Florida Medicaid Pay-Back

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Most Florida residents do not know that Medicaid for the elderly is merely a type of loan to pay for their long-term care needs and is not a gift or grant. The basic point is that if a Florida resident is on Medicaid, any remaining assets the decedent owned upon their death is subject to a lien by the state of Florida. This is commonly known as the Medicaid pay-back or reimbursement provisions, and many residents are unaware of this provision in the law.

Florida Medicaid does have a pay-back provision, similar to other states. During one’s lifetime, if they receive Medicaid benefits, and pass away after the age of 55, the State of Florida is a creditor in their estate. The state has a claim in the amount of funds expended to the deceased party’s benefit during their lifetime, which can definitely be a great deal of money if the subject individual spends time in long-term care. HOWEVER, this situation may not generally be much of an issue in most situations.

First, if the Medicaid applicant was single, he or she was only allowed to have less than $2,000 in countable assets in order to be on Medicaid. This scenario means that the applicant likely has nothing for Medicaid to make a claim against upon the applicant’s death. A single applicant, who is already impoverished, generally has nothing for the state of Florida to take.

Further, even if the decedent owned a homestead real property or primary residence, this property is not subject to creditor’s claims (including the state of Florida) in most circumstances.    There are exceptions to this rule though, such as:

  • The decedent’s property lost its homestead status before death (possibly by renting the home, as an example);
  • Not all homestead properties are equal. If the property is a co-operative share, such as in a mobile home park, this does not get statutory protection for Florida homestead purposes; and/or
  • The decedent’s Last Will & Testament called for the sale of the decedent’s home.

Consequently, the Medicaid lien is not an issue in most circumstances. Therefore, where would a Medicaid lien take place?  There are a few circumstances where the lien could/would be applicable:

  • The decedent sold their home and went off of Medicaid before death (i.e., the applicant went on private pay);
  • The decedent received an inheritance, either before they died or after, which could then be subject to the lien;
  • The decedent did not disclose or discover all known assets as part of the application process and the assets had to be probated upon death; and/or
  • The decedent’s spouse died first and left money to the Medicaid applicant, who then passes away.

One major point to be made is that proper estate planning can avoid any potential Medicaid lien. That result is one reason to see an experienced estate planning attorney in order to ensure the family creates a good estate plan with the necessary documents to help avoid probate as well as creditor problems upon the family member’s death.

Accordingly, the Medicaid lien is not a worry for most Medicaid applicants if they either have nothing or very little at death or have created a good estate plan. This situation also merits good asset protection planning which can protect assets during one’s lifetime and at their death.

The foregoing is just a general and brief overview of the subject of Florida Medicaid’s lien & its pay-back or reimbursement in the state of 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.

Advance Directives or Living Wills & Related Documents in Florida

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An Advance Directive, also sometimes known as a Living Will, is a legal document which details a person’s predetermined wishes about end-of-life care. Advance Directives are highly encouraged to everyone as a means to make difficult decisions regarding one’s care in the event of a catastrophic injury such as severe brain trauma resulting in coma or vegetative state. These decisions should not be left up to family members who are already suffering and might be unsure of that individual’s wishes. Such directives help to avoid disputes as to how to proceed regarding one’s end-of-life medical treatment.

Advance Directives allow these critical decisions to be made in advance by the individual. Under Florida law, a Living Will must be signed by its maker in the presence of two (2) witnesses, at least one of whom is neither the spouse nor a blood relative of the maker. If the maker is physically unable to sign the Living Will, one of the witnesses can sign in the presence and at the direction of the maker.

Unlike the Living Will, however, an Advance Directive is not limited to terminal illness. It may also include medical events such as dementia, stroke, or coma. There are many different types of Advance Directives, including, but not limited to, a Living Will, Health Care Surrogate or medical power of attorney and Do Not Resuscitate (DNR) Order.

Technically, through Advance Directives, one can make legally valid decisions about their future medical care. Florida law recognizes two (2) types of Advance Directives: 1) A Living Will Declaration. 2) A Designation of Health Care Surrogate.

A Living Will is a legally binding document which expresses an individual’s end-of-life preferences, such as whether that person wants to be kept alive through artificial life-support means or equipment.

