Question 1

What protection is available by a revocable living trust?

Accepted Answer

Incorporating irrevocable living trust into your estate plan come to the number of benefits but chief among them are that it helps to avoid the probate process which can be lengthy and costly to an estate. The second is that it helps you in the event of an incapacity so if you find yourself incapacitated after an accident or perhaps after developing dementia, the document would dictate who’s to take over your trust and will give them access to your money in order to pay for your care.

We, at Walser Law Firm, provide a revocable living trust for our clients. A revocable living trust is one that is very helpful in avoiding probate. Let’s start by defining what probate means. Probate is the process by which the law court sees to the distribution of property that belongs to a deceased person at the time of death after all the debts and taxes of the deceased have been paid in full.

During your lifetime, you are allowed to transfer ownership of your assets to a revocable trust. This is done so that these assets are owned by the revocable trust after your death and is, therefore, subject to probate.

The properties in a revocable trust can be revoked, meaning it can be taken back or the terms of the trust can be changed, as long as you are alive and deemed competent to make such decisions. Your creditors can take those assets during your lifetime if you owe them money because you retain control of the trust. However, the trust makes it more difficult for creditors to access these assets.

A revocable trust can become irrevocable after the death of the grantor. This implies that the assets that have been entrusted into the trust cannot be taken back, and they must be given out to the beneficiaries of the trust as directed by the trust document.

Question 2

What do I need for asset protection and Medicaid planning?

Accepted Answer

You need to meet and speak with a competent attorney to come up with a well thought out plan for preserving your assets for long-term care planning.

To protect your assets, you need to meet and speak with a competent attorney to come up with a well-thought-out plan for preserving your assets for long-term planning.

With the Deficit Reduction Act of 2005, it is much more difficult to meet the requirements for Medicaid as a citizen age 65 and older in need of long-term health care. The most severe consequence of this act is the directive that transfers made within a “Medicaid look-back period” would render a person ineligible for Medicaid services.

With this five-year look-back period taken into consideration, and given the complexity of the application process, many people have been reluctant to engage in Medicaid planning.

However, Medicaid planning should be employed to counter these adverse requirements and protect one’s assets.

For those who may be wary of expending their savings due to the high cost of long-term care, a transfer of assets, following a well thought out plan is highly recommended. Transfer of assets, if done correctly, can be beneficial.

There are some asset protection strategies that could prove very useful, such as Federally exempted funds, Caregiver agreements, and Pooled income trust.

Question 3

What are common mistakes in Medicaid asset protection planning?

Accepted Answer

Improperly moving your assets. If you improperly move your assets it may qualify as a gift or uncompensated transfer, which if done within the last five years prior to application, you could be penalized for.

There are many ways one can make a mistake when dealing with Medicaid asset protection planning. There is a very complex system with some rules that must be followed, and failure to follow them could lead to the offender being penalized.

One of the mistakes that many people tend to make is the $15,000 per year gifting allowance. It is important to note that this is not a Medicaid rule but an IRS rule. In the Medicaid world, failure to comply with this rule will result in penalization for a full five years from obtaining any Medicaid coverage.

Another mistake many people make is their failure to pre-plan. Most people do not consider the possible need for long-term care at a time when they are still young and healthy.

However, pre-planning is the surest way to avoid the possibility of losing a lifetime of savings to the costs of long-term care. This is how it works; If you are young enough and can qualify, a long-term insurance plan should be considered and purchased.

Talking about common mistakes, people make in their dealings with us; the late application is a prevalent one. The timing of a Medicaid application is very crucial. If you intend your savings to be used for your long-term care needs, make a claim right away.

Question 4

Why should I apply for Medicaid coverage?

Accepted Answer

To help give you and your family financial assistance for long-term planning and potentially preserve some of your hard-earned assets.

Walser Law Firm is founded with the intention of assisting those with various challenges, low-income earners especially.

We help give individuals and their families financial assistance for long-term care planning to potentially preserve some of their hard-earned assets.

There are specific categories of people who are eligible to apply with us for Medicaid, and they include, low-income earners below a certain age, pregnant women, parents of Medicaid-eligible children who meet specific income requirements, low-income disabled individuals who receive Supplemental Security Income (SSI), and the low-income earners of ages 65 and older.

