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Monthly Archives

September 2018

How can probate litigation be avoided?

By Estate Planning, Probate

Depending on the situation, there are steps that you can take to mitigate and even avoid the stresses of probate litigation.

In probate cases, advance communication can make the process of probate administration easier on all parties involved. Family members may sit down before the death of a loved one and have a conversation about the distribution of assets.

Open and honest communication can help proactively avoid litigation over disputes between fiduciaries and conflicts between beneficiaries and fiduciaries, as well. Having your estate plan documents in order is also important. For help creating your will or trust or to review your existing documents, please call (941) 906-1231 to set up an appointment with the lawyers at Bach, Jacobs & Byrne, P.A.

September 28, 2018
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How much does nursing home care cost?

By Asset Protection Planning, Elder Law, Long-Term Care, Medicaid Planning

The costs of nursing home care vary wildly from state to state, and often within the same state. According to www.payingforseniorcare.com, nursing home care in Florida ranges from $181.00 per day to $506 per day. The average cost in Florida is $260 per day.

On the website for the Florida Health Care Association, one can find yet more information about nursing home care in Florida. For instance, from the 683 licensed nursing homes in Florida, the median annual cost for care is $94,900. Though there are 73,000 nursing home care residents at any given time in our state, Florida maintains one of the lowest over-65 population to nursing home population ratios in the United States.

Other options for long-term care such as assisted living and home care are generally less costly than nursing home care, depending on the care need and level of care. The attorneys at Bach, Jacobs & Byrne, P.A. assist senior citizens and their families in planning for long-term care, including Medicaid planning to protect a family’s assets. If you are in need of assistance, call us at (941) 906-1231.

September 24, 2018
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Sean M. Byrne, Esq. Completes Term as Chair of the Sarasota County Bar Association’s Estate Planning and Probate Section

By Firm News

Attorney Sean Byrne has completed his term serving as chair of the Estate Planning and Probate Section of the Sarasota County Bar. The Sarasota County Bar is divided into 11 sections based on area of practice, and the Estate Planning and Probate Section is open to all Sarasota lawyers interested in trust law, estate planning, and probate law. At the section’s bi-monthly lunch meetings, attorneys have the opportunity to learn from and with each other as they progress in their field.

Sean continues to serve on the Estate Planning and Probate Section’s executive committee as the immediate past chair.

September 20, 2018
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What is the difference between “per stirpes” distribution and “per capita” distribution?

By Estate Planning, Probate

In Latin, “per stirpes” means “by class/stock,” and “per capita” means “by head.” In the process of estate planning and the administration of a will, these terms play a key role.

The best way to illustrate how these terms come into play is with a couple examples. Let’s say Dusty is the testator of a will. Dusty has four children: Ruby, Pearl, Jade, and Sapphire. Ruby has one son (George), and Pearl has two sons (John and Paul). Neither Jade nor Sapphire have any children.

If Dusty’s will specifies that his assets are to be distributed to his descendants “per stirpes”, his assets will pass on with top priority to the class of living beneficiaries closest in relation to him – in this case, his four daughters. Ruby, Pearl, Jade, and Sapphire each receive 1/4 of the assets. Neither George, nor John, nor Paul receives a share.

But, let’s say that Pearl has predeceased Dusty. If the bequest to Pearl was “per stirpes”, then John and Paul will then each receive 1/8 of the assets of Dusty. In the scenario where Ruby predeceases Dusty, George receives Ruby’s quarter share of Dusty’s assets.

Now, let’s say that Dusty’s will specifies that his assets are to be distributed to his descendants “per capita.” In that scenario, when Dusty dies, his assets will be split equally among all surviving descendants. Thus, Ruby, Pearl, Jade, Sapphire, George, John, and Paul will each receive 1/7 of Dusty’s assets. If Ruby and John have predeceased Dusty, then the remaining descendants each receive 1/5 of Dusty’s assets.

September 18, 2018
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In what cases are non-citizens eligible for Medicaid?

By Asset Protection Planning, Elder Law, Medicaid Planning

According to the Center for Medicare & Medicaid Services, the list of qualified non-citizens is as follows:

-Lawful permanent residents/ green card holders

-Individuals granted asylum/ refugees

-Cuban and Haitian entrants

-Parolees for more than 1 year

-Battered non-citizens, spouses, and children

-Victims of trafficking

-Veterans and active military, their spouses, and their children

The CHIPRA (Children’s Health Insurance Program Reauthorization Act of 2009) also provides Medicaid services for any lawfully-present pregnant women and children, regardless of date of entry into the United States. One is “lawfully present” in the following circumstances:

-Qualified non-citizens

-Humanitarian status (Temporary Protected status, Special Juvenile status, asylum seekers, Convention against Torture)

-Valid non-immigrant visa holders

-Legal status (Temporary Resident status, LIFE Act, Family Unity)

September 14, 2018
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As co-agents appointed with Durable Powers of Attorney, can each agent act independently?

By Elder Law, Estate Planning

We turn to Florida Statute §709.2111 to answer this question. Sub-section 1 states, “A principal may designate two or more persons to act as co-agents. Unless the power of attorney otherwise provides, each co-agent may exercise its authority independently.” So, while there are certainly exceptions to the rule (when specified in the Durable Power of Attorney itself), co-agents can indeed act separately from one another. However, you should be aware of the drawbacks of having two agents acting independently with your assets.

To have a Durable Power of Attorney prepared for you and discuss the implications of your choice of agents, or to review your existing documents, do not hesitate to call the attorneys at Bach, Jacobs & Byrne, P.A. at (941) 906-1231 to set up an appointment.

 

September 10, 2018
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What does “TBE” stand for in real estate?

By Asset Protection Planning, Estate Planning, Probate, Real Estate

“TBE” stands for “Tenancy by Entirety,” which is a special form of joint ownership between spouses wherein property is not held individually, but collectively by the married couple. Thus, following the death of one spouse, the assets held as TBE do not have to go through probate – instead, they all transfer by operation of law to the other spouse. Furthermore, creditors cannot access this property unless both spouses are liable.

However, there are certain caveats to holding TBE property. First and foremost, one must be legally married to be eligible for a TBE. It is also necessary to remember that assets held before marriage do not automatically transfer to TBE status – this property must be formally identified as TBE property. Finally, it is important to check bank signature cards for any bank accounts opened with a spouse: though Florida law presumes accounts opened at the same time by spouses to have TBE status, bank officers can sometimes register the accounts as “Joint Tenants with Right of Survivorship.”

The attorneys at Bach, Jacobs & Byrne, P.A. will review the titling of your and your spouse’s assets as part of their comprehensive estate planning. In addition, Fred Jacobs and Sean Byrne are authorized real estate title and closing agents and can assist clients with the purchase, sale, or reconveyance of real property. Call to schedule an appointment at (941) 906-1231.

September 6, 2018
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Are different claims against the estate prioritized differently?

By Asset Protection Planning, Probate

Yes. Florida’s Probate Code establishes the exact order of priority when it comes to repaying claims against the estate. Costs of administration (i.e. expenses incurred in the process of administering the probate estate of the decedent) are given first priority. These include personal representative and attorney fees.

Funeral and burial expenses follow, as a Class 2 creditor, with taxes owed as a Class 3 priority creditor.

The prioritization of creditor classes becomes very important in insolvent estates. With the exception of certain exempt assets, creditors are generally paid in an estate proceeding before beneficiaries receive their inheritances.

September 4, 2018
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