A Living Will is the written statement that would say that a person may want a Do Not Resuscitate Order. The Do Not Resuscitate Order, on the other hand, is a physician’s order for medical professionals to not provide CPR to the subject person, usually done on a yellow form. A Florida Do Not Resuscitate Order form (DNR or DNRO) is a document or instrument which is used by residents of Florida who suffer from incurable or irreversible medical conditions. This form states that the requester does not wish to be resuscitated in case of respiratory or cardiac arrest. A physician must sign off on a DNR order. A DNR must be honored in any healthcare setting by all medical personnel, including EMTs and paramedics outside of a medical facility. For a Florida DNR to be legally valid or effective, the form must be printed on yellow paper before it is completed by the patient/authorized representative and physician. A blank yellow form can be obtained  for free by writing to the Florida Department of Health.  Once a doctor writes a DNR order at the patient’s request, no one can override it, including family members. If the said patient changes their mind about the DNR, however, they can always speak to their doctor and have it revoked.

Anatomical donation is a document that indicates an individual’s wish to donate, at death, all or part of their body. This can be an organ and tissue donation to persons in need, or donation of their body for training of healthcare workers. One can write down their choice to be an organ donor by designating it on their driver’s license or state identification card, signing a uniform donor form, or expressing one’s wish in a Living Will.

Although some Living Wills may contain directives regarding organ donations or autopsies which remain in effect briefly after one’s death, any authority granted by a Living Will terminates or ends when the person passes away.

Although an Advance Directive may ultimately decide whether an individual continues to live with artificial life support or passes away, there are many other details that make up a Living Will. An Advance Directive should provide instruction for specific scenarios such as the use of specialized equipment including breathing machines, feeding via tube, what to do in the event of ceased breathing or heartbeat, and others. Advance Directives may also serve to name an individual to hold durable power over attorney to make these important decisions. A skilled and knowledgeable attorney can provide guidance about creating Living Wills and Advance Directives.

Proper planning for the future is one of the most responsible things a Florida resident can do. It will lessen the burden on family members and loved ones in the event of a catastrophic injury that leaves the victim unable to make decisions regarding their own health, treatment, and maintenance.

The foregoing is just a general and brief overview of the subject of Advance Directives and/or Living Wills, among others, in the state of 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.

Beneficiary Designations & the Like Take Priority over Last Wills & Trusts

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Beneficiary Designations as well as a Lady Brid Deed takes precedence or priority over a Last Will & Testament as well as a Trust, which means that if one gets divorced and remarries, but does not update their beneficiaries on accounts, a former spouse may be the legal heir to those accounts if you named them the beneficiary while married. Trusts control the trust estate, the assets that are placed within their ownership and titled in the trust name. They do not overlap and therefore cannot supersedeother designations.

A Last Will or living trust do NOT override the beneficiary designations for life insurance policies, retirement accounts and other types of investment or bank accounts. This includes accounts, such as life insurance policies, annuities, IRAs, other tax-favored retirement accounts and employer-sponsored benefit plans. The person(s) named on the most-recent beneficiary form will get the money automatically if one dies, regardless of what the Last Will or living trust document might state.

Deeds such as a Lady Bird with its Remaindermen (i.e., like designated beneficiaries but for real property) or ownership by the Entirety as a married couple and/or joint tenants with right of survivorship, the surviving spouse will automatically get sole ownership of the property when the other spouse dies and/or the property automatically goes to the surviving joint tenant or Remainderman.  The major advantage of these types of ownership is that they avoid probate.

Most beneficiary designations will require one to provide a person’s full legal name and their relationship (i.e., spouse, child, mother, etc.). Some beneficiary designations also include information like mailing address, email, phone number, date of birth and Social Security number.

An estate plan in Florida can include several documents, many of which may require beneficiaries, like any trusts, a person may have set up or intended to set up, non-probate assets like 401(k), IRA accounts, life insurance policies, and pensions. Assets from these accounts will go to the beneficiaries upon the owner’s death. It is important, therefore, to make sure one chooses their beneficiaries carefully. 

A beneficiary designation involves naming the person who will directly receive an asset in the event of the death of its owner. Again, assets which allow for beneficiary designations include insurance policies, retirement accounts such as 401(k) plans, annuities, and other financial accounts. Trusts also need beneficiary designations. An individual can also choose beneficiaries in their Last Will and Testament. 

It must be noted that beneficiaries are different from heirs. Beneficiaries are chosen while heirs are those who inherit the property of a person who dies intestate, or without a Last Will, usually next of kin as governed by state law.

The designation process ensures the named beneficiary directly receives the asset, rather than it passing to the owner’s estate and going through probate, which may involve significant time and expense.

