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Archived Elder Law Blog Posts

In Florida Am I still considered his next of kin.even though I was adopted by my step father.
Situation:
Hi My biological father has passed away. I am considered the only next of kin. However, when i was 6 or 7 my mother remarried and I was adopted by my step father. I was notified by my biological fathers family and detectives that I was his only next of kin. He does not have a will. He has 2 sisters. His companion died a year ago and left everything to him in a will.

Answer:
The short answer is No. Jane and John have a child (Julie). Jane and John split up and Jane marries Dave. Dave would like to adopt Julie as John is not in Julie’s life. John agrees to the adoption. Dave and Jane are now considered to be Julie’s natural parents. Julie’s birth certificate is re-created with Jane and Dave’s name as if it was the one and only original. Julie will inherit from Jane and Dave’s family as if she was born to both of them. Since the link to John has now be severed, Julie will not inherit from John’s family unless they specifically leaver her something in a Will or Trust. If John’s parents say they are leaving property to my grandchildren or my heir, Julie will not inherit. Same result if there is no Will and the estate is distributed intestate.

There are a couple of exceptions to the general rule. Same facts, Jane and John have a child, Julie. John dies of a heart attack when Julie is 5 years old. Dave and Jane get married and Dave adopts Julie. Under this circumstance, Julie may inherit from John’s side of the family. If John’s parents’ Wills say, I leave my property to my children, per stirpes or to my grandchildren, Julie will inherit as if nothing happened. Julie will also still inherit from her natural mother Jane’s family as well as her adoptive father, Dave’s family.

One other situation where natural inheritance rights are not severed would be John and Jane both die. Julie is adopted by John or Jane’s brother, sister, grandparent, aunt or uncle. John’s brother adopts Julie. Julie will still inherit from Jane’s family as if she was never adopted.

How do I fire my probate attorney who is on the Bar Association?

Situation:
How do I fire Probate attorney in Florida? Tobacco global settlement, by Florida law I had to file late husbands will with probate lawyer, he was a choice the settlement group provided. I went with their choice. I spoke with probate attorney on phone July 2015, he sounded nice so I felt I was in good hands. Fast forward to Jan. 2016 the global settlement is over and disbursement checks sent to probate attorney. He called me back in Feb. after I left message saying I hired him. Current March 2.2016 Now his words “ playing phone tag” after I’ve answered questions of will, said my family wants to hire a lawyer to find out why I don’t have my money yet, asked for his physical business office, said I’m coming to pick up check(I live 100’s of miles away, but same state & I’m ill & he knows this), & yet he continues to say he has paperwork for me to sign, notarize, send back, & I’ll get my check. Fact is He Never Mails the Papers, & I’ve told him to FedEx & I’ll pay for it, To No Avail. I want to Fire him 100%. What do I Need To Do To Fire this person so I can get my money? Thank You very much for your help in this matter. Sincerely, Thank You

Answer:
It sounds like you hired this attorney to open a probate for your husband’s estate. If you are the personal representative you may fire the attorney at anytime you want, by phone or letter saying that you don’t want them to represent you or the estate anymore.

It isn’t unusual for things to take a little longer than clients expect. There could be other unknown variables, or it could just be back communication by your attorney. The attorney you hired sounds like they have done most of the work in the case and will be likely be entitled to a fee for the work provided.

It is also common the large settlement firms often recommend a few probate attorneys because those few handle large volumes of their cases and there is a level of comfort between firms. I hope they made it clear you could ask any attorney to open the probate though.

I understand that you are frustrated at the time and lack of communication, but it may take even longer and cost more if you hire a new attorney at this point. The current attorney will have to send the file and funds to the new attorney. I’m not saying you shouldn’t find a new attorney but it may not result in receiving the funds any sooner. It doesn’t sound like your attorney has violated any rules, but you may want to call the firm that referred the attorney to you and let them know your experience. I hope you are able to resolve the situation quickly.

Is a Corrective Deed necessary?

Situation:
Grantor omitted to include his marital status on a Lady Bird Deed, where he reserved for himself a life estate coupled with full powers to sell, convey, mortgage, etc. without joinder of the remaindermen (grantor was a single person). He later changed his mind and recorded a regular quit claim deed from himself as grantor, (where he did mention his marital status) to himself as grantee. The questions is: Should grantor record a Corrective Deed to add the marital status that was omitted in the previous Lady Bird Deed (single person), or the new Quit Claim Deed back to himself cancels/revokes the Lady Bird Deed and a Corrective Lady Bird Deed is no longer necessary? Thank you

Answer:
You may want to consult a real estate attorney, but I’m not terribly concerned about the marital status omission. I’m more concerned about the original remaindeman. While a properly drafted lady bird deed does retain rights to re-convey the property without consent of remaindermen, title companies may require the remaindermen to quit claim his/her non-interest back to the original grantor. The last thing the grantor or subsequent seller wants to do is have to chase down this remaindermen when there is a closing set in the future. It could be completely unnecessary but it might be needed.

Can I, as his legal guardian obtain a divorce asap to avoid this fiasco?

Situation:
I am my husband’s legal guardian…he has alzheimers…he was awarded a huge amount of money in disability….BUT he owed back child support therefore about 80% went to child support…in doing our taxes this year the cpa informed me that he will have to pay the irs on the full amount which he was awarded…he does not even have that left over from what he was awarded. He informed me that the irs may come after me for that money. I do not have that kind of money. He suggested I file for divorce to protect myself.

Answer:
You absolutely need to speak to a guardianship attorney about your specific situation. I have read that you may be able to break the lump sum payment of back SSDI if it was for benefits earned over multiple years. If you are able to amend previous returns you may be able to spread the lump some over several years and avoid any receiving any taxable income. You may also consider amending returns to file individually over that same period if that works out positively for both of you. I am not an expert in tax but it is a conversation you should have with your tax professional.

Can attorneys licensed in FL practice Probate and Summary Estate Administration in all counties?

Question:
If an attorney is a member of the FL bar , does that qualify them to practice in all counties in FL? Say if they list Hillsboro County Bar Association, can they also practice in/probate or administer an estate in any county in Pacso? If so, would the probate or summary proceeding courts that settle estates in Hillsboro and Pasco county, or all counties throughout Florida, have similar enough procedures that a lawyer from either county would likely navigate the respective court systems with the same degree of success?

Answer:
As others have said, yes an attorney licensed in Florida may practice law in any county throughout Florida. That would include the filing of a probate in another county.

The Hillsborough County Bar Association is a voluntary bar association. There are any number of voluntary bar associations in Florida. Many are based on county, city or judicial circuit, but many others are based upon gender, ethnicity or some other quality.

Not all attorneys belong to a voluntary bar. Most attorneys who do usually join the bar association where they work and sometimes where they live in the case of Hillsborough, Pasco, Clearwater & St. Pete bar associations.

Most likely the attorneys practice is centered in hillsborough, however the vast majority of attorneys work in multiple counties, especially counties that are adjacent.

There are a few differences between the computer systems in Hillsborough and Pasco counties and may be a couple procedural differences, but nothing that terribly drastic where you would be better off with an attorney with an office in Pasco.

I practice in Clearwater and am a member of the Clearwater Bar. I file probates in Pinellas, Pasco, Hillsborough on a frequent enough basis that it is no big deal, however I would probably refer cases to local attorneys in any other county as those would be outside my comfort zone.

Depending on the size of the practice and expirence of the attorney, their comfort zone may be larger or smaller. I hope this helps.

Does my dependent status qualify me as an heir in the state of Florida?

Situation:
In 2015, I had no earned income and I was supported 100% by my boyfriend as I cared for him while he was dying from cancer. He died in Dec. 2015. By IRS definition I can be claimed as a dependent by him on his 2015 taxes. Unfortunately, he left no will and the estate is now in probate.

Answer:
Unfortunately this situation occurs all the time when people aren’t able to get their affairs in order. Even though you may be a dependent for IRS purposes, you are not an heir for intestacy purposes in your boyfriend’s estate. If your boyfriend had any children, his estate would go to his children. If he had no children it would go to his parents. If no parents it would go to his siblings. The only way for you to “inherit” is for the family to gift you what they have inherited.

If you were living in your boyfriend’s house, you would be considered a tenant. Since you probably didn’t have a lease, you would be considered to have had a month to month lease. You can be forced to leave the home, but those inheriting the home would have to follow the eviction process laid out in the landlord/tenant statute.

House in Probate

Question:
My mother recently died and she had a will that leaves most of her estate to her grandson. No one is contesting the will. The estate is not in probate yet. He is paying the mortgage and fixing it up because it had fallen in disrepair. Can her house be rented before probate or before officially goes to her grandson?

Answer:
I don’t foresee him having a problem renting the home. Homestead status is generally approved as long as the home is left to a blood or adopted relative. The grandson should qualify to receive the property as homestead property. Homestead property vest some ownership at the moment the lifetime owner dies. The benefit of homestead status is that it passes free of creditors of the estate since it is technically not part of the probate estate.

One of the only things that could prevent the home from maintaining homestead status is that if the Will states that the property “SHALL” be sold and the proceeds given to or split between…. The intent of the homestead protection is to allow the family home to be passed on so that the family won’t have to leave. If there is a direction to sell the home, there is no intent whatsoever that a family member will live in the home.

If the Will says “The Personal Representative MAY sell they home,” homestead status is maintained. If the home is sold in this situation, the proceeds will pass to the person(s) who were entitled to inherit the house and maintain the same protection against creditors as if the home was not sold.

Can my husbands adult children push me to sell my home in the event of his death?

Question:
I have been legally married 20 yrs … with a man who I helped financially - never could keep any material possessions till he married me. I have one child whose 18yrs old , With my husband. But he has 3 adult children from previous marriages. They are not part of our lives. I am 47 , He is 19 years older then me.

I am concerned If there is no will … can his other kids make a claim against my home ? Make me sell it ? In the event of his death.

Last year my daughter was diagnosed with a terrible chronic illness and I want to secure a place for us to live. Can you advise me what is best a will, trust in this situation?

Answer:
You are going to have to go see an attorney, but I will try to give some helpful information.

If the property is owned jointly as husband and wife, joint tenants with rights of survivorship or tenants by the entirety, the property will pass to you automatically if your husband passes. If you die first though, he will get the property.

If the property is owned by your husband and he dies with no Will, you would have two options in probate. You would have the option of a life estate or a ½ interest in the home. The life estate gives you the right to live in the house, but it also means you are responsible for the taxes, insurance and upkeep on the house. Many times, the spouse elects the ½ interest, sells and buys a smaller house.

The best advice is to sit down with an attorney and discuss the details of your family situation and decide what is best given your circumstances.

How can I avoid probate when the only thing I own is my condo?

Situation:
I own a small condo and have grown children

Answer:
You have a few options. The cheapest option is a life estate deed. It can be a regular life estate or an enhanced life estate (lady bird). The difference is that with an enhanced life estate deed, the owner (you) are retaining the right to live on the property but also the right to sell, give it to someone else, rent or whatever you want without the consent of your children.

The Pros of an enhanced life estate deed is that the owner has ability to change if relationship with children changes and it is not a gift/transfer for Medicaid purposes. The Cons are that many title insurers treat the enhanced life estate the same as a regular life estate deed, meaning, they would require your children to sign off on any sale or transfer to people. Enhanced life estate deeds are generally used in Medicaid planning when clients are facing end of life issues or in cases where it is very unlikely the property will be sold or re-transferred.

Your other option to avoid probate is a revocable living trust. The trust will cost more than a deed, but you have the ability to change beneficiaries of the trust at any time. If you decide to sell the property, you may do so without the consent of your children.

Your final option is to allow your condo to go through probate. If you are leaving your condo to your three children, the condo will pass free of creditors. If it is the only asset, a summary administration would be appropriate. If there is a 50/50 chance you might sell the condo, you may just consider not doing anything.

The best advice is to sit down with an estate planning attorney and discuss your individual situation and figure out the best plan of action.

I would like to set up a living trust, so that when I am gone he will be able to have all of my estate. Everything.

Situation:
I have not heard from my family members in over four years. I have a best friend and roommate at present that I want to be my beneficiary. He and I are planning on opening a catering business, outside of that fact I want to leave him all my personal belongings any Financial assets as well as a catering business when and if we do open it.

Answer:
You are under no obligation to leave anything to your family with a couple of exceptions. The exception is that you cannot leave your homestead to anyone besides a spouse and/or minor children if you had any. From your question, it doesn’t sound like you have either so it should not be an issue.

A revocable trust should be able to accomplish what you are attempting to do. Just be sure that you put all of your assets into the trust or that you name your roommate as a beneficiary of any account not in the trust.

You can also accomplish the same with the catering business, but it will differ slightly on what type of business you open. If it is a corporation, you may have the shares be owned by your trust. If an LLC or Partnership, the trust can be the member or partner and avoid the necessity of probate.

For more information relating to Medicaid Planning, Elder Law, Probate and/or Guardianship visit www.parrilaw.com

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