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Do I get any of the profit when the house is sold? Do i need to get a lawyer?
Situation:
My Father passed away last month and did not have a will. He is married and has a house that he had prior to his second marriage. The house is only in his name. His wife will probably be selling it soon.
Answer:
You should sit down with an attorney. If his wife’s name was not on the house, I don’t think she will be selling the house right away.
From the sounds of what you are saying, you and/or any other siblings would be entitled to half of the home. When someone passes away in Florida without a Will, Florida Statute 732.102 & 103 determine how property will be divided. 102 states that if the decedent, your father, died with any descendants who are not the descendants of the surviving spouse, that the surviving spouse gets ½ interest in the estate. Your fathers descendants would be entitled to the other ½.
Here though the property sounds like his homestead. The surviving spouse gets a life estate in the home and a remainder would go to your father’s children. The surviving spouse however has a option to take a ½ interest in the home instead so it could end up just like the property was not homestead. Generally a surviving spouse has preference in appointment as a Personal Representative. If you think there is a reason she should not PR, you may want to start the probate process yourself. Sit down and talk to an attorney who is familiar in opening a probate in the county where your father lived. I’m sorry about your father’s passing, but you would do well to talk to someone about your specific circumstances.
How can my 93 yr old father spend down his money he has saved? He doesn’t want all of savings go to a nursing home.
Question:
My 93 yr old father is now a widower living in Florida. Is it too late for him to spend down any money in case he should need a nursing home? He would like his savings to go to his children.
Answer:
You are talking about medicaid planning. It is something you really should sit down with an elder law attorney to discuss before attempting to make a plan on your own. I will try to give you some useful information to least get you started.
If your father intends to apply for Medicaid assistance to pay for a nursing home (most people do), there are asset and income caps. The income cap can be usually dealt with quite easily using an income trust (aka Miller Trust).
Medicaid allows an individual to have $2,000 in countable assets. There are many things however that are not countable, such as a burial savings account with a value of $2,500, a home (his homestead) and a car are the most common non-countable assets. He may also purchase a pre-paid funeral/cremation plan as long as it is irrevocable. There are other types of property and planning techniques that an individual can own or use but they should really be discussed with an attorney.
Your father may spend down his assets, but he cannot transfer his assets or the items purchased. There is a 5 year look back for Medicaid. If your father transfers anything of value during this period, it is presumed to be for the purpose of Medicaid eligibility. The presumption can be overcome, but he will have to justify why the asset or cash was transferred. You would want to be careful of spending money on collectable items such as coins or other items that purchased for the purpose of investment as those items may count against your father’s asset cap of $2,000.
A planned developed by your father and his attorney may include what is called a personal service contract. A PSC is generally a contract between the Medicaid applicant and a child(ren). The children agree to provide a certain number of hours of care per week (not usually hands on) for a certain $/hour over the life expectancy of your father.
The short answer to your question, is yes, your father may spend down the money he has saved and he may even be able to leave something to his children. A carefully drafted Medicaid plan should be able to accomplish his goals. Remember though, there are always positives and negatives to each method of planning and the goal now may be to preserve as much as you can, not preserve everything.
Helping a parent deal with these issue is a very daunting task. I’ve personally gone through it twice. Hire an elder law attorney in your area who can at least take the legal and financial burdens away so you can focus more on your father and his health.
Estate Planning Questions
Question:
I have not done any estate planning. I have my investments, checking, and savings payable on death to all of my children. However, my paid off home is not designated to anyone and my wish is to leave it to one child out of my four children. There is also a vehicle, jewelry, and contents of the home that need to be dealt with. Is there a way to protect my assets in the event of illness, etc. What is recommended that I should do?
Answer:
I am going to assume that you are currently not married. Let’s deal with your house first. You have a couple of options to make sure that your one child inherit your house. You can leave your house to your child in a Will or Revocable Living Trust. There is no law that says that you have to leave it to all of your children. Another option is to deed the house to your child. This could be outright or you can reserve a life-estate. The life-state can be regular (requiring your child’s signature to re-convey) or enhanced (not requiring your child’s signature).
If you choose to leave your house in your Will to one of your children it would be protected from any claims of creditors that might arise, but there would be some expense of probate. Deeding of the property also has it’s pluses and minuses. If you prepare a Will or Trust you can designate who will get which particular property or you can always give personal effects away during your lifetime.
There are also positives and negatives in leaving your assets to your children as Pay on Death designations.