Beneficiary designations are unique to each asset and may be managed by the entity that holds the subject asset.  An example would be a life insurance policy whereby the company that holds the policy will likely provide a beneficiary designation form during the enrollment process. In the said form, the applicant would specify which individuals (i.e., beneficiaries) should benefit from the subject policy in the case of death.

When a person dies, the instructions in their Last Will & Testament only distributes assets included their “probate estate” or in their name alone.  Assets with beneficiary designations get excluded from the probate estate.  To avoid a conflict, it is crucial to ensure that the language in one’s Last Will correlates with and/or considers their beneficiary designations.  It merits to perform a regular review and update of the Last Will as well as beneficiary forms as needed since, typically, a beneficiary designation overrides a Last Will.

Common categories of beneficiaries in Florida include eligible designated beneficiaries, designated beneficiaries, non-living beneficiaries, and contingent beneficiaries. Different eligibility rules may apply to various categories of beneficiaries. 

Eligible designated beneficiaries include:

  • Spouses;
  • Children under 18 years of age;
  • Individuals with a disability;
  • Chronically ill individuals; or
  • Individuals within 10 years of age of the deceased.

Eligible designated beneficiaries have additional rights to designated beneficiaries. 

A designated beneficiary is any living person who does not fall into the above categories. This may include a friend or extended family members, such as elderly parents or a sibling. 

Another type of beneficiary is a non-living beneficiary, such as a charity, trust, or estate. 

A contingent beneficiary is a “backup” beneficiary to whom receives the asset in the event the primary beneficiary is unable. 

When choosing a beneficiary, the following are key factors to keep in mind.

A beneficiary typically must be over 18 years of age. If an individual wants to gift an asset to a minor upon death, one may need to set up a minor’s trust and name the trust as the beneficiary, if appropriate; otherwise, a legal guardianship will be needed. 

Financial dependents are a good starting point when considering who to designate as a beneficiary. These may include a spouse, children, or other extended family members.

A beneficiary generally must have an insurable interest in the insured person. The foregoing means there must be a legitimate financial interest between the two, such as in the case of dependent children or a spouse. 

Some life insurance policies or pension funds set rules for naming a beneficiary. Make sure to be aware of these before making decisions and seek legal and financial advice about the options. 

Depending on the document and the terms of the contract, some beneficiaries may be irrevocable. The preceding means one cannot revoke said beneficiary’s rights unless they agree to it. At first glance, one may wonder why they even would want to designate beneficiaries as irrevocable, but there are benefits. An estate planning attorney can explain the reasons and situations where irrevocable beneficiary designations may be most appropriate as well as the reverse.

In Florida, the best way to avoid most potential issues when it comes to a beneficiary designation is to speak with a lawyer to ensure the selected designation is valid. 

Some common challenges that may arise when designating a beneficiary are as follows.

When choosing a beneficiary, it is possible to set either a fixed dollar amount or percentage the subject beneficiary will receive. However, a fixed dollar amount can cause issues if the value of the asset is insufficient (or if it increases in value, leaving a portion of the asset to probate). To avoid this, assign a percentage value instead. 

Failing to name a contingent or alternate beneficiary may result in an asset needlessly going through probate. To avoid this, identify a contingent beneficiary who will receive the asset in the event the primary beneficiary cannot accept it, such as when the primary has predeceased. 

The identity of a named beneficiary may not be clear, such as when several people in the family share the same or similar name. Names may also change as a result of marriage or divorce. Always confirm the correct legal name of the intended designated beneficiary and ensure that the applicable document is updated to reflect any name changes. 

Designating “all my children” can create challenges. For example, if a child beneficiary dies before their parent, it may be unclear as to how their portion should be distributed. It may be distributed among the surviving children, or instead, pass to their offspring or descendants. To avoid this issue, one should be specific when naming a beneficiary.

The foregoing is just a general and brief overview of the subject of beneficiary designations and the like versus other estate planning instruments in the state of 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.

Trusts in Florida- Revocable and Irrevocable (A Brief Overview)

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In Florida, the main difference between a revocable trust and an irrevocable trust is that a revocable trust can be amended or revoked during the settlor’s (i.e., creator of the said Trust and whose assets are used to fund the Trust) lifetime, while an irrevocable trust cannot. In terms of asset protection, a revocable trust is rarely used as part of an asset protection plan, while irrevocable trusts are useful in several asset protection contexts.

