No. Florida does not have an estate tax. However, the federal government does, and it may apply to your estate if the assets exceed $2,000,000. More on federal estate taxes.
If you aren't wealthy or don't have long-term care insurance, the options are limited. You can continue to pay out of pocket and then, once you're nearly broke, Medicaid may pick up the tab. Or, you may be able to set up a legal strategy to preserve assets that allows your father to become Medicaid eligible before everything is gone. Veterans benefits for long-term care may also be available if your father served in the military. The Karp Law Firm has assisted thousands of families to preserve assets. For detailed information see Medicaid Planning.
People often think that if their estate is non-taxable, probate will not occur. In reality, an estate's taxable or non-taxable status, and probate are unrelated. If a decedent did not establish legal plans to avoid probate, such as setting up a properly designed and funded revocable trust, or making sure all assets had beneficiary designations, an estate will be probated regardless of its dollar value.See probate for details.
The Living Trust and Living Will are both estate planning documents. They serve different functions, however. A Living TRUST, also known as a revocable trust, is a flexible estate planning tool often used by Florida residents to avoid probate, to reduce or minimize estate taxes, to keep the courts out of family financial affairs, and to safeguard privacy. A Living WILL is a type of advance health care directive that states the circumstances under which you wish life supports to be terminated.
Generally speaking, Florida will honor a will that's been executed properly in another state by a resident of that state, provided the provisions of that will do not conflict with Florida law. But most people find it more convenient, and safer, to redo their wills when they become Florida residents. As a practical matter, you should have your will and/or trust reviewed if you change your state of residence.
Currently there is no law that would obligate your children to do that. However, if your children actually sign to admit you to a facility, they may be held personally liable for your unpaid medical expenses unless they sign as your Power of Attorney and indicate that is the capacity in which they are signing, not signing personally.
If you're talking about long-term care (aka custodial nursing home care), the answer is no. Medicare will NOT cover custodial care in a nursing home at any time. Most people in nursing homes are receiving custodial, not skilled, care.Medicare will pay for skilled nursing care after a three-day hospital stay, for up to 20 days if the person needs and derives a benefit for skilled care. Thereafter, it will pay up to another 20 days with a deductible (the deductible amount changes annually), so long as the person needs and derives a benefit from skilled care. Many supplemental insurance policies cover the deductible.
Costs of probate include a personal representative's fee, which can be waived by the personal representative; filing fees and publication fees; and attorney's fee. An attorney's fee for probate is based on the amount of work necessary, the size of the estate, and whether there are multiple probates in other states (for example, if you own property in other states). Florida law sets general guidelines for fees that are presumed to be reasonable based on a percentage of the probatable estate.
Your estate plan should enable the people of your choice to get information about your medical status, for your peace of mind as well as for theirs. They will also need this information so that they can make informed decisions on your behalf if called upon to do so. Medical providers however are restricted with regard to whom, and how they can release medical records. These restrictions are in large part due to the 1996 Health Care Portability and Accountability Act. Your health care documents should specifically include HIPAA language if you want to be sure your records are released to the people you wish to have the information.
No. Probate is a title-changing mechanism that uses the courts to transfer assets from a decedent to beneficiaries when no other transfer method (e.g., beneficiary designations, joint tenancy, revocable trust) is in place. A will merely indicates who you wish to be in charge of your estate while it is going through probate, and your beneficiary designations. Any asset that is not automatically transferred to a beneficiary would have to go through probate.
Rather than leaving your son the money outright, you may leave the money in a trust for your son. See the section on Heritage Trust .
This is a very sensitive and delicate issue. If you cannot reason with your mother and no one else can, she may be incapacitated and may need a guardianship because she is an economic danger to herself. Your mother's doctor should be consulted (another reason to have a health care power of attorney with HIPAA provisions) to see if the doctor believes that your mother is incapacitated and can assist, perhaps with medication, without involving the court system. Additionally, the doctor's evaluation will assist you in determining the viability of any court proceeding. Many situations involving poor judgment -- for example, driving, gambling, smoking in bed -- create constant problems for adult children.
To be considered a Florida resident, you have to reside in Florida for six or more months each year. The six months need not be consecutive. There are other actions you can take that will reinforce your claim to be a Florida resident: for example, changing your drivers license, registering to vote, and officially changing your mailing address. You may also do a formal declaration of domicile in the Florida county in which you reside part time. If you cannot adequately prove that you are indeed a Florida resident, the other state you live in may choose to tax you as if you still lived there.
That's not a good idea. Office supply store forms are generic in nature and cannot take into account all the family, financial and other factors specific to your particular situation. These "boilerplate" forms, whether found online or at a retail store, usually contain a warning that the publisher is not responsible for damages and advise the user to consult with an attorney to review the document. So why not do it right the first time? Having a qualified lawyer advise you and draft your estate planning documents is a wise investment in something as important as your estate plan.
