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.

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. 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.

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.

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 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.

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.

In Florida, every person over 18 should have the four basic documents, Last Will and Testament, Power of Attorney, Health Care Surrogate, and Living Will.

If you are involved in an accident and become incapacitated without a power of attorney and health care surrogate no one has the right to access funds, benefits, or make medical decisions on your behalf. Your parents or significant others or siblings will not have the right to get any information about your condition. Your next of kin will have no option but to hire an attorney and seek Guardianship which is the Court approved supervision of every aspect of your life. This is expensive and intrusive.

The best gift you can give your loved ones is to execute valid power of attorney, health care surrogate and living Will documents. The last Will and Testament is needed even if you have "no assets" because the power of attorney and health care surrogate terminate upon your death and you need to designate the Personal Representative who can take over any final things that need to be taken care of like whether you are cremated or buried, where your final resting place is, taking care of your personal property.

In the event you are in a fatal accident, your Personal Representative will need to represent your estate in insurance and legal matters arising from the accident.

That is why we advise everyone over 18 in Florida to meet with us to prepare and execute the four basic documents.

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.

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).

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.

In Florida, a will does not avoid probate.  This does not automatically mean that there will be a probate over your estate after your death but it is very important to review your assets with an attorney so that attorney may advise you on whether an asset will require probate and what the best method to avoid probate may apply to your particular circumstances.  There is no "one size fits all".  Here at Legacy Law of Florida we practice estate planning, probate, probate avoidance, guardianship, and Medicaid law so we have the experience and knowledge to assist our clients in all aspects of estate planning and asset protection available under Florida Law.

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.

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.

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.

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.

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.

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.

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.

“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.

Have questions about this? Call (813) 643-1885 or send us a message