A Trust is a contract between a maker of the subject trust (often called a grantor or settlor) and a trustee set up for the benefit of named beneficiaries. A maker of the said trust transfers legal title of their property to a trustee who holds the title and property as a fiduciary for the benefit of named current and future beneficiaries. Again, a settlor is the entity that establishes a trust. The term of settlor is encompassed by several other names such as donor, grantor, trustor, and trustmaker. Regardless of what this entity is called, its role is to legally transfer control of an asset to a trustee who manages it for one or more beneficiaries.

Trusts are essential tools for estate planning. People anticipate conveying their assets to estate planning trusts, but they often do not understand how various types of trusts fit into the estate planning process. Trusts have many purposes, including avoiding probate, reducing estate taxation, or protecting assets from creditor risk. The type of trust and the terms of trust depend on the priority of various planning goals.

Trusts are primarily differentiated by whether they are revocable or irrevocable. A revocable trust conveys assets to a trust expressed by a written trust agreement which expressly reserves the settlor’s right to revoke the trust entirely or amend any part of the trust agreement for any reason during the settlor’s lifetime. Most estate planning trusts that direct the disposition of the settlor’s property upon death are revocable trusts. These estate planning trusts are called “living trusts” because the settlor retains complete control benefits of the trust while he is living.

An irrevocable trust is a trust whose trust agreement prohibits revocation or amendment. Transfers to irrevocable trusts are final conveyances, with some few exceptions. A settlor cannot change his mind about transfers he makes to an irrevocable trust.

Some trusts are designed to be irrevocable from their inception; others start out revocable and later become irrevocable. An example of a trust that starts out irrevocable is a trust set up to make gifts to the settlor’s children during the settlor’s lifetime. Assets transferred to an irrevocable children’s trust are the children’s property. The trustee, as a fiduciary, must use the principal assets and trust income for the children’s benefit and not for the direct benefit of the settlor. Of course, using the trust money for the children’s education, for example, usually indirectly benefits the settlor.

An example of a lifetime irrevocable trust in Florida is an insurance trust. There are tax benefits and asset protection benefits of owning life insurance in the name of an irrevocable trust. The death benefit of life insurance (the amount paid to family members or whatever named beneficiary upon the insured’s death) is part of the insured’s taxable estate, except when the life insurance is owned by an irrevocable trust. For example, death benefits paid to family members are vulnerable to their creditors upon receipt, however, the death benefits are creditor-protected if the money is held inside a properly drafted irrevocable insurance trust.

A revocable trust becomes irrevocable upon the death of all settlors. The trust is locked at death, and the settlor’s heirs (the future trust beneficiaries) cannot change the terms of such inherited trust, with very few exceptions. The said trust becomes irrevocable. No one can change the terms of the trust or add property to it. Also, the trust settlor is no longer the trustee, instead, a successor trustee takes over. The settlor’s written notes, memorandum given to family members, or oral instructions given to family members during his lifetime will not change the revocable trust’s estate plan once it becomes irrevocable.

A revocable living contains written instructions for how the settlor desires to distribute his assets after death. The process of transferring assets, paying debts, and following the settlor’s instructions is referred to as trust administration. Trust administration is directed by the persons the settlor nominated to serve as their successor trustee(s). Trust administration in Florida is the legal procedure whereby a successor trustee of an existing trust carries out the trust document’s instructions after the settlor’s death. Trust administration refers to the tasks associated with managing the assets, distributions, and filings of a trust. Said tasks can often be quite complex and time sensitive.

Trust administration involves several tasks. For example, the family must first confirm their understanding of the settlor’s written instructions expressed in their trust agreement, and any disagreements regarding the trust instructions must be resolved. The successor trustee must find out if the settlor owed money or was subject to any legal claims. The successor trustee must use non-exempt trust assets to satisfy debts and settle claims. The settlor’s income tax liability for the year of death must be determined and paid. The successor trustee also must determine if the settlor’s taxable estate is subject to estate taxation.

Only after the trust administration is substantially completed may the successor trustee distribute trust assets to the settlor’s heirs or beneficiaries according to the settlor’s written instructions. After assets are distributed and the administration is complete, the successor trustee can close the trust. Successor trustees should get a written agreement among all beneficiaries that the subject trust administration has been successfully completed so that the said living trust and all of its trust accounts may be closed.

The foregoing is just a general and brief overview of the subject of revocable and irrevocable trusts in the state of 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.

Florida Beneficiaries or Heirs May or May Not Have to Pay Taxes on Inheritances

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There are merely a few states in this nation which can levy taxes on inherited property. These taxes are sometimes affectionately called death taxes. For beneficiaries or heirs inheriting property in the state of Florida, they will be happy to know that Florida does not have a separate income tax for inherited property. Inherited money is also untaxed at the state level since Florida does not have an income tax system. However, all property is not treated the same when it is inherited.

