Florida Estate Planning Lawyer Blog

The Homestead Exemption in Florida, which was established in the State's Constitution, has always provided for the protection of the Family home free from creditors and liens. In 1985 the Constitution was amended to extend the protection to the "natural person" and not necessarily having to be the head of the household. The 4th district Court of Appeals ruled that a husband and wife who are separated for a period of time can BOTH claim the Florida Homestead Protection from creditors. This ruling does nothing to allow two homestead tax deductions. Law v. Law et al., 738 So. 2d 522.

The case involves a husband and wife who were separated for several years. They both claimed Homestead exemption for the Hollywood home that they owned jointly. But when his mother got sick, he and his wife decided to sell the home to pay for the medical bills. His ex-wife had a claim against him for support and brought action to seek recovery through the sell of the home. He filed for Homestead exemption. The court of appeals ruled that "we see nothing inconsistent with our public policy if we extend a homestead exemption to each of two people who are married, but legitimately live apart in separate residences, if they otherwise meet the requirements." Court referencing Colwell v. Royal International Trading Corp., 226 B.R. 714 (Bank S.D. Fla. 1998) to show precedent on allowing dual homestead exemption. The court seemed to find it important to find that the separation was not contrived to defraud creditors.

If you would like to talk about how to create two homesteads and document them to avoid unnecessary litigation over the issue, contact a Florida Estate Planning Lawyer or if one or more of your home is in foreclosure contact a Jacksonville Foreclosure Defense Lawyer.

A recent article by Tanya Roth reveals some shocking truths about our local drug store. Rite Aid is being held accountable for their employees' actions after an investigation by the Office of Civil Rights (OCR) revealed privacy regulations were not followed. The chain of drugstores has reached a settlement with the Department of Health and Human Services and the FTC where they will pay damages of $1 million. Spurred by a television station's videotape, the investigation revealed Rite Aid employees dumping labeled medicine bottles and prescriptions into public dumpsters near their stores.

Since these medicine bottles contained the private information of customers, it was obvious Rite Aid was not abiding by the requirements protecting patient information under HIPAA privacy regulations. OCR confirmed that customer information and other private information was disposed of improperly including job applications. In addition to the $1 million they will have to pay under the settlement, Rite Aid is obligated to implement new training procedures and policies for monitoring internal operations. Nevertheless Rite Aid was not the only drugstore to be targeted by the OCR as last year CVS Pharmacy paid a much larger fine for HIPPA violations.

These violations of health care laws affect everyone but elderly citizens are more at risk because they are frequently in need of medications. Identity theft has been on the rise for many years and this crime is often the result of criminals sorting through dumpsters for any private materials you through away.

align="left" style="margin-right: 5px;"Seniors Citizens in Florida are the latest to fall victim to the scam dubbed the "Grandparent Scam." An article in the South Florida Sun-Sentinel details how grandparents are scammed when they first receive a phone call from someone pretending to be their grandchild.

The fake grandchild then informs the grandparent that they are in legal trouble and need money to get bailed out of jail. Later, they give detailed instructions on how to wire money and where the money should be wired. Usually the scammers will use a bank account in another country as the place to wire the money to hide their money trail.

Seniors should not be fooled if they seem to know a lot about your grandchild and your family history. With the boom of social networking websites, many family secrets that you thought were private can end up in the personal history of a grandchild. Look for them to request you keep the transfer confidential as this could tip you off that the call is a scam. Also, it is probably in the grandchild's best interest to notify their parent of the call because they have the ability to verify their child's legal trouble.

This is not the first scam to target the elderly, nor will it be the last. Many scams involve family members because they are in a position of trust with the senior. If you believe you have fallen victim to a scam, do not be embarrassed to report these con artists to family members or proper authorities including the Department of Children and Families Elder Abuse Hot Line at 1-800-962-2873.

A Florida Supplemental Needs Trust (SNT), also known as Florida Special Needs Trust, is a unique trust designed to benefit an individual with a disability. Supplemental Needs Trusts can be broken down into two categories, third party and self settled. In a well-executed SNT, an unlimited amount of assets can be placed in the trust for the benefit of a disabled person without jeopardizing their qualification for government benefits. These trusts are designed to provide for the extra care and costs above that which governmental benefits supply.

The self settled, or self created, supplemental needs trust has been officially recognized by Congress to benefit individuals under the age of 65, who have a physical or mental disability.
When creating a self settled SNT it is important to know that any assets remaining in the trust at the death of the disabled beneficiary will be used to reimburse the state for Medicaid benefits paid on behalf of the beneficiary. If there is a balance left over it will be distributed to the remainder beneficiaries identified in the trust document.

On the other hand, third party SNT can be created by anyone who is not obligated to support the beneficiary. As long as the third party SNT is irrevocable, the trust assets will not be a countable resource for Medicaid purposes. Explicit language must be used in this trust in order to guarantee the trust resources are not countable assets. In contrast to a self settled SNT, a third party SNT can distribute any remaining funds in the trust after the death of the disabled beneficiary to whoever the grantor designates as the remainder beneficiaries. There is no requirement to include the State for benefits received.

