Frequently Asked Questions (FAQ)

Estate planning is a process involving professionals that are familiar with your assets, your family dynamics, and your goals. It can involve the services of a variety of professionals, including your lawyer, accountant, financial planner, life insurance advisor, banker and broker.

Estate planning covers the transfer of property at death as well as a variety of other personal matters, which may or may not involve tax planning. The core document most often associated with this process is your last will & testament.

If you die intestate (without a Will), your property passes by what is called “intestate succession” to heirs according to state law. In other words, if you don’t have a will, the state will make one for you. All fifty states have intestate laws (or “statutes”).

A Last Will & Testament provides for the distribution of certain property owned by you at the time of your death. Generally, you may dispose of such property in any manner you choose (in Florida, there may be some restrictions on this if there is a surviving spouse or minor child involved). A Will allows you to choose your beneficiaries, as well as who will serve as the Personal Representative (Executor) of your estate.

Florida elective share law is intended to protect a surviving spouse who has been disinherited or left only a small portion of their deceased spouse’s estate. Generally, a surviving spouse may elect to receive 30% of the estate, regardless of the terms of the will. However, making the election and calculating the elective share can be a bit more complicated. The surviving spouse wishing to claim an elective share must file the election within the sooner of: (a) six months of service of notice of administration; or (b) two years of the decedent’s death. The right to take an elective share can be waived in a prenuptial or postnuptial agreement. If you are a surviving spouse considering an elective share (or an interested party in an estate that may be subject to election by a surviving spouse), the best way to understand how the elective share calculation will play out in your case is to talk with an experienced Florida estate planning or elder law attorney.

Trusts are fiduciary arrangements that can provide incredible flexibility for the ownership of certain assets, thereby enabling you and your heirs to achieve various personal goals that cannot be achieved otherwise. A Trustee (may be one or more persons, or a corporate trust company or bank) holds property in accordance with the provisions of the written trust instrument, for the benefit of one or more persons called beneficiaries. A person may be both a trustee and a beneficiary of the same trust. See our Glossary for further Trust definitions.

Probate is the process of administering and distributing a deceased person’s estate, whether by will or intestacy. Probate is typically supervised by a court and may include a determination of the validity of a will. Probate includes finding and collecting all the decedents’ assets, paying all of the decedent’s outstanding debts and other obligations, and distributing the remaining estate assets to the decedent’s heirs or beneficiaries.

There are some aspects of a probate proceeding that may prove inconvenient and expensive for a decedent and his or her heirs. First, the probate process can take over a year to complete. Additionally, probate proceedings are public record. This means that the assets of the estate must be filed with the probate court and certain people may be able to see what assets are part of the estate, which is not ideal if you value your privacy. Further, going through probate can be both frustrating and stressful to family members already dealing with the loss of a loved one. Most families who have been through probate would agree that if probate can be avoided, that is a good thing.

Yes, in almost all cases you will need a Florida probate lawyer. Except for “disposition without administration” (very small estates) and those estates in which the personal representative (executor) is the sole beneficiary, Florida law requires the assistance of an attorney.

No, while planning ahead can preserve a larger portion of your assets, it’s not too late. Our firm can assist in obtaining Medicaid and VA Aid & Attendance eligibility to help cover the exorbitant costs of long-term care.

There is a five year look-back for Medicaid, and a three year look-back for VA Aid & Attendance. This allows Medicaid or the VA to review your finances for the look-back period prior to application for any asset transfers that were made for less than fair market value. Thus, if you are thinking about giving your money to a child or putting it in an irrevocable trust for purposes of excluding it from Medicaid or VA, it must be done before the applicable look-back period.

Assets are usually transferred to children or other family members either outright or to a trust for your benefit. A trust may be more desirable than an outright transfer to a child because you may have a bad relationship with your child or their spouse in the future, or your child may get divorced, have creditors or go bankrupt in the future.

However, there are problems with the irrevocable trust as well. You do not have access to the money in the trust. At most, only the income that is earned may 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 and/or VA purposes.

Generally, yes. Medicaid and VA rules and regulations are complex. Each program counts certain assets and transfers differently. You could certainly try to figure this out for yourself, but if you make a mistake or overlook a strategy, the result is typically you having to pay more to the nursing home than you should have. That money could have been used to pay an attorney to help you.

Remember: professional help is expensive, but mistakes cost more. With the cost of nursing home care ranging from $9,000 – $12,000 per month, there is a lot at stake if a mistake is made.