Depending on where you are in life, you may want to sit down with an elder law attorney if you are concerned you may end up in a nursing home someday. Medicaid has a 5 year look back. You have many simpler planning options if you pre-plan as opposed to calling an attorney after you are in the hospital and it looks like you might have to go to rehab. A house, vehicle and retirement (401K) type assets can generally be excluded, but you can only have $2,000 in liquid assets and qualify for Medicaid.
You can accomplish all that you are asking about, but you would be wise to sit down with an estate planning or elder law attorney and discuss the particulars of your situation. It will be more expensive than the do-it-yourself route, but you will have the peace of mind that it is done right.
Deed the causes revocation of beneficiary deed
Question:
Does a later recorded deed cancel a previous beneficiary deed (lady bird deed)? If grantor simply re-conveys the property to himself (From Sam Jones, a single man, Grantor to Sam Jones, a single man, Grantee) - without saying in the new deed that he wishes to terminate the interest of the remainder-men, or making any references to the reserved powers from the beneficiary deed - is the previous beneficiary deed automatically revoked and the interest of the remainder-men terminated by the new deed?
Answer:
In theory, yes a subsequently recorded deed from Sam Jones to Sam Jones should extinguish the life estate granted in the lady bird deed. Of course, the original deed must have been drafted properly in that the grantor must have retained the rights to reconvey the property without the joinder of the remainder-men.
Generally speaking lady bird deeds should be used sparingly and in my practice are used mostly for Medicaid planning purposes when the grantor is not likely to live very long and it is unlikely that the grantor would want to re-convey the property.
The biggest draw-back of the lady bird deed is how title insurance companies treat them. Some treat lady bird deeds as if they are a traditional life estate deed, vesting a remainder interest in the grantee. In your case if the original deed was deeded, Sam Jones to Mary Jones, grantor reserves life estate with ability to reconvey… and then the subsequent deed Sam Jones to Sam Jones. The title company may require that Mary Jones sign off on the paperwork. If Mary has a lien against her, the title company may require that it be paid off before a policy is issued. If Mary Jones has already passed and you are trying to sell the property, you could run into a more lengthly process to quite title.
Your best bet is to sit down with a real estate attorney and discuss the situation. There are multiple title insurance underwriters and they may have different opinions and policies relating to issuing policies that involve lady bird deeds. It is something you’d rather get cleared up now as opposed to when you or someone is trying to sell the property.
Can a felony be expunged in the state of Florida for an individual who is to execute a parents Will?
Question:
Parent died several months ago. Elder sibling is executor of parents Will. Elder sibling has a felony which was committed many years ago. Initial attorney has dropped my sibling due to the felony and inability to proceed because they can not bond out. Sibling claims no need to be bonded to execute parents Will. Claims to have hired new attorney and states felony is expunged. Can a felony be expunged in the state of Florida?
Answer:
The short answer, if your sibling was only arrested or charged with a felony, then depending on the type of the felony, it can be expunged or sealed. If they were convicted, plead guilty or no-contest then I do not believe the felony can be expunged. The only other possibility is if adjudication was withheld or case dropped because he/she completed some sort of pre-trial intervention program.
Naming a personal representative in a Will is only a preference by the person making the Will. It doesn’t mean the court has to name that person. If you can show good reason why that person should not be named (conviction of felony) or other particularly bad actions by the sibling, the court can choose to name another party. That doesn’t necessarily mean the court would name you as personal representative if that is going to cause a probate to be held up significantly. The court appoint someone else named in the Will who is not in conflict or can appoint an independent personal representative, most likely a local attorney. That attorney would be eligible to collect a fee for his/her PR duties.
Remember, the attorney who represents the PR does not represent you. As a beneficiary of the Will, you have a right to have your own attorney. You should sit down with someone and go over the specifics of your situation and determine whether it is worth challenging the appointment of your sibling as a personal representative. There are deadlines to file objections as well so if you are going to talk to an attorney, I would suggest you do it sooner than later.
How do he get his parents pension from his father military benefits for being disabled. AND his mother pension from the mines.
Situation:
Both my fiancé parents are deceased. He is disabled and receiving disability. I was looking into helping him get more financial security.
Answer:
Since you are in Clearwater, the best place to start regarding the VA benefits might be the Veteran’s Service Office operated by the County. You can find that information online. There is an office in Clearwater and St. Pete. Unfortunately though, there are only a few instances when military/VA benefits are ever paid to a surviving child.
As for the pension from his mother. I’m assuming you are talking about a pension from a coal mine or some other similar type of mine. I would say it is extremely rare that the pension would benefit a surviving child. There are a few pensions out there that where people could convert them to an annuity. Some had a 10 year guarantee. If the parent dies within the guarantee period, the child could be eligible to receive payments for the remaining guaranteed period. As I mentioned, though, that is a rare case. Your best bet is to contact the pension department of the mine his mother worked for. That information is usually available online.
