August 13, 2012

TRANSFER OF HOME OWNERSHIP DOES NOT REPLACE AN ESTATE PLAN

We see many problems with how homes are titled. Most are in attempt to avoid probate or make it easier on family members. Unfortunately, many of these cause real problems for family members in the future. Here is one example of something we see regularly.

Imagine this: You're retired, your only significant asset is your home, you're very close to your child or children, and you don't want the cost of creating an estate plan. In such cases, what's the harm of simply putting your home in the name of your child to avoid probate and then be done with it?
We've gotten this question more than once at our office, and we almost always advise against it. There are a number of reasons to keep your home in your own name, the biggest ones are, loss of control, loss of stepped up basis leading to increased income taxes the kids will pay, failure to use gift tax exclusions resulting in huge penalties to the IRS, increased property taxes and your child's liabilities. These aren't the only reasons to keep your home in your own name, however. Other reasons include:

  • Your relationship with your child may not be as great as you think it is. Once the home is in their name they have no obligation to continue to let you live in it one, two or ten years down the line.
  • You have more than one child. Putting your home in one child's name can cause a rift of bad feelings between siblings. The alternative, of putting the home in the names of all your children, only makes it more vulnerable to liabilities and paperwork errors.
  • There are other, safer ways to avoid probate. One of those ways is with a Revocable Living Trust. A Revocable Living Trust is flexible and reliable, and doesn't have to be expensive. In fact, a Revocable Living Trust can actually end up saving your family money in the long run.

Don't make a mistake that could end up causing you to lose your home. Contact our office to discuss how we can help you protect your family and your assets from probate and liabilities.

August 12, 2012

SOME INHERITANCES ARE BEST BESTOWED IN DIFFERENT BUT EQUAL WAYS

Most parents want to love and treat all of their children the same, but when it comes to estate planning, not every child should be treated the same. In fact, insisting on treating all children exactly the same in an estate plan can often lead to disastrous consequences.

Each of your children is unique, and their circumstances may grow increasingly different, especially as they become adults and acquire jobs and extended in-law families. Each child should accordingly be treated as a unique individual.

Here are a few ways that wise parents might consider treating their children differently in an estate plan, but sill equally:

  1. Not naming all of your children as successor executors.
  2. Gifting the annual gift exclusion of $13,000 outright to some children while putting it in trust for another child.
  3. Leaving one child's inheritance outright while leaving another child's inheritance in trust--possibly even skipping a generation to help children or grandchildren.
  4. Some children will benefit from structured payments and others can deal with a lump sum of money or assets

The fact of the matter is that all of your children will be different people, with different strengths and weaknesses. While one child may love the trust and challenge that comes with being named executor, another might feel crushed under the weight of responsibility. One child might take an outright inheritance and invest it for retirement, while another child may want to do that, but have an ex-spouse or creditors who would seize an unprotected sum of money, leaving the heir with nothing.

Regardless of how you leave assets to a child or loved one, you should consider the ability you have to help them protect the assets from the reach of current or future creditors. There are new affordable asset protection trusts that can help protect assets from your creditors as well as your families creditors after you are gone.

Every parent knows that it is impossible to treat all of their children exactly the same. But it is possible to know your children, to be aware of their circumstances, strengths and weaknesses, and give them an equal inheritance in different ways.

August 11, 2012

AN ESTATE PLAN CAN HIGHLIGHT RELIGIOUS VALUES... WITHIN LIMITS

religion.jpgMany parents hope to pass their values onto their children and grandchildren. Often one of the most important values that they hope to pass on are values based on religion and spirituality. In some cases, religious values are so important to a parent that they will even include mention of these values in their estate planning documents. Our firm strongly believes that an estate plan is not just about money, but about leaving a legacy, and we often encourage our clients to include mention of their values--religious or otherwise.

Formalizing a legacy of values is not always as easy as leaving a financial legacy, however; and there is a limit to how far a parent or grandparent can go in dictating religious values to their heirs. Being too restrictive in an estate plan in an effort to pass on religious values--choosing to disinherit children who marry outside the faith, for example--can often create divisions within a family and spark extended, costly legal battles, all while failing to have any true impact on your heirs' beliefs. In addition, many of these clauses have historically been poorly drafted and violate the public policy of the freedom to marry and are stricken by courts.

