Florida Estate Planning Lawyer Blog

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.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Elder Law , Enhanced Life Estate Deeds , LadyBird Deeds

Bookmark:

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" »

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Elder Law

Bookmark:

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.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Elder Law , Estate Planning , Guardianship

Bookmark:

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.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Elder Law , Florida Probate , Guardianship

Bookmark:

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.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Elder Law , Estate Planning

Bookmark:

One very useful Medicaid planning technique involves the creation of an irrevocable Medicaid Asset Protection Trust. With a Medicaid Asset Protection Trust a person or couple can transfer some of their property to the trust to hold and manage for their benefit during their live with the remainder paid to their family after their death.

Example: David and Beth have assets in their savings and stock accounts of $250,000. They currently live off income from their investments, social security, and other retirement benefits. They are concerned that if they need nursing home care they will not have enough money to support their lifestyle and pay for the medical expenses for the remainder of their life.

Solution: David and Beth decide to transfer $150,000 to a Medicaid Asset Protection Trust. The trust provides that all income is paid to them while alive and in the event one needs nursing home coverage under Medicaid the income is paid to the other. Upon the death of the surviving spouse, the trust will terminate and distribute the remainder to their children. By using this type of irrevocable trust their assets are protected and they receive an income stream for their lives.

Potential Problems: The gift to the Medicaid Asset Protection Trust can cause a period of ineligibility for Medicaid benefits. The length of the ineligibility period depends upon 1) the value of the assets given away and 2) The date the assets were given away. After the ineligibility period, the assets in the Medicaid Asset Protection Trust should be protected and not counted as a disqualifying asset for Medicaid planning purposes. In addition, this removes the assets from the reach of the spouses.

A Medicaid Asset Protection Trust is not for everyone, but it can be a means of protecting a family's financial security. These trusts can be complicated and must be tailored to the families resources and needs. It is important that you use a Florida Elder law attorney who is familiar with the Florida Medicaid laws and who has experience in creating this type of trust.

Please note: The Irrevocable Medicaid Asset Protection Trust is not the same as a "revocable trust", "revocable living trust" or "living trust" that is currently being sold through Trust Seminars.

Contact us by email or at (904) 685-1200 for more information.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Elder Law , Estate Planning , Irrevocable Trust , Medicaid Asset Test , Medicaid Planning

Bookmark:

As our population continues to age, more and more individuals are concerned about how they will pay for care as they get older. Often individuals and families find that they are unable to take care of themselves and need assistance.

As medical costs have continued to rise, so have the costs of home health care. As a result we are seeing more individuals need the assistance of Medicaid. Too often we find individuals who have received advise from family members, friends, and professionals who do not understand Medicaid and only deal with elder law or estate planning issues. While it may be great to avoid the costs and fees associated with probate, what if you end up being disqualified from Nursing home coverage. This could cost far more than the savings on probate.

Florida is a great state to live at the time you need Medicaid coverage because of the large exemption allowed on one's home. Generally you can protect up to $500,000 of equity in a Florida homestead. Unfortunately in an effort to save a few thousand dollars many individuals transfer a partial ownership in the property to their children with rights of survivorship. Often this is done with a life estate deed.

This can cause many problems for the owner in the event they ever need nursing home coverage. There is way to accomplish similar results without risking the tax detriments, gifting issues, loss of control, and Medicaid eligibility - us a Florida Enhanced Life Estate Deed.

Michael Bonasera with the Ohio Trust and Estate Blog recently wrote a on a similar topic Avoiding Probate vs Avoiding Taxes vs Medicaid Eligibility

If you would like a review of your estate planning that takes into account Elder law, Medicaid planning, as well as probate and tax issues Contact a Florida Estate Planning Lawyer who is familiar with Estate Planning and Medicaid Planning

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Elder Law , Estate Planning , Medicaid Planning

Bookmark:

First there were Amber Alerts, now Florida along with a dozen other states have adopted the Silver Alert. A Silver Alert is circulated when a person 60 or older who suffers from Alzheimer's, dementia, or another cognitive impairment goes missing.There is legislation creating a national program that is pending in Congress. So far Florida has issued 19 bulletins and all 19 have been found. One feature of the Florida program is an automated phone call to every residence within a one-mile radius of the missing person’s home.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Elder Law

Bookmark:

There seems to be articles misquoting the Suspension of RMDs by Congress. Congress has not suspended the 2008 RMDs. As of this time The Worker, Retiree, and Employer Recovery Act of 2008 is awaiting the President's signature.

