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Frequently Asked Questions (FAQ)

What is Estate Planning?

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.

What happens if I die without a Will (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”).

What does a Will Do?

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.

What is an elective share?

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.

What is a trust?

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.

Should I try to avoid probate?

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.

Do I Need a Lawyer for Florida Probate?

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.

What is the difference between Medicare and Medicaid?

When you or your loved one has gone to a rehab facility, which frequently occurs after being admitted to the hospital for three days, the family must learn the difference between Medicare and Medicaid.

Medicare is a federal health insurance program for people in the U.S. who are 65 and older as well as some younger people with disabilities. Medicare is a different program than Medicaid, which offers health and other services to eligible low-income people of all ages. Medicare does not cover long-term care. Medicare may pay for rehab in a skilled nursing facility in some cases. After you have been admitted to a hospital for at least 3 days, Medicare will pay for inpatient rehab for up to 100 days. The point of the rehab is to get the patient stronger through therapy (physical therapy, occupational therapy, and/or speech-language pathology services). When the patient is no longer getting stronger, Medicare will typically stop paying for rehab. Medicare completely covers days 1-20, while co-pays of $170.50 (in 2019) per day applies to days 21-100.

If the individual must stay in the nursing home after Medicare ends, they may need to apply for Medicaid. Medicaid is a government-funded program that pays covered medical expenses of low-income and low asset individuals who are aged, blind, or disabled, which includes long-term care costs. To qualify for Medicaid in Florida, a person must meet the state’s medical and financial (income and assets) requirements. When the individual is in a nursing home, it may be necessary to protect assets for his or her care, which can be accomplished through an experienced elder law attorney.

What happens if my assets are too high for Medicaid?

If the value of an Applicant’s (or an applicant’s spouse) assets exceed the asset limit allowed by Medicaid, the Applicant will not qualify and will be expected to pay for their own long-term care costs. In order to be eligible for Medicaid, you cannot have recently transferred assets. Essentially, Medicaid does not want you to move into a nursing home on Monday, gift all your money to your family and friends on Tuesday, and then qualify for Medicaid on Wednesday. Therefore, there is a transfer penalty that applies if you have transferred assets without receiving fair value in return. There is a five year “look-back” period for uncompensated transfers. This allows Medicaid to review your finances for the five-year period prior to application for any asset transfers that were made for less than fair market value. If uncompensated transfers were made, Medicaid will withhold coverage (in 2019, for every $9,485 transferred = 1 month without Medicaid coverage).

My loved one is already in an assisted living facility or nursing home, it is too late to get help?

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.

Should I use an Irrevocable Trust to protect my assets from Medicaid and/or VA Aid & Attendance?

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.

Should I hire an attorney to help me?

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.

 

If you want to learn more, check out our upcoming seminars, or schedule an appointment with one of our attorneys.

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