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Elder law in Florida

What is the Florida Homestead Exemption?

By Asset Protection Planning, Real Estate, Tax Law

The Florida homestead exemption is an asset protection tool implemented to protect homestead property. Your Florida homestead will be designated to procure certain exemptions from real estate taxes.

In order for you home to be considered your “homestead” in Florida, you must have a legal title to the home, the home must be your permanent residence and you must apply for the homestead exemption at the property appraiser’s office in the county where your home is located. A second home or property cannot be considered a homestead in Florida and properties that are titled in the name of irrevocable trusts, limited liability corporation companies, corporations or partnerships are also unable to qualify as homestead properties. However, property owned by a living trust or a land trust may qualify as homestead property in certain situations.

Currently, the Florida homestead exemption reduces the value of a home for assessment of property taxes by $50,000 for homes that are worth $100,000 or more. This means that, if a home is worth $100,000, it will be taxed as if it is only worth $50,000.

June 22, 2018
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World Elder Abuse Awareness Day

By Elder Law, Health

Today is World Elder Abuse Awareness Day. In Florida, with the growing senior population, elder abuse is an extremely prevalent social issue. Elder abuse can manifest itself in many forms, including but not limited to: physical abuse, emotional abuse, sexual abuse, exploitation, negligence and abandonment. Approximately 1 out of every 10 Americans over 60 has experienced a form of elder abuse, while only 1 out of every 14 cases of elder abuse is reported. Elderly individuals who have been mistreated have a 300% higher risk of death compared to seniors who have not been abused. Elder abuse can be prevented by educating seniors, health professionals, caregivers and families across the nation about this issue.

 If you suspect or know of any elder abuse that is occurring, report it immediately to the Florida Abuse Hotline, which receives reports 24 hours a day. You can also call 1-800-962-2873 or visit https://reportabuse.com.dcf.state.fl.us and file a report online.

 

June 15, 2018
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The New Estoppel Law

By Elder Law, Real Estate

Estoppel is the legal principle that prevents an individual from making assertions that are contradictory to their previous statements before the court or are contradictory to what has legally been established as the truth. Estoppel can operate by way of stopping someone from making a certain assertion in court, exercising a certain right, or from bringing a particular claim. In spring of 2017, two new bills related to estoppels in the context of homeowners associations cleared both Florida legislative chambers and have been in effect since July 1st, 2017. These bills are Senate Bill 398 and House Bill 483.

The following bullets explain the most noteworthy components of the legislation and the changes that these bills have made:

  • Associations have 10 days to produce an Estoppel certificate
  • Estoppel certificates must be valid for at least 30 days
  • Estoppel certificate fees cannot exceed $250 and rush fees cannot exceed $100
  • No fees may be charged for amending Estoppel certificates
  • Clarifies what must be included in an Estoppel certificate (more information must now be provided to the purchaser by the association)
  • Associations may still charge fees, but may be required to reimburse them if the property is not sold

These new bills are beneficial to title agents, buyers, sellers, closing agents and realtors by keeping costs lower and making the overall estoppel process move more quickly. Bach & Jacobs, P.A. provides title insurance of closing services for real estate transactions and can assist you if you purchase or sell real estate that is part of a homeowners or a condo association.

May 11, 2018
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National Elder Law Month

By Elder Law, Firm News

May has been designated as National Elder Law Month by the National Academy of Elder Law Attorneys. Elder Law is a broad field of legal practice that encompasses important life processes including, but not limited to: Estate Planning, Medicaid, Tax Law, Probate Administration and Asset Protection Planning. We would like to thank the talented attorneys at Bach & Jacobs for their commitment to providing service of the utmost quality in the field of Elder Law as well as the clients that make their jobs possible. Happy National Elder Law Month!

For assistance regarding any Elder Law needs, contact our offices at 941- 906-1231 to schedule an appointment with one our attorneys.

May 1, 2018
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The Two Main Forms of Probate in Florida

By Probate

Probate is defined as the process of proving a Will is valid in court and thereafter administering the estate of the decedent according to the terms of their Will. In Florida, there are two main types of probate: Summary Administration and Formal Administration. In an effort to make the probate process less complex and easier to understand, this blog will break down these two forms of probate.

  • Summary Administration: Summary Administration is often the easiest and least expensive type of probate, but it can only be utilized when an individual’s estate is worth less than $75,000 and there are no unpaid creditors of the decedent. Additionally, if the decedent has been dead for at least two years at the time the probate process is started, then Summary Administration may be employed. If the decedent died with a Will, it will be admitted by the court if it is valid. If the decedent died without having created a Will, the process of intestate succession will apply.

 

  • Formal Administration: Formal Administration involves close supervision by the court of the collection and distribution of the assets in the decedent’s estate and the payment of the decedent’s creditors. Once a probate attorney has been hired and the official filings have been made to the court, a judge will issue letters of administration (an order that authorizes a Personal Representative to act on behalf of an individual’s estate), then the process may begin. Administration of the estate may involve: notifying creditors, collecting assets, collecting debts, identifying the rights of beneficiaries, maintaining assets, processing and paying creditor claims and preparing objections to a claim. When this process is complete, the hired probate attorney will file a petition with the court to close the Estate. Once the estate has officially been closed, the probate process is over.
April 27, 2018
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What is Intestate Succession?