One of the most common value-imposing strategies used by parents in estate planning is to require that children marry within a certain faith in order to receive their inheritance. This strategy has worked in some instances, for example, in 2009 the Illinois Supreme Court overturned the decisions of lower courts and unanimously ruled that Max Feinberg, and his wife, Erla, could legally cut off their grandchildren who chose to marry outside of the Jewish religion.

While this strategy may be accepted by the courts, it is often hurtful, and quite frequently expensively controversial, causing some heirs to challenge the will or trust; a process which can take many years and thousands of dollars to resolve. It is often better to explore other options as far as passing on values. One alternative to strict religious provisions that may penalize heirs who choose a different faith is to instead leave money for children and grandchildren in trust, and give your trustee discretion to make distributions based on the values you highlight when creating the trust. In this way you can provide guidance on how you would like your money to be distributed, but you leave some leeway for the trustee to consider special circumstances that you may not have anticipated and to weigh the potential consequences of each decision.

A trusted and sensitive estate planner can talk to you about what is important to you and your family, and help you choose the best and most respectful way to pass on your wealth and your values while not violating public policy and creating a costly will or trust contest after your gone.

August 10, 2012

FACEBOOK FOUNDERS USE GRATS TO AVOID EXCESSIVE TAXATION; YOU CAN TOO

News sources recently revealed that Facebook founder Mark Zuckerberg -- as well as other Facebook top brass--use Grantor Retained Annuity Trusts ( GRAT or GRATS) to protect their assets and investments from excessive taxation. A Grantor Retained Annuity Trusts (more commonly called GRATs) is a perfectly legal--and very efficient--way to protect and pass significant assets from one person to another without incurring an exorbitantly high tax bill.

GRATs differ from certain other asset protection trusts in that they offer a good vehicle for wealthy investors who put money in start-ups, while other trusts may not. But it's not only wealthy startup investors who may find GRATs useful. GRATs are an excellent way to shift wealth to others at little or no tax cost and with minimal legal and economic risk. As such, they can be the perfect tool for business owners, professional investors, and many others. Setting up a GRAT allows the investor/grantor to give assets over to the trust for a pre-determined number of years. During this time the assets appreciate and the grantor receives annual payments adding up to the asset's original value plus a return based on a fixed interest rate determined by the Internal Revenue Service. At the end of the trust term the assets (at their new value) are transferred to the beneficiary named in the trust with none of the usual gift or estate tax on the appreciation.

This makes GRATs sound like the perfect (and perfectly simple) tool, but nothing is perfectly simple. The pre-determined lifetime of your GRAT will depend on your individual circumstances, as well as the tax laws at the time, so you'll want to make sure you have the help of an experienced and knowledgeable attorney helping you design your trust. Contact our office for more information.

We also have other types of irrevocable trusts that can be used to create similar benefits with or without inclusion in your estate. Today with the estate tax exemption at 5 million not everyone will benefit from a GRAT but for those with less than 5 million, some of our other trusts can offer the same benefits as GRATs offer the wealthy.

August 10, 2012

Reasons to make an Estate Plan

Here are three compelling reasons to make an estate plan. We all know people similar to those portrayed below. While estate taxes and probate are often compelling reasons to create estate plans, sometimes it is the family dynamics that drive the necessity of estate planning.

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August 4, 2012

Are Cars Exempt from Medicaid in Florida?

Thumbnail image for senior-caretaker-thumb14146522.jpgTypically a single automobile and one over 7 years old is exempt but there are some conditions that could cause a vehicle not to be exempt

1640.0591 Automobile (MSSI, SFP)

One automobile, regardless of value or use, is excluded as an asset.
Unless otherwise excluded, any other automobiles are treated as non liquid assets and counted to the extent of their equity value. The equity value is the average trade-in value of the vehicle minus any indebtedness.

When there is more than one vehicle, apply the automobile exclusion in the manner most advantageous to the individual. That is, the automobile with the highest equity value may be the one vehicle totally excluded, leaving the automobile with less equity value to count as an asset to the individual.

