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Elder Law & Special Needs Planning
Archived Elder Law Blog Posts
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Can I leave my assets to someone other than my husband in the State or Florida?
Situation:
I live in Florida and want to know if I can leave my assets to someone other than my husband who I have been separated from for about 6 years.
Answer:
Apparently you have your reasons for not officially getting divorced. If you are not going to get divorced the best thing to do would be execute a post marital agreement where he waives his right to the elective share. The actual statute is much more complicated, but the elective share is generally equal to the gross estate and includes property owned by you individually, joint bank accounts, pay on death accounts, and joint property. The elective share is 30% of that amount. The other consideration is homestead. If your homestead is in Florida, there are restrictions on leaving it to someone other than your spouse.
So what happens if you leave your assets to your children instead of your husband. It is not against the law to do so. The elective share is a right. A right that has to be exercised. If there is a probate opened, he would have six months after receiving the notice of administration of the probate or the expiration of 2 years if no probate is opened. If all of your assets are in a bank account that you left to your daughter and your husband elects to receive his elective share, your daughter would be responsible for paying your husband his portion. For example if it was $100,000, your daughter would be responsible for giving him $30,000. This get much more complex if your estate consist of homestead or other real property and/or life insurance and other joint assets.
You should sit down with a estate planning attorney and discuss the specifics of your situation. Talk about the reasons your not getting divorced. Continuing to stay married my have it’s advantages but it can also have disadvantages if information is needed from the other party and they are not responsive. One instance I’ve seen it come up is when one spouse is applying for Medicaid in a nursing home. Medicaid requires that the healthy spouse disclose their income and assets. Some times that other spouse refuses to comply or even correspond. In that case, the ill spouse may be denied Medicaid because of the refusal to help by the other spouse. Anyways, it is just something to think about. Please see someone sooner than later and discuss your specifics so you can make a fully educated decision about your estate plan and marital status.
Are non blood relatives (relatives through late spouse who passed earlier) qualify for Homestead Protection in Florida?
Question:
Hello, I am one half beneficiary of our late relative estate located in Florida, the other half went to a non-family member. We are related through the deceased’s late husband, who passed two years prior to her, so I am not blood relative to our relative leaving the Will and naming me beneficiary. There are no children, surviving spouse etc. Would I qualify for homestead protection? (all other criteria checked we believe, except we are not clear on this ‘heir’ point)
Answer:
You’ve asked a question that relates to a question that has been argued for many years. Homestead property can be a fairly complex subject. You would qualify since you are a blood relative of the spouse who died while married to the decedent. I don’t know that specifics, so I’ll just use generalities for example. H & W owed and lived in a house in Florida. Husband passed away two years ago. You are the nephew of the husband. Wife (aunt through marriage) now passes away leaving half of her estate to you and half to her best friend. That estate consist of her homestead property. Even if there had been surviving non-minor children, you could still inherit your interest in the home free of the estate’s creditors.
In 1997, the Supreme Court of Florida essentially said that if you are listed as potentially receiving under the intestacy statute, that you qualify for the homestead exemption regardless if someone else were alive that would take ahead of you. For Instance if Wife had an adult child but still left the house for you, you still qualify. If Wife didn’t have a Will and had an adult child, the adult child would inherit her homestead.
Since she had a Will, the Will should name a personal representative. That person, if they are qualified to be a personal representative should sit down with a probate attorney and get the process started. To be a personal representative, you must be a blood relative or a Florida resident. The same statute pertaining to homestead does not apply to the appointment of personal representative so unless you are a Florida resident, you wouldn’t likely be able to serve as PR.
Lastly, since you only have a half interest in the property and it doesn’t sound like the other half is protected, the property will likely have to be sold in the probate process if there are creditors. Those creditors would be paid by the unprotected portion of the home’s value. As long as the Will does not direct that the home be sold, your portion of the sales proceeds should be protected. Please sit down with a probate attorney in the area if you have a copy of the Will to have a full discussion of your situation as it is impossible to give firm advice without knowing all of the facts.
