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Elder Law & Special Needs Planning
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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.
Is the adult child included or just the minor?
Question:
My husband passed and he had 2 kids from previous marriage. I am taking a life estate on our homestead property, whenever it gets sold (if ever) just the minor will get to share profits with me or the child that is over 21 counts as well? Or if I die tomorrow, would it go to the minor only or to the adult child as well?
Answer:
You definitely need to speak to a probate attorney. If you choose to take a life estate, the remainder would go to both children. A minor’s guardianship may need to be established if a trust was not established in the Will. A life estate has a value. There are life estate tables that show the value of a life estate. For instance, if you are age 50 when you sell the property, your percentage of the sale should be about 85% and the remaindermen would split 15%. At age 80, your percent would about 44% and the remaindermen would about 56%. In order to sell the property you would need the signatures of both children (or guardian) so in reality, you may have to settle for a percentage less than the table would suggest if the children wanted to be difficult. Owning a life estate in property can be difficult, especially when the remaindermen are children from a previous marriage. You really need to seek counsel and explore your options. You should do so sooner than later.
Father passed away. Original Will not found, Stepmother's attorney filed a copy. Can we contest on copy?
Question:
Will was done several years ago after father remarried. Longer the marriage went, the more he became unhappy. Children feel father destroyed Will as revoking it. Do we need to hire an attorney to contest the copy. We received notification, thus have 20 days.
Answer:
Yes, you do need to hire an attorney to contest the Will. If the Will is deemed revoked, your father’s property would follow the statutory intestate succession laws. From the information provided it is likely that if you are successful his second wife will likely get 50% of your father’s property that was owned solely by him. Generally, any property owned jointly with rights of survivorship would pass outside of probate and would be owned by the joint owner. There may be exceptions.
Be aware, this may not be an easy case to win, unless you have real evidence that the Will was destroyed. Depending on the facts of the case and the value at issue, some attorneys may be willing to take the case on a contingency basis while other will require a retainer and bill hourly. Just because one attorney does not take the case, doesn’t mean that another one wont. Bottom line is you do need an attorney and you had better act quick. Make sure you talk to someone who does probate litigation. If you cannot afford to pay a large retainer, make sure they will take the case on a contingency basis.
My Mother died her will was probated with my sister as personal rep. Mom's home was left to my sister and three sons (I am one)
Question:
One of my brothers has moved into the house. My Mother told us when she was living she wanted the house sold. In the will it states that her personal representative (my sister) can sell my Mothers assets (Home) “if and when” she decides to. So that was my Mom’s only asset and one of my brothers moved into the house and is freeloading because the house is paid for and he doesn’t want to leave. Is there anything I can do except just sit and wait until my sister gets ready, to sell the house whenever that may be?
Answer:
If probate is finished and you and your siblings are now the owners you essentially have two options. Sue for partition or ask for a buy out from the other siblings. You really need to speak with an attorney. Most likely one who specializes in real estate. You can at least get an idea of what it would cost to proceed with that route. Suing siblings is not usually a preferred method of resolving problems within a family as you can imagine. Balancing the family issues, you would most likely prefer to have them buy you out if possible. You may have to settle for less than 25%, but it may be better off for the family in the long run. Under no circumstances should you try changing the locks, turning off power or water or take other measures to make your brother leave. Make sure you document who pays taxes and insurance on the property as well as any other expenses of the property as it will be important information should you sue for partition. Either way, you should contact an attorney and discuss the matter further and then make a decision on what to do.
I will be putting my mother in a nursing home and want to keep the house.
Question:
I understand there is a law that lets you maintain ownership if you provided home care for family member for 2 years. I contacted the Medicaid office and they wouldn’t answer the question directly.They told me to contact a lawyer.
Answer:
In Florida, a person’s homestead has some pretty strong protections. One of those is that you are allowed to keep your home indefinitely as long as you do not express an intention to abandon the homestead. You may live in the home or you may rent it out. I include provisions in any lease that the owner has a right to move back into the home if she was ever able to do so.
