For many, the New Year comes with New Year’s resolutions. If you have not completed your estate planning, or have not updated your planning in some time, doing so would be a good resolution to have. You might be surprised to know, estate planning does not simply mean having a plan for what happens in the case of your death. A comprehensive estate plan also includes planning for what happens in the event of your disability – specifically, if you are not mentally competent. This part of estate planning may be overlooked or missed but it can be the most important part of
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The answer is NO. When a person dies leaving a Will and/or Trust, the nominated Personal Representative or Successor Trustee is not obligated to use the attorney who prepared the documents to administer the estate and/or trust.
No one wants to live in a nursing home. But, for many people it may become necessary at some point in life. For those who do become residents of a nursing home, it is important to understand nursing home transfer and discharge rights to ensure the best care possible.
In general, nursing homes are prohibited from moving or discharging residents. When these situations do occur, specific processes and procedures must be followed. In order to lawfully discharge a resident, the nursing home must be able to prove that it complied with all the procedural requirements and the discharge is for one of the specific allowable reasons. If the discharge occurs and is not for one of the reasons described below, the resident must be allowed to return to the facility. (more…)
Probate is often thought of as a process that is best avoided. There certainly are situations in which probate is not necessary, but it is surprising for some to learn there are benefits which can only be gained by engaging in the probate process. In most cases, probate is an easy and straightforward process. Unfortunately, it seems the probates that get discussed are not the ones that go smoothly, but rather the situations in which something unexpected occurs. It is best to understand the process before automatically assuming probate should be avoided.
What is a trust?
Anytime legal terms start to be used, it is easy to get confused, especially with words that have other meanings in our day to day conversations. In this instance, a trust is a legal entity, similar to a corporation, which can own assets like bank accounts and real estate.
What does a trust do?
At the most basic level a trust simply controls assets for an individual or individuals. However, trusts can be used to provide for loved ones, maintain privacy by preventing assets going through the probate process, and ensure that our wishes are carried out when we pass.
How does it work?
Once a trust has been established, an individual or individuals can transfer their ownership of certain assets to their trust. From there, the rules established in the trust agreement will determine how the assets are managed. The person or persons who manage the assets are called “trustees”.
What stuff can go into a trust?
Cash accounts, investment accounts, stocks, and bonds are examples of assets that a trust can directly own. However, trusts can be the beneficiaries of some insurance policies, as well as retirement plans and annuities, allowing these assets to be distributed by the trust as well.
Should you create one?
The steps we take as we plan for the future of ourselves and our loved ones always depend on our circumstances. Perhaps you have a parent, a spouse, or a child that relies on you for assistance. Maybe you don’t like the idea of your finances entering the records of the public and would prefer they just go to the people they’re intended for. Or, as we so often do, you have expressed your wishes informally in conversation with family and friends, and expect that they will know what to do when the times comes. Too often these desires can be confused, forgotten, or even ignored as people grieve.
If you have loved ones who you want to ensure are financially cared for, if you want to prevent your assets going through the public setting of probate, or if you simply want to make certain that your wishes are known and followed, then a trust may be the right kind of planning for you.
The scenario: Hank and Janice were married, had a daughter together, Elsie, and then got divorced. Hank died intestate, without a will, so pursuant to Florida law, Elsie was the beneficiary of his estate. Elsie was not married and had no children. She died before receiving her distribution from Hank’s estate. What happens to her distribution? It will now go to the beneficiary of Elsie’s estate. Having died with no spouse or children, Elsie’s beneficiary is her mother, Janice. So Janice has now become the beneficiary of her ex-husband’s estate. Do you think this is what Hank would have wanted?
The take-away from this scenario: With proper planning, this could have been avoided.
The Achieving Better Life Experience Act, or ABLE Act, was signed into law by President Obama in December 2014. ABLE updates the Internal Revenue Code to allow eligible individuals and their families to establish a tax-exempt savings account that allows for disbursements of income tax-free funds for “qualified disability expenses,” including education, transportation, housing, obtaining and maintaining employment, personal support services, assistive technology and health and wellness. Money contributed to an ABLE account is generally disregarded, or not countable, when determining eligibility for federal benefit programs, such as Supplemental Security Income (SSI) and Medicaid.
Bob and Kate are an unmarried couple, neither of whom have children, and who live together in a home owned by Bob, individually. Let’s say Bob dies. The good news is he has a signed will. The bad news is he prepared the will himself, without consulting an attorney. The will leaves his home to Kate, who intends to continue living there just as she has for many years. (more…)
A commonly asked question is, “Should I own my homestead in my trust?” Generally, the answer is, “No.” This is not because of your ad valorem homestead exemption or even your Constitutional protection from the claims of creditors. It is not because we don’t want you to avoid probate. Instead, it is because Florida law dictates who can receive your Florida homestead property.
Florida has very unique and strict laws regarding the distribution of your primary homestead residence after you die. Specifically, if you die owning your homestead property in your individual name and you are survived by a spouse or a minor child, Florida law dictates to whom you can leave your property. If you are survived by a spouse and no minor child, you can only leave your property to your spouse. If you are survived by both a spouse and a minor child, the spouse automatically receives a life estate and your lineal heirs (all your children) receive the remainder interest. If you violate the law by directing a different result, the law will prevent your intended distribution and substitute its statutory rule, as outlined above. (more…)
Michael and David are a same sex couple who live in the same house, owned by Michael. Michael prepares a will leaving everything he owns to David. Michael is still married to Evelyn who lives in Iowa with their minor child. For various reasons, they never divorced and don’t necessarily intend to do so. Michael dies. Does David get everything owned by Michael? No. In Florida, you cannot disinherit your spouse. Evelyn is entitled to an elective share of Michael’s estate equaling thirty percent (30%) of his assets. This includes assets he may have owned jointly with David. Additionally, as he was survived by a minor child, Michael cannot devise his homestead property to anyone other than his minor child.
This is one example of good intentions gone bad for an unmarried couple, whether same sex or traditional. For this and many reasons, proper estate planning with a qualified attorney is important if you want your wishes carried out as you intend.