Power of Attorney question…
Question:
If I fill out a “do it yourself” power of attorney form and have it notarize and signed by two witnesses, does it become a legal document? Or do I still need to bring it to a lawyer for some reason?
Answer:
The short answer is, yes it is a legal document once it is signed and notarized as long as it complies with Florida Statutes. Second, no you do not have to take it to an attorney.
As an attorney who prepares powers of attorneys, I would of course advise against the do-it-yourself route. Many form power of attorney documents are not as extensive as those drafted by attorneys. The legal advise surrounding the use and liability of being an agent under a power of attorney are probably more important than the document itself. Without going into detail, knowing how to sign for someone. Knowing how to title the bank account and what affect that has or doesn’t have on the account itself. Making sure that the agent doesn’t take on personal responsibility when only intending to sign on behalf of the principle.
Having a piece of paper is one thing, but establishing a relation with a legal professional who can help when you have questions will be well worth any cost. I hope you see an attorney in your area.
How to proceed with aunts estate in Florida
Question:
I have an aunt that passed, I am named in the will. She kept very detailed records of all assets and debts. I would like to file for summary administration if possible.
Assets are:
Investment account: under $50K
checking: $under $2K
Condo: As is value $80K but with a reverse mortgage value of $140K
Safe deposit box: Unknown but probably nothing valuable
Debt: $5K total in credit card debt
I met with her attorney who advised me to walk away because the reverse mortgage lender would claim everything in probate. However I have been researching more and am realizing that the reverse mortgage is non recourse per FHA rules.
I read that summary administration is for estates $75,000 and under. If the condo is returned to the bank via deed-in-liu , can I file summary administration for the remainder or is the value of the condo included?
Should I just wait 2 years and file for summary administration then? Formal probate doesn’t seem like a good option considering the costs and small estate size.
Answer:
Lets address the issues one by one. Does your situation meet the requirements for Summary Administration. SA requires that the probate assets be less than $75,000 and there be no creditors or that they are being satisfied. The Condo’s value of $80,000 does not count as long as we assume it was her homestead and she is only leaving it to heirs. Even if it was not her homestead it would not prevent the filing of a SA since it’s net value is $0. Since the reverse mortgage appears to be an FHA insured loan, you are correct that it is a non-recourse loan. This means that the bank can only recover up to the condo’s value. Should you wish to keep the condo, you would only be responsible for paying 95% of the condo’s appraised value.
You will probably have to finish with the probate process before you can return the condo to the bank via a deed in leu, since you are only acting as a potential heir at this point. No matter what though, you cannot be held accountable for the loan’s payment. A discussion with the bank should happen prior to initiating any administration.
You may wait the two years if your goal is to avoid the $5,000 of credit card debt or if you are concerned about other debt. 2 years is a long time to leave funds in an investment account with no direction, but you have to decide whether the extra $5,000 is worth it to you.
Your best bet is probably to negotiate with the credit card company and see if you can satisfy the debt with a lesser amount and file for summary administration.
What action can I expect of the presiding judge, if this probate is not finished within a year?
Question:
My sister is first named to be administrator of my aunts estate. I am second if she can not. She received the letters in July. She is now at the stage of paying estate taxes. All assets ( one condo ) have been liquidated and added to the estate account now. According to the will and trust, my sister and I are to equally split the estate. Her attorney has informed me in writing, and without me asking, that most of the funds will be distributed to me within a few weeks. But this never happens, even after I politely ask him for an update. I have been informed by the probate clerk that my sister has until July to complete the probate. Otherwise she may ask for an extension. The estate consisted of cash, a condo that has been sold, and some jewelry. Its being probated as a formal estate.