I think you are referring to Florida Medicaid Manual section 1640.0609.04(5). It deals with the transfer of homestead to an adult son or daughter who has resided with the applicant for at least 2 years and provided care which prevented the applicant from needing to be moved to a nursing home sooner.
If your mother owes the property outright, she may retain ownership through out her lifetime even after moving into a nursing home. Her income cannot be used to pay taxes, insurance or other expenses of ownership. This is why a many people rent their homestead while in a nursing home. The taxes, insurance, and other expenses can be paid out of the rent collected. Because it is her homestead you or another family member could move in and simply pay the expenses to maintain the property.
As long as your mother is leaving her homestead to a blood relative, the home would also pass through probate free of creditors so Medicaid could not come after it after her passing. She can also deed the property using an enhanced life estate deed to you or other third party. The deed essentially transfers the property on her passing to you similarly to naming someone as a beneficiary on a bank account.
The main thing is that your goals can be accomplished and her home can be protected. You do need seek the assistance of a qualified elder law attorney to assist you with this. There may also be other planning methods or concerns that I cannot address with the information supplied.
Are funds TOD into an Irrevocable Trust (at my death) protected from my creditors?
Question:
Are funds TOD into an Irrevocable Trust (at my death) protected from my creditors, if I had no creditors at the time I designated the TOD status?
I have modest funds I want to leave to my daughter in a trust and had planned on a Revocable trust but concerned that a late stage life incident might cause the funds to go to an unforeseen creditor. I currently have no creditors. Now considering a modestly funded IRT and to TOD other funds at my death and wondering if this might provide more protection from unforeseen creditors than a RT?
I also understand that a RT requires a Notice of Trust be posted with the Clerk of court for creditor claim opportunity for a 2 yr. period in FL if not probated, which seems unsettling, which could be bypassed with the TOD into an Irrevocable Trust.
Answer:
Since you are talking about an irrevocable trust, I would suggest going ahead and setting up an appointment with a local estate planning attorney. Some probate/estate planning practitioners argue that transfer on death or pay on death accounts should be includable in a probate estate as the laws are today, while others disagree. If you pass within the next few years, the accounts would like pass using those designations and not go into probate.
However, creditors have a lot of lobbying money to spend and the probate statute may become more comprehensive requiring the personal representative to gather TOD and/or POD accounts in the future. I say that because even with those designations there is no guarantee for the future.
I do not think not having creditors at the time you designate the funds to a IRT has any effect on whether the funds would be protected from creditors. You may be able to protect the funds from creditors if you transfer the funds while living and no creditors, but you would also have to relinquish complete control over those assets. Something most people are unwilling to do.
You are correct about notice of trust being required. Some attorneys suggest opening a probate after the two year period has expired to end the creditors rights to recover. The downside is of course, waiting two years to distribute the property in the trust. You really need to speak to local attorney.
my husband and me for at least 5 yrs. Mother & father are both MIA. Can we get guardianship?
Question:
My husband and I have solely raised & supported our grandson for at least 5 yrs. We have no contact info for mother or father (which never married.) Mother has had 3 DUI’s in a 5 yr period, and our understanding is she’s addicted to prescription pain pills. In the first 6 yrs. of his life the mother & grandson moved 17 times. I’d like to know if getting some type of legal guardianship is possible? Would this be considered abandonment? Any advise would be greatly appreciated. Thank you in advance.
Answer:
From the details supplied above it sounds like a guardianship would be appropriate. Not only would it be appropriate, I think it would be necessary. How have you been enrolling your grandson in school? What about doctor visits? Grandparents do not have any natural parental rights regarding their grandchildren. I think it is only a matter of time before this will become a major issue. You might be ok in your local area, but as your grandson gets older, this could become a huge problem.
If you proceed with guardianship, the parents must be served with notice of the proposed guardianship and they will have an opportunity to object. I’m not sure what effect it would have on their parents’ rights and responsibilities, but for the benefit of your grandson, I would find a local guardianship attorney as quickly as possible and discuss the situation further.