All the provisions of your estate plan must be absolutely unamibiguous, but more importantly, all tax consequences and elder law-related issues must be addressed by an attorney who is aware of and fully understands these issues. It's understandable to wish to rely on a professional you've trusted over the years. But because estate planning and elder law are complex specialties where the laws change frequently, you are well advised to have your estate plan drafted by someone who is highly experienced in this field and who is up-to-date on the law. Your estate plan speaks for you after you're gone or if you're disabled, so you need to get it right -- there are no second chances.
Elder law is a fast-growing legal specialty that focuses on the legal issues of concern to older people and their families. It is a broad category that includes many sub-specialties. Among these subspecialties are wills and trusts, disability planning, housing issues, long-term health care planning, age discrimination, probate, trust administration, Medicaid and Medicare issues, nursing home issues, and guardianship. Not every elder law attorney focuses on the same sub-specialties. At The Karp Law Firm, our practice is limited to estate planning, wills and trusts, probate and trust administration, long-term care planning, nursing home issues, Medicaid planning, and real estate.
Under Florida law, your spouse has certain legal rights to your estate. These rights include 30% of your augmented estate ("elective share"), and the right to live in the marital home for the rest of the spouse's life. So if you wish to leave everything to your children, you need either a pre-nuptial agreement, or if you're already married, a post-nuptial agreement. Both you and your spouse should be represented by your own attorneys. In addition, your estate planning documents must indicate how you want your assets to pass upon your death and must be consistent with the pre-nuptial or post-nuptial agreement. It may seem cynical, but it's best to not rely on your spouse's words alone that he will not request what he is legally entitled to after you're gone.
One way is almost always a bad idea: Leaving a lump sum of money outright to a loved one with special needs. This approach may actually end up making your loved one ineligible for the government benefits to which he might otherwise be entitled. If you want to provide for a child or grandchild receiving government benefits like SSI, or if you want to provide for a spouse who is in a nursing home and receiving Medicaid benefits, you should consult with a certified elder law/estate planning attorney to investigate alternative ways to gift the money.The Special Needs Trust is one such vehicle. If your child is not going to receive governmental benefits other than social security disability, or Medicare, it may still be appropriate to leave the funds in a Discretionary Trust managed for his benefit.
Many people want to provide for their beloved pets. Obviously if you have a friend or relative who agrees to take care of your pet, that's one possibility. But if you're looking for more formal arrangements, Florida has a "pet trust" law allowing pets to be named beneficiaries of trusts. This allows you to earmark funds and designate a trustee for Fido's care. Consult your certified elder law attorney for details.
You must designate a guardian in your Last Will and Testament. Although it's not binding on the court, it will generally be honored unless the people you've designated are found to be unfit. If you fail to designate a guardian, the court will decide without your input.
Elder law certification ensures you that the person to whom you are entrusting your vital personal and legal issues is well qualified. Certification gives you the objective standard when selecting an attorney, just as you would look for certification when selecting a doctor.
There are two types of elder law certification, both of which are earned through extensive experience and training, and which must be maintained through continuing education and favorable peer review. Mr. Karp has earned both types of certification:
National Certification, conferred by the National Academy of Elder Law Attorneys, the only entity authorized to do so by the American Bar Association. An attorney who is nationally certified is permitted to use the CELA (Certified Elder Law Attorney) designation after his name. National Elder Law Foundation facts about elder law certification.
State Certification. Florida is among the states that awards certification in elder law, based upon years of experience, training and continuing education. Florida Bar information about certification.
Assets won't go through probate upon the death of the first spouse. But the assets will be probated when the survivor dies, unless the survivor has established a probate-avoidance plan following the death of the first spouse. The Karp Law Firm recommends that both spouses -- together -- build a sound estate plan, including probate-avoidance strategies if appropriate. There are several reasons we recommend this. First, each spouse can provide support to the other and discuss shared goals. Most married couples find it easier to make these decisions together, rather than alone. Second, there is less likelihood of manipulation by anyone -- children or third parties -- if your plans have been made together rather than by the survivor alone. Last, if you don't make these plans together while you can, there is always the chance that after the first spouse dies, the survivor will be incapacitated and unable to make plans.
If you own the policy, yes, the proceeds will be included for estate tax purposes. There will however be no income tax on the death benefit when you die. Properly done, if someone other than you owns the policy, the proceeds can be kept out of your estate for estate tax purposes. More information on Life Insurance Trusts .
None of us has a crystal ball. Since no one knows when he will be disabled or die, you should create an estate plan as soon as possible, and revise it from time to time. Your estate plan will consist of documents which reflect who will make your medical decisions and manage your money if you cannot do so, and distribute your assets to beneficiaries upon your death.
Durable Powers of Attorney tend to be interpreted in the most narrow sense by banks and other institutions. They will sometimes deny your agent the ability to act if authority to act in a specific area is not explicitly given. For example, a person may go to a bank with a Durable Power of Attorney authorizing him to do "banking and financial transactions" for another person. But he may be denied access to the safe deposit box if access to it has not been specifically mentioned in the Durable Power of Attorney. The elder law/estate planning attorneys of The Karp Law Firm include specific language in the Durable Power of Attorney to permit your agent (POA) complete access to all of your Internet accounts and passwords. This language makes it clear that that is your desire, and that your agent has that authority.