Answer:
It is very common practice for probates to take longer than a year. It does depend some on the judge and/or jurisdiction, but most will extend the probate without much question. The downsides to extending the probate beyond a year is that another estate income tax return may need to be filed, a bond may need to be paid and payment to beneficiaries may take longer. I have a current taxable estate that has been open for more than 5 years. It has some fairly complex assets and needs some sophisticated trust work done to carry out the wishes of the deceased. If the case is in Clearwater, the judges are pretty understanding and I don’t think there will be a problem. As a beneficiary of an estate you are allowed to hire an attorney. You will probably have to pay those attorney fees, but it might be worthwhile sitting down with someone to discuss the specifics of your case. Many attorneys offer a free or reasonable consultation fee.
Filial Laws
Question:
Are Filial Laws valid in Florida? If my father has to apply for Medicaid to an assisted living facility, will his kids be sued under the filial law statute?
Answer:
As they others have said. No third party is responsible for paying the medical cost of another person in Florida except in certain circumstances. This includes, spouses, children or other associates. Where people can get in trouble is if they sign something that says they are voluntarily becoming responsible for payment. Be extra careful when helping a parent, spouse or friend when signing them into a medical facility, assisted living, or nursing home. Many contracts will have people sign as “Responsible Party.” Sometimes that just means, who is generally responsible for the well being of the person being admitted, but sometimes it means, who can the medical facility send to collections/sue if payment is not made. For the most part is better for the person be admitted to sign their own paperwork to avoid any possibility of taking on such responsibility.
Another way someone could become financially responsible would be if they misappropriate funds that were to be used for the care of the person being admitted to the medical facility. This could be true whether or not a POA is used.
Whether you have a POA or not, you should sit down with an elder law attorney familiar with working with Medicaid in the assisted living arena. Almost all attorneys would have you send them the contract prior to you or your parent signing it. These contracts have been carefully drafted by the facilities attorneys to be be as one sided as they think they can get away with. I have seen assisted living facilities try to enforce a 30 or 60 day notice on a responsible party when it was determined by the family that their loved one could not return to assisted living after being hospitalized.
You and your family are going to be going through some difficult times as you help your parent through a complicated system. You should find someone who will be there to help when you have questions. This will allow you to focus more on your parent instead of worrying about the financial and legal hurdles you will face.
How can we transfer the title so the unit can be sold?
Situation:
My brother has passed away without a will. His mobile home is only in his name.
Answer:
Probate may be required, but you may have another option depending on how the land is owned. If your brother only rented a space and owned the mobile, you may be able to have the mobile transferred to you or the rightful heirs. Mobile homes have a title like a vehicle and can generally be transferred at the local tax collectors office if no probate needs to be opened. If there are other assets that need to go through probate then the mobile needs to go through probate. Other assets could include bank accounts or the land that the mobile was situated. If your brother owned the land, land ownership is usually in the form of a long term lease or co-op where he would have owned shares that represent the land.
It usually doesn’t cost too much to sit down with a probate attorney and discuss your situation in detail. You can also check with your local tax collectors office to see if your situation can be handled outside of a probate. Sorry about the loss of your brother. Good luck with your situation.
How can a person on Disability receiving Medicaid, and Medicare benefits not lose its benefits, because of a QRDO.
Question:
I’m on disability getting Medicaid and Medicare benefits. I will be getting a divorce settlement, QDRO. Will I lose my benefits because of the money received through the QDRO?
Answer:
I understand that to you, the Medicare and Medicaid benefits are likely to be the most important part of your benefits, but they don’t really tell the full picture. If You are receiving Medicare, as the others have mentioned, we assume you are receiving Social Security Disability or you have now reached 65. You may qualify for Medicaid assistance in a couple of ways. One and the most common way is that if you are receiving SSI. This happens when someone applies for SSDI and receives less than $733 in Florida. If you receive less than $733, you may also collect Supplemental Security Income SSI to increase your monthly payment to $733.
If you receive SSI, the funds received via the QDRO (Qualified Domestic Relations Order) could impact y our benefits. Those funds can typically be converted to non-countable assets or placed in a special needs trust to protect benefits. Alimony or Spousal Support payments can generally be assigned to a SNT and not count as income against SSI.
