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Elder Law & Special Needs Planning
My mother died a few months ago. I have an executed, notarized, durable power of attorney. Can that DPOA be used after death?
Situation:
Can the DPOA be used to close out her bank account, now after her death? He assets are small under $50,000. No real estate. She did not have a will or executor. I am her only son and she was not married.
Answer:
the power of attorney is no longer valid. Was the bank account titled in her name only? Did she name a pay on death beneficiary? If the account was owned only by her and she did not name a beneficiary, the account with have to go through probate. If the assets subject to probate are under $75,000 and she had no known creditors, it would qualify as a summary administration. A summary administration is usually less expensive and quicker than a formal administration. No personal representative is appointed and you don’t have to publish notice or wait out a creditor period.
Money from son's fathers law suit, suppose to go to estate, had will for kids and I, will was not followed or probated.
Situation:
The brother said will was no good to destroy, found out from son’s dads attorney for suit that he settled and gifted money to his brother before died, he would not of done that to his 2 son’s, that is why he had a will, that stated what he wanted. Will also stated any money in accts held by brother in New Hampshire and property in his brothers name.
Answer:
You do need to make an appointment with a probate attorney local to where your son’s father passed away. I will try to provide some general information that may assist. Property owned jointly with another person or held in another person’s name are not generally subject to probate or control by a Will. The property in his brother’s name and money in his brother’s account would be owned by his brother and your son’s father’s Will would not control. If there was no property/assets in your son’s father’s name, the Will would not be probated.
Again, generally speaking if your son’s father was alive at the time the lawsuit settled, your son’s father would have had the right to give the funds to his brother if he choose to do so. The funds from a lawsuit would not go to an estate unless he died prior to the settlement or the funds received. His sons may not legally be entitled to anything if their father gave away the money prior to his passing.
No one can give you real advice before reviewing all the details. Please make an appointment with an attorney where your son’s father lived and go from there. Good luck and I hope I’ve provided some helpful information.
Parents to start giving me the non-taxable gift of cash each year. Should i open a new bank account in all 3 of our names?
Situation:
They are going to start giving me the maximum allowable non taxable gift of cash each year to reduce the amount of their estate over time as they are now in their 70’s. I want to make sure they still have access to the cash. Should i set up a new savings account and add their name to it so that all three of us have access to it or does having their name on the account defeat the purpose of them giving me the cash to reduce the size of their estate? Not sure what to do. I dont plan on spending the money while they are living and would like it to be there in case they ever need it. Thank you
Answer:
I’m assuming “they” refers to your parents. Do they have an estate planning attorney? If so, the should discuss this with them and probably include you within that discussion. In 2014, the estate tax exemption will be $5,340,000 per individual. With proper planning, and assuming your parents live in Florida, your parents would have to have in excess of $10,680,000 before they would have to pay any estate tax. If they have more than $10 million, I’m pretty sure they won’t need access to the $28,000 they could gift you each year without affecting their estate tax exemption. That being said, their names should not be on the account.
Long lost father died how do i make a claim on his property he had no will
Situation:
Has a house in fl paid off …not married…one other child who died in car acc….2 grandchildren from that son
Answer:
You will need to hire a probate attorney. Since there was no Will and if you are the only surviving child, you would likely be named as personal representative. The PR is responsible for probating the Will. You will to get a death certificate for your father. You will also need the contact information for the grandchildren. If things are as described above and your father owned the home by himself, you would likely be entitled to ½ of the home and the other ½ would be split between his two grandchildren. If the grandchildren are minors a guardian ad litem may be appointed. The home would be his homestead so it would not be subject to creditors. However, other property might be. You shouldn’t have any problem finding a probate attorney in the area that can help you.
My father passed away on the 26th of November and his will is in probate. How do I get a copy of the will?
Question:
My brother is named executor, but refuses to share any info and will not return our call. Requested a copy from his attorney twice. Have not been successful. What are my options .
Answer:
You should be able to go to the court house and request a copy of the Will. A Will is supposed to be filed within 10 days of the date of death. Realistically though, it usually takes longer than that before the Will is filed, but you can check. It is still fairly early as far as a probate timeline.
Many beneficiaries do not need attorneys involved with another’s probate. Because your brother is refusing to cooperate, I think you should consider sitting down with a probate attorney in your area so that you know your options. If you are a beneficiary of the Will, they do have to serve you a copy of the Notice of Administration and they will at least give you the option of requesting a copy of the Will. Don’t sign any documents sent by your brother or his attorney before meeting with one.
Is participating in fantasy sports for cash in Florida legal?