Any automobile over seven years old is an excluded asset except for the following instances requiring development:1. Luxury cars (for example, Jaguar, Mercedes-Benz, Cadillac, Lincoln, Corvette);
2. Automobiles or trucks that are 25 model years or older (because they may have value as classics or antique vehicles); or
3. Customized or specially modified automobiles, except for those modified for use by a handicapped person.

1640.0592 Verification of Vehicle Value (MSSI, SFP)
Information containing the name(s) of the owner(s), make, model, and year of the vehicle is required for all vehicles. The amount of indebtedness is required on all included vehicles.

Sources of documentation include:

1. title,
2. tag registration,
3. Department of Motor Vehicle records,
4. purchase contract,
5. payment schedule, or
6. lien holder.
Use the average trade-in value listed in the National Automobile Dealers' Association (NADA) book with no adjustments for any special equipment as fair market value in determining equity value (fair market value minus indebtedness).

If a vehicle is not listed in the Southeastern Edition, National Automobile Dealers' Association (NADA) book, the Official Used Car Guide or the NADA Older Car Guide, the individual must obtain an appraisal or produce other evidence of the vehicle's value, such as a tax assessment or a newspaper advertisement indicating the amount for which like vehicles are being sold.

August 1, 2012

Florida Personal Representatives (Executors) Beware your Fiduciary Duty

Personal-Representative-Bond.pngIn Florida, a personal representative (PR)is a fiduciary who shall observe the standards of care applicable to trustees. A personal representative is under a duty to settle and distribute the estate of the decedent in accordance with the terms of the decedent's will and the Florida Statutes, always considering the best interests of the estate.

A personal representative has responsibility to administer the estate of the deceased, and his or her tasks encompass taking possession of and managing both real and personal property.

The personal representative is also responsible for ascertaining and paying the legitimate claims of creditors against the estate. Although there may be provisions set out in a Will which appear to absolve a personal representative from any financial liability, this may not always be enforceable or hold true.

In a recent federal district court case in Texas, U.S. v. MacIntyre, 4:10-cv-02812, June 2012, it was held that a personal representative is personally liable for paying the decedent's remaining tax bills. This includes current as well as back taxes owed by the Decedent. In this particular case, the decedent owed the IRS millions of dollars in gift taxes. The Personal Representatives were advised that the IRS could not collect on the estate's unpaid gift-tax liability and so, the PR distributed estate assets without paying the tax. Unfortunately, for the PR, the IRS did not heed the incorrect advice given, and went after the PR personally, for the estate's unpaid taxes.

The Tax Court recited the elements of liability under the United States Code at 31 U.S.C. Section 3713 as: a fiduciary who distributes the estate's assets before paying a claim of the United States; and knew or should have known of the United States' claim. The knowledge requirement is the key, and is satisfied by either actual knowledge of the liability, or notice of such facts, as would put a reasonably prudent person on inquiry as to the existence of the unpaid claim of the United States.

The case revealed that a decedent's unpaid creditors, including the IRS, have standing to sue a PR for breach of a fiduciary duty. Failing to pay taxes is deemed to be an action that is a breach of a fiduciary duty. Thus, in the above reference case, the PR was not only on the line for the unpaid gift taxes but was also sued for breach of his fiduciary duty.

Under the Florida Probate Code, a personal representative's fiduciary duty is the same as the fiduciary duty of a trustee of an express trust, and a personal representative is liable to interested persons for damage or loss resulting from the breach of this duty.

Although a frightening and eye-opening tale, don't be fearful of being appointed and acting as personal representative of a decedent's estate. However, it is in your best interest to contact and consult with an experienced Jacksonville probate lawyer who can guide you through the process.

July 26, 2012

Can Life Insurance be subject to Creditors in Florida?

While traditionally in Florida the proceeds from a life insurance police are exempt from the claims of a creditor, what happens if the beneficiary designations fail or the proceeds are directed back to an individuals probate estate or revocable trust?

In a recent Florida case, life insurance benefits were directed to the descendants revocable trust upon his death. This could have only happened intentionally unless a revocable trust was the owner and the beneficiary designation failed because it was improper or the beneficiary died before the grantor of the trust.

