Estate Planning

In simple terms, estate planning involves putting your affairs in order so as to maximize the benefits that your assets can provide to you during your life and to those you desire to benefit from your assets after your death.  Estate planning has three objectives:

  1. To ensure that your assets will pass at your demise to those persons you designate in a manner which will give them the maximum benefits
  2. To reduce or eliminate the tax burden on your estate
  3. To provide for the passing of your assets after your death to your chosen beneficiaries without the necessity of probate, time delays or inconveniences.

Many people mistakenly think that estate planning only involves the writing of a will. Estate planning, however, can also involve financial, tax, medical, and business planning.

A health care surrogate designates a person, or persons, whom you want to make medical decisions on your behalf if you ever become incapacitated and unable to make medical decisions for yourself.  It is important to note that legally your health care surrogate has the authority to override your living will, so be certain that the person, or persons, you choose are informed of and understand the importance of your wishes in these matters.
It depends on your individual circumstances and the complexity and planning required to achieve certain goals and objectives. Generally, the costs will include the lawyer’s charges for discussing your estate plan with you and for preparing your will, trust agreement, a power of attorney or other necessary legal documents. We charge a flat fee for estate planning services while others charge on an hourly basis or use a combination of both types of fees.
That is your decision. You could name your spouse or domestic partner as your executor or trustee. Or you might choose an adult child, another relative, a family friend, a business associate, or a professional fiduciary, such as a bank or individual licensed to act in such a capacity by the state of Florida. Your executor or trustee does not need any special training. What is most important is that your chosen executor or trustee is organized, prudent, responsible, and honest.
Probate is the court-supervised, public proceeding used to change the title of assets from the name of an individual who has passed away into the name of the living beneficiary. It is also the process by which creditors of a decedent file claims to collect their debts and where interested parties who have a complaint regarding the deceased can file a complaint (a will contest).
A living trust is another way of saying a revocable trust. Revocable trusts allow a person to name themselves as trustee to manage assets for themselves as a beneficiary. It is created for the express purpose of avoiding probate. A living will does not prevent estate taxes nor does it remove funds from an individual’s control or countable estate for Medicaid or Veteran’s benefits analysis.
Many estate plans do not require a trust. However, trusts are often essential to ensure the proper management of property left to individuals who are minors, disabled or irresponsible. Trusts – such as credit shelter trusts, disclaimer trusts or irrevocable life insurance trusts – can also significantly reduce the death taxes of larger estates.
A trust involves the transfer of property from one person (settlor) to the control of another person (trustee) to be held and used for the benefit of a third person (beneficiary).
A living will is a legal document that allows you to express your wishes to doctors in case you become incapacitated.  In a living will, you can outline whether or not you want your life to be artificially prolonged in the event you suffer from a terminal condition, are in a persistent vegetative state, or are diagnosed with an end stage condition.
If you die without a valid will, Florida statutes will determine how your property will be divided, which may conflict with the way you would want to have your assets distributed. According to the American Bar Association, 55 percent of Americans die without a will or estate plan.
A will is necessary to ensure that your wishes are honored after your death – including your choices of estate administrator, beneficiaries and guardians for your minor children. Other documents are needed to fully carry out your wishes and manage your assets in the event you are temporarily or permanently disabled. In addition to a will, you should also have a durable power of attorney, a medical power of attorney, a healthcare directive and a HIPPA authorization.
You do, whether your estate is large or small. Without adequate estate planning, you forfeit your opportunity to make many important decisions such as:

  • Choosing the person who will make health care decisions for you if you are incapacitated and not able to do so
  • Naming a guardian for your minor children in case of your incapacity or death
  • Naming a guardian to manage the assets you leave behind for your minor children and specifying when and how you would like those assets distributed
  • Specifying how and by whom your assets will be managed if you are temporarily or permanently disabled
  • Specifying how and to whom your assets will be distributed when you die

An “estate” consists of all your assets including real estate, bank accounts, stocks and other securities, life insurance policies, and personal property such as cars, jewelry and artwork. The value of your estate is equal to the fair market value of the assets minus your debts. The value of your estate is important in determining whether your estate will be subject to estate taxes after your death and whether your beneficiaries could later be subject to capital gains taxes. Ensuring that there will be sufficient resources to pay such taxes is another important part of the estate planning process.

