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Monthly Archives

November 2018

What is an “in terrorem” clause in a Will or Trust?

By Estate Planning, Probate

Literally meaning “in fear”, an “in terrorem” clause acts as a sort of threat: if anyone challenges the legality of the Will or of any part of the Will, he/she will be disinherited. Though there are many potential reasons why a client would include such a clause (also referred to as a “no contest” clause), one common one is to promote family harmony and mitigate potential fighting resulting from a legal battle following the death of the testator.

However, Florida law does not allow for the enforcement of in terrorem or “penalty clauses”, as explicitly stated in Florida Statute §732.517. If you need representation in a Will challenge or in defending testamentary documents, the attorneys at Bach, Jacobs & Byrne, P.A. are here to help. Call now at (941) 906-1231 to set up an appointment to discuss your case.

November 29, 2018
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“It’s All Greek to Me”: Homestead

By Asset Protection Planning, Estate Planning, Real Estate

“Homestead” can be found in several different contexts in Florida law, but it always retains its fundamental application to an individual’s home. When used to refer to real estate, one might hear of the “homestead exemption” – this is a tax exemption of up to $50,000 on land as valued by the county property appraiser. In the Florida Constitution, a special exemption for homestead property is also provided, one that lists the homestead as a protected asset with regard to creditors. This law ensures that, if a creditor successfully brings a claim against you in court, the judgment cannot attach to your homestead, if the debt is not otherwise secured by the real estate, as with a mortgage. There are also exceptions for unpaid tax foreclosures and mechanics liens.

Finally, estate attorneys use the word in the context defined by Article X, Section 4(c) of the Florida Constitution. It is stated: “The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child.” The process of dealing with a homestead after the death of its owner thus becomes quite different from the process of dealing with the decedent’s other assets.

Call Bach, Jacobs & Byrne, P.A. at (941) 906-1231 if you have questions about how you can plan your estate with special consideration for your homestead.

November 27, 2018
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What happens to the Durable Power of Attorney when someone dies?

By Asset Protection Planning, Estate Planning, Probate

A Power of Attorney is described as “durable” because it continues to be effective until and after the point at which a given client becomes incapacitated. However, the Durable Power of Attorney is not effective after that client (known as “the principal”) has died.

According to Florida Statute §709.1209, a Durable Power of Attorney is terminated in the following cases:

-The principal dies

-The principal revokes the Power of Attorney

-The Power of Attorney states that it terminates at a certain point

-The purpose of the Power of Attorney is accomplished

Even if a Durable Power of Attorney document states that it shall continue after the principal has died, the Power of Attorney will be terminated regardless. Only the personal representative of the estate has the authority to administer the assets of the deceased in the probate process.

If you have questions regarding the probate process and the estate of your loved one, please call the attorneys at Bach, Jacobs & Byrne, P.A. at (941) 906-1231.

November 23, 2018
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When can trust and estate litigation occur?

By Guardianship, Probate

Though most matters in probate court go unchallenged, certain situations can arise which necessitate probate, trust, or guardianship litigation. Some common such scenarios include, but are not limited to, the following:

-A will is challenged due to a question of the competence of the testator

-There is a dispute over the way a will/trust is worded or structured

-The installation of a guardianship is being contested

-A trustee is attempting to modify or terminate a trust

-A beneficiary is suing a fiduciary for a breach of their duty in administering the probate or trust

If you are in a situation involving probate, trust, or guardianship litigation, call the lawyers at Bach, Jacobs & Byrne, P.A. at (941) 906-1231 to set up an appointment to discuss your options.

November 19, 2018
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My Will was drawn up in another state. Is it still valid in Florida?

By Estate Planning, Probate

If your Will was valid in the state where it was written, it should be valid in Florida, with some exceptions. However, property laws do vary from state to state. For instance, one significant distinction between states when it comes to property law is whether they are considered “common law” states or “community property” states. In the former, the property of each spouse belongs to each individually – in the latter, the property is shared.

Another important thing to consider: not every state accepts all types of Wills as valid. For instance, Florida does not recognize either “nuncupative” or “holographic” Wills. Nuncupative Wills are spoken to two witnesses and then written down by those witnesses; holographic Wills are written in the handwriting of the deceased without witnesses.

If you have recently moved to Florida and want to make sure your Will is valid in Florida, the lawyers at Bach, Jacobs & Byrne, P.A. are happy to help. Give us a call at 941-906-1231.

November 15, 2018
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Can a guardianship proceeding be contested?

By Guardianship

Yes: any interested person can contest the appointment of a guardian for a given ward, just as any interested person can petition the court to declare that ward incapacitated and in need of a guardian.

The process of determining the capacity of the ward begins with a petition for incapacity, which initiates the appointment of a three-person committee to examine the ward. This committee is made up of at least one psychiatrist or physician and two other health care professionals. Should the majority of the committee members find the ward to be of sufficient capacity, the guardianship proceeding will stop; however, if the majority finds the ward to be incapacitated, the proceeding will continue.

What follows is a final evidentiary hearing on the ward’s incapacity. Here, any person contesting the incapacity of the ward is permitted to present evidence and witnesses to the court. If the alleged incapacitated person is still found to be incapacitated, the guardianship hearing comes next. Florida practice is to pursue lesser restrictive alternatives short of full-fledged guardianship first – but, if a guardian is eventually appointed, the right to appeal remains open. Even after a guardianship is in place, any interested person, including the ward, may file a suggestion of capacity, which could ultimately result in the termination of the guardianship should the court find the ward to have restored capacity. The attorneys at Bach, Jacobs & Byrne, P.A. are experienced guardianship litigators and can represent parties to a contested Florida guardianship.

November 13, 2018
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Who runs the Medicaid program?

By Asset Protection Planning, Medicaid Planning

Medicaid is a program jointly run by both the federal and state governments. In some cases, the funding for Medicaid can come from the local government, too. The proportions of funding vary based on the state.

In Florida, $23.5 billion are spent on Medicaid each year. However, only $9.5 billion of these funds comes from the Florida state budget – the remaining $14 billion is drawn from the federal budget.

When it comes to administration of the Medicaid program, it is primarily up to the states. Eligibility standards, type and scope of services, and payment rates are all set at the state level. Sometimes, states even rename their Medicaid programs to titles like “Medi-Cal” (California) and “TennCare” (Tennessee). In Florida, Medicaid is administered by the Department of Children and Families.

November 9, 2018
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What is the distinction between “surviving” powers of attorney and “springing” power of attorney?

By Estate Planning, Guardianship

The key difference between surviving and springing powers of attorney is the time at which they take effect. Surviving powers of attorney are entrusted to the agent as soon as the paperwork is signed – the term “surviving” refers to the “durability” of this agreement, which lasts until and even after the point at which the ward becomes incapacitated. Springing powers of attorney, on the other hand, only go into effect after the ward is incapacitated.

After June 2011, the updated Florida Durable Power of Attorney Act formally banned springing powers of attorney (though any durable powers of attorney agreed upon before the institution of the new law were to remain valid). Having a durable power of attorney is an important part of comprehensive end-of-life planning and estate planning. Call the attorneys at Bach, Jacobs & Byrne, P.A. to have your estate plan assessed and evaluated.

November 5, 2018
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Risk Adjustment Payments Suspended

By Medicaid Planning, Medicare

Risk adjustment payments to insurance companies had been funded by the federal government as part of the Affordable Care Act since 2014 as part of the ACA’s prohibition against insurance companies discriminating against individuals with chronic illnesses or pre-existing conditions. However, the federal government in early 2018 suspended the risk adjustment payment program, citing a recent Federal District Court opinion regarding the formula used to determine the size of the payments.

Some have expressed fears that insurance premiums could increase as a result of the suspension, while others argue that the risk adjustment payment program has already done more harm than good, through a bias against small insurance companies. The Centers for Medicare and Medicaid Services have asked the Federal District Court to reconsider its decision, and, in the meantime, the insurance market hangs tensely in the balance.

November 1, 2018
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