Very sensitive issues are involved when applying for government benefits such as Medicaid and Social Security. Asking for assistance from a Florida Estate Planning Lawyer or Jacksonville Estate Planning Lawyer can help you find comfort knowing that a Supplemental Needs is set up correctly.

As we age, it is very common to lose some of the wits you had when you were younger. Due to the growing number of senior citizens that are falling victim to financial abuse, careful estate planning is a necessity while you are still fully competent. Financial abuse of the elderly usually occurs in a time when the person's mental capacity is diminishing. Also, it is common that the senior can't say no to someone who repeatedly requests to be included in the estate.

In a recent article by Eileen Ambrose, she provides an in depth analysis of this blight in our country. Arguably the most shocking statistic related to financial abuse of the elderly is, in approximately one-third of all cases, a family member of the victim is the person who takes advantage of the senior. This is the reason that it is essential for aging adults to create a complete estate plan while they remain fully competent. Protecting your assets is a complicated matter that should be handled by a Florida Estate Planning Lawyer . In addition to seeing an attorney, the following list is advice Ambrose shares in her article:

1) Choose a trustworthy agent to represent you who manages his or her own finances properly and is not a spendthrift.
2) Maintain control of assets refrain from including a child's name in your a bank account.
3) Report pressure exerted by anyone who is pressuring you to be given Power of Attorney to a loved one or appropriate authorities.
4) Compensate agents for the work they do to maintain your finances because it is a time consuming job.

When a person dies, who owned a property protected by a Florida Homestead we generally expect the property to be free from the claims of creditors.

There are certain situations when this is not true and other types of planning could prevent creditors from making claims against your Florida Homestead.

So when will your property lose homestead protection upon your death:
1) if you are not survived by a spouse or children and devise your property o people not listed in Florida Statute 732.103.
2) If you are not survived by a minor child and have a valid prenuptial agreement or waiver of homestead rights with your spouse and devise the property to someone not named in Florida Statute 732.103.

(Florida Statute 732.103 deals with the spouse, descendants, parents, siblings, grand parents, uncles, aunts, their kindred, and great-grand parents.)

If you want to leave your homestead to someone who is not defined in Florida Statute 732.103 we can help you maintain protection from the claims of creditors and avoid probate. Since there can often be many unexpected and significant expenses associated with end of life, it could be a good idea to plan to protect what could be your single largest asset- your home.

Note that many people incorrectly believe that a Revocable living trust can protect your home from the claims of creditors. While there may be homestead protection for those defined in Florida Statue 732.103, a Florida Revocable Trust in an of itself does not provide asset protection.

To talk about how to protect your assets and home from the claims of creditors, contact a Florida Estate Planning Lawyer.

A Jacksonville Trial Lawyer can be very helpful in the event that your dispute needs to go to trial. There are many different types of Jacksonville trial attorneys. The Apple Law Firm has Jacksonville Civil Trial lawyers as well as Jacksonville Criminal Trial Lawyers. We Deal with Family law, criminal, trust, will, estate planning, foreclosure defense, probate, guardianship, and asset protection issues. Many cases never go to trial and are settled by a Jacksonville Trial Attorney long before seeing a court room. If you would like t discuss your circumstances or what options you have to protect your rights please contact a Jacksonville Trial Attorney today.

For more information on Jacksonville or Florida Foreclosure Defense See the Florida Foreclosure Defense Lawyers Blog.

The Trials and Heirs blog\ recently had an article about how to avoid exploitation of the elderly by a family member. They recommend

1 Getting Expert advise who knows the ins and outs of estate planning. I would also recommend using a Florida Estate Planning Lawyer who is familiar with Florida Elder Law.
2. Be careful of Joint accounts as they can take the money or create ineligibility for nursing home coverage.
3. Consider "Springing" Powers of Attorney or as we call them contingent Durable Powers of Attorney as they only give powers once you are incapacitated.
4. Choosing Wisely which may mean not choosing a family member or the oldest child because of emotional reasons.
5. Having Checks and Balances by using more than one person to make decisions and to avoid fights.
6. Selecting someone to monitor your accounts. This person can be a trusted advisor and should have the ability to question and stop inappropriate actions.

If you own a car, then you know it requires regular servicing in order to perform well and be reliable. More than likely, your car came with a recommended schedule for service, based on how many miles it has been driven. After a certain number of miles, you need to change the oil, replace the brake pads, rotate the tires, and so on.

If you have a newer car, you probably have an irritating dash light that comes on when it's time for service and stays on until the mechanic resets it. Either way, whether you pay attention to the odometer or rely on that dash light, it's pretty easy to know when it's time to service your car. And if you keep driving it without servicing it, it's a sure bet your car will let you down.

Like your car, your estate plan needs "servicing" if it is going to perform the way you want when you need it. Your estate plan is a snapshot of you, your family, your assets and the tax laws in effect at the time it was created. All of these change over time, and so should your plan. It is unreasonable to expect the simple will written when you were a newlywed to be effective now that you have a growing family, or now that you are divorced from your spouse, or now that you are retired and have an ever-increasing swarm of grandchildren! Over the course of your lifetime, your estate plan will need check-ups, maintenance, tweaking, maybe even replacing.

