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Monthly Archives

December 2015

What is ancillary probate?

By Elder Law, Estate Planning, Probate

Ancillary probate is required when a decedent was the sole owner of property in a different state from where they lived at the time of death.  If the decedent had probate assets in their home state at the time of their death, the real estate law requires that two probate proceedings occur in this case – one to distribute the decedent’s assets which originates in the state in which they lived and a separate proceeding to distribute the property originating in the state in which their property is located.

If an estate you are handling involves real property in Florida that may require ancillary probate, contact one of our attorneys experienced in handling ancillary probate at (941) 906-1231.  Additionally, if you are looking to avoid ancillary probate our attorneys can help you create estate planning documents such as revocable living trusts or remainder deeds so ancillary probate will not be necessary.

What is a Personal Representative?

By Elder Law, Estate Planning, Probate

In Florida, a personal representative is appointed to administer a person’s estate after their death.  Many other states call this agent an “executor.”  The personal representative is responsible for gathering the decedent’s assets, publishing a Notice to Creditors, searching for creditors, paying the appropriate taxes associated with the estate, and distributing the assets of the estate to beneficiaries.  A personal representative needs an attorney to help them through the probate process as many legal issues associated with estate administration commonly arise.  It is actually required by the Florida Probate Rules that the PR have legal representation during the probate proceeding except in very limited circumstances.

If you have been named personal representative for an estate and are looking for legal assistance, contact one of our attorneys who are experienced in handling probate proceedings and ancillary probate at (941) 906-1231.

What is a Durable Power of Attorney?

By Elder Law, Estate Planning

A Durable Power of Attorney, unlike a limited power of attorney or non-durable power of attorney, may remain in effect after incapacitation.  This can be an important document to have in place if you wish for your designated power of attorney to continue handling your financial or legal matters even if you are ever deemed incapacitated later in life.  The powers granted to your durable power of attorney can be laid out by you and can be limited or more general.

In Florida, a Durable Power of Attorney can be a way to avoid guardianship during incapacitation.  If proper estate planning and health care documents are put into place before incapacitation, courts may not need to appoint a guardian because the person you choose as your power of attorney (aka your attorney-in-fact) can act on your behalf in financial and sometimes medical matters.  This is an example of what Florida law considers a possible “lesser restrictive alternative” to guardianship.

If you are looking to set up or review your estate planning documents, contact one of our experienced attorneys at (941) 906-1231.

Reopening a Closed Estate

By Elder Law, Probate

A probate estate can be reopened is it is found that the probate was not settled as the decedent desired.  For example, if the estate’s personal representative is found to have made purposeful mistakes in determining heirs, the people who believe they should have been considered heirs can petition to reopen the estate.  Another reason for reopening the estate would be if the testator was not legally competent when they signed the will which was used to settle the estate.

If you have questions about opening or reopening an estate or about your estate planning documents and the exposure they have to being contested, contact our experienced estate planning attorneys today at (941) 906-1231.

How do recent changes in Medicare rules affect access to Speech Generating Devices for patients?

By Medicare

Medicare has changed their coverage of Speech Generating Devices which affects many people’s access to devices they rely on to communicate.  In April of 2014, Medicare changed their categorization of Speech Generating Devices (SGDs) which electronically generate voices for patients who are unable to speak due to ALS or spinal cord injuries.  The policy change by Medicare had three major results:

  • SGDs were no longer purchased for patients by Medicare.  Instead, they became “capped rental” items meaning Medicare would pay for their rental for 13 months, after which they became the property of the patient.
  • SGDs would no longer be covered when a patient was in a hospital, nursing home, or home hospice program.
  • SGDs which had been provided previous to September of 2014 would no longer be covered because they were considered to have extra communication features. These features include the ability to access the internet and communicate with people long-distance.  Previously, patients had been able to pay extra to access these features from their devices but under the new Medicare rules, no device could have these features.  Devices owned by patients after the rental period also could not be upgraded at the cost of the patient.

Many patients also need eye-gaze technology to use SGDs and, although Medicare had covered these costs to allow patients the ability to communicate in the past, after these rule changes they began routinely denying coverage of eye-gaze devices.