 

Elder Law

Elder law refers to the practice by attorneys, like us, that help seniors and their families with a variety of needs which may include asset protection, long term care planning, estate planning, and healthcare or Medicaid or other state or Federal aid eligibility. Some issues that may be included in discussion are:

  • Medicare, Medicaid, Social Security benefits, veteran’s disability benefits and other government benefit programs
  • Powers of Attorney which provide a person with the ability to make financial decisions on another person’s behalf and which allow a person to apply for benefits on behalf of another person.
  • Health Care Surrogate Designations which specify the persons that one appoints to make medical decisions in the event that a person is incapacitated and unable to make their own medical decisions.
  • Wills, trusts, and other estate planning which enables a person to direct where their assets will go upon death in the most cost effective manner and to protect those loved ones that may need further care and supervision over their money matters such as the appointment of trustees over a trust established for minors.
  • Special Needs Trusts which are a particular type of trust specifically created to address the protection and needs of a beneficiary that has special needs and may already be receiving social security disability or other disability benefits in order to allow for the supplemental needs of that individual that his or her benefits does not cover but the properly created and administered trust prevents the individual from losing their benefits that are in place or that they might qualify for in future.
  • Care Contracts which are contracts between the person needing assistance and a person that shall serve as caregiver which enable an individual to secure their care and pay in advance for that care according to a formula based on their actuarial life expectancy.
  • Care Contract Trusts are specific trusts that go hand in hand with care contracts and allow for the pre-payment of services agreed to in the care contract.

The above list is by no means exhaustive as there are many issues that may arise in individual cases, but this firm offers free initial consultations in order to determine what services would benefit an individual.

Talk to an elder law attorney before illness or incapacity becomes an issue so he/she can help you draft legal documents detailing exactly how certain situations should be handled if you are not able to make decisions for yourself. That means you’ll be in control of the care and treatment you receive regardless of your ability to assert what you want at a later point. If you are the victim of elder abuse, you should contact us immediately.
Most elder law attorneys have moved away from charging by the hour towards a flat-fee model that reflects both the amount of time and the expertise needed to complete the needed work. Medicaid planning and Medicaid applications consist of a mix of elements. Ask for a cost break down in writing before hiring any attorney.
No. It is almost never to late to plan, even for those already in a nursing home. However, the earlier you begin planning, the better.
Assets are usually transferred to children or other family members either outright or to a trust for your benefit. A trust can be more desirable than an outright transfer to a child because:

  • You may have a bad relationship now or in the future with: your child or your son-in-law or daughter-in-law
  • Your child may get divorced, have creditors or go bankrupt, invest your assets unwisely, spend all of your assets during your life, or spend all of your assets as soon as you die.

There are problems with the trust, however. You do not have access to the money in the trust. At most, only the income that the money or property in the trust earns can be distributed to you. The trustee of your trust must not have any discretion to distribute trust principal to you; otherwise the principal will be considered a resource for Medicaid purposes.

Social Security disability insurance pays monthly benefits to workers who are no longer able to work due to a severe illness or impairment that has lasted or is expected to result in death or to last at least 12 months. It is part of the Social Security program that pays benefits to the vast majority of elderly Americans. Benefits are based on the disabled worker’s past earnings and are paid to the disabled worker and his or her dependent family members. In order to qualify, a disabled worker must have worked in jobs covered by Social Security.
“Spend down” refers to reducing countable assets to allow Medicaid qualification. A nursing home residence can only have $2,000 of countable assets. The process of reducing bank accounts, life insurance, IRAs and other countable assets to only $2,000 is called “spending down.” Gifts to others (besides the nursing home resident’s spouse) are not permitted. You may pay for anything for the benefit of the nursing home resident. That could include clothing, furniture and furnishings, an irrevocable prepaid funeral contract, entertainment and extra therapy. It also includes legal fees paid to plan the resident’s estate and to qualify the resident for Medicaid. You may also be able to pay off existing mortgages or credit card debt, and to repair the home. It is important to remember, spend down rules are different for a married couple. Generally the spouse remaining at home can keep the home and a Community Spouse Resource Allowance and still qualify the ill spouse for Medicaid.
Typically Medicare will only pay for nursing home care on a limited and short-term basis. Medicare coverage is generally limited to rehabilitative services performed in a nursing home of up to 100 days. Ongoing custodial care is not covered.
Eligibility for Medicare is based mainly on eligibility for Social Security. If you are age 65 or older, have been disabled for at least two years or have chronic kidney disease, you may be eligible to receive Medicare benefits. The eligibility requirements for Medicaid, and which health services are covered, are determined on a state-by-state basis.
Medicare and Medicaid are government-sponsored programs that help pay for medical care. Medicare is a federal program for the disabled and people aged 65 or over. Medicaid is a federal-state program for low-income families with children as well as the needy, aged, blind and disabled.
Long-term care insurance is a private insurance policy purchased to cover long-term care needs, such as home care provided by a paid caretaker, assisted living facilities or nursing homes. While often times quite expensive, long-term care insurance can save a substantial amount of money when compared to the rising costs of long-term care. While we don’t provide insurance in any way, we can put in contact with the right people to ensure you’re in good hands.

