Many times, clients come into my office stating that they need to have Last Will and Testaments done and at the same time, they tell me they want to avoid probate of their estate after they die. These clients are usually very adamant that they do not want the government to get their assets, they do not want their families to pay attorney's fees, and they do not want their estate to be tied up for months and months. The problem is that a Last Will and Testament will not avoid probate and clients are usually very surprised to hear that.
Think of a Last Will and Testament like a "love letter" to the Court. When you die, your Will gets filed with the Court. Filing the Will puts the public on notice that you have died and lets the Court know who you want to be the beneficiaries of your estate. The Will also tells the Court who you want to administer your estate – you name who you want to be the "personal representative" or "executor" (these terms are used interchangeably). However, in order for the Will to "do it's job", a probate proceeding needs to be opened. A probate proceeding is opened when someone (an "interested party" - usually one of the beneficiaries of the estate, or the person named as the personal representative in the Will) files a Petition with the Court asking the court to appoint a personal representative to administer the decedent's estate.
In most cases, the person filing the Petition is required to use an attorney to do so. Interestingly, guardianship and probate cases are the only cases in Florida where you are required to have an attorney in order to file an action. The fees and expenses of a probate administration can run from a couple thousand dollars to many thousands of dollars. It really depends on what assets are going through probate and the value of those assets.
So, the big question is - how do we avoid probate? Very simply, the way to avoid probate is to make sure that you do not have assets solely in your name or that you have beneficiaries on everything you own. For instance, a bank account can be owned jointly with another person (spouse, child, an unrelated person) or you can put a "payable on death" or "P.O.D." beneficiary designation on the account and it will transfer at death to whomever you name as the beneficiary. If you have life insurance or brokerage accounts, then you can provide for beneficiaries for those types of accounts or policies (and you should check your beneficiary designations whenever you have major life changes, such as a death or divorce).
Real estate is a tricky asset on which to avoid probate. If you add someone to the deed on your property, you have a few issues to deal with. First, you could affect the homestead tax exemptions that you receive if the joint owner is not also living in the house. Second, if the joint owner has creditor issues, and the house is not their homestead, their creditors can potentially go after their interest in your house. Third, by adding someone as a joint owner on your property, you are affecting the step-up in basis that they can receive at your death. If someone inherits property, they get a tax break from capital gains tax when they go to sell the property. For example, if you buy a house for $100,000 and your adult child inherits it and then sells it, after you die, and the house is now worth $300,000, the child would not have to pay any capital gains tax on the sale. But, if you add the child to the deed of your house, and then you die, when your child goes to sell the property, he or she will have to pay capital gains tax on $200,000 because they lost the step-up in basis when you added him/her to the deed.
Many times, financial planners will tell people that they need a revocable trust to put their house into so that they can avoid probate. While a revocable trust does avoid probate, if you are using the trust to primarily avoid probate of your homestead, your beneficiaries may be surprised that they will still have to open a probate after you die. Why is that? Even if your house is in a trust, if your beneficiaries want to sell the house within two years after your death, most title companies will require you to provide an order from the court stating that the homestead was exempt from creditors before they will write title insurance for the sale of the house. The only way to get that order is to open up a probate (and this will cost you, depending on what part of Florida you are in) a minimum of $1,500 to do.
So how do you avoid probate on the homestead? You can do an enhanced life estate deed. An enhanced life estate deed allows you to reserve a life estate in your property while giving the remainder interest to a beneficiary at your death. This type of deed allows you to reserve the right to sell, convey, mortgage, lease or otherwise dispose of your property during your lifetime without the joinder and consent of the remainder person(s). Only if you still own the house upon your death, will the property pass to the named beneficiaries (or the “remainder person(s)”). To learn more about the advantages and disadvantages of the enhanced life estate deeds, click here - http://ohalllaw.com/2016/05/enhanced-life-estate-deed/.
If you have questions about probate or other estate planning matters, please call the Law Office of Laurie E. Ohall to schedule a complimentary phone consultation with one of our knowledgeable attorneys at 813-438-8503.