The following are several tax situations that inheritors of Florida assets should be aware.

While Florida does not levy an income tax on inherited property, the Federal government does. However, the federal inheritance tax only applies to estates over $12.92 million in 2023, and it is double for married couples. The tax is levied against the estate, so heirs will not be on the hook for these death taxes. HOWEVER, in 2025 the amount will be reduced to $5.49 million (adjusted for inflation), unless the law is changed. The gross estate includes Trust assets, assets held in the decedent’s name, jointly held property, accounts designating a beneficiary, life insurance, annuities, among others.

If one inherits a retirement account from a loved one, they would not have taxes levied on the transfer of the account, but taxes may be charged when one tries to withdraw funds from the account. What taxes are imposed will depend on the type of retirement account. An attorney can help ensure understanding of the tax ramifications associated with said inherited property.

If one inherits property that generates revenue, like a piece of rental property for instance, they could owe taxes on the income gained or generated from owning the transferred property. Consequently, if one inherited a multi-family building with tenants and they paid rent during the probate period, one could owe taxes on funds which were collected during the said interim period.

In Florida, there are no separated property taxes, but beneficiaries will owe federal taxes if the inherited property is sold after transfer. The heir should only owe taxes on the gains (capital gains) of the property, or if it increased in value from the point of transfer (date of death) until the point of sale.  The foregoing is called stepped-up basis. Stepped-up basis refers to a tax policy which looks at the market value of assets at the time when the person inherits the asset or real property (i.e., the deceased’s date of death) instead of the value when the prior deceased owner purchased the said assets or real property. If the asset is later sold, the higher new cost basis would be subtracted from the sale price to calculate capital gains tax liability, if any.

The foregoing is just a general overview of the subject of whether Florida Beneficiaries or Heirs may or may not pay taxes on inheritances.

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.

Claims Against the Federal Government & it’s Agencies under the Federal Tort Claims Act

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The Federal Tort Claims Act is a 1946 federal statute that permits private parties to sue the United States in a federal court for most torts committed by persons acting on behalf of the United States. Historically, citizens have not been able to sue their government, which is a doctrine referred to as sovereign immunity. It is legal doctrine that ordinarily prohibits private citizens from bringing a sovereign state into court without its consent. Until the mid-20th Century, a tort victim could obtain compensation from the United States only by persuading Congress to pass a private bill compensating him or her for their loss.

Under the Federal Tort Claims Act, the federal government acts as a self-insurer, and recognizes liability for the negligent or wrongful acts or omissions of its employees acting within the scope of their official duties. The United States is liable to the same extent an individual would be in similar circumstances.

The Federal Tort Claims Act (FTCA) sets forth procedures for presenting and resolving administrative monetary claims for personal injury, property damage, or death arising from the alleged negligence of officers and employees.

The FTCA has several exceptions that categorically bar plaintiffs, victims or claimants from recovering tort damages in certain categories of cases. Federal law also restricts the types and amount of damages a victorious plaintiff may recover in an FTCA suit. Additionally, a plaintiff or claimant may not initiate an FTCA lawsuit unless they have timely followed a series of procedural requirements, such as providing the government an initial opportunity to evaluate the subject claim and decide whether to settle it before the case proceeds to federal court. 

When it comes to making a claim and/or suing the Federal government, or any of its agencies, there is no cap like there is in Florida. But there are other limitations. Again, that situation is governed under the Federal Tort Claims Act (28 U.S.C §2671), and the case or claim must also be brought only following proper written notice. In the administrative phase, a specific document must be filed with the government entitled Form 95.

Once the claimant or plaintiff gets past that administrative procedure, a claimant would file suit in federal court. The United States Attorney’s office defends these cases. One does not get a jury trial, i.e., the case is heard by a federal district judge, who alone decides the case called a bench trial.

There are many examples of Federal Tort Claims Act cases, which can include anything from medical malpractice at military hospitals to Federal Aviation Administration errors that cause plane crashes.

Either way, it pays to avoid situations where the circumstance pits the individual against a governmental hazard.

Federal claims are different than state claims in that if a damage or injury is the result of negligence or legal liability of the federal government or federal agency, the claim is governed by the Federal Tort Claims Act (FTCA).  More specifically, an injured party is required in FTCA cases to file a Form 95 with the governmental entity or agency within two (2) years of the date that legal liability accrued.  This two year statute of limitation or deadline is true regardless of whether there is a state statute of limitation for the same cause of action which may be longer.