 

Family Law

Although you can file for divorce on your own, it is always best to consult with an attorney to guarantee that your legal rights are protected. Without representation, parties take the chance of losing out on critical financial, property, custody and other important rights.
The issue of costs is one that you should consider before commencing a proceeding in family court and, that should be discussed with your lawyer at your initial consultation appointment.
To adopt an infant domestically in the United States it takes about 12 months with most placements happening between six and 18 months. The wait time can be affected by many factors, one of the largest being how open the adoptive family’s profile is. For example, a family only prepared to adopt a child of one ethnic background could potentially wait much longer than a family open to a child of any background.
Legally establishing a man as the father of a child can help provide emotional, social and economic ties between a father and his child, and can ensure that the child receives the same rights and privileges as all children. These include inheritance rights, access to the father’s medical and life insurance benefits and to Social Security and veterans’ benefits. The child also has a chance to develop a relationship with the father, and to develop a sense of identity and connection to the father’s family.
In order to receive alimony (spousal support), there must be a showing that the person receiving support is a “dependent” spouse, the person paying support is a “supporting” spouse and that the supporting spouse has the ability to pay support. If a dependent spouse is entitled to alimony and the supporting spouse has the ability to pay, then the Court will consider many factors, including marital misconduct, to determine how much and how long it should be paid.  Once the court determines a person’s right to alimony, the type of alimony must be determined, and all types of alimony are further determined by one person’s need and the other person’s ability to pay.
Child support payments are often one of the more contested aspects of divorce proceedings, and parents can face severe penalties for failing to make court-ordered payments as scheduled.

Some of the most common penalties for nonpayment of child support include the following:

  • Finding of contempt of court
  • Fines, jail or both
  • Garnishment of wages, including unemployment and worker’s compensation
  • Denial of tax refunds
  • Exclusion from receipt of certain government benefits
  • Revocation of passport
  • Suspension, revocation or denial of driver’s license
  • Having a lien placed on property to cover payment

All 50 states have adopted child support guidelines. Some states use tables that indicate a support amount for different ranges of income, similar to tax tables. Although some states base support on the payer’s income, many states use an income shares model, which is based on the income of both parents. Usually, the parent without the child the majority of the time will pay support, but if both parents share time with the child equally, the parent with the greater income usually pays support. Some states also cap support at a certain income level. States vary on what expenses are included in child support. For example, some states include medical expenses and day care, while other states add those costs on top of the child support.
Joint custody has two parts: joint legal custody and joint physical custody. A joint custody order can have one or both parts. Joint legal custody refers to both parents sharing the major decisions affecting the child, which can include school, healthcare and religious training. Other considerations under these types of custody agreements can include: extracurricular activities, summer camp,an age for dating or getting a job, and methods of discipline. Joint physical custody refers to the time spent with each parent. The amount of time is flexible, and can range from a moderate period of time for one parent, such as every other weekend, to a child dividing the time equally between the two parents’ homes. In situations where the time spent with both parents will be divided equally, it helps if the parents live close to one another.
If the parents cannot agree on custody of their child, the courts decide custody based on “the best interests of the child.” Determining the child’s best interests involves many factors.
Generally, spouses are free to divide their property as they see fit in what is called a “marital settlement agreement,” which is a contract between the husband and the wife that divides property and debts and resolves other issues of the divorce. Although many divorces begin with a high level of acrimony, most are settled without the need for a judge to decide property or other issues. However, if the division of property cannot be settled, then the court must make the determination.
The status of “legally separated” is not generally recognized as a formalized state under Florida law.  Some couples choose to do marital settlement agreements which are contracts that provide for the settlement of their assets and liabilities in the event of divorce.
In Florida, as long as both parties have capacity to make legal decisions, the answer is yes, and your spouse is not required to “consent” to divorce.

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