous copy or would like an undated version please let us know by requesting on this page.