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frequently asked questions
Estate Planning FAQs in Florida
What is estate planning, and why is it important?
Estate planning is the process of legally protecting your assets and making sure they go to the right people after you pass away. It also ensures someone you trust can make medical and financial decisions for you if you become unable to do so. Without an estate plan, the state of Florida decides what happens to your property and finances.
What is the difference between a will and a trust?
A will outlines who gets your assets after you pass, but it must go through probate court, which can be time-consuming and expensive. A trust helps you avoid probate, meaning your loved ones receive their inheritance faster and with fewer legal hurdles.
How can I avoid probate in Florida?
To avoid probate, you can use a revocable living trust, a Lady Bird Deed, joint ownership of property, or payable-on-death (POD) accounts. These tools help transfer assets automatically without court involvement.
What happens if I die without a will in Florida?
If you die without a will, Florida’s intestate succession laws decide who inherits your property. Typically, assets go to your spouse and children, but if you have none, they pass to your closest relatives. The court controls the process, which can lead to delays and disputes.
What is a power of attorney, and do I need one?
A power of attorney (POA) allows someone you trust to handle your finances, pay bills, and make legal decisions if you become incapacitated. Without one, your family may have to go to court to gain control over your affairs.
How often should I update my estate plan?
You should review your estate plan every 3-5 years or after major life changes like marriage, divorce, having children, or moving to a new state. Laws change, and your estate plan should reflect your current wishes.
Can I write my own will, or do I need an attorney?
While Florida allows handwritten or online wills, DIY wills often contain mistakes that make them invalid. An estate planning attorney ensures your will meets all legal requirements and minimizes the chances of disputes.
How can I protect my estate from creditors?
A revocable trust does not protect assets from creditors, but an irrevocable trust can. Certain Florida laws, such as homestead exemptions, also protect your primary residence from creditors.
Do I need an estate plan if I don’t have many assets?
Yes! Estate planning is not just for the wealthy. It ensures your wishes are followed, prevents family conflicts, and protects minor children by naming guardians.
How much does estate planning cost in Florida?
Costs vary depending on the complexity of your plan. A basic will might cost a few hundred dollars, while a comprehensive estate plan with trusts could cost more. However, a well-structured estate plan can save your family thousands of dollars in probate fees and legal costs
Medicaid Planning FAQs in Florida
What is Medicaid planning, and why do I need it?
Medicaid planning helps individuals qualify for Medicaid benefits while legally protecting their assets. Nursing home care in Florida can cost over $9,500 per month, and Medicaid is one of the only programs that can cover these expenses.
Can I give away my assets to qualify for Medicaid?
No, Medicaid has a five-year look-back period, meaning any gifts or transfers made within five years of applying may result in a penalty and delay your benefits. However, there are legal ways to protect assets with proper planning.
What are the income and asset limits for Medicaid in Florida?
To avoid probate, you can use a revocable living trust, a Lady Bird Deed, joint ownership of property, or payable-on-death (POD) accounts. These tools help transfer assets automatically without court involvement.
How can I protect my home from Medicaid estate recovery?
Florida’s homestead exemption protects your primary residence while you are alive, but Medicaid can try to recover costs after your death. A Lady Bird Deed or Medicaid Asset Protection Trust can help prevent this.
Can a healthy spouse keep assets if their spouse applies for Medicaid?
Yes, Florida allows a Community Spouse Resource Allowance, which lets the healthy spouse keep a portion of assets while the other spouse receives Medicaid benefits.
What is a Qualified Income Trust (QIT), and do I need one?
A Qualified Income Trust (Miller Trust) helps applicants reduce their countable income if they exceed Medicaid’s income limits. It allows them to qualify for benefits while using their income for care costs.
Does Medicaid cover assisted living in Florida?
Yes, Medicaid’s Long-Term Care Waiver Program covers some assisted living costs, but there may be waiting lists and eligibility requirements.
How can an attorney help with Medicaid planning?
An attorney can help structure your assets legally, use tools like trusts and annuities, and ensure you qualify for Medicaid without unnecessary penalties.
When should I start Medicaid planning?
Ideally, Medicaid planning should begin at least five years before you need long-term care, but even last-minute planning can help protect assets.
What happens if I don’t plan for Medicaid and need nursing home care?
Without planning, you may have to spend down your assets before qualifying for Medicaid, leaving your spouse or heirs with little financial security. Proper Medicaid planning helps you receive care while protecting your estate.
Probate FAQs in Florida
What is probate, and why is it necessary?
Probate is the legal process of settling a deceased person’s estate by paying debts, handling assets, and distributing property to heirs. If the deceased had a will, probate ensures that their wishes are followed. If there was no will, Florida law determines how the estate is distributed.
How long does probate take in Florida?
Probate timelines vary, but in Florida, the process typically takes 6 to 12 months for simple cases. If there are disputes, missing documents, or creditor claims, it could take a year or longer.
Do all estates have to go through probate?
Not necessarily. Smaller estates (under $75,000) may qualify for Summary Administration, which is faster. If assets are in a trust, jointly owned, or have named beneficiaries, they may avoid probate altogether.
How much does probate cost in Florida?
Probate costs depend on the estate size but typically include:
- Court filing fees (around $400)
- Attorney fees (based on estate value or hourly rates)
- Personal representative fees
Larger estates can cost thousands of dollars in probate fees.