One of the provisions of the bill is the suspension of required minimum distributions (RMDs) for 2009 ONLY.
This applies to all RMDs from IRAs and employer plans for account owners AND beneficiaries. This temporary suspension will not affect an individual’s required beginning date. An individual who turns 70 ½ in 2008 and chooses to defer their first distribution to April 1, 2009 must still take that distribution.

Non-spouse Beneficiary Rollovers from Employer Plans Made Mandatory
A non-spouse beneficiary direct rollover provision mandatory for employer plans. All employer plans will be required to allow these direct rollovers to properly titled inherited IRAs after December 31, 2009.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Elder Law , Estate Planning

Bookmark:

Senior citizens in Florida are being warned to think before going to financial planning seminars and estate-preservation workshops that offer a “free lunch” or "free dinner" to lure seniors to attend.

The Florida AG's Office has received more than a dozen complaints from seniors enticed to attend a free meal that actually turned out to be a high-pressure sales pitch for investments that may be entirely inappropriate based on age and financial circumstance.

In quoting Attorney General Bill McCollum, the Naples Daily News reported that “The last thing our seniors need during this economic climate when their retirement savings may be dwindling is an investment scam that further depletes that nest egg”. “Too many of our seniors are finding that these free meals can cost them dearly.” The invitations often arrive by phone or mail and promise tips on earning great financial returns with minimal risk, eliminating taxes or avoiding probate. After a high-pressure presentation, salespeople then try to schedule follow-up visits in the homes of those who attend so they can continue the pitch. In addition to losing money, consumers who complained to the Attorney General reported being badgered by many unsolicited phone calls and frustrated by misrepresentation of the seminar’s purpose.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Elder Law , Estate Planning

Bookmark:

Leanna Hamill, a Massachusetts Estate Planning and Elder Law Attorney, has an article on a new website Videocaregiving.org. She states that the videos are designed to be short, simple, and direct. They easily accessed by users 24 hours a day and cover the tasks and daily activities for caregivers.

If you need help with a Florida Medicaid Application Contact a Florida Elder Law Attorney

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Elder Law , Medicaid Planning

Bookmark:

A Michigan Estate Planning Lawyer Blog has written another article on Problems with Michigan Trust Kits. While we have reported on these issues many times in Florida, there appear to be similar problems in other states. Christopher Berry, a Michigan Estate Planning Attorney, points out that Michigan citizens have lost over $200,000 because of poorly drafted Revocable Trust .

In addition, many of these Estate Planning Kits do not take Elder law issues into account when filling out the generic forms for individuals and their families. Please contact a Florida Estate Planning Lawyer to discuss your individual needs.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Elder Law , Estate Planning

Bookmark:

The National Care Planning Councel has an article on Elder Law Mediation as a non-adversarial approach to solving disputes. Mediation is a process of bringing two or more disputing parties together and having them mutually negotiate a solution to their disagreement. The mediator is not a judge and does not render a decision but is there to make sure that communication flows freely between the disputing parties. Elder Mediators are trained in the art of negotiating resolutions between elderly parents and family members.

Mediation can achieve results that the family by itself may not be capable of realizing or have the expertise of achieving. Here are some reasons that make Elder Mediation so valuable.

• A trained expert on communication gives the family a perspective it could not gain by meeting together on its own; • All family members involved meet and prevent problems from arising by anticipating situations that may cause disputes; • Allows for the mediator to invite experts such as care managers or other care providers into the meeting to educate the family and give them a new perspective; • Allows parents to focus on their abilities rather than their limitations; • Allows children to come up with and consider options not thought of previously; • Encourages uninvolved family members to become involved; • Allows parents to express wishes and desires that had previously gone unuttered; • Allows for a neutral third party to challenge family members and make them take responsibility for their actions; • Promotes consensus of all involved which in turn creates a much higher rate of compliance with the plan than with any other process; (the success rate for compliance with elder mediation is estimated to be about 80% to 85%) • Requires a written plan with specific responsibilities which makes compliance feasible.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Elder Law

Bookmark:

The FDIC has extended FULL insurance coverage to all Florida IOTA trust accounts, regardless of amount on deposit or number of clients. The unlimited FDIC insurance is available at all financial institutions that participate in the FDIC's Transaction Account Guarantee Program. Please make sure that you comply with the trust accounting rules by placing all short term or nominal funds of clients and third parties in your IOTA trust account. Those funds, which are incapable of generating income for individuals, in excess of the costs to secure that income, are pooled in IOTA accounts the interest from which provides legal services for the poor and other law-related public interest programs approved by the Florida Supreme Court. If you have any questions about your ethical responsibilities relating to your trust account, please call the Bar's Ethics and Advertising Department at (800) 235-8619. If you have any questions about the mechanics of setting up an IOTA trust account or how the IOTA funds are used, please call The Florida Bar Foundation at (800) 541-2195.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Business Law , Elder Law , Estate Planning

Bookmark:

The 16th annual River Garden Gala will be held on Saturday November 8th, 2008 at the Sawgrass Marriott Resort.

The Sawgrass Marriott Resort is at 1000, PGA Tour Boulevard, Ponte Vedra Beach, Florida.

This event is to benefit River Garden Wolfson Health & Aging Center and is a Black Tie event for more information on the fund raiser call (904) 262-1818, ext. 222.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Elder Law

Bookmark:

Florida Statute 193.1556 requires that any changes regarding a person or entity owning real property under Florida Statute 193.1554 or Florida Statute 193.1555 are reported to the property appraiser.

This may affect some Florida Enhanced Life Estate Deeds. Under Florida Statute 193.1554(5), If the property is nonhomestead residential property, there is an exemption for the transfer between husband and wife, including transfer to a surviving spouse or a transfer due to a dissolution of marriage. The transfer to a revocable trust will not trigger a new assessment at fair market value.

On the other hand for all residential and non-residential property which is not protected by homestead there doesn't appear to be the same exemption under Florida Statute 193.1555(5).

In either case the transfer to a Florida Revocable Trust where there is simply a change between legal and equitable title, will not trigger a new assessment at fair market value.

One new issue is that it is now required to report a change in ownership or control when a business entity owns property. In the past, many were able to sell an entity and no notice to re-evaluate the taxable base would be generated. Now if you convert real property to personal property by selling the ownership in an LLC instead of the real estate holdings of the LLC, you still have to report the change in ownership.

To read more on Florida Enhanced Life Estate Deeds or Florida Revocable Living Trusts read some of the articles on this site or Contact a Jacksonville Estate Planning Lawyer

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Business Law , Elder Law , Enhanced Life Estate Deeds , Estate Planning , LadyBird Deeds , Living Trust , Revocable Trust

Bookmark:

POWERS OF THE ATTORNEY IN FACT AND LIMITATIONS IN FLORIDA

Except as otherwise limited by statute (below), by other applicable law, or by the durable power of attorney, the attorney in fact has full authority to perform, without prior court approval, every act authorized and specifically enumerated in the durable power of attorney. Such authorization may not include:

1. Perform duties under a contract that requires the exercise of personal services of the principal;
2. Make any affidavit as to the personal knowledge of the principal;
3. Vote in any public election on behalf of the principal;
4. Execute or revoke any will or codicil for the principal;
5. Create, amend, modify, or revoke any document or other disposition effective at the principal's death or transfer assets to an existing trust created by the principal unless expressly authorized by the power of attorney; or
6. Exercise powers and authority granted to the principal as trustee or as court-appointed fiduciary.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Durable Power of Attorney , Elder Law , Estate Planning

Bookmark:

PROPERTY SUBJECT TO DURABLE POWER OF ATTORNEY IN FLORIDA.
Unless otherwise stated in the Florida durable power of attorney, the durable power of attorney applies to any interest in property owned by the principal, including, without limitation, the Principal's interest in all real property, including homestead real property; all personal property, tangible or intangible; all property held in any type of joint tenancy, including a tenancy in common, joint tenancy with right of survivorship, or a tenancy by the entirety; all property over which the principal holds a general, limited, or special power of appointment; chooses in action; and all other contractual or statutory rights or elections, including, but not limited to, any rights or elections in any probate or similar proceeding to which the principal is or may become entitled.

If you have questions about the validity or scope of your Florida Durable Power of Attorney Contact a Florida Estate Planning Lawyer

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Durable Power of Attorney , Elder Law , Estate Planning

Bookmark: