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Asset Protection Planning

What is a “pour-over” Will?

By Asset Protection Planning, Estate Planning, Probate

A “pour-over” Will is usually created by individuals who hold most, if not all, of their assets in a Trust. The reason one might maintain such a document is to account for overlooked assets in the estate planning process – if one wishes for all his/her assets to be held by the Trust after death and inadvertently forgot to transfer some assets to the Trust, the pour-over Will directs those assets to be transferred to the Trust.

The assets in a pour-over Will still have to go through the probate process (unlike the assets already in the Trust). However, it is still wise to have a pour-over Will, as it will avoid intestate probate and provide clarity and direction with regard to your estate plan.

Do you need to make a pour-over Will? Do you need to review your existing estate plan to make sure it aligns with all your wishes? Contact Bach, Jacobs & Byrne, P.A. today at (941) 906-1231 to set up an appointment.

January 4, 2019
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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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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 look-back period for gifts made by a Medicaid applicant or spouse?

By Asset Protection Planning, Elder Law, Medicaid Planning

Because Medicaid applicants must have limited income and assets in order to qualify for Medicaid, a scenario may arise wherein an otherwise well-off applicant gives away all of his/her assets as gifts just before applying. To combat this practice, Medicaid instituted the “look-back period.” This refers to the time period prior to the application for which Medicaid will consider gifts made by an applicant or spouse.

In every state but California, the look-back period is 5 years. This means that, if one applies on August 3rd, 2018, Medicaid will count any gifts (assets given away for free or for less than their market price) dating back to August 3rd, 2013 against the applicant. If an applicant is found to violate the look-back period, Medicaid penalizes him/her by rendering them ineligible for Medicaid until a certain amount of time has passed. This amount of time is determined by the formula: [dollar amount of transferred assets] ÷ [average monthly private patient rate of nursing home care].

So, if you are applying for Medicaid and are found to have gifted $45,000 in assets two summers ago, and Florida’s average monthly private patient rate for nursing home care is $9,000 (to be exact, $9,171, as of 07/01/18), you will be ineligible for Medicaid for 5 months. [45 ÷ 9 = 5]

October 8, 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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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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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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Which common policy terms should I compare when purchasing long-term care insurance?

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

Long-term care insurance policies are not standardized from insurer to insurer, and thus the policies differ in many ways. There are, however, key provisions used across the board by Florida long-term care insurers. The American Health Care Association specifies that, in Florida:

-“Long term care policies… may cover at least 24 months of skilled, intermediate or custodial nursing home coverage supervised or recommended by a doctor.”

– “Long term care policies or certificates must provide at least one lower level of care, such as home health care or adult day care. The benefits for this lower level of care must have at least half the benefits of the nursing home care, in both the benefit period and the benefit amount.”

Beyond these, common policy points to be considered when comparing long-term care insurance policies include the following:

-Reimbursement levels

-Covered services

-Daily benefit amount

-Benefit period

-Payment options

-Inflation protection

Online, one can find many useful tools to help ensure that you are taking all relevant factors into consideration when purchasing long-term care insurance. Some of these tools include the free Long Term Care Partners, LLC “Benefits and Features Worksheet,” as well as the website for the National Association of Insurance Commissioners. An FAQs sheet from the state agency regarding Medicaid can be found here: https://ahca.myflorida.com/Medicaid/ltc_partnership_program/pdfs/Florida_LTCP_FAQs_7-26-11.pdf.

August 21, 2018
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