Del Mar California real estate

Basic Estate Planning

Third Edition

Herbert Elliott, Attorney at Law, Tarpon Springs, Florida

Few decisions in life are as distasteful, yet as important, as planning for its end. Those who do such planning save their heirs much anguish and frustration, and often a great deal of money. This article attempts to explain in broad terms various estate planning vehicles for the elderly, such as living wills, durable powers of attorney, federal estate and gift taxation, the probate system, avoiding probate, Medicaid eligibility, and guardianship.

Probate

The probate system has a bad reputation, as something always to be avoided. Like most institutions, the probate system is sometimes wrongfully criticized by those who are misinformed. Probate is the process by which a decedent's bills are paid and property held in the decedent's name alone are transferred by court authorization, in accordance with the decedent=s will, if there was one, or by general law if no will is found. Contrary to what some people think, if you don't have a will, the State does not "take" your property. Rather, State law just writes a will for you, based upon what is generally accepted in our society as the standard will. However, if your titled assets are transferred properly prior to death, there is no need for judicial involvement. That is the purpose in "avoiding probate", but there are pitfalls to be avoided. By "adding names" to property during one's lifetime, it may be difficult to have the property returned to, or conveyed by, the donor, or to the donors intended beneficiaries.

The most common types of probate in Florida are formal administration and summary administration. Summary administration applies to probate assets less than $75,000.00 in total value, excluding the value of the homestead; attorney's fees and court costs would amount to between $600.00 and $1,000.00. The process takes approximately two weeks from beginning to end. Formal administration takes around five months, in large part because of the three‑month period for claims to be filed against the estate.  Attorney fees for formal administration are specifically set forth in the Florida Statutes.

There are many ways of avoiding probate of one's assets. The major ones are a living trust, putting property in joint ownership with a survivorship interest, such as life estates on real property, or joint tenancy with right of survivorship for real property, bank accounts, stocks and bonds. Again, beware of pitfalls. Even though one plans to avoid probate, however, it is still an excellent idea to have a current Florida will, to cover assets which inadvertently or unavoidably were not transferred into the name of the trustee, remainderman, or joint tenant. If even one titled asset is in the decedent=s name alone at death, probate would still be necessary  in order for title of that asset to be transferred. Although out‑of‑state wills are generally valid in Florida, it is time consuming and therefore expensive to go out‑of‑state to find the witnesses to those wills. Life insurance proceeds also pass outside of the probate system, unless your estate is a beneficiary of the policy. You can expect to spend between $100‑$300 for two reciprocal husband and wife simple wills, and more for more complicated wills, testamentary trusts, or a separate contract between spouses that the will shall not be revoked or modified after the death of the first spouse.

One can avoid the probate of real property by signing and delivering a deed to the grantee, or to an escrow agent. You can keep the full homestead exemption by reserving a life estate, with the remainder to whomever you choose.  Retaining an Aenhanced life estate@ enables you to sell the property without getting formal approval of the remaindermen. You can place an automobile in joint names, and do the same with bank accounts and stocks and bonds. You should use the magic phrase "joint tenancy with right of survivorship" in order to do so. Legal assistance is strongly advised; please don't do it yourself.

Medicaid Planning

 Medicare pays less than two percent of all nursing home bills. Medicare will pay only for skilled care in a Medicare approved skilled nursing facility which follows a period of hospitalization of at least 3 days. Medicare will not cover merely custodial care. Even when all the requirements are met, Medicare will pay the entire nursing home bill only for the first 20 days. It will pay part of the bill for an additional 80 days, with the client or his family paying co‑insurance amounts. After 100 days, Medicare provides no assistance. There are a number of long‑term nursing home health care policies available, which differ significantly in terms of eligibility and benefits. Medicaid is a federally-funded program, administered through the several states, which will pay nursing home expenses to those who qualify.

   Very generally speaking, in order to qualify, income eligibility and resource eligibility must be established. For income, the applicant cannot earn more than $1,600 per month. With respect to assets, the applicant is allowed to keep a home (regardless of value), personal effects, $87,000 cash, if married, (otherwise $2,000), a car, annuities, business property, life insurance, and certain other assets. Property divested within 36 months (60 months if to or from a  trust) prior to application is included in the determination of eligibility, although you may transfer up to $3,300 each month without affecting eligibility. The regulations are both confusing and illogical, and elder law specialists should be consulted long before nursing home care is required.

Living Wills

 One has the right to compel the termination of life support systems, if one is terminally ill, so long as that intention is expressed properly, preferably in writing. A living will may be obtained at your attorney's office for a nominal charge, or from most local physicians or hospitals.

Durable Powers of Attorney/Health Surrogates

 A power of attorney is a vehicle whereby one may authorize another person to act in one's behalf.  By placing certain language in the power of attorney, the document becomes a "durable power of attorney", and thereby one may authorize any person to act on one's behalf, even though one is disabled.   By signing a durable power of attorney, one can avoid or at least minimize the risk of a guardian being appointed. A separate Health Care Surrogate form is usually used to authorize routine medical care.