Registering with us will help provide you and your family with mandatory medical and health care services such as nursing facility services, home health services, physician services, family planning services, nurse midwife services, x-ray and laboratory services, rural health clinic services, and inpatient – outpatient hospital services.

Medicaid can also provide a couple of optional benefits such as prescribing drugs, clinic services, physical therapy, occupational therapy, respiratory services, personal care, prosthetics, dentures, dental services, podiatry services, hospice, services in an intermediate care facility for people with intellectual disability, services for individuals aged 65 or older in an Institution for Mental Disease (IMD), psychiatric services for individuals under age 21, etc.

Question 5

Why is it important  to have a supplemental need trust in place for a disabled person?

Accepted Answer

It helps protect any inheritance or gifts you would like to leave that disabled person while still allowing them to remain eligible for their government benefits.

It is essential to have a Supplemental Needs Trust (SNT) in place for a disabled person -blind, deaf, dumb, etc. – with the purpose of making life better for them.

It helps protect any inheritance or gifts that you may like to leave to that disabled person while still allowing them to remain eligible for their government benefits.

Not just anybody with a disability needs an SNT, however. Generally, an SNT is done for a person receiving, or likely to receive means-tested public benefits. Medicaid and Supplementary Needs Trust are examples of means-tested federal benefits.

An SNT can help a person with a disability by allowing such a person to receive distributions from the trust without the trust being counted as a resource. The person maintains his eligibility for public benefits while also getting his quality of life enhanced.

However, there are certain limitations. The trustee can spend on “Special Needs” but not “Support.”  There are certain things Trust money cannot pay for, such as mortgages, electricity bills, or property taxes.

Question 6

What is Medicaid?

Accepted Answer

It is a jointly funded federal and state program to help cover the medical needs for low income individuals.

Most people use the term “Medicaid” and “Medicare” interchangeably, but there is a huge difference between these two seemingly close terms. While Medicare is a Federal program that provides insurance if you are aged 65 or older; Medicaid on the other hand, is a Federal program providing insurance for people with a meager income.

It simply means that no matter how old you are, as long as you earn very little, you are eligible for Medicaid. The State and Federal government jointly fund this program. Although the Federal government creates it, is administered by the state.

Currently, the Medicaid program covers 55 million low-income Americans, and it is rapidly becoming a powerhouse player in healthcare.

Question 7

What is a special needs trust?

Accepted Answer

It’s a vehicle that can provide life-enhancing services for an individual that has special needs while still allowing them to remain eligible for government benefits.

A special needs trust, also known as a supplemental needs trust, is a specialized trust that provides disabled beneficiaries with the opportunity to enjoy the use of property that is held in the trust for his or her benefit, while also allowing the beneficiary to receive essential needs-based government benefits at the same time.

A Special Needs Trust (SNT) is a special type of irrevocable trust that can be used for minors, and beneficiaries with disabilities (either mentally or physically challenged), and as a method of asset protection.

They are usually used to receive an inheritance or personal injury settlement on behalf of a disabled person, or a minor and are found from the proceeds of compensation for litigation, criminal injuries, or insurance settlements.

Special needs trusts are usually set up under the watch of a “structured settlement planner” in line with a qualified legal and financial team to ensure the trust is appropriately set up.

At Walser Law Firm, we help to protect any inheritance or gift you would like to leave that disabled person, while still allowing them to remain eligible for their government benefits.

Question 8

What income is available to a spouse that is not in need of Medicaid for long term care benefits?

Accepted Answer

There is no level to the income a well spouse can have. Speak to a competent attorney about other options when it comes to an applicant’s income being diverted to the well spouse.

You don’t have to worry when your spouse goes to a nursing home, there is something called “spousal protections” that allows you to keep some assets and income and still qualify for Medicaid with us.

Walser Law Firm does not require a healthy spouse to give out all of her income and property, just for the needy spouse to qualify for long-term care through Medicaid.  We implore “spousal protection” rules to provide the spouse of a nursing home resident the opportunity to keep enough income and assets to live on.