When the grantor of the trust died, the trusts instructions told the successor trustee to pay the settlor's death obligations. Even if such language was not in the decedent's revocable trust, they are presumed under Florida Law.

Normally under Florida Statute 222.13(1) Whenever any person residing in the state shall die leaving insurance on his or her life, the said insurance shall inure exclusively to the benefit of the person for whose use and benefit such insurance is designated in the policy, and the proceeds thereof shall be exempt from the claims of creditors of the insured unless the insurance policy or a valid assignment thereof provides otherwise.

While the mere fact that life insurance proceeds are payable to a trust, rather than directly to a natural person, does not deprive them of their exempt status,4 section 733.808(1), Florida Statutes (2008), makes it clear that life insurance proceeds payable to a trust "shall be held and disposed of by the trustee in accordance with the terms of the trust as they appear in writing on the date of the death of the insured."

The court stated that
In other words, the exemption rendering life insurance policy proceeds unavailable to satisfy estate obligations can be waived. The very statute that creates the exemption makes this clear:

Notwithstanding the foregoing, whenever the insurance, by designation or otherwise, is payable to the insured or to the insured's estate or to his or her executors, administrators, or assigns, the insurance proceeds shall become a part of the insured's estate for all purposes and shall be administered by the personal representative of the estate of the insured in accordance with the probate laws of the state in like manner as other assets of the insured's estate.
§ 222.13(1), Fla. Stat. (2008). Section 222.13(1) does not prohibit life insurance proceeds' paying the insured's estate's debts and other "death obligations," nor does it prohibit directing payment of policy benefits to a trust for that purpose.

An insurance policy is a contract. The right to select the beneficiary of a life insurance policy is an aspect of the freedom to contract. The statutory exemption does not purport to restrict that freedom. The owner of an insurance policy may waive the section 222.13 exemption merely by designating the insured or one or more of the insured's creditors as a beneficiary or beneficiaries, by naming the insured's estate as a beneficiary of the policy or, as here, by naming as beneficiary a trust whose terms direct distribution of the trust assets to the personal representative, if requested.

In this case, there was an attempt to reform the trust under FL statute 736 but his requires clear and convincing evidence that both the accomplishment of the settlor's intent and the terms of the trust were affected by a mistake of far or law.

In this case they were unable to prove the intent necessary to reform the trust.

If you have a life insurance policy or a revocable trust in Florida you may want to review the terms of the beneficiary designations as well as what the policy directs the successor trustee to pay. It was unfortunate that the life insurance policy became subject to claims of the creditors because of the poor choice of wording.

July 25, 2012

Spousal Refusal: The Painful (But Sometimes Necessary) Decision

rings.jpgCouples who are still married, even into their 70s or 80s are the lucky ones. They've made it through the hard times, the ups and downs of life, ]and still have their companion at their side. But even the most devoted of spouses is sometimes finds it necessary to exercise "Spousal Refusal" to pay the long-term care bills of their spouse when he or she has lost the ability to perform the activities of daily living.

Spousal Refusal refers to one spouse's official and legal refusal to pay for long-term care expenses of the other spouse. In general, married couples have a legal obligation to pay for the healthcare costs incurred by either spouse if they are admitted into a nursing home. However, if your spouse has been admitted to a nursing home, and you have limited resources, you may fill out a form with Medicaid stating that you refuse to pay for your spouse's care. This may sound cruel or selfish, but exercising Spousal Refusal can sometimes be the only way to save the healthy spouse's small nest egg for his or her own needs in later years.

Spousal Refusal is not about turning away from a spouse in their time of need; in fact, many of the elderly individuals who exercise this option do so only after a long and painful decision-making process, and they do it not out of selfishness but out of necessity. Patients who need more than the first 100 days of nursing or rehab care covered by Medicaid can find themselves facing costs in excess of $100,000 per year. It is not uncommon for a couple to lose their house and all of their savings because of one extended stay in a nursing home.

