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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.
What is necessary for a foreign to claim inheritance from Us person?
Question:
What papers need to be shown for a foreign person to claim inheritance from a US deceased person? The US person may have had no will, no relatives except this wife living in a foreign country and not able to travel. What documents does she need to supply to have his assets and debts assigned to her? The post office may not even forward to a foreign address!!
Answer:
The fist step would be to contact a probate attorney in the county in which the deceased lived. If the wife was listed as a beneficiary of a bank account, annuity, life insurance or something similar, she would need to provide a death certificate and proof of Identification.
If there are assets that are titled in the name of the deceased only, then some sort of probate would likely be necessary. If there was no Will, a short form death certificate, along with information about the decedent and assets owned by the deceased would be necessary to get the ball rolling. You really should contact a probate attorney before moving forward.
Should I get a lawyer to handle this or is it not worth pursuing?
Question:
My sisters and I are beneficiaries to a trust. We have a copy of the Trust. Speaking to the Trustee (a bank) we found out there is one other beneficiary. However, we don’t know what to do from here. The trust has property, stock certificates, and municipal bonds. Should I get a lawyer to handle this or is it not worth pursuing?
Answer:
It is almost always worth sitting down with an attorney and discussing it with them. Generally speaking banks do not act as trustees for small trust. It isn’t always the case, but it is a pretty good general rule. As a beneficiary of the trust, you are entitled to an accounting so that would also give you a better idea of what to do. They have a reasonable amount of time to provide it.
I’m kind of assuming that the person who set up the trust has recently passed away. Once that person passes, most trust are set to distribute the funds to the final beneficiaries. Some trust will not distribute to a final beneficiary until the reach a particular age such as 18, 25, 30, etc. During that time, the trustee is usually empowered to pay for things such as education, living and medical expenses. The trust document you have will tell you about that. Other trust will hold property for the life of the beneficiaries and allow similar distributions using income and leaving the principle to the beneficiary’s decedents.
Best advice is to sit down with a trust/probate attorney in your area. Make sure you give them a copy of the trust and any other information you can get from the bank about the trust.
Do Florida Estate/Probate lawyers usually charge a flat fee or percentage?
Question:
Do Florida Estate/Probate lawyers usually charge a flat fee or percentage? If percentage, is it of assets subject to probate or a percentage of the entire estate including those passing outside of probate? And is there much difference in cost if an attorney was hired to help w/summary admin. versus full probate?
Answer:
Each attorney does things slightly differently. The preference for most attorneys is a percentage of assets. Some may include exempt assets and some may exclude them. Assets such as IRAs or bank accounts that pass to beneficiaries without any involvement by the attorney are generally not included in the fee calculation. Homestead property, although technically not a probate asset. requires a probate administration to transfer to the new owner and is likely to be included in the fee calculation.
Many will have flat fees for Summary Administrations and many will at least have a minimum fee for formal administrations (full probate). Depending on the nature of the probate assets, number of beneficiaries and other complexities will determine that actual cost of the probate. If a probate is expected to take several years and there are heirs that may be difficult to locate or work with, the probate will be likely cost more. If the probate consist of a bank account that is going to one beneficiary and the beneficiary is the personal representative, that fee could be considerably cheaper.
What is the best option to protect my assets if I want to leave my house or insurance money for my kids before I am married?
Question:
How does Florida laws apply pertaining to marriage and personal assets, like property a (House), life insurance, inheritance of property or money. What is the best option to protect my assets if I want to leave my house or insurance money for my kids before I am married?
Also how would it apply If I got married in a different state but live in Florida. How would the laws apply then?
Answer:
You have a couple of options. While you are not married, you can leave everything to your children in your Will. You can create a trust in your Will. You can also name a trustee and guardian for your children. If the biological parent is still living, they may have a right to be the children’s guardian, but you can name whoever you want as trustee. You should be able to name the trust as the beneficiary. If you are leaving an IRA, you’ll have to make sure the trust has special language to get the best tax treatment. Your other option is to create a trust today and fund it with $10 and name that trust to be the beneficiary of insurance and name the trust to be the beneficiary to receive the house.
If you still want the same to happen after you are married, you will have to enter into a pre-marital agreement. Without the pre-marital agreement, you will not be able to leave your house (assuming you and spouse are living in it at the time of your death) to your children. Leaving your house to your children in that case would result in a life estate to your spouse and remainder to your children. Spouse would have the option to convert to ½ ownership and sell property. Your spouse would also be entitled to the elective share, approximately 30% of the estate. To be as sure as you can be it would be best for you and your spouse to have independent legal advice as it relates to the pre-marital agreement. These are fairly common situations and you should not have a hard time finding an estate planning attorney familiar with these issues. It is also not uncommon that the estate planning attorney work with a family law attorney as it relates to the agreement. good luck.
Who is responsible for my late father's individual debt?
Question:
My father died in January of 2016. He held joint accounts with my mother and had just enough assets to pay bills and have minimal savings. After his death, we found that my mother is listed an authorized signer on revolving accounts. I have been told by friends and family that because she was an authorized signer that she is not required to pay back the debt and that the creditors can only go after an estate. Is that the case? They are/were both residents of Florida. Also, my father only left behind life insurance policies and death benefits through his employment, I was told that creditors cannot go after those debts. Is that also true? Finally, because the only deposit accounts that he had were joint accounts with my mother and did not leave behind any funds in just his name, that there is no need to open an estate account. Would you be able to provide clarification on the need to open an estate account as well. Thank you kindly for your assistance.
Answer:
As mentioned. It doesn’t sound like any of the assets owned by your father would have to go through probate. Joint accounts are automatically owned by the surviving owner upon the passing of the other. Life insurance proceeds and death benefits from employment do not generally go through probate unless no beneficiary is listed or the estate is listed as the beneficiary. As the facts have presented, I don’t see any reason why you would open an estate as there are no “probate” assets. It is true a creditor could open an estate, but in this case it wouldn’t matter.
If for instance your father owned a $20,000 CD in his name only, it would have to go through probate. The State of Florida has a two year statute of limitations limiting credits to two years to submit a claim in probate. Lets say that credit card bill was $5,000. You may decide to wait two years to open the probate so that you don’t have to pay the credit card. During that two year period, the credit card could open an estate and submit its claim. I think it would quite unusual for a credit card company to do something like, but it is an example.
Your mother most likely has nothing to worry about with the card. There could be a small chance the credit card company could try to collect against her if she were using the card to make major purchases just before your father passed or used the card after his passing. The effort needed to bring a case like that would most likely be more costly than the credit card balance. Most likely a phone call to the credit card company notifying them your father passed and there is no probate will suffice.
Question is what are my legal rights to keeping the house other then selling
Question:
my parents passed left house to me and my sister. i live in the home we own it 50/50. my sister passed in april she has one child with me living here she wants to sell the house. i should tell you they live in pekin il. i dont have the money to buy her out
Answer:
It sounds as though you own 50% of the house and your niece owns the other 50% of the house. Neither one of you have the current right to sell the house without the other person joining in on the sale. Your niece however can bring a partition action and force the sale of the house. The lawsuit would have to be filed in the county where the property is located. You pretty much have to decide what is the likely hood that your niece would file the lawsuit and is there any way that you can pay for the property over time. You may end up with no choice but to sell the property. The important thing may be to make sure that you come to a fair deal, especially if you have invested time and/or money in the property. You should sit down with a real estate attorney to discuss your options in more detail.
Wills and Beneficiaries
Situation:
LAST WILL AND BENEFICIARIES: Recently updated my Last Will and signed also Living Will.
All my bank accounts and investments have beneficiary stated on them. Therefore, assume those will not be probated. Question: Will beneficiary get the funds immediately upon my death without a problem?
I own small Condo, which assume will be probated. Will this situation “hold up” beneficiary getting their money?
Have designated a Rep. / Executor to take care of Condo, etc. My attorney told me I do not need a TRUST of any type.
Answer:
Most likely your beneficiaries will be able to get funds fairly quickly. A beneficiary would have to prove that you’ve passed and have to fill out the appropriate beneficiary claim forms with the financial institution. Some financial institutions require that all beneficiaries turn in their claim forms before they will divide and distribute the funds. If you name four people, the firm may not distribute until all four have returned their paperwork.
Some things to think about when designating beneficiaries of your accounts to distribute assets. If you have three CD accounts with $100,000 each and a checking with $20,000. Each of the CD accounts is left to a different person. Your checking account is left to a fourth person. Your Will distributes the condo to the three people who you named on the CDs equally. You decide you want to buy a new SUV that cost $50,000. You cash in A’s CD and deposit money in checking. If you don’t change beneficiary designations, you have just altered your original estate plan. A will only inherit 1/3 of condo. Fourth person may get remainder in checking account (much higher than anticipated).
Another circumstance that comes up. Similar circumstance. A, B, & C are named on CD accounts. A is also joint on checking and is your POA. You go to nursing home. Cost is $8,000 per month A may cash in B and/or C’s CD accounts before tapping into the account that is designated for them.
The upside of doing naming beneficiaries is that it is cheap and does avoid probate. One other downside, is that if a beneficiary is disabled and the money goes to them outright, they may lose their benefits or may cause them to do benefit planning. Having a Will or Trust in place may give beneficiaries better protections if life circumstances change over time.
Most people do not NEED a trust. In some circumstances it may make administration easier, in some it may make it more difficult. Hopefully you’ve had a conversation with your attorney about the above and discussed the pros and cons for having a trust so you feel comfortable with your decision.
In Florida how can i become the executor of my mothers estate (she had no will). I want her daughter to get the money!
Situation:
trying to get life insurance money from my mothers estate. The insurance company has the check made out to the estate of….
