Elder law encompasses numerous areas and answers many questions that concern senior citizens in Florida.  Elder law is essentially a legal practice which deals with issues affecting senior citizens. Elder law is a broad umbrella and may include advocating for elders in exploitation and undue influence cases, Medicaid planning, Asset Protection and Estate Planning, Advance Directives, Guardianship, Probate and Trust Administration matters, among others. Many of the most frequent questions are related to estate planning and come from seniors who are interested in Medicaid or other benefits planning regarding their estate.  Florida residents should not attempt this planning without the assistance of an experienced attorney.

To ensure that individuals do not jeopardize their own assets, these seniors are increasingly seeking Elder law attorneys for advice and assistance in planning their estates. The demand is increasing in this area of practice, and it is anticipated that a rise in the number of senior citizens within the general population who will need Elder law answers in the coming years, one is likely to see an increase in the number of estate planning and Elder law attorneys.  In fact, estate planning and Elder law could eventually become a stand-alone legal specialty in the future, as there will be so many challenges in this area.

Another set of questions that Elder law answers has to do with state benefits for seniors, particularly Medicaid.  Common questions in this area are usually about eligibility for Medicaid and the amount of benefits due. These questions can be effectively addressed by Elder law, with the aid of an Elder law attorney.

Still, another set of questions that Elder law answers has to do with nursing homes and assisted living facilities, such as questions about finding the right home for themselves or a loved one, questions about being financially exploited by a nursing home, questions about nursing home neglect, and so on. Nearly all of these are questions can be answered through Florida Elder law.

Furthermore, Elder law answers questions about employment and employment discrimination of senior citizens and questions about work-related benefits, such as pensions and other retirement benefits as well. While these are legal issues which are addressed by other branches of law such as Labor or Employment law, they can also become the subject of Elder law since they are almost exclusively affecting senior citizens.

Legal issues regarding elder care, Medicaid eligibility, and estate planning can be complex, confusing, and difficult to understand. 

Elder law in Florida is something that senior citizens and their families should learn about. While Elder law is at times nationally oriented, starting with Federal law pursuant to the Older Americans Act of 1965; many aspects that are covered under Elder law vary from state to state. Consequently, Florida Elder law may be different from that of another state.  Some of the primary issues related to Elder law include Powers of Attorney, Estate Planning, Guardianship, and matters which deal with Medicaid and other disability benefits planning or issues. Provisions for all these matters can and do vary by state.

When it comes to Elder law in Florida, one of the most important aspects one must know is how Florida Elder law approaches estate planning. For example, under Florida inheritance law, if a resident dies intestate, i.e., without a Last Will, their spouse will usually get priority in the distribution of their estate, even before their own children. This may be a problem in certain situations, such as when a couple separates but never gets a legal divorce.  The most effective way to avoid this issue is by making a Last Will & Testament.  If a person is a senior citizen, they may want to consider hiring an Elder law attorney, who will assist them in preparing a Last Will and other Estate planning documents, since estate planning for senior citizens has a number of unique aspects and can prove to be costly if mistakes are made.

In Florida, a significant issue for many seniors is that of Guardianship, particularly with so many seniors taking Guardianship over their grandchildren.  Florida’s qualifications for guardianship are not very different from those of other states, but there are some important requirements of which many people may not be aware. An Elder law attorney can help them revise their Last Will to include preferences for persons with whom the subject minor child should live with after their death.  There are also many times Guardianship of the elder needs to be pursued because of dementia, illness, or incapacity. Guardianship for an elderly person typically results from the said party not executing a Durable Power of Attorney before becoming incapacitated.

The foregoing is a brief and general overview of the Elder law in Florida. 

If you have any additional Questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI in Miami Lakes, Florida.

If a Florida resident dies without a Last Will & Testament, their assets will be transferred to their closest relatives under state “intestate succession” laws. The following is a brief summary of how intestate succession works in Florida.

