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The Basics of Elder Law in Florida

Understanding Florida Elder Law

man and woman working discussing elder law

The term “Elder Law” actually refers to a variety of legal services people may need at various points in their lives. Working with a Florida elder law attorney can help you and your loved ones with the following types of services:

Planning for Incapacity

Planning ahead can help you and your loved ones be prepared in the event a serious illness or incapacity strikes. In an elder law context, planning for incapacity generally involves preparing both financial powers of attorney and medical directives.

  • Powers of Attorney. These legal documents authorize one or more named agents to handle financial and legal matters during lifetime periods of incapacity.
  • Health Care Surrogate. Naming a health care surrogate in a legal document authorizes someone else to be your voice for medical decisions, if you are unable to speak for yourself.
  • Living Will. A living will states your wishes about end-of-life care.

Planning for the Orderly Administration and Distribution of Assets at Death

An important part of elder law is ensuring that estate plans, including wills and/or trusts and beneficiary designations, are current and accurately reflect your wishes. Your estate planning documents should identify how assets should pass at your death, and who should be in charge of that process.

Asset Protection and Planning for Future Care Needs

Another aspect of elder law involves legally protecting assets from the reach of creditors, as well as planning ahead to implement Medicaid planning strategies in case you need nursing home care later in life. Nobody should live in fear of impoverishment because they, or their spouse, needs long-term care.

Understanding how eligibility for government programs works can be a challenge; your elder law attorney should be able to help you understand various options. These may include financing long-term care through insurance, self-funding, or using government programs including Medicaid, Supplemental Security Income (SSI) or veterans’ benefits.

Find Out How an Elder Law Attorney Can Help

The time to begin elder law planning for yourself or for your aging loved ones is now, before an illness or incapacitating crisis occurs. The Judy-Ann Smith Law Firm in Jacksonville helps clients put thoughtful, deliberate plans into motion, helping ensure their wishes will be honored if and when the time comes.

To learn more about the services the firm provides, contact a skilled attorney today online or call 904-562-1369.

Understanding Probate in Florida: Nuts and Bolts

The Nuts & Bolts of Probate in Florida

image of nuts and boltsWhen someone who owned property in Florida dies, some or all of their assets may be subject to probate proceedings. Simply put, probate is the process of settling the deceased person’s estate, including determining to whom assets should pass.

What Assets are Subject to Probate? 

Not all assets need to be administered through Florida probate courts. Assets owned as joint tenants with rights of survivorship with one or more other joint owners will pass outside of probate to the other named joint owner(s). Similarly, retirement accounts, life insurance policies and any other assets for which the deceased person had named beneficiaries will pass to those beneficiaries. Finally, assets inside of a trust will also avoid probate, and will pass according to the terms of the underlying trust agreement. Collectively, these are referred to as “non-probate assets.”

The assets that are generally subject to probate administration include anything the deceased person owned in his or her name alone, without joint owners and without beneficiaries, real estate owned as tenants in common, and assets for which the beneficiary was the deceased person’s estate.

What is Involved in a Probate Proceeding?

The probate process generally involves identifying and safeguarding the deceased person’s assets, identifying beneficiaries and heirs, paying valid debts and claims against the estate, and distributing assets according to what is stated in the deceased person’s will or according to Florida law if there was no will.

photo of stamp with the word Probate Formal Administration vs. Summary Administration

If the value of the deceased person’s estate did not exceed $75,000, exclusive of his or her homestead, or if more than two years have passed since his or her death, the estate may be able to be settled using a streamlined probate process called “summary administration.”

Most other estates that need to go through probate will need to proceed through a formal administration process.

Talk to a Florida Probate Attorney to Learn More

If a loved one has passed away and you believe you may be entitled to an inheritance, talking to a knowledgeable Florida probate attorney is an important starting point. Every situation is different; your attorney will be able to advise you on suggested next steps and can explain whether a probate proceeding will be necessary.

The Judy-Ann Smith Law Firm provides a variety of services, including probate, estate and trust administration. To learn more, call 904-562-1369 or contact the firm online today.