By Estate Planning, Probate

If an individual dies intestate, it means that they passed away without having created a Will or estate plan. When someone dies without a Will or estate plan, their property passes into “intestate succession”. This means that state law determines who will get the assets of that person’s estate, as there is no Will to decide what should go to whom. In Florida, if you have children but no spouse, your children will inherit everything. If, on the other hand, you have a spouse but do not have children, your spouse will inherit everything. If you have both a spouse and children by that spouse and your spouse has no other descendants, your spouse will inherit everything. If you have a spouse and descendants from you and that spouse, but the spouse has descendants from another relationship, your spouse will inherit half of your intestate property and your children will inherit the other half. If you have a spouse and descendants from you and someone other than that spouse, the same principle applies and your spouse will inherit half of your intestate property while your descendants will inherit the other half. If you die without a spouse or descendants, your parents inherit everything. If you die with siblings but no spouse, descendants or parents, your siblings inherit everything. If you do not leave a Will or estate plan, then your estate will become property of the state only if you do not have a spouse, children, grandchildren, parents, grandparents, siblings, nieces or nephews, aunts or uncles, cousins, or great aunts or uncles at the time of your death.

April 20, 2018
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What Inheritance Rights Does My Adopted Child Have?

By Estate Planning, Probate

Typically, adopted children have the same legal right to inherit assets from their adoptive parents as biological children do. When a child is adopted, their legal ties to their biological parents are severed. This means that they have inheritance rights with their adoptive parents, but not with their birth parents.

Adopted children have the right to be included in general references to “my children” in a Will. They may also have the right to receive property if they are accidentally or unintentionally left out of a Will. For example, if a Will had not been updates since before the adoption of a child, then that adopted child still has rights to a certain portion of the estate. An adopted child also has the right to receive property in intestate succession, meaning that, if a child’s adoptive parents die without a Will, then the child has the same right to receive a certain portion of the adoptive parents’ property as a biological child would.

Just like with a biological child, you can disinherit an adopted child from your Will, but if you choose to do so you should state this explicitly.

To learn more about this matter, contact our office at 941-906-1231 to schedule an appointment with one of our attorneys.

 

April 6, 2018
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What is an Incentive Trust?

By Estate Planning

An incentive trust is a trust designed to encourage or discourage the occurrence of certain behaviors in the trust’s beneficiaries by using the distributions of the trust as an incentive. An incentive trusts holds and manages assets for the benefit of the beneficiaries of the trust, but it is different than any other type of trust in that it uses the trust’s assets to award beneficiaries for achieving desired goals. This type of trust is often used by parents or grandparents to pass on wealth to their children or grandchildren while dually encouraging them to be personally responsible and reach important milestones in their lives. This type of trust can also lay-out specific instructions regarding how the money within the trust can be distributed and can employ certain techniques that help ensure the beneficiaries of the trust will have financial independence beyond what the trust has given them. Advantages of incentive trusts include implementing age restrictions regarding when the beneficiaries can receive the assets within the trust, encouraging educational achievement, discouraging illegal or destructive behaviors and motivating positive behaviors.

If you have any further inquiries regarding this matter, please contact our office at: 941-906-1231 to schedule an appointment with one of our attorneys.

 

March 30, 2018
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Disposition of Personal Property without Administration

By Estate Planning, Probate

In some cases, individuals are able to complete a process referred to as Disposition of Personal Property Without Administration. You can refer to the 2017 Florida Statute (Statute 735.301) that addresses Disposition Without Administration to determine eligibility for this process. This statute states that:

1) No administration shall be required or formal proceedings instituted upon the estate of a decedent leaving only personal property exempt under the provisions of s. 732.402, personal property exempt from the claims of creditors under the Constitution of Florida, and nonexempt personal property the value of which does not exceed the sum of the amount of preferred funeral expenses and reasonable and necessary medical and hospital expenses of the last 60 days of the last illness.

2) Upon informal application by affidavit, letter, or otherwise by any interested party, and if the court is satisfied that subsection (1) is applicable, the court, by letter or other writing under the seal of the court, may authorize the payment, transfer, or disposition of the personal property, tangible or intangible, belonging to the decedent to those persons entitled.

3) Any person, firm, or corporation paying, delivering, or transferring property under the authorization shall be forever discharged from liability thereon.

To obtain a Disposition of Personal Property Without Administration, completion of the following forms is required:

  • Disposition without Administration Petition (3 pages, notarized)
  • A certified copy of the death certificate
  • Copies of medical and hospital bills for the last 60 days of illness
  • Copy of paid funeral bill
  • Copy or copies of documents that show the asset you are attempting to transfer to you (ex: bank statements, stock certificates, insurance policies, etc.)
  • Signed and notarized consent from all heirs
  • Original Last Will and Testament of the decedent (provided one exists)If you qualify for this process or would like more information, the Sarasota County Clerk’s website has directions regarding how to apply and provides the necessary forms.
March 27, 2018
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What is Decanting a Trust?

By Asset Protection Planning, Estate Planning

A trust is an entity created by an individual (the settlor) to hold assets for the benefit of the trust’s beneficiaries, while a trustee is appointed to manage the trust. Decanting a trust is the act of distributing assets from an old trust to a new trust that has more amicable terms. It gets its name from the process of decanting wine from its original bottle to a new one in order to eliminate any sediment residue; decanting a trust allows you to pour the assets from one trust into another while getting rid of any terms that aren’t amenable. Decanting is a powerful tool, as it allows the trustee of an irrevocable trust (one that cannot be modified or terminated after it has been signed) to essentially re-write an irrevocable trust without having to go to court, so long as the trustee complies with the motive and consent requirements of the Florida Trust Code.

 

March 20, 2018
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