It is good to know that couples who forgo Spousal Refusal and choose to pay for a spouse's long-term care costs after all won't be left completely out in the cold. Anti-spousal impoverishment laws were enacted on the federal level in the late 1980s. In 2012, the healthy spouse is permitted to retain up to $113,640 in assets while his or her sick or recovering spouse is covered under Medicaid. Unfortunately, in this day and age, $113,640 doesn't go a long way, especially if the healthy spouse lives for another decade or so. The decision to exercise Spousal Refusal is not an easy decision to make. Married couples must weigh the costs and benefits--not only financial costs and benefits, but emotional and ethical as well. The decision-making process can be emotional and overwhelming, and no couple should have to go through it alone. Contact our office if this is something you or your family is facing, we can help.

To read more on Elder Law download our Elder Law Update.

July 24, 2012

The High Emotional-- And Financial-- Cost of Alzheimer's Disease

happy_elderly_couple_americare.jpgAlzheimer's is a disease that affects everybody it touches--husbands, wives, children and grandchildren--they all bear witness to their loved one's slow demise.

Sadly, emotional stress is not the only stress that accompanies Alzheimer's disease; those loved ones serving as caretakers may carry a huge amount of financial stress as well. The cost of caring for an Alzheimer's patient can run anywhere from $64 a day to $77,380 a year, and because Alzheimer's disease can be such a long-lasting disease (a person can suffer from Alzheimer's for up to 20 years) the costs of care can end up being astronomical. It's obvious that people can't do it alone.

Long-term care insurance can be very helpful in paying for the costs of care necessary for a loved one suffering from Alzheimer's... if your loved one has thought ahead and purchased the policy before they or their spouse began suffering from symptoms of Alzheimer's. Some people may not have thought ahead and hope that government programs will be able to help with the high cost of care. Medicaid (or MediCal in California) can be helpful--although Medicare doesn't cover the cost of long-term care--but only if you fall in the right category and know how to navigate the complex Medicaid system.

Unfortunately, learning how to navigate the system is not something you can do in an hour or two. Because each individual experience with Medicaid will depend on a number of unique factors we can't give you an easy set of instructions to follow. The best advice we can give is to say that right now, the best way to navigate the Medicaid/Medi-Cal system is to find someone who knows the system to assist you. As an elder law firm we help clients with these issues on a regular basis. If you want to ensure that you and your loved ones will be cared for no matter what the future may bring, please contact our office for help.

To read more on Elder Law download our Elder Law Update.

July 23, 2012

New Wave of Lawsuits May Force Children to Pay for Elderly Parents' Nursing Costs


Many of our clients and readers in Florida are caregivers of elderly parents; they have chosen to take responsibility for their parents--whether it be physical responsibility, financial, or other. But what if instead of making that choice, you had responsibility for your aging parents thrust upon you? This is exactly what happened in the case of Health Care & Retirement Corporation of America v. Pittas, recently brought before the Pennsylvania appeals court.

This particular case states that "On or about September 24, 2007, after completing rehabilitation for injuries sustained in a car accident, Appellant's [John Pitta's] mother was transferred to a HCR facility for skilled nursing care and treatment. Appellant's mother resided in the facility and was treated by HCR until March of 2008. In March of 2008 Appellant's mother withdrew from the HCR facility and relocated to Greece."

Following Pittas' mother's relocation, a large portion of her bill at the nursing home went unpaid. Mr. Pittas' mother applied to Medicaid to cover her care, but while that application was still pending, the nursing home sought to hold Mr. Pittas responsible for the debt under the state's filial responsibility law. Although the case went to an arbitration panel which initially ruled in favor of Mr. Pittas, eventually the Pennsylvania trial court ruled in favor of the nursing home, holding Pittas responsible for nearly $93,000 of his mother's nursing expenses.

At this time Florida does not have these issues, but Florida residents should be careful if their parents live in other states.

So far this has only happened in one state, but there are many other states which still have filial responsibility laws on the books. These laws have rarely been enforced thus far, but this ruling by the Pennsylvania Supreme Court does not bode well for children of aging parents throughout the U.S., many of whom are finding themselves caught between caring for elderly parents and for grown children who have not yet left the nest.

Perhaps one of the most disturbing things about this case is that the nursing home was given so much leeway. The Pennsylvania Supreme Court found that "Nothing in [Pennsylvania Law] requires a movant or a court to consider other sources of income [for the elderly parent] or to stay its determination pending the resolution of a claim for medical assistance." Furthermore, the court also stated that it was the nursing home's right to choose which family members to pursue for the money owed.