 

Understanding Your Spousal Rights Under Florida’s Elective Share Law

photo of divorce decreeIn the state of Florida, you cannot completely disinherit your spouse. The “Elective Share” provisions (Part II of Ch. 732, Florida Statutes) is designed to protect a surviving spouse from spousal impoverishment because a cruel or vindictive spouse left their entire estate to others.

 

Here are answers to some of the most frequently-asked questions we hear about the elective share:

What is The Elective Share?

The elective share – the amount an otherwise-disinherited spouse can claim – is 30 percent of the elective estate.

In years past, the elective estate was only those assets that passed through the probate estate, excluding things that passed to others through trusts, through joint tenancy or by beneficiary designation. Under current Florida law, however, the elective estate now includes the following assets:

  • Pay on death beneficiary designations
  • Transfer on death beneficiary designations
  • “In trust for” account designations
  • Joint account assets
  • One-half of assets owned as tenants by the entirety
  • Assets inside revocable trusts
  • The cash surrender value of life insurance policies, valued immediately before the date of death
  • Pension plan assets valued immediately before the of death
  • Property transferred to others within one year leading up to the date of death

What Assets are Not Included in the Elective Share?

There are some assets that are specifically excluded from the elective share. Those include property irrevocably transferred before the date of the current law, or before the date of the marriage to the surviving spouse; transfers made with the written consent of the surviving spouse, life insurance policy proceeds beyond the cash value, court-ordered insurance policies, property in a special needs trust, the protected homestead, and the deceased spouse’s interest in community property.

What if The Surviving Spouse Lacks the Capacity to Claim Under the Elective Share?

If the surviving spouse is not able to claim the elective share due to incapacity or incompetence, it can be claimed on his or her behalf by an agent under a valid power of attorney or by a guardian, with approval of Florida courts. 

Are There Time Limits to Claim the Elective Share? 

Yes, the surviving spouse must file an election to claim the elective share “on or before the earlier of the date that is 6 months after the date of service of a copy of the notice of administration on the surviving spouse, or an attorney in fact or guardian of the property of the surviving spouse, or the date that is 2 years after the date of the decedent’s death.” Florida Statute §732.2135(1).

A petition for an extension of time to make an elective share may be filed with the court, if needed.

Can the Elective Share be Waived by Agreement?

Yes. Spouses can agree to waive the elective share through a valid prenuptial or postnuptial agreement. 

What Happens if Payment of an Elective Share is Delayed?

Payment of an elective share to the surviving spouse may be delayed for years, especially if litigation is involved, as of July 1, 2017 the law was amended to provide some protection against such delays and states that “any amount of the elective share not satisfied within 2 years of the date of death of the decedent shall bear interest at the statutory rate until fully satisfied, even if an order of contribution has not yet been entered. Contributions shall bear interest at the statutory rate beginning 90 days after the order of contribution.”  Florida Statute §732.2145(1).

Example of How the Elective Share Works

Let’s look at an example that might help illustrate how the elective share works:

Chris has an elective estate of $1.5 million when he dies. His wife, Amy, was named as the beneficiary of Chris’ $600,000 retirement plan account, but he left the rest of the assets to his children and charitable organizations. Because the amount Amy received was more than 30% of the elective estate, Amy cannot receive more by claiming the elective estate.

Using the same example, let’s assume that Chris only left Amy $300,000 of the retirement account. In that case, she could claim the elective share, and she could receive an additional $150,000 (up to a total of $450,000, which equals 30 percent of the total elective estate of $1.5 million.)

Choose The Judy-Ann Smith Law Firm

Married people working on their estate planning strategies should contact an experienced, knowledgeable Florida estate planning attorney. The elective share can be an important consideration in certain circumstances to help structure an inheritance for a surviving spouse and other beneficiaries. It is important to consider the possible implications of various estate planning decisions.

At The Judy-Ann Smith Law Firm, we can help you understand how the Florida elective share might impact your estate plan, and we can help you understand your rights under the law as a surviving spouse. To learn more and to schedule an initial consultation, contact us online or call us at (904) 562-1369.

Using Florida’s Homestead Laws to Protect and Transfer Your Home

image of hands over small model of a house

If you are like most homeowners in Florida, your home is, if not your largest asset, certainly an important part of your overall estate. Florida law provides some protections for your home from the claims of creditors. As long as your home falls under the definition of a “homestead” in Florida, the state constitution says it is exempt from certain judgment creditors’ forced sales. From an estate planning standpoint, it can be comforting to have this protection from creditors.

It’s important to understand when property qualifies, when the exemption does not apply, and how homestead property passes at the owner’s death. 

How Does Property Qualify for the Homestead Exemption?

There are some limitations to what is protected. Property will generally qualify as homestead property if it meets one of the following definitions:

  • A personal residence located within city limits (in a municipality) on up to 1/2 acre, including all buildings on that land; or
  • A personal residence located in the country on up to 160 contiguous acres of land, including all buildings on the land.

A “personal residence” does not need to be a single-family home in order to qualify; manufactured homes, condominiums and mobile homes all may qualify. However, the owner must be a Florida resident and a natural person (including a revocable living trust or a land trust), and must use the property as his or her primary residence. Property you own, but rent out to someone else will not qualify. Similarly, vacation property will not qualify, unless it is your personal and primary residence. 

Understanding When Homestead Protection is in Effect

The most important element of determining whether or not homestead protection applies is the intent of the property owner. If you begin occupying a Florida residence and intend to make it your permanent Florida residence, you have protection under the homestead law. Unlike in some other states, there is no requirement to apply for homestead creditor protection treatment for your property, although you do have the option of filing a document in your county called a “Declaration of Domicile.” 

In order to receive homestead tax treatment, property owners must file paperwork with the county where the property is located. However, the asset protection is available to homeowners whether or not they apply for or qualify for homestead tax treatment. 

No Protection Limits

Except for bankruptcy proceedings as described more fully below, there are no limits to the amount of equity you can protect from judgment creditors under Florida’s homestead exemption. This makes the exemption a powerful estate planning and asset transfer planning tool. Here’s why: a Florida homeowner could decide to use other, non-protected assets to purchase a larger personal residence or to pay down (or pay off) a mortgage on an existing personal residence in order to protect those assets from creditors’ judgment claims. 

As it relates to bankruptcy, there are asset protection limits that apply unless a homeowner has claimed the Florida homestead exemption for at least 40 months before filing for bankruptcy. 

 

What the Homestead Exemption Will Not Do 

Of course, there are some caveats and limits to what you may use the homestead exemption for. While the law provides protections from forced sales to pay off creditors, it does not offer protection from any of the following types of claims or obligations:

  • Outstanding mortgage loans on the property
  • Tax liens for unpaid federal, state or local tax obligations
  • Mechanic’s liens, for unpaid labor and/or materials contractors used to improve your property
  • Liens related to homeowners’ or condo owners’ association dues
  • Civil judgments in the same county as your homestead, recorded before you began occupying the homestead property

Treatment of Homestead Property after the Owner’s Death

Florida laws are designed to protect a surviving spouse from becoming impoverished by a vindictive spouse. If one spouse who owned homestead property in his or her name alone dies, the surviving spouse receives a life estate on the property, with the remainder interest going to the original owner’s children, if applicable. If the decedent was married without children, title will pass to the surviving spouse.

When the decedent leaves both children and a surviving spouse, the surviving spouse can, within six months from the date of the original owner’s death, elect to take a one-half interest in the property immediately, with the other one-half being owned by the deceased owner’s children. These rights apply regardless of what the deceased spouse’s will says, unless the surviving spouse had waived his or her rights to inherit through a prenuptial agreement. In fact, the Florida Constitution says that homestead property cannot be de

vised by will or trust, except to the property owner’s spouse and/or to his or her children, if there was no surviving spouse. In the case of a single property owner without children, the property owner can freely devise homesteaded property. 

Understand How the Florida Homestead Law May Affect Your Estate

If you are a Florida resident and own real estate, the homestead laws may offer important protections and potential limitations on your property. To learn more, consult with an experienced Florida asset protection and estate planning attorney. To schedule an initial consultation. call the Judy Ann smith Law Firm in Jacksonville today at (904) 562-1369, or contact us online

Is It Possible To Dispute A Will In Florida?

When someone you love dies, it can be a highly emotional time for the family. It can be even more difficult if it becomes known that the now-deceased family member left a will that disinherited a child or spouse. When someone seemingly intentionally leaves a loved one out of the will, there can be many questions. Why would she not think of me? Did she do this on purpose? Why did he leave everything to someone else?

In most cases, courts will strictly apply the wishes expressed in a will. There are, however, some situations in which it may be worth disputing a will. Here are three examples of times when it may make sense to dispute a will.

The Decedent was Not Competent to Make a Will

Florida law requires that a person have a basic, minimum level of capacity to make a will. However, it is a low standard. The Florida Supreme Court once stated that “even a lunatic may make a will…in a lucid interval.Murrey v. Barnett National Bank of Jacksonville.

Courts are reluctant to invalidate a will on these grounds, but there have been cases of nefarious caretakers convincing dementia patients to alter a will or sign a new will, leaving everything to strangers. In extreme cases, there may be grounds for fighting a will.

image of Florida will

Technical Deficiencies

Florida law sets forth specific rules for creating a valid will. For instance, there are a few basic requirements for creating a valid will in Florida:

  • You must be 18 or older to create and sign a will
  • It must be written. Florida does not recognize verbal wills
  • Will must be signed by the testator (or another at the testator’s direction)
  • The will must be signed by at least two witnesses while in the presence of each other and of the testator (the person making the will)
  • The person creating the will must acknowledge signing it in front of two witnesses

Undue Influence and Duress

One of the key requirements to create a valid will in the state of Florida is that the testator (person creating the will) must be creating and signing it of his or her own volition, without being pressured to do so. Florida Statutes 732.5165 provides that a will be considered void if it was “procured by fraud, duress, mistake or undue influence.”  In addition, the statute provides that, if a will was revoked under duress, the revocation will not be valid. 

If there are concerns that a loved one’s Will was signed or revoked because someone else was threatening physical harm or was otherwise using coercion, it may be possible to challenge the Will in court. When someone alleges that a will was executed or revoked under duress, the evidence is largely circumstantial.

Florida courts typically examine a variety of factors when evaluating claims of duress. As set out in a 1971 Florida duress case, In re Carpenter’s Estate, 253 So. 2d 697, 704 (Fla. 1971), those considerations include the relationship between the person creating the will and the person who allegedly applied duress, whether that person was present at the time the will was executed or revoked, whether the alleged wrongdoer was involved in recommending an attorney, knew of the contents of the will, gave the attorney instructions about what was to be in the will, whether he or she was involved in lining up witnesses to make the execution of a will valid, and whether he or she was responsible for safekeeping the will after it was executed.

Of course, it is not necessary to answer each of these affirmatively for duress to be proven. And, “yes” answers to these questions don’t by themselves mean that there was duress. Your estate planning attorney can help you understand what measures can protect against later claims of duress or undue influence for your estate planning documents. 

Forgeries

Although rare, some may suspect that a will was created through the use of a forged signature or by the commission of some sort of fraud. Cases of true forgery are rare, especially given the requirement of having two witnesses sign in each other’s presence. However, it can happen.

Can I Lose My Share for Disputing a Will?

Generally, no. Under Florida law, so-called “no contest” clauses in wills are not valid and are not enforced. However, there may be limited exceptions. Likewise, if the will was originally written outside of Florida, courts may apply different laws to the interpretation of such clauses. Every case is unique and should be discussed with an experienced probate attorney.

Suspect Wrongdoing? Want to Dispute a Will in Florida?

If you suspect problems with a Florida will, you should immediately consult with a local probate lawyer who can review the facts and fight to protect your rights. Call the Judy-Ann Smith Law Firm at 904.562.1369 to discuss your case today.