Medicare is a federal health insurance program, not a needs-based program, for most elderly Americans (over the age of 65), people under 65 who qualify for disability income and persons who are suffering from end-stage renal disorders. It was first created in 1965 as part of the Social Security Act. For those 65 and older, they may receive Medicare if they are entitled to Social Security or railroad retirement benefits. If not entitled to Social Security, any individual who is a resident citizen or permanent resident alien of the United States who may be entitled to receive Part B coverage may purchase Part A coverage as well. Monthly premiums are charged for Part A and Part B coverages. Once you reach the age of 65, you can start receiving Medicare benefits. For 2017 Medicare coverage, open enrollment is from October 15 to December 7, 2016.
Part A is hospital insurance and covers inpatient hospital stays, care in a skilled nursing facility, hospice care and some home health care. Part A only pays for a limited amount of skilled nursing care. For those who have Original Medicare (Part A and B), as long as the patient has been admitted to a hospital (as an “inpatient” and not under observational status) for at least 3 days, Medicare will pay for rehabilitation at skilled nursing care at 100% for up to 20 days. During day 21 to 100, Medicare will continue to pay, however, there is a co-pay of $157.50 per day (for 2015 - this changes on an annual basis). If the patient has supplemental insurance, this will usually take care of the co-pay. Once 100 days has passed, the patient must either privately pay for skilled nursing care (at the average cost of $8,346 per month), have long term care coverage that pays for the care, or qualify for Medicaid to pay for the care.
Part B is medical insurance which covers certain doctors’ services, outpatient care, medical supplies, and preventative services.
Some people opt out of “original Medicare” and, instead, choose a Medicare Advantage Plan which is also known as Part C. This is health care that is offered my private health insurance companies and provides the beneficiary with all the Part A and Part B benefits. Medicare Advantage Plans include HMO’s, PPO’s, private fee-for service plans, special needs plans and Medicare Medical Savings Account Plans. Most services in a Part C plan are covered through the plan and not paid for through Original Medicare. Additionally, most Medicare Advantage Plans offer prescription drug coverage. It is important to note that coverage for skilled nursing care is not the same under a Part C plan as it is under Original Medicare and the amount of time the Plan will pay for in skilled nursing depends on the particular health insurance company.
Part D is prescription drug coverage that can be added to Original Medicare, some Medicare Cost Plans, some Medicare Private-Fee-For-Service plans and Medicare Medical Savings Account plans. Part D plans are offered by insurance companies or other private companies approved by Medicare.
If you have questions about the type of coverage you have, you can check your “red, white and blue” Medicare card, check the other insurance cards you have been given, check with your Medicare health or drug plan enrollment, or call Medicare at 1-800-MEDICARE (1-800-633-4227).
If you have questions about Medicare or elder law, please call the Law Offices of Laurie E. Ohall, P.A. at 813.438.8503.
Have you ever felt “sandwiched” between the pressures of caring for an older parent and raising your own family?
If so, you are part of a unique group of people known as the “Sandwich Generation.” These are adults who are juggling the roles of caring for their own families (including minor children) and aging parents at the same time.
Don’t wait until a medical crisis to help your parents plan for long-term care!
The emotional, physical and financial strains experienced by those in the Sandwich Generation can be overwhelming and paralyzing.
You may wonder…
“Will mom or dad lose their home?”
“What happens to an inheritance or remaining assets?”
“How do we choose between in-home, assisted living and nursing home care?”
“What if my mom or dad wants to stay home but takes a turn for the worse?”
“Is there a responsible way to protect any assets?”
“What can be protected for the healthy spouse still at home?”
“What happens if we run out of money?”
“How do we get public benefits and will they be enough to pay for all the help we need?”
…and perhaps you don’t know where to turn for answers.
The legal and financial strategies you will find in this guide are designed to help you plan ahead and and stay in control when facing such difficult decisions. You will discover a wide variety of options that are available for your family that will give you peace of mind and confidence during a challenging time.
While life may seem overwhelming and chaotic at the moment, turning the tables and gaining the upper hand again concerning your parents’ care is easier than you think.
Solid legal planning is the key to helping your parents receive the best care possible without sacrificing your own family’s financial security.
Get Laurie Ohall’s sandwich generation guide which will help you fill in the missing pieces of your current care plan.
When you download this free e-book, you will also discover:
Remember, sickness, memory loss or incapacity from a stroke or other condition can happen without warning. Don’t wait to get a rock-solid plan in place to protect your parents and make your job as a caregiver as easy as possible.