If your payment from SSDI is greater than $773/month then you are not receiving SSI. Community Medicaid no longer has an asset or resource limit. Be careful though, Florida has many long term care waiver programs that still have asset and income limits similar to SSI. You would be wise to sit down with an elder law attorney and discuss which specific Medicaid program you are on and determine if anything is needed to protect your benefits.
If 2 people who are not married buy a home together and then in later years one of them has to go into a nursing home and eventually applies for medicaid, what happens to the home?
Question:
Does medicaid take the home? What happens to the other person’s share of the home, the one who did not apply for medicaid?
Answer:
It is a widely shared myth that Medicaid will take people’s home. Medicaid has certain asset and income requirements that must be met by an individual if they want to qualify for Medicaid. Some assets are countable and some are not. The same thing goes for income. A home (as long as the Medicaid applicant intends to return home if they could) is an exempt asset and does not count towards Medicaid eligibility. An applicant for Medicaid can have $2,000 in countable assets. Anything over than that and they are not eligible.
If someone had a vacation home that was worth $100,000, Medicaid wouldn’t take the home. If the applicant wanted to be eligible for Medicaid, they would have to get rid of the home. This usually means selling the vacation home and possibly using the proceeds to pay for care privately or using some other planning technique, but Medicaid doesn’t take property.
The Medicaid applicant’s portion of the home would be protected as their homestead or as jointly titled property. If the house is titled as joint tenants with rights of survivor, it would pass to the non-medicaid applicant upon the applicant’s passing. Before you run out and title it that way, remember, anything can happen and the person living in the home could die before the person in the nursing home.
If the home is titled in the name of Jim & Bob and Bob dies first, Bob’s portion will go through probate. Unless bob leaves it to a blood relative, Bob’s portion would not receive creditor protection in the probate process. The house may have to be sold and Bob’s half may have to be used to satisfy Bob’s creditors. Medicaid would likely be the largest of those creditors.
Don’t worry too much though. There are things that can be done to protect yourself. Titling of the property, trusts, and even delays in probating the estate may be ways to preventing the sale of the property. You should sit down with an elder law attorney and discuss your situation. There are other issues such as transfers of assets and income that need to be discussed, especially if a nursing home is a real potential in the relatively near future.
Must a will be probated in the state of Florida before property is sold or otherwise disposed?
Question:
My husband’s mother recently died. She left a will for the estate to be divided equally among three children. She lived in Florida. (Brevard County)
1. Must the will be probated?
2. Must there be an accounting of all the household items to be sold or otherwise disposed?
3. Does the Executrix have the power to sell any personal and real property if the will is not probated?
Answer:
If the house was in her name only, probate would be necessary to transfer or sell the property. Unless the Will directs that the property to be sold, it sounds as though the property would be considered Homestead. Certain rights vest in beneficiaries of Homestead property at the moment the owner dies. In this case, when their mother died, all three children have some interest in the property.
If there is no other property subject to probate, it sounds like it would qualify for a summary administration. If there are additional assets in excess of $75,000 or there are unpaid creditors a formal administration would have to be opened.
Generally speaking if everyone is friendly, an accounting of all of the household items does not need to be filed. Generally, they are listed as household items with a yard sale value unless there are particularly valuable items.
The Executrix or Personal Representative in Florida has some limited ability to sell the property but only after a probate has been opened and they have been appointed. The PR has no authority just because they are named in a Will. A Will has no authority to transfer property without be probated except in very limited circumstances. For instance, if no probate is to be opened, a Will and death certificate can be taken to the Tax Collectors office and transfer title to a vehicle.
Even after appointment, it will likely take the signature of all three children to sell the property. Many times, the PR and children all sign the sales contract and/or deed to be sure title is clear.
Sounds like you should sit down or speak to a probate attorney. Technology has made it much easier for attorneys to practice throughout the state, but I would recommend hiring an attorney who is familiar with filing probates in Brevard County.
Many of the blog posts come from questions that I've answered for people on AVVO or other legal help websites.
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