This would seem to condone (if not encourage) a litigious mind-set among nursing homes; and if you are one of many siblings with an elderly parent you could find yourself involved in a lawsuit merely because you live the closest, are the wealthiest, or called mom more often than your brothers or sisters.

The best way to guard against yourself or your family becoming embroiled in a similar lawsuit is to ensure that you (or your elderly parents) have a plan in place to pay for long-term care. Talk to your
parents about what plans (if any) they have to pay for their future long-term care needs, and contact our office to explore your options.

To read more on Elder Law download our Elder Law Update.

July 19, 2012

How Many Estate Planning Lawyers do you Need?

couple.jpgAccording to a recent article on Forbes.com, the importance of estate planning for married couples cannot be stressed enough. The seriousness of such forward thinking is even more critical in blended families which tend to present more opportunities for volatility following the death of a parent.

The first issue for all couples to resolve is whether to be represented jointly by the same estate planning lawyer or for you each to go it alone. While joint representation can be more cost-effective, it can mean that both parties don't have the freedom to speak up about their individual concerns. Unless there is healthy communication between the spouses joint representation can be a recipe for disaster.

The following are some good rules of thumbs to consider when deciding whether you need your own or joint representation:

  • Only one of you has children. Most people want to leave their estate to their children but if the other spouse has no children of their own then the parent may fear dying first and leaving their kids with nothing.
  • Rich spouse, poor spouse. A large disparity in income between spouses can effect joint planning and may be a good reason to go your own way.
  • One of you does all of the talking. If one party dominates the other in the planning phase this could be a sign of communication problems to come. As a result the one spouse may not feel happy with the final deal and an estate planner should recognize this discrepancy in power between the parties and consider pursuing separate representation.
  • Length of the relationship. The shorter the relationship, the greater reason to get separate attorneys.
  • The number of past relationships. Another pretty solid rule of thumb is that the greater the number of past relationships one, or both of you, have had, the greater the chance that you need separate estate-planning representation.
  • Large age difference. The greater the age difference between you, the greater the need to consider separate representation as you both are in very different places in your lives and face unique concerns.

If you have questions about probating an estate planning contact a Jacksonville Estate Planning Lawyer to talk about your estate, will or forming a trust.

Source: "Estate Planning For Couples: Should It Be A Solo Or A Duet?," by Deborah L. Jacobs, published at Forbes.com.

See Our Related Blog Posts:
How does a Florida living will work?
Removing a Personal Representative in a Florida Probate

July 18, 2012

How to Avoid Probate in Florida

Thumbnail image for last-will-and-testament-document-with-gavel-and-pen-58750624.jpgWith a little careful planning, you may be able to avoid the probate question all together. Avoiding probate saves money and greatly reduces the strain placed on your family by time in court. A meeting with an estate-planning attorney can help you figure out how to structure your estate so that probate is not necessary, no matter how large the value of the estate. The following is a list of estate-planning tools that can help you avoid having to go through the probate process. Be careful replying on some of these because they may expose you to unnecessary risk of loss of the assets due to litigation. If you are interested in protecting assets and avoiding probate contact us to discuss your specific needs.

1. Living Trusts: Living trusts (also called an "inter vivos" trust) is a trust that is created while you are alive, rather than one created upon your death. Living trusts are great vehicles to avoid the lengthy and expensive probate process.

2. Joint Ownership: If you own property jointly with someone else, and this ownership includes the "right of survivorship," then the surviving owner automatically owns the property when the other owner dies. An asset that is owned by two or more people in joint tenancy is not required to go through probate.

In Florida, the following forms of joint ownership are available: 1) Joint tenancy. Property owned in joint tenancy automatically passes to the surviving owners when one owner dies. No probate is necessary. Joint tenancy often works well when couples acquire real estate, vehicles, bank accounts or other valuable property together. 2) Tenancy by the entirety. This form of joint ownership is like joint tenancy, but is allowed only for married couples in Florida.