Can I avoid probate in Florida?
Yes, probate can be avoided by using living trusts, Lady Bird Deeds, joint ownership, and payable-on-death (POD) accounts. These tools ensure assets pass directly to heirs without court involvement.
Who is in charge of probate?
The personal representative (executor) is responsible for handling probate. If there’s a will, the deceased usually names this person. If there’s no will, the court appoints someone, usually a spouse or adult child.
What debts must be paid before distributing assets?
During probate, creditors must be paid first, including:
- Medical bills
- Funeral expenses
- Credit card debts
- Taxes
After debts are settled, remaining assets are distributed to heirs.
Can someone challenge a will in Florida?
Yes, but only for valid legal reasons, such as:
- Fraud or forgery
- Lack of mental capacity when signing the will
- Undue influence (someone pressured the deceased into changing the will)
Challenges must be filed within a certain time after probate begins.
What happens if someone dies without a will?
If there’s no will, Florida intestacy laws determine who inherits. Typically, assets go to spouses, children, and other close relatives. If there are no living relatives, the state may take the estate.
How can an attorney help with probate?
A probate attorney handles all legal filings, deadlines, and disputes, ensuring everything runs smoothly. Without legal guidance, probate can become complicated and take much longer.
Guardianship FAQs in Florida
What is guardianship?
Guardianship is a court-supervised process where a responsible person (the guardian) is legally appointed to make financial, medical, and personal decisions for someone who cannot care for themselves due to age, disability, or illness.
When is guardianship needed?
Guardianship is usually required when someone:
- Has dementia or Alzheimer’s and can’t make sound decisions
- Has special needs and needs help managing finances or medical care
- Is a minor child without parents to care for them
How do I establish guardianship in Florida?
A petition must be filed in court, and a judge will determine if the person is legally incapacitated. If approved, the court appoints a guardian and outlines their responsibilities.
Can I avoid guardianship with estate planning?
Yes! Having a power of attorney and advance directives can allow someone to make decisions for you without requiring court-ordered guardianship.
Who can serve as a guardian?
Guardians are usually:
- Spouses, adult children, or close relatives
- Professional guardians if no family member is available
The court requires guardians to pass background checks and training.
How long does guardianship last?
Guardianship lasts until the court determines it is no longer necessary. If the person regains capacity, guardianship can be terminated.
What are the guardian’s responsibilities?
A guardian must:
- Manage finances and property
- Make medical decisions
- File reports with the court
- Ensure the person’s well-being
Can guardianship be contested?
Yes, family members can challenge guardianship if they believe it is unnecessary or if they suspect the guardian is not acting in the best interest of the person.
Does guardianship remove all of a person’s rights?
Not always. The court decides which rights the person keeps or loses based on their ability to make decisions.
How can an attorney help with guardianship?
An attorney can help petition for guardianship, defend against unnecessary guardianship, or ensure the guardian is fulfilling their duties legally.
VA Benefits FAQs
What are VA benefits?
VA benefits provide financial assistance, healthcare, and disability compensation to veterans and their families for service-related conditions.
Who qualifies for VA disability benefits?
Veterans must have:
- Served in the military
- A service-connected disability
- Medical records proving the condition
How do I apply for VA benefits?
Veterans can apply online at VA.gov, by mail, or through a VA-accredited attorney to avoid common mistakes.
How long does it take to get VA benefits?
The process can take several months, depending on medical evidence and backlog.
What conditions qualify for VA disability?
Common conditions include:
- PTSD
- Hearing loss
- Gulf War illness
- Agent Orange-related cancers
Can I appeal a denied VA claim?
Yes! Veterans can appeal denied claims through a higher-level review, supplemental claim, or Board of Veterans’ Appeals.
How much compensation can I receive?
VA compensation depends on your disability rating (10%-100%), with higher ratings receiving larger monthly payments.
Do surviving spouses get VA benefits?
Yes, surviving spouses may qualify for Dependency and Indemnity Compensation (DIC) if the veteran’s death was service-related.
What is the PACT Act?
The PACT Act expands VA benefits for veterans exposed to burn pits, Agent Orange, and toxic substances.
How can an attorney help with VA benefits?
An attorney ensures your VA claim is filed correctly, appeals denied claims, and helps secure the highest disability rating possible.
Special Needs Planning FAQs in Florida
What is special needs planning?
It helps parents and guardians plan financially and legally for a child or adult with disabilities.
What is a special needs trust?
A trust that protects assets for a person with disabilities without affecting their government benefits like Medicaid or SSI.
Why is a special needs trust important?
It allows disabled individuals to receive financial support without losing benefits.
Can a family member be the trustee?
Yes, but choosing a professional trustee ensures proper fund management.
What happens if there is no special needs plan?
The disabled person may lose Medicaid or SSI eligibility, causing financial hardship.
Can life insurance be put into a special needs trust?
Yes, life insurance proceeds can fund a trust without affecting benefits.
What government benefits are affected by receiving an inheritance?
SSI and Medicaid have strict asset limits, which a special needs trust can help avoid.
How does ABLE differ from a special needs trust?
An ABLE account allows limited savings for daily expenses, while a trust holds larger amounts for long-term needs.
Can I set up a special needs trust now for future use?
Yes! Planning early ensures protection for life.
How can an attorney help?
An attorney helps set up trusts, protect benefits, and create financial security for a loved one’s future.
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