Download your e-book absolutely free now at this link.
Also would you like additional guidance from a knowledgable attorney? Schedule a complimentary phone consultation with Attorney Laurie Ohall by calling 813.438.8503.
With the aging of our population, elder exploitation is a growing problem in the U.S. In Florida, we have a large older population, and so this issue is even more prevalent. Many times, the exploitation occurs at the hands of a caregiver or some unrelated person, but very often, the exploitation is done at the hands of a family member. When this happens, it can be devastating to the senior and other family members.
There are different types of elder abuse and exploitation. These include physical or psychological abuse - anything that can result in bodily injury, pain, impairment, emotional or mental anguish. This also includes financial exploitation (illegally or improperly using an older person's funds or resources) and neglect where the caregiver fails to take care of the older person properly.
What are the signs that someone is being exploited? In some cases, the person doing the exploiting isolates the senior or will not allow them to communicate with other family members. There may be large withdrawals from the senior's bank account (or many smaller withdrawals on a more frequent basis or Payments to the family member to help take care of the senior of larger sums (like $500 or $1,000 per month).
Other signs of exploitation include large withdrawals of funds that can cause tax consequences, or large withdrawals that are not normal for the senior to do and transferring that money to the family member, changing beneficiaries on accounts such as life insurance policies or retirement accounts, and having the senior change their estate planning documents to leave everything to just one child where, before, everything was equal to all children. Additionally, the failure to attend to the senior's personal hygiene, making sure they have appropriate care and failing to use their money to take care of them (like paying for their care in assisted living, making sure they have their prescription medications, not taking them to the doctor when they clearly are in distress) are signs of neglect.
Did you know that someone who is an agent under a power of attorney, a trustee or guardian, or a joint account holder can be liable for criminal and civil penalties? Florida's Exploitation statute subjects trustees, guardian's or agents who breach their fiduciary duties by the unauthorized transfer of assets to liability for criminal and civil penalties. Those who are agents under a power of attorney and abuse their powers are also subject to these penalties. Additionally, joint account holders who take money from a senior where the senior was the sole contributor of the funds can be held liable.
In Florida, the failure to report elder abuse in Florida is a second degree misdemeanor. Making a false report can cause someone to be guilty of a 3rd degree felony punishable by up to five years in prison and a fine not to exceed $10,000 for each violation.
If you feel that a loved one is being exploited, you can call the police and report the issues. In Florida you can call the Florida Abuse Hotline at 1-800-96-ABUSE (1-800-962-2873) or go to the Department of Elder Affairs website and download their form to fax in a report of abuse - http://elderaffairs.state.fl.us/doea/report_abuse.php.
Finally, you can contact an elder law attorney who specializes in elder exploitation issues. Many times, attorneys can move to freeze assets, and even proceed under the civil theft statute in order to get the senior's money returned or get treble damages (triple your money). The senior's can even have their attorney's fees paid by the exploiter under the civil statute.
Would you like additional guidance from a knowledgable attorney? Schedule a complimentary phone consultation with Attorney Laurie Ohall by calling 813.438.8503 or online.
I meet with veterans every day who have served only a couple of years and think that the length of service they served was not long enough to to earn them any "perks" through the V.A. They are quite surprised when I tell them that, because they served for at least 90 days, one day of which was during a "war" time, that they or their widowed spouse may be entitled to benefits that could help pay for care in the home or care in an assisted living facility. See here for more on “Aid and Attendance” – http://ohalllaw.com/2012/02/florida-va-benefits-what-you-should-know/.
However, there are other benefits available to those who may not have served during war time or who do not meet the financial eligibility criteria. These include veterans service connected disability compensation, survivors Dependency Indemnity compensation (DIC), VA health benefits and non-taxable retirement from the Department of Defense.
Disability compensation is a tax-free benefit paid to a veteran for a service-connected disability that happened as a result of active duty, active duty for training, inactive duty training or injury from VA healthcare. Compensation can range from $130 up to $8,000 per month. Also, veterans may be entitled to other benefits such as grants for a new automobile or modifying existing vehicles, constructing or modifying homes, clothing allowances, etc. Veterans cannot receive both Aid and Attendance (known as “pension”) and compensation at the same time – they must choose which one they want to receive.
