ESTATE PLANNING FAQS
What is a Will?
A Last Will and Testament specifies who will receive your assets upon your death. The original will should be kept in a safe place because it must be presented at the time of death (a copy may not be admitted to probate). If the will is not signed pursuant to the requirements of Florida law, it is void. You cannot avoid probate by having just a Will.
What is Probate?
Probate is a proceeding required by Florida law upon the death of an individual who dies owning any assets. This is the court’s way of gathering the assets of the decedent, paying the debts and taxes, and passing title to the decedent’s beneficiaries. There are several ways to avoid probate, including the use of a revocable living trust, owning property through joint tenancies, and having beneficiary designations on certain types of accounts (such as life insurance, IRA’s, 401(k)’s and pension plans).
What is a Durable Power of Attorney?
While our own incapacity is not a pleasant thought, ignoring the possibility may have far reaching consequences. There are various legal instruments, which when executed prior to the event of physical and/or mental incapacity, can alleviate some of the issues which commonly arise. They can often eliminate the need for expensive guardianship proceedings. For example, a Durable Power of Attorney allows the appointee to handle your general or specific affairs if you become disabled, ill, or leave the country. Even if you are married, if you were to become incapacitated and your spouse needed to sell the house, for instance, to pay for medical bills, he or she would be unable to do so without your signature. If you are incapacitated, obviously, you cannot sign a contract or give your consent. Thus, a guardianship (which can be an expensive legal process) would have to be started. A durable power of attorney avoids the need for a guardianship. Since it takes effect immediately upon execution, you must have absolute faith and trust in those you name for this position.
What is a Health care surrogate?
Other “advanced directives” include the Designation of Health Care Surrogate which allows you to designate a person to make medical decisions for you (end life support system if brain dead, select a doctor, select or deny medical procedures, choose which hospital, select your nursing home, etc.).
What is a Living Will?
A Living Will, not to be confused with a Living Trust, states your wishes regarding whether you wish to be kept alive via artificial life support, forced feeding and/or hydration if you are terminally ill or a physician determines there is no medical probability of recovery.
What is a Living Trust?
Not to be confused with a Living Will, a Living Trust is a document which creates a form of ownership in which assets owned by the grantor of the trust are legally re-titled in the name of the trustee (which can be the same person as the grantor) who manages the assets for the benefit of the trust’s beneficiaries named in the document. This is the most effective way to avoid probate and guardianship proceedings. It is safer than owning property jointly (in order to avoid probate) because the trustee, who manages and controls the assets, does not personally own the assets of the trust; the trustee holds the title to the assets “in trust” for the benefit of the beneficiaries. Typically, a living trust names the grantor as the initial trustee and beneficiary, so that the grantor is the person who manages the trust assets. A grantor may instead choose to name a bank, trust company, or another individual as the initial trustee. The trust also dictates who will receive the assets upon the grantor’s death, e.g. the beneficiaries. It is important to note that the assets must be transferred into the trust once the trust is created – otherwise, you just have a document written on nice paper and nothing more.
The assets avoid probate because the trust owns the assets, not the individual. However, assets not transferred into the trust prior to the grantor’s death will not avoid probate (except for life insurance and other assets which have beneficiary designations or avoid probate on their own).
What should I know about Asset Protection Planning?
Asset protection planning allows you to plan for unexpected events in order to prevent the loss of income to the family and retain sufficient assets to pay for living expenses and medical care.
Examples of asset protection planning include making sure that motor vehicles are titled in the name of the principal driver only. This is due to the fact that anyone whose name appears on the vehicle title is legally responsible for the negligent acts of the driver. Therefore, each spouse should own their own car and children, if they are over the age of eighteen, should own their cars.
Another way to protect your assets, as a married couple, is to own property jointly as tenants by the entirety (and NOT as joint tenants with full rights of survivorship). The reason for this is because creditors of one spouse cannot reach property held as tenants by the entirety. Both real property and personal property can be held as tenants by the entirety. This form of ownership also avoids probate on the death of the first spouse.
Please bear in mind this information is general in nature and you should consult with an attorney familiar with estate planning issues. You should also be sure to keep the originals of your estate planning documents in a safe place, and let others, especially the designees, know where they are located.
Having an elderly family member enter a nursing home or assisted living facility can be very stressful. You may find yourself asking how will their care be paid for, are they getting the best care, will you be able to make certain decisions for them? These are some of the questions that we can help you answer. Here are the answers to some frequently asked questions:
What does Medicare pay for?
Medicare is a health insurance program for the elderly and disabled, and it provides benefits for those who have reached age 65 and are entitled to receive Social Security (they worked and “paid into” the system by making payroll tax contributions for 10 or more years, or 40 quarters) or Railroad Retirement benefits. Medicare also provides benefits for those who are disabled of any age and have received Social Security or Railroad disability benefits for at least two years. For those who need nursing home care, Medicare Part A will pay for post-hospital skilled nursing care at 100% for the first 20 days and for days 21 through 100, there is a co-pay is $164.50 per day (2017). After day 100, Medicare stops paying (and can stop paying prior to day 100 if the recipient no longer needs skilled nursing care).
What does Medicaid pay for?
Medicaid covers a wide range of health care coverage for individuals and families with low income and low assets. In particular, the Medicaid Institutional Care Program (ICP) will pay for nursing home care for those who are age 65 or older, or who are disabled as determined by social security criteria. The basic requirements for Medicaid are as follows:
Income requirements – $2,205 per month (2017); Spouse can get a minimum of $2,002.50 of applicant’s income (2017) to a maximum of $3,022.50 per month (2017). If Applicant’s income is over $2,205 per month, he or she may still qualify for ICP Medicaid with the use of a Qualified Income Trust.
Asset requirements: Applicant can have no more than $2,000 in assets; Spouse who resides in community can keep up to “$120,900 (for 2017 – this does not include the home, a vehicle, or other non-countable assets)
How can you an Elder Law attorney help us?
Having a loved one who is going through health issues and being placed in a nursing home can be very emotional for the family. We can help your loved one sort through the issues, determine the goals they want to accomplish, and understand the options that are available to your loved one, whether it be Medicaid, VA benefits, or some other option. We can also help with the filing of the Medicaid application – this should not be rushed into and sometimes, planning needs to be done before the application can be filed.
Are there any assets I can keep if I go into a nursing home?
One of the great things about living in Florida is that Florida has a homestead exemption from creditors – you can keep your house, whether you are single or married, and still get Medicaid benefits. However, you should be aware that the new laws have changed the value of the homestead exemption – where it used to be unlimited, it is now only exempt up to $560,000 (for 2017). Also, you can keep one automobile of any value.