Estate Planning FAQs

What Is Estate Planning?

In simple terms, estate planning involves putting your affairs in order so as to maximize the benefits 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 upon your demise to those persons you designate in a manner that will provide maximum benefits to the beneficiary.
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 estate planning only involves the writing of a will. Estate planning, however, can also involve financial, tax, medical, and business planning.

What is a health care surrogate or health care proxy?

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.

How much does estate planning cost?

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. Costs for estate planning and legal services are discussed with the client and agreed prior to any work commencing; our initial consultation is completely free.

Who should be my executor or trustee?

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, trustworthy, and honest.

What is probate?

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).

What is a living trust?

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.

Why should I have a trust?

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.

What is a trust?

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).

What is a living will?

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.

What happens if I die without a will in Florida?

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.

Isn’t a will all I really need?

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.

Who needs estate planning?

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 the event 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.

What does an “estate” consist of?

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.

Probate FAQs

What is Probate?

Probate is the process through which a decedent’s assets (the “estate”) are legally passed to their beneficiaries. The majority of all estates must pass through Probate. This process affords the opportunity to creditors and debtors to collect what is still owed from a decedent’s estate.

How can I avoid Probate?

The Probate process may be avoided through the use of a trust, joint ownership/titleship, or already having beneficiaries established on your accounts (including 401ks, life insurance, banking, and pension plans).

Do I need a Probate attorney?

In Florida, all estates must be represented by an attorney unless they meet the requirement for “disposition without administration,” which only those with little or no estate qualify for, and when the named executor of the will is also the only beneficiary. Having a Probate lawyer assist during the proceedings can provide you with the opportunity to focus on your grieving rather than court processes. They can also help beneficiaries maximize their benefits, often helping settle debts owed or maneuvering death and inheritance tax laws.

Elder Law FAQs

When should I contact an elder law attorney?

Talk to an elder law attorney before illness or incapacity becomes an issue so they 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 or some you know are the victim of elder abuse, you should contact us immediately.

How much does an elder care lawyer charge?

The cost of an elder law attorney depends on your individual circumstances and the complexity and planning required to achieve certain goals and objectives. Costs for legal services are discussed with the client and agreed prior to any work commencing; our initial consultation is completely free.

My parent is already in a nursing home. Is it too late to hire an elder law attorney?

No. It is almost never too late to plan, even for those already in a nursing home. However, the earlier you begin planning, the better.

What is Social Security Disability Insurance?

Social Security Disability Insurance pays monthly benefits to individuals who are no longer able to work due to a severe illness or impairment that has lasted or is expected to last 12 or more months or result in death. 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. To qualify, a disabled worker must have worked at jobs covered by Social Security.

What is long-term care insurance?

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 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 you in contact with the right people to ensure you’re in good hands.

Medicaid Planning FAQs

What are Medicare and Medicaid?

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.

Will Medicare pay for a nursing home stay?

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.

Am I eligible to receive Medicare or Medicaid benefits?

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.

What is “Spend Down Money?

“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 rather, to “spend down” funds should be utilized for the benefit of the elder who will be entering the nursing home. This could include clothing, furniture and furnishings, an irrevocable prepaid funeral contract, entertainment, or extra therapy. “Spending down” can also include 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 have a Community Spouse Resource Allowance and still qualify the ill spouse for Medicaid.

Family Law FAQs

I am getting divorced. Do I need an attorney?

Although you can file for divorce on your own, it is always best to consult with an attorney to guarantee your legal rights are protected. Without representation, parties take the chance of losing out on critical financial, property, custody, and other important rights.

What are the costs associated with family law?

The cost of a divorce, custody issue, or other family law matter depends on your individual circumstances and the complexity and planning required to achieve certain goals and objectives. Costs for legal services are discussed with the client and agreed prior to any work commencing; our initial consultation is completely free.

How long does it take to adopt?

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.

What are the benefits of establishing paternity?

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 the child receives the same rights and privileges as all children. These include inheritance rights and access to the father’s medical or life insurance benefits, Social Security benefits, or 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.

How do I know if I will receive alimony?

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 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, length of marriage, and balance of roles to determine how much and how long support 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.

What happens if a parent does not pay court-ordered child support?

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

How is child support determined in a divorce or child support case?

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.

What is joint custody? Physical custody?

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.

How do courts determine who gets custody of children in a divorce?

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.

Who determines how assets are divided in a divorce?

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.

What does legally separated mean?

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.

Can I get divorced even if my spouse does not want to?

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.

Bankruptcy FAQs

Why file for bankruptcy?

For individuals who are suffering financially, deep into personal debt without a means to escape, filing for bankruptcy can serve as a way to wipe the slate clean and start anew. If successful, filing for bankruptcy can erase most debts—or create a repayment agreement that is manageable based on your income. However, your credit history will reflect you filed for bankruptcy which can negatively impact your score and credit worthiness, so filing for bankruptcy should be considered fully before attempted.

How long does a bankruptcy stay on my credit report?

Bankruptcies can stay on your credit history for 7 to 10 years.

What does Discharge of Debt mean?

Discharge of Debt happens upon approval of filing for bankruptcy and erases your responsibility to repay a particular creditor. Not all debts can or will be discharged in bankruptcy.

What debts are not discharged?

Most unsecured debts, like credit cards, can be discharged. Other debts are not cleared, removed, or discharged. These debts include any owed child support or alimony, student loans, government fines, income or property tax, and fees levied by a court (like fines or restitution). Fraudulent charges are also not discharged.

Will the co-signer of my loan/debt be affected?

Co-signers assume responsibility of a loan or debt, same as the primary signer. If you file for bankruptcy, the responsibility of this debt will fall to them, may not be discharged, or if a secured loan, the item repossessed.

Will filing for bankruptcy stop a foreclosure or repossession?

When you initiate the bankruptcy process a temporary hold is placed on foreclosures and repossessions until the outcome of the bankruptcy process.

Can I keep my car or home after a bankruptcy?

Any debts you wish to maintain responsibility for, like a car or home, will require a Reaffirmation of Debt Agreement with the creditor. This agreement re-establishes your responsibility of the loan/debt; however, only do this if you will be able to continue making payments. You can only file for bankruptcy every few years, so if you fall behind again, you’ll end up in collections without a means to walk away clean from the debt.

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