So, how do you know when it's time to give your estate plan a check-up? Well, instead of having mileage checkpoints, your estate plan has event checkpoints. Generally, any change in your personal, family, financial or health situation, or a change in the tax laws, could prompt a change in your estate plan. Use the list at the end of this newsletter to guide you.

It's a good idea to review your estate plan every year. Set aside a specific time every year (your birthday, anniversary, family gathering) to review it. Keep these events in mind each time you read through your documents. If you think a change may be in order, don't write on your actual document; contact your attorney. Most changes can be handled by a simple amendment that is attached to your current will or trust.

Planning Tip: Like your car, your estate plan needs regular "servicing." Set aside a specific time every year (your birthday, anniversary, family gathering) to review it. Become familiar with it. Keep it current so it will perform the way you want when you need it.

What Do You Do with Your Estate Plan?
Think for a few moments about what would happen if you became incapacitated or died today. Would your spouse, family and successor trustees know what to do?

Continue reading "When Is It Time to "Service" Your Estate Plan?" »

While in Florida a lawyer is not required to create a valid deed like a ladybird deed or Florida Enhanced Life Estate Deed it may be a good idea to have a lawyer or attorney review these specific document because of their propensity for errors and the bad or unexpected outcome that would occur with an invalid or incorrect Florida Enhanced Life Estate Deed.
1. A lawyer can check to make sure that the deeds are executed with the formality required under Florida Statutes.

2. That an Florida Enhanced Life Estate Deed is the best method of accomplishing your goals. With property with larger mortgages, a deed of this type may not be the best or most affordable method for transferring the property upon the death of the owners because of the mortgage taxes in Florida.

3. In addition, some of the forms and Florida Enhanced Life Estate Deeds that I have seen do not properly deal with the property upon death and title companies have been known to require a probate before they will issue a new title policy. This can cost the family thousands of dollars on a homestead and up to 3 percent of the value of the home on non-homestead properties.

4. Prevent a portion of the property from lapsing, Florida's anti-lapse statute deals with devises by will and in trusts but would not protect an interest in a property that was given to an individual who predeceased the grantor of the deed. Because a Florida Enhanced Life Estate Deed is a contingent gift, it is possible that the remainder interest would be directed back to the estate of the grantor in a case were the contingent remainder beneficiary of the deed was to predecease the grantor.

5. The most important reason to use a lawyer with a Florida Enhanced Life Estate Deed deals with the circumstances surrounding the use of this type of deed. Often when a lawyer prepares these deeds they the process will cause them to evaluate the other financial, estate planning, elder law, and Medicaid planning that are found when these deeds are used. Paying a lawyer who is familiar with these issues to prepare your deed is a good way to have your personal circumstances and issues evaluated at the same time.

If you would like more information on a Florida Enhanced Life Estate Deed you should Contact a Florida Estate Planning Lawyer who is familiar with these issues.

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.

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" »

David A. Atraus, a Nevada Estate Planning Lawyer, has published a book titled Faith-Based Estate Planning: Our Values and Valuables. The book was written after contacting hundreds of religious clergy throughout the nation, and took him several years to write.

Upon a first glance, I was very impressed. The book covers Estate Planning issues like living trusts, wills, medical directives, long-term care insurance and life insurance on many religions including Baha'i, Buddhism, Christianity (10 denominations and branches), and 12 more religions from Roman Catholic to Judaism to Zoroastrianism.

It looks very comprehensive and I expect to write more on the book in the future.

SB 1718 & HB 5117 dealing with funding the court would create new filing fees in probate and Guardianship cases that would range from $1,000 to $5,000, depending on the value of the estate of the person being protected.

The increase in filing fees is linked to probate cases but includes all guardianship proceedings. In addition to the current fee of $280, the additional fees will be tied to the person’s estate. Depending on the value of the estate and whether the House or Senate version of the legislation prevails, the additional cost could range from $1,000, to as high as $5,000 if the person being cared for has a large estate.

If you have been waiting to start a Florida Probate or Guardianship proceeding, now may be the time start before the fees increase.

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.

The Palm Beach Post.com has an article which describes a recent trend in Annuities in which scammers sell and churn an insurance policy sold as an annuity in which there are very high surrender fees and limited access to the money for 10 or more years. These policies are being sold to 85 year old individuals as investments when they cannot touch the money for more than 10 years and have very high surrender fees if they do.

Most reputable annuity policies, they say, allow access to the money after just 90 days and require no more than a 5 percent surrender fee, and nothing after five years.

Senate Bill 2520 and House Bill 141 seek to protect Floridians who are 65 and over from annuity scam artists by easing access to the assets and decreasing excessive withdrawal payments. The legislation says that "senior consumers diagnosed as having a terminal illness that will result in death within two years after the diagnosis" could "withdraw all purchase payments from an annuity contract prior to the expiration of the surrender charge period without penalty."

Recently we have begun seeing a trend in these types of annuities being marketed towards lawyers, doctors and other professionals as "safe investments" Given the high commission paid and the tendency of the agents to churn the assets into other annuities, it would be nice if this bill would do something to protect others from these life insurance investments.