Only assets that go through probate are impacted by intestate succession laws. Many valuable assets are not subject to probate, and therefore they are not affected by intestate succession laws. Here are some examples: property one has transferred to a Living Trust; life insurance proceeds with a named beneficiary; funds in an IRA, 401(k), or other retirement account with a named beneficiary; securities held in a transfer-on-death account; real estate for which one has a transfer on death deed or Lady Bird Deed; vehicles for which you have a transfer on death registration; payable-on-death bank accounts, or property a person owns with someone else in joint tenancy with right of survivorship, or tenancy by the entirety (i.e., as spouses).

These assets will be transferred to the surviving co-owner or to the beneficiary one has named, whether or not a Last Will exists. However, if a person possesses or creates a Last Will and none of the named beneficiaries are alive to take the property, then the property could end up being transferred according to Intestate succession.

Florida Statute Sections 732.101-.109 cover this process of Intestate succession. When someone passes away without a Last Will, or Trust, all assets go to the closest relatives or “next of kin.”

The heirs follow a specific order in Florida:

1. The first to inherit is the surviving spouse. There must be a valid marriage to be a surviving spouse. If there are no children, the spouse gets everything and there is no waiver of rights pursuant to a signed Prenup or Postnup or comparable document.
2. Next in line are the children. If a child dies before the parent, then a grandchild may inherit a portion of the estate. Children must be legally adopted or biological children to fit in this category. Step-children are not included.
3. If the decedent dies without a spouse or children, then, the decedent’s parents are next in line to inherit the estate.
4. If none of the above are alive, then the deceased’s siblings would divide the estate.

Certainly, family units may be difficult and complicated in today’s world. For example, usually the surviving spouse receives or inherits everything. However, if the decedent has children from a previous marriage, the surviving spouse may get half the estate and the other half goes to the child or children from the prior marriage(s). Basically, each scenario may have difficulties and complications.

Proper estate planning can prevent intestate succession. A comprehensive and even a proper basic estate plan includes a Last Will and/or Trust, as well as a Powers of Attorney for financial and healthcare needs. These essential documents protect all Florida residents and their families and tend to conserve funds and assets.

How many people want State law to determine how their hard-earned life’s assets are distributed? How many individuals want to pay the State money after their death?

Properly written and executed estate plans reduce estate taxes, eliminate lengthy probate proceedings, avoid family disputes, set up care for minor children, and fulfill the deceased party’s wishes.  No one can anticipate the future, however, thoughtfully planning ahead provides a sense of peace of mind.

It is important to note that intestacy does not mean that the State of Florida owns or will acquire the property of the deceased.  This term simply means that the Probate court is required to invoke a specific process to determine who receives the deceased individual’s assets.

This process may differ depending on the state where the deceased party resided at the time of death.  Florida has a complex and detailed process in determining who receives these assets.  Usually, the surviving spouse is the first to inherit the subject property. There must be a valid marriage to be a surviving spouse. If there are no children, the spouse receives everything.

Since the process regarding intestate succession is very involved, it is vital to work with an attorney who is experienced with probate cases. To avoid confusion and disputes among potential beneficiaries or heirs and ensure that assets are properly distributed according to state law, one should employ an experienced attorney.

The foregoing is a brief and general overview of the outcome if no estate plan is established in Florida. 

If you have any additional Questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI in Miami Lakes, Florida.

Under Florida law, an ownership interest in a business is considered personal property and can be transferred to a decedent’s heirs or beneficiaries as part of his or her estate.

If there is no Operating Agreement delineating the process by which a deceased member may be replaced, Florida law requires that the deceased member’s economic interests in the company will transfer to their estate and be inherited in accordance with the deceased member’s Last Will and Testament or by way of intestacy (i.e., no Will and governed by state law).

At a minimum, a business succession plan should address the systematic transfer of the management and ownership of a business. 

A Family Business Succession Plan needs to be designed to address three key components: ownership transfer, governance, and management succession. The majority of succession plans are designed based upon the needs of the individuals and end with ownership transfer and then asset management.

For family business owners, estate planning is crucial to the success of the business and continuation of the family’s income.  If a Florda resident has not already established an estate plan that includes the succession of their business interests, begin today.