3. Payable-on-Death Bank Accounts: In Florida, you can add a "payable-on-death" (POD) designation to bank accounts such as savings accounts or certificates of deposit. You still control all the money in the account - your named beneficiary has no rights to the money, and you can spend it all if you want. At your death, the beneficiary can claim the money directly from the bank, without probate court proceedings.

4. Transfer-on-death Securities: Florida lets you register stocks and bonds in transfer-on-death (TOD) form. If you do so, the beneficiary you name will inherit the account automatically upon your death. No probate court proceedings will be necessary.

If you have questions about probate, asset protection, or estate planning contact the a Jacksonville Estate Planning Lawyer today at (904) 685-1200.

See Our Related Blog Posts:
Should you make a gift in 2012 and avoid Gift Tax on $5.12 Million

Frequent estate-planning mistakes in Jacksonville

July 16, 2012

Should I receive regular payments from a Trust as a Beneficiary?

untitled.bmpBeneficiaries or people who think they are beneficiaries of trusts often ask up if they should receive regular payments or distributions from a trust. As with most legal issues the answers "depends on the circumstances and what the documents state".

Without reviewing your trust to determine if it is a revocable trust, revocable trust that has become irrevocable, or an irrevocable trust as well who the beneficiaries it is difficult to tell whether you are entitled to anything.

Sometimes people think they are beneficiaries when they are contingent beneficiaries and have no rights until a triggering event occurs. Often that is the death of the person who created the trust or their spouse.

There are so many possibilities as to the rights you have that it would be impossible to go over each of them without a place to start. The place to start is by having a Florida estate planning lawyer or Florida trust lawyer review your trust. If you would like your trust reviewed and was written in Florida or created by a Florida resident, contact us and we can discuss review your trust and help you determine your rights under the trust document.

July 11, 2012

Elder Law Update: States That Could Make Children Pay for Dad's Care

Unpdaid long-term care bills are increasing and becoming more of a problem in many states. All 50 States have statutes that obligate adults to care for children or other family members; if your parent lives in one of 29 states, you could be held responsible for your parents unpaid long-term care bills. What? How could this be? are the typical reactions to many living in these unfortunate states.

Katherine Pearson at Penn State Law School has written a paper on Fillal Support Laws and the enforcement Practices for laws requiring adult children to pay for indigent parents.

Her abstract states:

Family responsibility and support laws have a long but mixed history. When first enacted, policy makers used such laws to declare an official policy that family members should support each other, rather than draw upon public resources. This article tracks modern developments with filial support laws that purport to obligate adult children to financially assist their parents, if indigent or needy. The author diagrams filial support laws that have survived in the 21st Century and compares core components in the United States (including Puerto Rico) and post-Soviet Union Ukraine. While the laws are often similar in wording and declared intent, this article demonstrates that enforcement practices are quite different among the two countries, even as both countries struggle with aging populations and recession. In addition, the author analyzes a potentially disturbing trend emerging in at least two U.S. states, most significantly Pennsylvania, where filial support laws are now a primary collection tool for nursing homes, with decisions against adult children running to thousands of dollars in retroactive "support." The article closes with concerns for policy makers in any state or country considering filial support as an alternative or supplement to public funding for long-term care or health care for the elderly.

What is interesting is that some states like NY have cases where they were able to go after children in other states to collect the funds. I can see how a state can enforce laws against its residents or those domiciled in that state but the concept of creating a law in one state that creates an obligation on adult children living in another state is beyond logical.

If your parent's are alive and going to receive care from a nursing home in one of the following 29 states, you should talk with an estate planning professional to determine what your risk of liability is.

Alaska, Arkansas, California, Connecticut, Delaware, Georgia, Indiana, Iowa, Kentucky, Louisiana, Maryland, Massachusetts, Mississippi, Montana, Nevada, New Hampshire , New Jersey, North Carolina, Ohio, Pennsylvania, Rhode Island, South Dakota, Tennessee, Utah, Vermont, Virginia, West Virginia .

NOTE: There are no laws in Florida that would require such support but we often see individuals who check their parents into nursing homes or hospitals who sign admission papers who unnecessarily obligate themselves financially. You may want to discuss how to limit such financial obligations by use of a power of attorney.