Dependency Indemnity Compensation (DIC) is for eligible survivors of a military service member who died on active duty or whose death after services resulted from a service-connected injury or disease. It is also available if a veteran received improper treatment from VA health care or rehabilitation services. If a veteran was permanently and totally disabled for 10 years or more, a surviving spouse is automatically entitled to DIC. It can pay $1,254 per month (in 2016) to a surviving spouse, and there are additional amounts available to dependent children. Also, if the surviving spouse needs the aid and attendance of another person (i.e., home care or ALF), there is additional assistance. DIC can also be available to a parent (which is defined as biological, adoptive, step parent or someone who stood in as the parent prior to the soldier's 21st birthday, and for one year prior to the time the soldier entered into active duty). Because DIC benefits do not rely on a person’s assets, a parent with higher assets could still be potentially eligible for this benefit.
The CHAMPVA health benefit is available to certain spouses, surviving spouses, and dependent children who are entitled to this free health coverage. If the veteran was 100% permanently and totally disabled, spouses and dependent children are entitled to CHAMPVA. Surviving spouses and their dependent children of veterans who were rated 100% permanently and totally disabled at the time of the veterans death or for those veterans who died from service connected disability are also entitled to the CHAMPVA benefit.
If you have other questions about Veterans’ benefits, I would encourage you to speak with your local Veteran’s service office. Click here for Hillsborough County - http://www.hillsboroughcounty.org/index.aspx?NID=284. These offices are funded by the State of Florida and their sole job is to help veterans and their families obtain all benefits available to them. Would you like additional guidance from a knowledgeable attorney? Schedule a complimentary phone consultation with Attorney Laurie Ohall by calling 813.438.8503.
I work with many clients whose spouses suffer from Alzheimer's or dementia, and I have several friends and colleagues who do an excellent job taking care of individuals with these issues. I have witnessed family members who bring their parents into my office talk to their parent who is suffering from this condition, and I can immediately tell that they have not received counseling about how to handle someone with this condition. Here are some tips for dealing with an Alzheimer's patient:
Being a caregiver to someone who suffers from Alzheimer’s or dementia is not easy. Taking care of yourself and trying to get counseling to help you learn about how to help your loved one is also very important. If you need information about the programs in your local community, the Alzheimer’s Association can help you find a support group near you – click on - http://www.alz.org/care/alzheimers-dementia-support-groups.asp.
To schedule a complimentary phone consultation with Attorney Laurie Ohall, please contact her office at 813.438.8503.
Whether you are young and single or a senior over the age of 65, there are different tools you need in your estate planning tool box to make sure that you have all your planning in order. As we age, circumstances change and the need to change your estate planning is also necessary.
I hope that these stages of planning give you an overall idea of when it is important to see your financial and/or estate planner. An estate planning attorney can help you create and/or update your plan, advise you through issues regarding income and estate tax, and help you plan for long term care issues in the future. To schedule a complimentary phone consultation with Attorney Laurie Ohall, please contact her office at 813.438.8503.
Sometimes, people are led to believe that, if they (as a single individual) or their spouse, go into a nursing home, the nursing home can take their house or other assets to pay for care. They ask, "Will I lose My Home to the Nursing Home?" In Florida, this does not have to be the case.
In order to qualify for Medicaid (to help pay for long term care such as a nursing home or assisted living facility), the person applying for Medicaid cannot have more than $2,000 in assets (assets are cash, investment accounts, cash value on life insurance, etc.) and you cannot have more than $2,199 (in 2016) of income. Your homestead and one vehicle are considered "exempt" and do not count toward the $2,000 assets you are allowed to have for Medicaid purposes.
As a single person, if you own a house and you go into a nursing home, you can keep your house - you do not have to sell it. However, if you have a mortgage, or you do not have someone who can help you take care of the house while you are in the nursing home, you may need to sell it. This is because your income is going to pay the nursing home and there is nothing left, in many cases, to pay a mortgage or the taxes and insurance on the home.
As a married person, if one spouse is in the nursing home, and the other spouse (community spouse) is able to live in the home, then the house is usually safe. If the community spouse has low income, and needs the income of the nursing home spouse, in many cases, it is possible to divert some of the income of the nursing home spouse to the community spouse.