The first step in succession planning is determining how a person wishes to leave their business.  Their options are to transfer the business to their heir or heirs, sell the business to their business partner or key employee, sell the business to an outside buyer, or to close or liquidate the company.  

If a business is a sole proprietorship, it ceases to operate upon the owner’s death. As for what happens to business debt and assets when the owner passes away: the same becomes part of the personal holdings. If a business is a corporation or an S corporation or LLC, the estate becomes the new owner of the business.

The lack of a proper succession plan results in family conflict, poor leadership decisions, and a lack of direction, which ultimately leads to the collapse of the business.  A proper succession plan encompasses naming the individual to take over once the current head steps down or passes away.

This article attempts to briefly discuss three (3) common options as follows.

First, one way to transfer a family business to one’s children is by selling them the appropriate interest in the business, outright.  This is a great option for those who require income from the business, such as retirees.  Generally, if an owner decides to sell their business, they must sell it at its fair market value.  If one does not do so, gift taxes may be incurred.

Second, Buy-sell agreements are ideal for those business owners who have chosen the person to whom they would like to transfer the business, but who are not quite ready to hand over the reins. In a buy-sell agreement, a business owner can specify that, after a triggering event, the designated successor will be required to purchase the interest in the business. Common triggering events include retirement, incapacity, and death. This appears to be the most effective manner to avoid problems by having a business partner with some equity in the business, along with a buy-sell agreement under which the deceased owner’s family can be cashed out under pre-set terms. Adding an insurance component so that cash is available to fund the buyout or purchase makes the plan even more effective.

Further, a properly arranged and funded agreement is a legally binding contract that stipulates exactly what is to happen if one of the business’s owners dies. It generally calls for the survivors to purchase the deceased owner’s share in the business from his or her heirs. Alternatively, family businesses are often passed down from generation to generation through a Last Will, a Business Succession Plan, or other estate planning strategies.

Third, the ownership of a business can also be transferred through a Living Trust. To do this, the business owner must first transfer the business to the trust, then assign the intended successor to the trust to said trust. The business owner, who is living, would serve as both a trustee and a beneficiary of the estate. This allows the owner to operate the business as usual for the duration of the owner’s choice.  It is crucial that the trust agreement contains carefully drafted provisions regarding the operations of the business and how ownership decisions are made if the owner becomes disabled or dies. Furthermore, if the business is taxed as an S corporation, more specific tax-oriented provisions are necessary.

A revocable living trust is also often advised. These types of trusts can hold ownership of assets and business interests, allowing them to skip probate and benefit from asset protection.

While the owner is alive, they will serve as their own trustee and beneficiary to maintain control of the business despite the trust holding ownership. The said owner can then name a successor trustee to take over when they die or become incapacitated.

Early planning for the transfer of a family business will allow one to gradually implement the plan, thus increasing its chances of success, and will ensure that one’s family’s primary source of income is secured.

If the deceased owner held the business in his or her own name, the Estate will likely be the new owner. In that case, the Executor or Personal Representative of the Estate would be in charge of the probate estate as well as the subject business. If Trusts are involved, then a Trustee may take the lead.

The benefits of Family Succession planning do the following:

• It assists in addressing family ownership and family business leadership issues.
• Family and Business remain integrated and synchronized.
• Family Wealth is maintained and managed effectively.
• Family and Business can create legacies.

As discussed, a small business owner in Florida can benefit from a variety of estate planning strategies, including but not limited to:

• Governing Documents- For many families, the business’s governing documents, such as a partnership agreement, operating agreement, or bylaws, may not have ever been put in writing. It is essential to create an agreement which controls what happens if one or more of the business partners retire, become incapacitated, or die. 
• Powers of Attorney- This document allows an owner to select the person who will take over and safeguard their interests in the business if they are incapacitated.
• Trusts- A well-drafted Trust will ensure that one’s business interest is transferred to their beneficiaries after death. Depending on the governing document, there may be transfer restrictions to other parties, such as a trust (be sure to review those governing documents first, if any).
• A Buy-Sell Agreement- An owner can create a buy-sell agreement, which allows their business partners to assume control of the business interest upon death, and also allows the deceased owner’s beneficiaries to retain the deceased’s share in the subject business.

