Elder Law, Estate Planning, Probate and Trust Administration
Estate planning involves more than just creating a plan for the distribution of assets at death. Lifetime considerations are at least as important. Living wills, healthcare powers of attorney, durable powers of attorney, and other "advance directives" are all important documents in the estate planning process.
Asset protection, especially in connection with Medicaid planning, is an evolving area of the law that is important to more and more seniors. The use of qualified income trusts, personal service contracts, and other methodologies are available to help in Medicaid qualification.
Everyone needs a will, whether in connection with a trust or as a stand-alone blueprint for asset distribution at death. In addition, a living trust may be appropriate, not only as a "will substitute" to avoid probate, but also as a way of providing for asset management before or after death. Where a client's assets warrant, a trust can be drafted to minimize or avoid the federal estate tax or for charitable giving purposes.
Estate and trust administration generally refers to the post-death process of marshaling the decedent's assets, determining and paying creditors, satisfying tax liabilities, accounting to beneficiaries, and distributing assets to beneficiaries.
The fiduciary (personal representative or trustee) has specific duties, obligations, and responsibilities in performing his or her duties. When we represent a fiduciary, we assist in making sure that the fiduciary is aware of the various duties they have undertaken, advise of the time deadlines and other requirements, help see that tax obligations are met, that all transactions are properly accounted for, that the assets are properly distributed to the beneficiaries, and, in the end, that the fiduciary is discharged from personal liability.
Trust and estate litigation has become a more frequent occurrence. Trustees often do not account or do not fully account to beneficiaries, despite the clear requirements of Florida law. We represent trustees who are being accused of failing to account or for the commission of other acts or omissions. We also represent beneficiaries who feel a trustee has failed in his duties.
Likewise, we represent disgruntled estate beneficiaries as well as personal representatives who are being sued by disgruntled beneficiaries.
The sorts of issues that arise in trust and estate litigation include will contests, probate of lost or destroyed wills, the establishment of a lost trust, trust contests, fiduciary accounting disputes, creditor claim disputes, fiduciary liability, trust reformation, removal of a fiduciary, and claims of undue influence.
Real Estate, including a client’s home, often constitutes a substantial portion of a person’s assets. Under Florida Law, a person’s homestead is entitled to special protection from creditors, but also has restrictions on how it may be transferred. We assist our clients with arranging for the easy handling and transfer of their real property interests while making sure they do not give up any of the protections provided them under Florida Law. We assist with putting real estate in trusts or a limited liability company, preparing enhanced life estate deeds (lady bird) and other documents to carry out their estate plan.
Medicaid planning and other elder law issues have become more and more important in recent years. Where appropriate, a durable power of attorney and a healthcare power of attorney can be instrumental in providing an effective agent and advocate for a client.
The single most important document in elder law and Medicaid
planning is an up-to-date durable power of attorney for both
financial and medical matters. Every senior should consider having a current durable power of attorney which meets the requirements of Florida law. Although today much Medicaid planning often takes place at the last minute, because of the "five-year look back," clients who are concerned about asset preservation in conjunction with Medicaid qualification should review their situation sooner rather than at the last minute.
In addition to advice and counsel as to Medicaid planning, the legal documents necessary to protect assets and qualify a client for Medicaid qualification can be timely prepared, including qualified income trusts, personal service contracts, and enhanced life estate deeds (Lady Bird deeds).