Advocates for patients in need of SGDs have been trying to enact change and in late April, 2015, succeeded in getting the Steve Gleason Act passed through the Senate.  This act would return the ability to upgrade devices to be able to use the internet and long-distance communications on SGDs to patients.  It would also allow patients to retain their devices and coverage when entering hospitals or care programs.  This legislation is awaiting approval in the House.  Also in late April, Medicare changed their definition of what technologies SGDs could access to allow again for patients to access the internet and other services through their SGDs.  Although this policy has not yet gone into effect and SGDs are still being rented by Medicare instead of purchased, advocates are hopeful that changes will take place soon to ensure patients are given the technologies they need to communicate.

Clauses to Include in a Will or Living Trust

By Asset Protection Planning, Elder Law, Estate Planning, Probate

While everyone needs individualized legal advice on what language their estate planning documents should contain, the following are some of the most common and important clauses which should be discussed with the lawyer preparing your will or living trust.

  • Revocation: Previously written wills or trusts should be revoked to avoid the court intervening later to decide which parts of certain documents should be followed.
  • Disaster Clause: This clause helps plan what will happen to your assets if both you and your spouse or main beneficiary die at the same time.
  • Appointment of personal representative: While doing estate planning you will need to name someone as your Personal Representative who will be in charge of distributing the assets in your estate.
  • Guardianship of children: If you have minor children, it is very important that you name someone as their guardian in the event that you or you and your spouse die.
  • Spendthrift Provision: This clause prevents the beneficiary of your assets from transferring their rights to those assets. A spendthrift provision is often used to protect assets from creditors.
  • Total failure: Total failure would occur if all heirs of your estate died before inheriting your assets. This is an extremely rare situation but, without a total failure clause, your estate would go to the government in this circumstance.  A total failure clause allows you to instead designate an organization of your choice for the estate to be given to.

If you have questions about what should be in your estate planning documents to ensure all of your wishes are met and your assets are distributed exactly as you desire, contact our office at (941) 906-1231 to speak with an experienced estate planning attorney.

True Link Card – The card for professionals

By Asset Protection Planning, Guardianship

The True Link Prepaid Visa Card is a better way for professionals such as guardians, fiduciaries, and trustees to manage and protect their clients’ finances.
With the True Link Card you can easily manage and monitor funds for each client. With online access you have the ability to transfer and disburse funds, block specific merchants, put a cap on ATM withdrawals, and prevent over-the-phone and online spending.
You can consolidate all spending into one prepaid debit card that can be funded online or over the phone. You can add money by transferring funds from a checking, savings, special needs trust or other source. You can also schedule recurring transfers and auto-refills.
As the administrator, you can meet the specific needs of each of your clients by approving certain expenses such as groceries, medications and social activities while restricting unapproved expenditures, for example online shopping or liquor store sales. You can prevent or limit cash withdrawals so your client can spend funds that you approve.
Setting up a True Link account is easy. With a low monthly fee of $10.00, you can start by creating an account online or over the phone with a True Link Advisor. All it takes is 5 minutes.
www.truelinkfinancial.com or 1-800-299-7646 for a Schedule of Fees and Charges
Note: This firm has no affiliation with this company and receives no compensation for this blog. It is strictly intended as an aid for our guardians and fiduciaries.

How can a trustee be removed?

By Asset Protection Planning, Elder Law, Estate Planning

In Florida, trusts can contain provisions which describe situations in which a trustee should be removed and procedures for doing so.  An example of a procedure that could be laid out to remove a trustee would be conducting a majority vote among beneficiaries.  The courts may also choose to remove a trustee if the trustee has 1) committed a serious breach of trust, 2) co-trustees are uncooperative to an extent that interferes with the trust’s administration, or 3) all beneficiaries ask for the trustee’s removal.

If you have questions related to establishing a trust to ensure the trustee you designate can be removed in certain situations or believe a trustee should be removed in a certain case, contact Bach & Jacobs, P.A. at (941) 906-1231.  We represent trustees and trust beneficiaries and can advise your regarding your rights and options.

Are Holographic Wills Valid in Florida?

By Elder Law, Estate Planning, Probate

Holographic wills, or wills which are handwritten and signed by the Testator without any witnesses, are considered invalid by the state of Florida.  Florida law states that at least two witnesses must be present during the signing of a will by the Testator.

Another unconventional type of will is a nuncupative will under which the Testator orally records their estate planning wishes.  Like holographic wills, nuncupative wills are not valid in Florida.

To consult with an estate planning attorney about how you can create an estate plan which will ensure your assets are distributed as you wish or to have your out-of-state will reviewed for compliance with the Florida Probate Code, contact the law office of Bach & Jacobs, P.A. at (941) 906-1231.