If you file for summary administration and then learn the decedent had more than $30,000 in probate assets can you change it?
Question:
If you believe, based on the decedent telling you, that you are listed as a beneficiary on virtually all her accounts, and the only accounts on which you believe you are not listed total under $30,000 it seems safe to file for summary administration. However, not all account statements list the beneficiary on the regular account mailings. The banks and brokerages will not say if there is a beneficiary until they have letters of instruction. But you can’t get that without knowing whether you’re filing summary admin. or full probate. It seems like a catch 22. If you file for summary administration based on the accounts you believe have beneficiaries listed on bank and brokerage accounts and then discover the decedent had more than $30,000 that is subject to probate, can you change it to regular probate? Is there any problem with this?
Answer:
The short answer to your question, is yes, you can convert a summary administration to a formal administration. You wouldn’t have to convert to formal unless the assets needing to go through probate are greater than $75,000.
Generally speaking if you are listed as a beneficiary on a bank account, the bank will deal with you individually. They will ask that you send in proof of death before sending out the necessary forms to change ownership of account from the recently deceased to the person named on the account. If you or no-one is named on the account, they will need letters of administration or an order from the court telling the bank what to do with the asset.
If it is only an account or two that you are missing information for an account or two, you may be able to explain to the bank that you are trying to decide to open a summary or formal administration and tell them how much you currently know much go through probate ($30,000). You might get them to tell you that the amount is small and would not likely need summary administration or they might say, whoaaa, this account plus the $30,000 will put you over for sure.
What you are describing is becoming an increasing problem. Many people no longer receive paper copies of their statements and may only use online banking. If you don’t have access to the deceased computer and/or passwords, you don’t have access to much of that information. In the past, everyone got paper statements and most people would keep those statements in a file or folder at least for a short period of time where they could be easily discovered in the event of an untimely death.
Summary administration can be a useful tool, but it does have its drawbacks. The filing fees and expenses for a formal and summary are not that different, but are a little higher for formal. The attorney fees will probably be a little greater as well for a formal, but shouldn’t be drastically different if all of the assets are essentially cash and the probate seems fairly trouble free. You should probably sit down and talk to a local attorney about the specifics.
Can I be on Medicaid, sell.my home and use the money to buy half of the condo that my friend owns?
Situation:
I'm 67, can't live alone, and need Medicaid for services. My monthly income is $1400. I live in Florida and can keep my home and still get Medicaid.
The problem is that I can no longer afford my home. I was working full time 4 1/2 months ago and suddenly became ill.
Answer:
To answer your question directly, yes you can do as you are suggesting. What sort of services are you hoping to get from Medicaid? I'm assuming that you have Medicare as you are over age 64 so your medical care should be covered. Medicaid does not provide a lot in the way for in home or community care. They do have some waiver programs but there may be significant wait list. You may wish to call the CARES unit, part of the Department of Elder Affairs. They manage the "wait-list" for the various programs. I've attached a link to the directory. If you live north of Sunset Point Road in Clearwater, you call the office in Pasco. If south, call the Pinellas office.
The only program that guarantees assistance is the nursing home medicaid program. If you meet the financial and medical eligibility standards, Medicaid will pay for your nursing home minus your patient responsibility. One work around to the wait-list is the nursing home transition program. If you are approved for medicaid in a nursing home and spend a particular number of days, I believe 60 in the nursing home, you can "transition" to a lower level of care and Medicaid will follow you and you won't have to go on the waiting list. It is still a limited benefit and may not be enough to allow you to live in a condo if your needs are too high.
Veteran benefits may also be an option if you or or a deceased spouse was a veteran. While this doesn't pay for care directly, it can provide cash assistance if you are using your income to pay for care.
Selling your house may be necessary because of your situation, but I would sit down with an elder law attorney first and see if you can come up with a plan before you make any final decisions on what to do.
Can the attorney that writes my trust serve as trustee, or would that violate some kind of conflict of interest rule?
Question:
If there is no conflict, what are the pros and cons of using an attorney vs a trust company to serve as trustee?
Answer:
Generally speaking there is no conflict of interest for an attorney to act as trustee. An attorney should discuss various options with you however. There are numerous parties who can act as trustee. Family, friends, corporate trustees, fiduciaries, and attorneys. Personally, I do not suggest naming myself as trustee without having first gone through the other options and found them lacking, but acting as trustee is not a large portion of my practice.