However, any interest in the potential usefulness of an inheritance agreement contained in an LLC operating agreement must be tempered by the lack of Florida law precedent approving such agreements.  If other options are available to achieve the same goals, including but not limited to revocable and irrevocable trusts, it might be wise to use the other options to the extent possible.  Regardless, in certain situations, an inheritance agreement contained in an LLC operating agreement may be the most suitable option.

The foregoing is a brief and general overview of the various aspects to consider when preparing a business succession estate plan in Florida.  There may be other options or strategies not mentioned herein.

If you have any additional Questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI in Miami Lakes, Florida.

In general, inheritance rights include very close relatives such as a surviving spouse and sometimes children or grandchildren who may have the right to claim an inheritance, and in some cases this situation can override what is stated in one’s Last Will & Testament. Inheritance rights can be designated in a Last Will, Trust, or other legal documents or by state law if no such documents exist.  The strongest rights to the intestate estate (no Last Will) in Florida belong to the surviving spouse. According to Florida inheritance laws, the surviving spouse will usually receive 100% of the estate if there are no surviving children or if the only surviving children belong to the surviving spouse and the deceased.

In Florida, if a loved one dies intestate, their property would be transferred to their spouses, children, grandchildren, the deceased’s parents, and finally the decedent’s siblings. If none of the heirs-at-law remain alive, then other descendants may have a claim to the estate.

In most circumstances, a surviving spouse and a minor child cannot be completely omitted or excluded from a Last Will or the deceased party’s estate.

In the community property states (i.e., Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, Wisconsin, and Alaska), such states have their own rules about what spouses own and can claim. Basically, each spouse automatically owns half of what either one earned during the marriage, unless they have a written agreement to the contrary (Prenup, Postnup, etc.). Each spouse can do whatever he or she desires with his or her own half-share of the community property and with his or her separate property.

In many other states, there is no rule or guarantee that property acquired during marriage is owned by both spouses. Consequently, to safeguard spouses from being disinherited, most of these states give a surviving spouse the right to claim 30% to one-half of the deceased spouse’s estate, no matter what the Last Will or other documents may state. In some states, the amount the surviving spouse can claim depends on the duration of the couple’s marriage.

If the survivor goes to court and/or proactively asserts that the share allowed by law is valid, these provisions come into effect.  If a surviving spouse does not object to receiving less, the Last Will & Testament is honored as written.

In most states, obtaining a divorce automatically revokes gifts made to a former spouse in a Last Will. However, to be on the safe side, if one gets divorced, then create a new Last Will which revokes the older one. Afterward, one can simply leave their ex or former spouse out of their new estate plan.

Generally, adult children have no right to inherit anything from their parents. In certain circumstances, minor children may be entitled to claim a share of a deceased parent’s property. The Florida Constitution prohibits the head of a family from leaving his or her primary residence or homestead to anyone other than a spouse or minor child if either is alive.

A number of other states do have laws to protect against accidental disinheritance. These laws usually kick in if a child is born after their parent made a Last Will that distributes property to siblings, and the parent never revises the said Last Will to include that child. The law presumes that the parent did not intend to omit the newest child, but just did not timely or adequately review and revise their Last Will. In such a circumstance, the overlooked child may have a right to a significant portion of the parent’s assets.

In some other states, these laws apply not only to children, but also to any grandchildren of a child who has passed away.

If one decides to disinherit a child, or the child of a deceased child, one’s Last Will or other legal documents should clearly state their intention to do so. Alternatively, if one has a new child after they have prepared their Last Will, then they should promptly create a new Last Will or estate plan.

The foregoing is a brief and very general overview of what is considered estate planning and inheritance rights in Florida, as well as other states.

If you have any additional Questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI in Miami Lakes, Florida.