Many times, people want to know whether they can rent out the house to help pay for the expenses if the owner is in a nursing home. If you do this, you will very likely lose the homestead tax exemption, and you turn the property from an “exempt” asset to income producing property. The income from income producing property counts toward the $2,199 the Medicaid applicant is allowed to have (and much of it may go toward nursing home bills). There are a few things that can be deducted from the income, such as taxes, insurance and some maintenance, but the rest is income and is used to pay the nursing home.
Also, converting the house from an “exempt” homestead to income producing property may make the house subject to a lien by Medicaid after the Medicaid recipient dies if the house goes through probate. In Florida, if your house is your homestead (as defined by the Florida Constitution), it is protected from creditors at your death, even from Medicaid, and even if it goes through probate. However, income producing property is not protected from creditors, and if it goes through probate, Medicaid will have a lien against it.
If you have questions about nursing home Medicaid, protecting your assets from spending them down on a nursing home, or probate questions, please call board certified elder law attorney, Laurie E. Ohall, PA. at 813.438.8503 for a free phone consultation.
According to Kiplinger’s Personal Finance, only one-third of Americans have a Last Will and Testament. What does that mean? A Last Will and Testament (not to be confused with a Living Will) is a writing, signed in front of two witnesses and a notary, that states who you want to have your assets when you die, and who you want to administer your estate (i.e., be the personal representative or executor – those two terms are interchangeable). If you die without a Last Will and Testament, you die “intestate” and this means that the state of Florida decides who gets to act as the personal representative and even who receives your assets upon your death.
For instance, in Florida, if you die married to someone, and that someone is not listed on your assets (i.e., they are not on title to your house, or you have bank accounts in just your name or even with another individual), your spouse is entitled to a share of those assets if you die without a Last Will and Testament. If you have a pre-nuptial agreement (or a post-nuptial agreement), and your spouse waives their rights to your assets after you die, then your spouse may not have any rights to your assets. Without a pre or post-nuptial agreement, the state of Florida has laws that spell out who gets what.
If you have a homestead without the surviving spouse on title, the surviving spouse can elect to take a half interest in the homestead (with the other half going to your children) or the surviving spouse will receive a life estate in the property (meaning they can live there for the rest of their lives with the remainder interest going to your children at your death). With regards to other assets that go through probate, if you die without a Last Will and Testament, your spouse (if you have children from a prior relationship) would take half, and the children would receive the other half. Or, the spouse could also consider taking an elective share (which is 30%) and the elective share amount deals with assets that do not go through probate, including assets held in a revocable trust, jointly owned property, pay on death accounts, life insurance and more.
If you do not have a spouse, then the Florida statutes look to whether you have children. If you do, they inherit if you do not have a Last Will and Testament stating otherwise. If you have no children, then the next in line is grandchildren; if no grandchildren, then the statute looks to see if your parents are still alive, brothers and sisters, and so on and so forth down the family tree line. If there is someone along those lines that you absolutely do not want to inherit from you, having a Last Will and Testament will allow you to spell out who you want to disinherit and who you want to have your assets.
Sometimes, a Last Will and Testament may not be needed. It really is on a case-by-case basis. If you have an only child and you want that child to have everything, you could make them the beneficiary of your assets (or put them on title on such assets like bank accounts), and they would automatically receive those assets at your death. However, I do not recommend adding individuals to assets (such as with a homestead) until you have had a chance to speak to an attorney and understand the pros and cons of doing so.
If you have questions and would like guidance about preparing a Last Will & Testament, please call the law office of Laurie E. Ohall, PA. at 813.438.8503.
The holidays are upon us, and many will be traveling to spend time with their families. Living in Florida, we have a lot of "snowbirds" who winter here and, consequently, their families come visit during the holidays (presumably to spend time with their loved ones, but also to get away from the cold weather). This tends to be a time where, if the kids haven't seen mom or dad in a while, they might be a little surprised at the changes that are taking place. They might notice that mom is somewhat forgetful (more so than the last time they saw her). Or, they might notice that dad has lost a lot of weight and looks very frail (because he has no one cooking for him and he's not able to cook much for himself). This can be a scary wake-up call to see your parents frail before your eyes and you do not know what to do about it. So how do you handle this?
If you have need legal advice about your aging parents and elder law planning, please call the Law Offices of Laurie E. Ohall, P.A. at 813.438.8503.