There are pros and cons to each. The biggest con to a corporate trustee is that they usually have extremely high minimums ($500,000 to $1,000,000). Their fees are generally based upon a percentage in the trust. That could also be a large amount a money. Trust that have $100,000 often take as much work as trust that have $1,000,000, but the banks make a lot more money on the larger trusts. Corporate trusts may also be a little more cold than an individual that knows you. The biggest pro for corporate trustees is that usually have deep pockets and they may have been around for a 100 years and have interchangeable parts. Your attorney is an individual, so if he/she retires or dies unexpectedly, it could cause delays and or problems in making distributions. Attorneys may also charge a percent but they also may charge hourly. Depending on size of the trust, hourly billing could lead to significant savings.
Family and friends may be a cheaper alternative, but they generally lack the legal expertise in making distributions and may exploit the trust beneficiary. If you have ultimate trust in someone and they've shown they can make good financial decisions, they should at least be considered. Fiduciaries are not as common in Florida but they can also be another option. Some are attorneys but not all. Hourly rates may be less expensive than a practicing attorney, but not always.
I'm sure I have not covered everything, but hope I've given you something to think about.
Title Insurance for future sale
Question:
The grantor of a previous Lady Bird Deed (properly executed along with all powers retained) later conveyed the property via regular Quit Claim Deed (not a Lady Bird Deed) to a different grantee (a family member). The new grantee purchased a title insurance policy in his name as the fee simple owner based on the Quit Claim Deed. Will this new grantee encounter any problems if he decides to sell the house down the road? Does the fact that he had obtained a title insurance policy guarantee that the potential future buyer will be able to obtain a title insurance policy as well? Thank you!
Answer:
The title insurance policy protects the owner of the policy that he or she has clear title to the property. If the owner of the property cannot sell the property or it is determined that he/she is not the owner of the property, they would be protected by the title policy. Lady Bird deeds are a somewhat controversial estate planning tool because of how title insurance companies view them. The owner could do as suggested, have the person who was originally named as the grantee on the lady bird deed, quit claim their interest to the family member.
A gives lady bird deed to B. A later deeds property to C in fee simple. Try to get B to deed property to C in fee simple.
All a quit claim deed says is that Grantor gives whatever interest they have in the property to Grantee. In this case B really has no interest in the property, but they can still convey it to C, just to clear up any issues that may come up.
Absent being able to do that, I would recommend the current fee simple owner to try and make sure the new buyer using the same insurance company that insured their title. There would be of a chance they would balk at the transaction.
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Many of the blog posts come from questions that I've answered for people on AVVO or other legal help websites.
Clearwater Medicaid attorney - Largo Medicaid attorney - Dunedin Medicaid attorney - Safety Harbor Medicaid attorney -
Tarpon Springs Medicaid attorney - Seminole Medicaid attorney - St. Petersburg Medicaid attorney -
Pinellas Park Medicaid attorney - New Port Richey Medicaid attorney - Holiday elder law attorney
Clearwater Medicaid attorney - Largo Medicaid attorney - Dunedin Medicaid attorney - Safety Harbor Medicaid attorney -
Tarpon Springs Medicaid attorney - Seminole Medicaid attorney - St. Petersburg Medicaid attorney -
Pinellas Park Medicaid attorney - New Port Richey Medicaid attorney - Holiday elder law attorney
Clearwater nursing home attorney - Largo nursing home attorney - Dunedin nursing home attorney - Safety Harbor nursing home attorney -
Tarpon Springs nursing home attorney - Seminole nursing home attorney - St. Petersburg nursing home attorney -
Pinellas Park nursing home attorney - New Port Richey nursing home attorney - Holiday nursing home attorney
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Clearwater elder law attorney - Largo elder law attorney - Dunedin elder law attorney - safety Harbor elder law attorney -
Tarpon Springs elder law attorney - Seminole elder law attorney - St. Petersburg elder law attorney -
Pinellas Park elder law attorney - New Port Richey elder law attorney - Holiday elder law attorney
Clearwater nursing home attorney - Largo nursing home attorney - Dunedin nursing home attorney - Safety Harbor nursing home attorney -
Tarpon Springs nursing home attorney - Seminole nursing home attorney - St. Petersburg nursing home attorney -
Pinellas Park nursing home attorney - New Port Richey nursing home attorney - Holiday nursing home attorney
Clearwater Medicaid attorney - Largo Medicaid attorney - Dunedin Medicaid attorney - Safety Harbor Medicaid attorney -
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Clearwater elder law attorney - Largo elder law attorney - Dunedin elder law attorney - safety Harbor elder law attorney - Tarpon Springs elder law attorney - Seminole elder law attorney - St. Petersburg elder law attorney -
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Archived Elder Law Blog Posts
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