We also allow these spouses to keep some of their spouse’s income if they are in need of serious financial support. “Minimum Monthly Maintenance Needs Allowance” (MMMNA) is the amount of money a spouse can keep, and the good news is; it is not added to the Medicaid eligibility calculation. The MMMNA varies from state to state, but the government tries to regulate it according to some poverty guidelines.

Question 9

What are the Medicaid application and eligibility requirements?

Accepted Answer

You must be a US citizen or be a resident alien, and must have medical needs requiring a nursing home, car, and meet income and asset eligibility requirements.

To participate in Medicaid, Federal Law requires us to cover certain groups of people, including low-income families, qualified pregnant women and children, and individuals receiving Supplemental Security Income (SSI).

We also have additional options to cover other groups including individuals receiving home and community-based services and children in foster care who are generally not eligible.

The Affordable Care Act of 2010 opened up an opportunity for us to expand Medicaid to cover almost all low-income Americans under the age of 65.

If eligible, you should try to apply for Medicaid to help give you and your family financial assistance for long-term care planning and potentially preserve some of your hard-earned assets.

Question 10

Is there a citizenship requirement for Medicaid?

Accepted Answer

Yes, you must be a US citizen or a resident alien in order to receive Medicaid.

Under a federal requirement that took effect from July 1, 2006, most United States citizens applying for Medicaid or renewing their coverage will be required to prove their citizenship by submitting a passport or a combination of their ID and a birth certificate.

This requirement was put in place to prevent illegal immigrants from fraudulently enrolling in Medicaid.

Question 11

If my spouse is going into a nursing home, can he transfer all of his assets to me and qualify for Medicaid?

Accepted Answer

Your spouse cannot transfer all of his assets to you in order to qualify for Medicaid. There is a level, around 119,000, that the community spouse is allowed to keep. Please speak to a competent attorney for more information.

We allow a spouse to keep one-half of the couple’s marital assets, subject to a minimum and maximum, according to federal guidelines. We will measure the assets of the spouse applying for Medicaid on the date that he/she began a hospital or nursing home stay that lasted at least 30 days.

The amount of assets the healthy spouse is allowed to keep is called the “Community Spouse Resource Allowance” (CSRA).

If a spouse living in a community needs more assets than the CSRA, he/she can seek a court order allowing a variation from the state agency’s standard.

Question 12

If I enter a nursing home as a private pay resident, do I have to use my assets before I can get Medicaid?

Accepted Answer

No, you do not have to use your assets before you can get Medicaid. Speak to a competent attorney about ways that you can preserve your assets while still being eligible to qualify for Medicaid.

Private pay residents in a nursing home are those who can pay their monthly nursing home costs from their income, savings, or money that they received from selling their assets. We have a set daily fee for “private pay” residents which is stated in the nursing home contract.

Make sure you read the nursing home contract carefully before signing so that you won’t give consent to a wrong agreement.

Question 13

If I am in the nursing home, is it too late to give away my assets and qualify for Medicaid?

Accepted Answer

It is never too late to give away your assets to qualify for Medicaid.

In most scenarios, the person’s current situation determines whether it is legally possible to give away all assets and immediately qualify for Medicaid. Most people think once they are in the nursing home, they have to spend all their assets on nursing home care until they meet the Medicaid criteria but it doesn’t work that way.

Even in the nursing home, an individual can carefully plan for Medicaid to help him/her meet up the criteria and qualify

Our attorney here at Walser Law Firm can help you journey on ways to move your assets properly to preserve them to qualify.

Question 14

I heard Medicaid can take our house for reimbursement. Is that true?

Accepted Answer

Yes, and the level of its veracity has been conditioned. Medicaid is an entirely unique program that considers paying for its participants’ long-term care, for this reason, Medicaid has the right to be reimbursed for the entire amount it exhausted to care for its participants.

Every state has its guidelines and legal procedures for the Medicaid reimbursement process. One of the things that qualify a participant for Medicaid is that the participant must be a low-income earner and possess few assets apart from their home. However, this depends on the participant’s state of residence. For anyone who qualifies, Medicaid foots the entire bill of a long-term stay in a Medicaid participating nursing home.

