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Elder Law

Out of Court Statements Now Permissible in Cases of Elder Abuse

By Elder Law

            The new modifications to Florida’s laws protecting Florida’s elderly allow for out-of-court statements made by elders describing their abuse to be used in court.  This type of statement would usually be regarded as hearsay and would be impermissible but, in the event that an elder cannot personally testify, their previous statement made while not under oath can be used to document abuse, exploitation, or violence.

 

If you or someone you love has been the victim of exploitation against an elderly person, contact Sean M. Byrne, Esq. at Bach & Jacobs, P.A. to discuss your options for recovery of those assets.  Call our office at (941) 906-1231.

February 9, 2016
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End of Life Care Plans

By Asset Protection Planning, Elder Law, Estate Planning, Guardianship, Long-Term Care

Distinct from healthcare directives such as a healthcare power of attorney or a living will, a personal care plan is a document telling your loved ones how you wish to be taken care of throughout your life if you lose capacity.  Living wills only concern end of life medical treatment but personal care plans can be used to express desires such as nursing home preferences and what types of entertainment and hobbies they should have access to.  Although on their own end of life care plans are not enforceable, their power can be strengthened by tying them to a trust and directing that the trustee use the assets in the trust to ensure your desires are met.

If you are interested in setting up an end of life care plan or healthcare directives to ensure that your later life care will be carried out on your own terms, contact Board Certified Elder Law Attorney Babette Bach, Esq. at (941) 906-1231.

February 5, 2016
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No-Contest Clauses in Florida Wills

By Elder Law, Estate Planning, Probate

Florida law does not recognize “no-contest” clauses written into wills or trusts, which means they are unenforceable in Florida courts.  No-contest clauses are written to dissuade beneficiaries from challenging the will by threating that anyone who contests the will is no longer entitled to any assets from the estate.  Even if a Florida will contains a no-contest clause, it carries no weight in a courtroom which means a beneficiary may contest a will without jeopardizing their rights to an inheritance.

If you are looking to set up estate planning documents to ensure your assets are distributed as you wish, contact one of our experienced estate planning attorneys at (941) 906-1231.

January 29, 2016
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Disputing a Deathbed Marriage in Florida

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

Florida has laws that protect high net worth elderly individuals from exploitation through “deathbed” marriages.  Deathbed marriages occur when an elderly, sometimes high net worth, individual enters into a marriage during the last days or even hours of their life.  These marriages are commonly used to exploit the elderly and to attempt to claim their assets.  Florida is attempting to protect true heirs from having their inheritance taken away by a new deathbed spouse through the “Spousal Rights Procured by Fraud, Duress, or Undue Influence” statutes.  These laws require that it be proved that the deathbed marriage was entered into voluntarily by both parties for the deathbed surviving spouse to claim rights to life insurance policies and other assets.  An interested party, such as a rightful heir, can also challenge a deathbed marriage within four years of the marriage.

If you know someone who was involved in a death bed marriage and want to know how it will affect your inheritance and the administration of your loved ones’ estate, contact Board Certified Elder Law Attorney Babette Bach, Esq. at (941) 906-1231.

January 19, 2016
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Missing Will

By Elder Law, Estate Planning, Probate

After a person dies, the original copy of their will must be submitted to the court.  If the original will cannot be found, the Florida Probate court requires that the contents of the will must be proven by providing the court with either: 1) two disinterested witnesses who testify to the contents of the will, or 2) a copy of the will and one disinterested witness who testifies to the contents of the will.

In some cases, courts have accepted copies of wills from the decedent’s attorney but each situation involving a lost will should be examined individually to determine the best course of action.

If you have questions about a lost will in Florida or your options with regard to probate and trust administration, contact one of our experienced probate and estate planning attorneys at (941) 906-1231.

January 15, 2016
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What is a “Self-Proving” Will?

By Elder Law, Estate Planning, Probate

If you have a will that will be subject to the probate process, the executor of your will must prove that the will is valid to the probate court.  Unless the will is “self proved” the witnesses to the will have to appear and swear an oath as to its validity.  This process can be simplified in Florida through creating a self-proving will by attaching a statutory acknowledgement form which is notarized and affirms the validity of the will.  This document is signed by the witness and the notary at the time the will is executed, which helps avoid the requirement that the witnesses physically appear in court later to affirm that the will is valid so it can be admitted to probate.  If you are interested in creating a self-proving will to speed up the probate process or want to learn how you can avoid probate, contact one of our experience estate planning attorneys at (941) 906-1231.

January 12, 2016
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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.

December 29, 2015
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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.

December 25, 2015
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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.

December 22, 2015
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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.

December 18, 2015
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