Situation:
Im specifically referring to daily fantasy sports, which many are calling the new online poker. I know that these websites are legal under federal law, but i’m curious about the state law (Florida). All daily fantasy sports websites offer there services to Florida residents including mega company CBS. However, in 1991 the state attorney did an opinion on the legality of fantasy sports and thought they were illegal and pointed to this statue Florida statue 849.14, but many are saying that this statue isn’t relevant or is outdated. Can you give me your opinion on the legality because im very confused when there is a opinion from the state attorney out there yet a huge company like CBS/espn still offers these games. By the way I don’t play these games mainly due to my concern of the legality.
Answer:
I recently looked into this issue for a group that I am a part of. I believe that while the statute may be outdated and may disagree with the state attorney general’s opinion, it is illegal within the State of Florida if you have to wager or pay to participate. If you don’t have to pay to play, it should be ok. The reality is that thousands of Floridians do play fantasy football and they don’t get arrested. I can’t tell you to play or not to play, but I do think it is illegal.
My brother who is executor of fathers estate has not contacted me or other heirs regarding amt of estate or dispstn
Situation:
now he has sold my fathers house and is demanding taxes and maintenance at closing he lives in another state and has let the house fall in to disrepair for the last 6 yrs. resulting in a great loss of value. buyer and sellers atty is same person and stated we will be sued if we do not go thru with sale.
Answer:
You absolutely should hire an attorney asap. Not sure if the house or probate was in Florida or not. Make sure you hire an attorney licensed to practice in the state the probate is located.
Generally speaking though, if you did not receive anything from a person’s estate, you are not responsible to pay for the expenses of the estate. If you never had an ownership interest in the home nor received any property from the estate, I’m not sure how you could be liable for taxes or maintenance of the property. Laws in other states are different, and sometimes children can be held liable for the debts of their parents. Please make an appointment asap with an attorney. Sorry you are having to go through this. Good luck.
Besides a will, do I need to do anything more to protect my son's inheritance.
Question:
Concerned certain family members may find a way to contest my will which leaves all assets to my 2 sons. Is their anything more I need to do to protect them?
Answer:
if you go see an attorney and have the documents drawn up, there is little chance if any that a family member will be able to successfully contest your Will. There are only a couple reason’s people can contest. One, disinheriting a spouse (not really a contest), two, you were under the influence of another party, and three, you lacked capacity to make the Will. Will contest lawsuits can be very expensive and very difficult to win. Don’t worry to much about them contesting and make an appointment with an estate planning attorney. They will be able to go into everything in detail and things should be fine. Good luck.
Can a landlord up the rent when a lease is already in place?
Question:
I have a 3 year lease with a commercial property for my barbershop. Rent is $1500. The first year will be complete in February. My landlord claims he told me at the beginning that he would raise the rent 3.5% after the first year. He is not telling the truth because I would not have signed a 3 year lease if that was the case. The current lease has nothing stating anything about rent raise within the 3 years. It is stated in the lease that the terms are for 36 consecutive months. I now find a new lease on my door that says rent will be $2100. Can he legally do this? And i am not sure but it doesn’t even seem that his calculations are even correct.. If he can legally do this then shouldn’t the $600 he is adding on to the rent be yearly not monthly? Thank you
Answer:
Generally speaking,the terms of the original lease are binding on both parties. You should have an attorney experienced with commercial leases review your lease document and give you definitive advice. It will be well worth the cost of any advice.
My wife and I are in our mid-seventies. Our daughters are attempting to help us "hide" our assets above the current Florida ....
Question:
I am keeping my stock investments as they are. Not high enough for Medicaid to take. But, high enough that I might withdraw funds (sell) as I want. My wife has investments that we know we need to secure/protect. The Medicaid Trusta looks interesting. But, two daughters, ( with one having an attorney as a spouse) seem to be “afraid” of the Florida laws. 2013. Soon to be 2014. I want to “gift” her investments ( I’m aware of the “lookback” period). As does she. The “trouble” is, the daughters dont “trust” the “trusts.” Trying to convince us that the best route is tp put our (her) assets into cash and stash in a bank safe-deposit box. Then “pull” monies out as needed. I think it’s going to far for what should be a simple solution. Any idea’s that I might suggest to our attorney? Thanks
Answer:
Is your attorney, your son in law? If your attorney needs a suggestion regarding these issues, you should seek different legal advice. Nothing in 2013 has dramatically changed the Medicaid planning world. 2014 is not expected to do so either. If your attorney is not an elder law attorney, you should seek one out. These are all common issues dealt with by an elder law attorney. They can go over asset program limits and various planning strategies. There are many possible ways to plan for the potential need for Medicaid. Please see an elder law attorney. Good luck
Archived Elder Law Blog Posts
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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