If Medicaid shoulders the bill of its participants, then it has the right to seek reimbursement for all the calculated expenses it has covered to care for participants by merely making a claim. The reimbursement comes from the value of a participant’s house.

This case is more prevalent when Medicaid discovers that a participant is dead, this process is always referred to as “Estate Recovery.”

Question 15

How much income can I make and qualify for Medicaid?

Accepted Answer

To be honest, there is no specific amount you need to make as an income before you qualify for Medicaid; therefore, the income level is set depending on the state you live in, just as required by federal law.

Strictly considering two factors, which include the state you live in, and the size of your family or household determine the income level. The latter states that income can be higher; when there are more people in the family, which includes any dependents irrespective of the age, while the former poised that after the federal might have set the required minimum standard for the Medicaid program, each state has the legitimate right to increase the income level to ensure it covers more people.

The federal Medicaid set its income level or eligibility based on the Federal Poverty Level (FPL). On the average, you are to make $2,199/month as income; if you make over that amount, then you are considered qualified. (Kindly note, the dollar rate used may change anytime, therefore don’t rely on this figure until you verify the current rate.)

Question 16

Do I have to wait 5 years after giving anything away to get Medicaid?

Accepted Answer

Medicaid has a five-year look-back period from the date of application where they look back five years to see if you’ve given away any gifts or uncompensated transfers. If you have, they have a penalty for that.

During your Medicaid application process, one of the questions you are expected to answer is “Have you made any transfers or gifts in the last five years?” now, if your reply is yes! This might lead to disqualification or penalization and also required to mention any of the gifts or transfers you have made.

The Medicaid state officials will look only at giveaways within five years i.e., 60 months before Medicaid application. To ensure accurate calculation by Medicaid, the total number of what you gave away will be divided by the penalty divisor (which equals the cost of nursing home care in the state).

However, during the Medicaid look-back period, sometimes the penalty for transfers is not applicable to all transfers depending on what asset was transferred and the person such asset was transferred to, and the time of the transfer. In all, the look-back period determines what kind of transfer will be penalized.
If this is somewhat confusing, you can always consult Walser Law Firm for more clarification.

Question 17

Can I transfer my assets to my children just before I go into a nursing home and still quality for Medicaid?

Accepted Answer

No, you can not transfer your assets to your children just before you go into a nursing home and still qualify for Medicaid. This would be considered an uncompensated transfer. When applying for Medicaid, they look back five years for any uncompensated transfer and you would be penalized for this.

Question 18

Can I be barred from Medicaid if I just moved into Florida?

Accepted Answer

No, you can’t be barred. Medicaid is a federal program although the requirement and eligibility vary from state to state.

As long as you are a US citizen, a Florida resident, or a resident alien and you meet the requirement of Florida, then you are eligible for Medicaid.

Also, the federal government regulations apply to all states, and it’s an infringement of the US constitution to enforce a residency requirement on an individual who moves to a state.

Question 19

Are the rules for Medicaid different in each state?

Accepted Answer

Yes, the Medicaid rules vary from state to state. Designed to provide coverage for economically disadvantaged populations across America, Medicaid rules vary based on the population of each state. Federal law sets broad requirements for Medicaid and mandates coverage of some populations and benefits, while leaving others optional. Each state has the flexibility to improve, modernize and update its Medicaid program by choosing:

Who is eligible for enrollment
Which services are covered
How payments to providers are established
It is often said that variability in Medicaid is the rule rather than the exception. States establish their own eligibility standards, benefit packages, provider payment policies, and administrative structures under broad federal guidelines, effectively creating 56 different Medicaid programs—one for each state, territory, and the District of Columbia.

These are established through each state plan, a comprehensive document that must be approved by the Centers for Medicare & Medicaid Services. The document can be amended as needed to reflect changes in state policy, federal law, and regulation.

Question 20

What effect does a subsequent marriage, divorce, or child have on a will?