The insured was my sister (deceased)
My mother took the policy out some years ago (deceased)
My sister has a daughter (alive)
Answer:
It sounds as though there was no secondary beneficiary appointed and the life insurance contract says that if there is no living beneficiary, that the policy is payable to the owner’s estate. With no Will in Florida, your mother’s estate would go intestate. In her situation, it would go to her children, per stirpes, so half to you and half to your sister’s daughter (assuming no other siblings at either level. You are free to give your share to your sister’s daughter if you’d like with a few exceptions.
If the policy has a value of greater than $75,000 it will have to be a formal administration or you will have to wait two year if there are significant creditors you want to avoid paying. If the amount is less than $75,000 and no creditors of your mother, than a summary administration may be appropriate. You can usually get the insurance company to tell you roughly how much the payout is by asking if you need to open a formal or summary administration.
If your niece is under 18, the funds may have to be placed in a restricted account or a guardianship established.
Find a probate attorney who regularly practices in the county where your mother lived at the time of her passing. Discuss your situation in detail and it shouldn’t be a big deal.
Quit Claim Deed
Question:
A properly created lady bird deed was drafted and recorded. Few years later, grantor recorded another deed (a quit claim deed, not another lady bird) to a different grantee. The subsequent quit claim deed does not contain any revocation language of the prior lady bird deed, nor does it make any reference to it. My question is: Did this subsequent quit claim deed vest the new grantee with fee simple title, even though there is no paragraph in the quit claim deed that says “to have and to hold in fee simple”?
Answer:
If we make the assumption that the original lady bird deed was drafted properly, the new quit claim did to the new grantee should give them fee simple title. Original deed A to B, but A reserves the right to transfer, sell, reconvey without joinder of remaindermen or something similar. A later conveys property to C. A to C in fee simple. A’s deed to C does not need to make reference to the prior deed nor specifically revoke it. There really is no such thing as revoking a prior deed like there is with a Power of Attorney.
There are other issues to be aware of with lady bird deeds. They should be used cautiously and only when the circumstances are just right. While they work in theory, some title insurance companies require the previous grantees to sign away any interest they may have. Title company may say you need a quit claim deed from B to C. Remember, a quit claim deed only says I transfer whatever interest I have in the property to another person. It doesn’t actually guarantee that they have any interest in the property.
A couple of other issues that could arise are (1) if B had a lien against them, some title companies may be unwilling to issue title insurance until B’s lien is satisfied. (2) if B dies and then A dies without re-conveying the deed, an estate would have to be opened for B to accept and distribute the property to B’s beneficiaries.
In my practice I do use lady bird deeds. However I usually use them in connection with Medicaid planning and we are fairly sure the client doesn’t have many years left and that they are also unlikely to sell or re-convey the property to another party.
You would do well to at least sit down with a real-estate attorney. Maybe even talk to them about getting title insurance on the property. Don’t wait till you try to sell the property and then be left scrambling trying to fix something that could come up. good luck.
Elder Care situation
Question:
Hi. My father needs assisted living. A doctor got him qualified for VA benefits and has been doing home health checks, got him nurses and aides. All of the nurses and aides are letting family know that he is unsafe and should be in a facility, but the VA doctor said he can manage at home with the proper help and yet the help is telling us that he is unsafe. Family got my father into a Brookdale facility as soon as this Monday and when the Brookdale representative tried to get information regarding my father’s VA benefits, the VA doctor refused to give the Brookdale representative any information to complete the application and made the representative return the deposit. In the meantime, the doctor’s wife said that they want my father to go a place that they have lined up but not right away. We have POA and the doctor and his wife are not cooperating unless it is on their terms. Something seems off. Any guidance? I don’t believe that this VA doctor has my father’s best interest at heart. Something seems wrong here. Any legal action that can be taken?
Answer:
I think you do need to sit down with an elder law attorney in the tampa bay area, but I’ll try to be as helpful here as I can. You say a doctor got hime qualified for VA benefits. Are you talking about the improved pension with Aid & Attendance? Is the doctor associated with the VA or just the a doctor that did the evaluation for the VA benefits application? I’ve help many veterans receive non-serviced connected VA benefits and I’ve never heard of a situation like this.
Who submitted the application for VA benefits? Do you have the award letters from the VA? Is the doctor acting as a fiduciary for your father?
The VA it self does not have to honor a POA as the VA is a federal agency and the POA is a creature of state statute. During the application for benefits, if there is a diagnosis of dementia and the doctor says that the individual is unable to manage their affairs, I fiduciary is usually appointed. Unless unfit to serve, one of the individual’s children are appointed as fiduciary. I have never heard of a doctor, let a long a VA doctor getting this involved in someone’s benefit application. The typical roll for the doctor is to complete the level of care form and that is it.
The entire situation seems very troubling. I would agree from the facts presented that it does not appear that the doctor does not have your father’s best interest at heart. Please find someone in the area to discuss your case in more details. There are many missing and important facts missing from your fact pattern.
Elder Law & Special Needs Planning
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