St. Petersburg Estate Planning Lawyers
At HKH Elder Law, our attorneys guide clients through many complex legal topics. We aim not only to help our clients with their legal issues but also empower them to make informed decisions about the future. Here you can find some answers to frequently asked questions regarding wills and trusts, probate, estate planning, and more.
If you can’t find the answer to your question here, call us at (727) 240-2350 to schedule a consultation.
Wills & Trusts
I was told that the only way to go is to put everything into a trust, is that true?
A trust can be useful for many things, and may even be quite necessary depending on your circumstances. It is important to discuss your situation with a qualified attorney in order to determine whether a trust is appropriate for you.
If I do not make a will does my estate go to the state?
Most often, no. Usually, it will go to relatives. But the law, not you, decides which relatives your estate will go to. By preparing a will, you can make sure you are choosing where your assets go, or to whom they are given after you die.
Now that I live in Florida, is my will from another state still good?
An attorney cannot answer this question without first reviewing your will and other estate planning documents.
How can I avoid probate, and should I?
Many people want to avoid probate. Typically this is due to misconceived ideas regarding the probate process.
Probate can be avoided if ALL assets are in a trust, are titled with joint tenancy with right of survivorship, or have beneficiary designations; However, these kinds of plans can cause problems. Some problems with joint tenancy or designated beneficiaries include that people may not die in the expected order of death, there is no protection for minors of beneficiaries not capable of managing property, and for real estate stocks, bonds, and some other assets, you lose some control of the assets. If the joint tenant has creditor problems, files bankruptcy, gets a divorce, or gets sued, then the joint tenancy assets may be at risk.
An example of a problem with designating beneficiaries:
Mom puts all four of her children on her bank accounts, Certificates of Deposit, etc. One child dies before Mom. That child’s survivorship rights terminate, and when Mom dies, the surviving children get everything. The children of the deceased child (Mom’s grandchildren) have been disinherited.
Is all property subject to a will or trust?
Property held jointly is usually not subject to a will until the last surviving joint owner dies. Life insurance, IRAs, profit sharing plans, and more are frequently payable to a named beneficiary(ies) and are NOT controlled by or subject to a will or trust.
I heard that probate can take years. Is that true?
Probate can be a fairly short process most of the time. While probate in Florida requires paperwork and court involvement, it can be a relatively simple process and has many advantages. Probates that are lengthy and time consuming are so because of poor planning, beneficiary disagreements, or unusual ownership circumstances.
Will I have to pay estate taxes?
The amount that a person can distribute without paying estate tax has changed once again. Here are the amounts for the last several years. The tax is determined by the year in which an individual dies.
- 2006-2008 – $2,000,000
- 2009 – $3,500,000
- 2010 – no estate tax
- 2011-Present – $5,000,000
Estate tax issues can be quite complicated. Any person who has concerns should address them to a qualified attorney.
Medicaid Asset Protection
My children’s names are on my checking and savings accounts and my CDs. Does that make them exempt or partially exempt?
Generally, no. Those are your assets and countable even though the children have access to the money.
I put my assets in a trust a few years ago. Does that protect the assets?
Most often not. If the trust assets or income can be used for your benefit, then they are available to pay the nursing home or for your at-home costs.
Why can’t I just give it to my children and then apply?
Medicaid rules do not allow you to give away money within a certain time period called the lookback. If you give away money within that period you could make yourself ineligible for Medicaid for a long time.
Can I give away money without penalty?
Most often not. There is a type of gifting that applies to federal estate tax issues but not Medicaid issues. There are a few specific times when one can gift money without penalty.
What about just putting the money into a Medicaid Annuity?
People finding themselves in a situation where a family member is going into the nursing home are sometimes led to believe that the purchase of an annuity is the best or even the only way out. This is rarely the case. In fact, the use of annuities in Medicaid planning is useful in only a very small percentage of cases. Often, the case can be handled in other ways that are more advantageous to the Medicaid applicant and family.
An annuity, when purchased, leaves the person locked into what is usually a low-yielding investment, with the remainder possibly going to Medicaid.
Medicaid laws, rules, and interpretations are constantly changing. Before you rely upon any Medicaid information or advice, you should make sure your advisor knows all the facts of your particular situation and the most current Medicaid laws, rules and interpretations.
Can Medicaid take my assets after I die?
The assets of a deceased person who has received Medicaid benefits are at risk of being taken by the state to repay for Medicaid services provided. Thorough consideration of Medicaid estate recovery should be part of good Medicaid planning by an elder law attorney.
Life Care Plan
What does a life care plan do?
A life care plan explains how the elder law attorney will protect and maximize the elder’s physical, legal, and financial well-being from the day the plan is created until the end of his or her life.
Who is part of the life care plan Team?
The life care plan team can include the elder law attorney, the client, elder care coordinators, geriatric care managers, nursing or medical advisors, financial advisors, and others as needed.