Accepted Answer

If you make a will and subsequently get married and do not change your will, then the spouse has statutory provisions that automatically apply to her. She gets a homestead, she gets elective share, she may get a family allowance, she may get exempt property, and there may be other benefits. If you have a subsequent divorce and you have not changed your will, then Florida statute provides that the court strikes out all provisions related to the ex-wife or ex-spouse, and that he or she is treated as pre-deceasing the decedent.

Question 21

What can I do if I have a copy of the will or trust that predates or postdates the version with the court?

Accepted Answer

You only need to file the most recent version of a will or a trust with the court, so if you have a copy of a document which predates the one that’s filed with the court, you can simply hold onto that. You don’t have to throw it away, but it’s not necessary to file it. If you have a document that postdates the one with the court, you need to figure out how you’re going to file that with the court.

Question 22

What can be done if there are not enough assets to cover the deceased's debts?

Accepted Answer

Creditors of a decedent are paid in order according to Florida statute. If there are not enough state assets to fulfill the last class of creditors, they are paid proportionally according to their claims.

Question 23

What authority do I have as administrator to manage the estate assets?

Accepted Answer

An administrator of an estate, which another term for a personal representative, has great flexibility to manage the assets of an estate. They’re allowed to sell real estate. They’re allowed to move brokerage accounts. They just have to understand that they’re going to be held responsible to making payments to the beneficiaries at the end of the day.

Question 24

What are probate assets?

Accepted Answer

Probate assets are assets that were titled in the decedent’s name solely with no designated pay on death beneficiary.

Question 25

What are letters of administration?

Accepted Answer

Letters of administration is the key document that you’ll receive from the probate court once an estate is successfully opened. It will appoint the personal representative and it will empower that person to handle the assets of the estate.

Question 26

What are estate taxes?

Accepted Answer

There are 2 types of estate taxes. There’s federal estate tax and state-level estate tax. In Florida, we have no state-level death tax or estate tax, as it’s also known, so you only have to worry about federal tax liability. This applies to estates that are worth more than 5.4 million dollars. If it’s a couple, you can combine their exemption for an estate worth more than 10 million dollars. Federal estate tax tax bracket is around 40% so it’s very important that you plan with an estate planning attorney to make sure that your estate will avoid any potential federal estate tax liability.

Question 27

How should I deal with the time and costs of probate?

Accepted Answer

Plan in advance and speak to a competent probate attorney, knowing that the probate process can be timely and costly.

Question 28

How long will probate take?

Accepted Answer

The probate process can be quite lengthy. There are two basic forms of probate for most estates. There’s formal probate which is the full administration for estates that are of a larger size. That can take anywhere from six months to a year. We also have the summery administration which is only available for slightly smaller estates. That can last from three to six months.

Question 29

How can someone see the will of a person who has died?

Accepted Answer

Anybody can see a copy of a will that’s been filed with the court. It’s an open document. Therefore you can contact the clerk of court online, determine the case number, and follow the instructions on how to get copies of any documents filed with the court.

Question 30

How can I plan to avoid or minimize probate?

Accepted Answer

Meet with a competent attorney to come up with an estate plan where you can properly title your assets or draft a revocable trust in order to avoid or minimize the probate process.

Question 31

How can an estate plan prevent probate of my estate?

Accepted Answer

With properly titled assets and potentially the drafting and funding of a revocable trust, you can avoid the probate process.

Question 32

How can an attorney assist me in the probate process?

Accepted Answer

An attorney is going to assist you in the probate process by initially filing the will and getting a person appointed as personal representative. Then the attorney will be responsible for filing any future pleadings during the probate process until the estate is finally closed.

Question 33

How are taxes handled in probate?

Accepted Answer

Florida has no estate tax on the estate level and no inheritance tax for beneficiaries of an estate. You only have to worry about potential federal estate tax liability. An estate worth more than $5.4 million has a potential estate tax liability and will be required to file a 706 estate tax return. If the couple is married, they have a combined exemption of around 10 million, if not closer to $11 million.

Question 34

How are fees determined for the personal representative and attorney?

Accepted Answer

The personal representative and the attorney for the personal representative are entitled to reasonable fees for the services they offer to the estate. Both of those parties can contract for their fees before offering services, but generally the State of Florida does have recommendations on what is considered are reasonable fee. For both the personal representative and the attorney for the personal representative, it’s generally around 3% of the estate assets.

