Elder Law Archives

Petition for Administration: Should you Consent or Object?

A loved one has passed away and after a few weeks you receive a package from a probate attorney's office. Inside the package are several official looking documents along with a cover letter asking that you sign and return a Consent to the enclosed Petition for Administration. Should you sign the Consent or not? Should you file an Objection?

Funding: How do you put assets or property into a Trust?

In Florida estate planning, a commonly used instrument is a "Living Trust" (also called a "Revocable Trust" or a "Revocable Living Trust"). In this blog, we will simply call it a "Trust." There are multiple benefits accomplished by establishing a Trust, including avoiding probate and controlling distribution--particularly to minors or financially irresponsible adult beneficiaries.

Five Excuses for Not Doing Estate Planning

Estate planning involves having certain documents in place to protect your loved ones and you in the event of illness, injury, incapacity or death. These may include a Will, a Trust, a Durable Power of Attorney and a Living Will, Establishing an estate plan is not terribly difficult or time consuming but the benefits can be tremendous! A good estate plan provides both protection and peace of mind. So why do people not set up their estate plan? Here are some possible reasons:

Second Marriages: Estate Planning with Your IRA

If you own an IRA account, you will usually name a person as beneficiary to receive the IRA at the time of your death. In most instances, the beneficiary can roll the IRA over into an IRA in the beneficiary's name and also defer taxes by withdrawing the funds over time. When a beneficiary is a responsible adult and when you want that person to be able to access the full IRA account, this is a good plan. The IRA can be rolled over into an inherited IRA and the beneficiary can withdraw the funds over time, thereby reducing taxes. The person can also name a beneficiary for the IRA to go to upon his or her death. In a situation where spouses have been married for a long time and have responsible adult children together, this works well.

Do adult children have a "right" to inherit in Florida?

In our estate planning practice, clients often ask whether their adult children have a "right" to inherit in Florida. [this discussion is not addressing minor children--their rights can be different]. While the question is a simple one, the answer is somewhat of a "mixed bag." As with many legal questions, the answer is "it depends."

Summary Administration in Florida

In Florida, there are two types of probate administration: formal and summary. Both accomplish essentially the same objective of allowing the distribution of a decedent's assets. However, there are some significant differences between these two types of probate. This article is intended to discuss the summary probate administration.

Florida's Spousal Elective Share and Life Insurance

Under Florida law, a spouse has the right to receive 30% of certain of his or her deceased spouse's assets. This is true notwithstanding whether the deceased spouse has excluded his or her spouse under his or her Last Will and Testament or Trust. So if the deceased spouse died having a Will which left nothing to his or her spouse, then the surviving spouse could still receive 30% of the applicable assets. The surviving spouse would have to make an election under Section 732.201, Fla. Stat. in order to be entitled to receive this share.

The Do-it-Yourself Disaster!

In today's era of on-line forms, office supply stores, and software, it is becoming increasingly more common for people to try to prepare their own estate planning documents. Whether it is a simple Durable Power of Attorney, a Living Will, a Last Will and Testament, or a Trust, there are plenty of ways that people can try to create their own estate documents. In our practice, we often see this result in an outright DISASTER!

Medicaid Claim Against A Deceased Person's Estate

A common question which we encounter in our Florida estate and probate practice is whether a person's estate will owe any money to Medicaid upon the person's death. Usually the reason for their question is that the person has received Medicaid benefits prior to their death. Many times, those benefits were as a result of Medicaid paying for the deceased person's long term care in their final years.

What does it mean to get a "step-up" in basis on assets when a person dies?

In our estate and probate practice, beneficiaries often ask whether they will have to pay taxes on assets that they inherit. The answer to this often depends on what type of asset is involved and whether there is a gain or a loss on the asset. When a person owns property and they devise it to someone at death, in determining whether there's a gain or a loss for tax purposes, a determination must be made of the "basis" for the property. From the basis, it can be determined whether the value went up--a gain--or went down--a loss.

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