I am trying to get my husband's medical records from Nursing Home with Power of Attorney
Question:
My husband is in nursing home and I am trying to get his medical records with a Durable Power of Attorney. The nursing home is denying me the records because the Durable Power of Attorney is not HIPPA compliant. If I hire a lawyer to write a letter to get records can I sign the HIPPA Release on behalf of my husband as his Attorney-in-fact under the Durable Power of Attorney?
Answer:
You probably do need to see an attorney, but I would also recommend googling HIPAA covered entities personal representative. I don’t know that there has to be any specific language in the power of attorney to be HIPAA compliant. Many health care providers go over board out of a unrealistic fear of HIPAA compliance. Covered Entities as they are called under HIPAA have a fairly decent amount of discretion in the disclosure of protected heath care information. I know I don’t have all of the details, but unless your husband has made statements that he doesn’t want you to have the records, I don’t think the facility is correct in denying your request for medical records. They of course may be scared of being sued, but that is another matter.
Typically, powers of attorneys are valid into the future as long as they were valid when they were drafted. Even though they are valid, they are usually interpreted by non attorneys who may not have a detailed understanding of the law. This is why many estate planners advise their clients to update documents after the passage of major legal changes. I do not think you should have to hire an attorney, however, you may need to hire one if the facility will not comply.
Can I sell a life estate?
Question:
I have life estate on the house my husband left, his son from previous marriage is the remainder-man. I can no longer pay for it. Can I put it up for sell?
Answer:
Owning a life estate interest in a home with the remainder to a child of a previous marriage is a difficult situation. Yes, you can put it up for sale, but it will require the cooperation of the son. Your life estate has a particular value. That value depends on your age and life expectancy. If you all agree to sell, he will get less money than he would if he were to inherit the house in the future, but he will get the money now. If you can’t afford to keep the home, he will have limited options. Either he can agree to a sale, help pay the costs of the home during your lifetime, or he can purchase your life estate. If he does nothing, he risks losing the home in a foreclosure. That is not a good solution for either party. As with almost all questions, posed, there is no simple answer and you really should seek the counsel of an attorney.
My father passed away in 1996. His wife passed last year. Who has the rights to the property? Im told my dad has a will.
Question:
The property is in Greer South Carolina were he resided.
Answer:
Was his wife living in South Carolina at the time of her death? Like others have mentioned, there are a lot of details that need to be uncovered before anyone can give you a real answer. The answers will depend on how was the property titled at the time of your father’s death. If it was joint tenants with rights of survivorship with his wife, it would have likely passed to her. She would have then had the ability to deed it or Will it to someone. If it was tenants in common with his wife, ½ would have gone under his Will and she would have owned other half. His Will could have given her his ½. If it was owned outright by your father at his death, it would have passed under his Will. In Florida there are laws in place that prevent one spouse from devising their homestead to a non-spouse. I know you hate to hear it, but you really do need to speak to an attorney. You may have to engage attorneys in Florida and South Carolina depending on the facts.
Will my medicaid eligibility be effected if I transfer two homes into an enhanced life estate deed?
Question:
I would like to transfer my homestead property as well as a separate property that I own into an enhanced life estate deed. I do not want these assets to count against medicaid eligibility. Can they both be in an enhanced life estate?
Answer:
Transferring the properties while retaining an enhanced life estate will not be considered as a transfer for Medicaid purposes. Of course that means that both assets will still be considered to be yours. Your homestead is always considered an exempt asset as long as you do not declare a desire to abandon your homestead. The second property will most likely be considered a countable asset. Florida does allow Medicaid receipts to own rental property as long as the property is rented at fair market value. The net rent after payment of taxes, insurance and other expenses will be countable as income. If you do not think you will need Medicaid within the look back period (currently 5 years), you may be able to gift the property to another person or to a trust. In doing so, you will have to relinquish control of the property. Of course, you should retain an attorney before taking any action as there are likely important details and issues that need to be discussed.
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