Question 35

Does the property automatically transfer to my name or do I have to register the property with the state?

Accepted Answer

Any assets that were held by the decedent jointly with someone else, or that had a pay-on-death beneficiary, can automatically transfer after death. Any assets held in the decedent’s sole name with no designated pay-on-death beneficiary will be required to go through the probate process.

Question 36

Does the probate judge have to approve creditors claims?

Accepted Answer

No, the probate judge does not have to approve creditor claims unless the personal representative objects to one of the creditor claims and a separate suit is started by the creditor in order to collect their debt.

Question 37

Does all property have to go through probate when a person dies?

Accepted Answer

It depends on how the assets are titled. If the assets are titled jointly or have a Pay-on-Death beneficiary, then they do not have to go through the probate process.

Question 38

Does a spouse share the inheritance given to his husband or wife?

Accepted Answer

An inheritance by an individual is not normally shared with a husband or wife automatically. Normally, an inheritance received by a son or daughter or by a beneficiary is a separate asset and is treated as such until he or she makes the decision to put it into a joint bank account with his spouse, to put it into a joint brokerage account to buy a new home and put it in joint name, to buy a new, better home and put it in joint name. Until the beneficiary makes the decision to co-mingle or to share the asset, it remains their separate asset. Once you co-mingle or share it, it has major impacts on marital rights and inheritance rules for that beneficiary.

Question 39

Do life insurance or retirement benefits need to go though probate?

Accepted Answer

It depends on how the assets are titled. If they’re titled in the decedents sole name with no designated pay on debt beneficiary, then yes, they would need to go through probate.

Question 40

Can you avoid probate by leaving a deed filled out and notarized but not filed until death?

Accepted Answer

Leaving an unfiled deed is never a good strategy for avoiding probate. It is highly recommended that you file the deed prior to death in order to make the proper transfer.

Question 41

Can an executor or trustee be removed?

Accepted Answer

Yes, an executor or personal representative and a trustee can be removed by petitioning the probate court to remove them from serving.

Question 42

Are probate records available on the internet?

Accepted Answer

Some probate records are available online depending on the state. Florida makes certain information available, so you can go to the County Clerk’s website for the county in which the person passed away, and look up their name to see if an estate has been opened. You can only access limited information online. It will show you the name of the person who passed away, any attorney that’s involved, and the person who did the initial filing. If you want to see the actual documents, you have to visit the county courthouse.

Question 43

Am I responsible for my deceased parent or spouse's bills?

Accepted Answer

It depends on whether the debt is secured or unsecured and may potentially follow real property, or how the debt was acquired; if it was in the decedent’s name solely or potentially in joint names with another beneficiary.

Question 44

A creditor has filed a creditors claim. What do I do now?

Accepted Answer

The attorney representing the personal representative of the estate is reasonable for handling creditor claims. I highly recommend you consult with an experienced probate attorney in order to address the claims of any creditor.

Question 45

What types of property need to go through probate?

Accepted Answer

Any property owned by a decedent jointly, or they had a designated pay on death beneficiary, or any property that was owned by irrevocable trust during the decedent and during his life, do not have to go to the probate process.

Question 46

Why is it important to know the names and addresses of the family members and relatives of the deceased?

Accepted Answer

It’s important to know the names and addresses, and other contact information, of the family members of the person who just died. Often times, they’re going to have to be contacted during the probate process in order to finalize things.

Question 47

Why, if at all, must an estate or assets be protected?

Accepted Answer

Assets may need to be probated depending on how they are titled. If they were titled in the decedent’s name solely, with no pay on death beneficiary, they will be required to go through the probate process.

Question 48

Who should I name as executor (personal representative) of my will?

Accepted Answer

A person should name a personal representative who number one they trust with their last penny and number two who will be able to deal with the duties of a personal representative. The duties are to one is to secure or protect and accumulate all of the assets. Duty number two is to pay all the debts and expenses of the estate. Duty three is to distribute the assets in accordance with the decedent’s instructions. So you need a trustworthy person who can fulfill all these duties.

Question 49

Who can be appointed executor (personal representative)?

Accepted Answer

A person is free to name a family member, a non-family member, or a corporate entity in their last will to serve as their personal representative. If the person is a family member of the person who died, then they can be a resident of any state. If the person nominated is not a family member of the person who died, they must be a resident of Florida in order to serve. No personal representative can serve if they’ve ever been convicted of a felony.

Question 50

Who can and who can not be appointed personal representative?

Accepted Answer

You’re free to nominate family members, non-family members, or corporate entities as your personal representative in your last will. If the person you’ve selected is a family member, they can be a non-Florida resident. If they are a non-family member, they have to be a Florida resident in order to serve.

Question 51

Which law applies if the decedent owned law in more than one state?

Accepted Answer

The probate process is initiated in the state where the decedent was the last resident of at the time of death. The laws of that particular state will govern for most assets within the estate. If there is real estate located in different states, then the laws of that particular estate will apply to that piece of real estate.

Question 52

When can I close the estate and distribute the assets?

Accepted Answer

An estate may be closed after all creditors have been paid, after all taxes have been paid, and there’s no remaining outstanding matters.

Question 53

Where is probate handled?

Accepted Answer

Probate is handled in the county of where the decedent last resided.

Question 54

When is probate required to transfer title to real estate?

Accepted Answer

Any property that was owned by the decedent in their sole name with no designated pay on debt beneficiary will be required to go through the probate process in order to clear title.

Question 55

What types of property do not need to go through probate?

Accepted Answer

Any property that was owned by the decedent jointly with another individual or any property owned by the decedent that had a pay-on-death beneficiary are not required to go through the probate process.

Question 56

What should I do to prepare for seeing a  probate attorney?

Accepted Answer

Collect to bring in all of the decedent’s estate planning documents if she had any, and collect any financial or asset statements and information for the decedent that you may have.

Question 57

What rights do surviving family members have in probate?

Accepted Answer

That depends on if they are beneficiaries under a decedent’s last will and testament, or maybe beneficiaries under Florida rules of intestacy, if the decedent had no last will and testament, or if they are potential creditors of the estate.

Question 58

What other probate techniques are there in addition to living trusts?

Accepted Answer

Techniques to avoid probate other than establishing and funding a living a trust are to own assets jointly with right of survivorship, typically between husband and wife or surviving spouse and children; to name beneficiaries on the designation of beneficiaries for pensions, insurance, contracts, annuity contracts; and you can also put payable on death, due on death, held in trust for, and name one or more beneficiaries on accounts, bank accounts, brokerage accounts, stock certificates, eBonds.

Question 59

What must I do to close the estate?

Accepted Answer

In order to close an estate, you have to make sure any creditors of the decedent have been properly paid and then distribute any remaining estate assets to the designated estate beneficiaries.

Question 60

What is probate?

Accepted Answer

Probate is the process by which you transfer a decedent’s assets to the designated beneficiaries and pay any creditors of the decedent.

Question 61

What is ancillary probate?

Accepted Answer

Ancillary probate is the probate process of a nonresident decedent who passed away owning real property or other assets in the state of Florida.

Question 62

What is an executor (personal representative) or executrix?

Accepted Answer

An executor or a personal representative, as we call them in Florida, is a person nominated to handle the probate process and to administer whatever assets are in the estate, so they’ll be responsible for hiring an attorney, getting the appropriate process started, and then eventually making final distributions to the beneficiaries.

Question 63

What is a formal probate?

Accepted Answer

Formal probate is the process by which you transfer a decedents assets that are valued more than $75,000.

Question 64

What if I no longer own the assets that I have willed?

Accepted Answer

If your will provides for gifts of assets that you no longer have, the best thing is to change your will, with a codicil, in order to delete those assets. If you don’t delete the asset upon your death, it’s normally, the gift has failed, because the asset is not present. It can present a problem, because if the asset was disposed of in your normal course of living, and you used the proceeds to pay your living expenses, then that will prevent a contest. If the asset was gifted away to another family member, another beneficiary, or to a nursing aide, then there’s a potential of a contest, not of the will, but of the gift before the date of death.

Walser Law Firm

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