Further, with FCTA cases, the governmental entity has up to six months to review the subject Form 95 claim and the claimant is not allowed to file suit during that time.  If the entity does not respond to the claim with an offer or denial within the six month period, then claim is presumed denied when the six month period expires.

Please note that said claimant only have six (6) months to file their lawsuit in a FTCA case after a governmental entity has issued a denial of the claim.  Failure to file suit within six months of being denied results in the claim being completely barred EVEN if it has been less than two (2) years since the event causing the injury!

The FTCA case begins when an injured party “presents their claim” to the agency involved.  The foregoing is accomplished by filing the Form 95.

One must also research specific procedures and rules applicable to the applicable governmental entity or agency in which the claim is sought.  These rules include not only how to bring the claim but also where the Notice should be sent and with whom one should communicate regarding the subject claim.  Many federal agencies will post this information in a section on their respective websites.

Unlike the State of Florida where damages against the state are capped, Federal Tort Claims are not capped.  Therefore, one’s Federal Tort Claim case may have significant value. In the Form 95 itself, there is a blank for the amount of damages that claimant has sustained.  The claimant must put a number, however, one should be careful not to underestimate the value of their claim.  Once a Form 95 is filed with a figure for the damages on it, one cannot increase the amount later claimed.  Consequently, one must be generous in their evaluation.

Attorney fees on FTCA cases are capped at 25% if the case is litigated while attorney fees are only 20% if the case is settled. No fee can be charged for appeals of FTCA cases. Again, the purpose is to remove some financial incentive to sue the federal government; however, it does not make it impossible or not feasible to prosecute.

Further, the FTCA imposes significant substantive limitations on the types of tort lawsuits a plaintiff or victim may permissibly pursue against the United States. The Congress that enacted the FTCA, was concerned about “unwarranted judicial intrusion[s] into areas of governmental operations and policymaking,” and opted to explicitly preserve the United States’ sovereign immunity from more than a dozen categories of claims. More specifically, Section 2680 of the FTCA establishes a number of exceptions preventing private litigants from pursuing certain categories of claims against the United States

It has been debated or at least discussed that certain provisions be enacted to modify the FTCA.  Congress, however, still retains the authority to enact private legislation to compensate individual tort victims who would otherwise be barred from obtaining recourse from the United States under the FTCA in its current form. Congress enacted the FTCA, in part, to eliminate the need to pass private bills to compensate persons injured by the federal government. Congress, though, still keeps some authority to pass private bills if it so desires.  Accordingly, rather than amend the FTCA to expand the number of circumstances in which the United States will be held liable to tort claimants, some scholars and legislators have suggested that Congress should pass individual private bills to compensate particular injured persons or groups of persons who might otherwise lack recourse under the FTCA.  To that end, Congress has occasionally provided some type of compensation to victims, plaintiffs or claimants in situations where the courts have found that the FTCA waiver of immunity provides no relief.

The foregoing is just a general overview of the subject of claims against the Federal government under the Federal Tort Claims Act.

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.

PERSONAL INJURY CLAIMS AGAINST GOVERNMENT ENTITIES IN FLORIDA

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In Florida, as in most other states, if an individual is injured as a result of someone else’s negligence, they can usually file a personal injury claim to receive compensation. However, when a governmental agency is involved such as a city bus or government/public hospital, then such claims must be filed against the government agency, not the employee themselves unless said employees intentionally inflicted the harm and consequently may be held liable.

Plaintiffs injured by the carelessness of government agency or one of its employees in Florida will have to deal with certain rules, regulations or standards. In this article, the term “government” will refer to a governmental entity for a city, county, or the State of Florida. Claims against the Federal Government will be dealt with in another article.

Claims Against a government entity or agency in the State of Florida are limited by law.  This limitation is known as sovereign immunity, and it is based on the English notion that the government cannot be held responsible because “the king can do no wrong.”  The limitation of sovereign immunity extends to all properties and to whomever serves the government. If a garbage truck or police car crashes into a person or a teacher abuses a student, the government decides if the victim is allowed to sue and then limits the recovery up to $200K per person or $300K per tort claim.

In 1975, the passage of Florida Statutes section 768.28 (i.e., Florida’s Waiver of Sovereign Immunity Act, Florida Statutes §768.28) opened the door to claims but also made the entire process difficult to navigate. When the subject strict guidelines are met, a state entity can be held liable for negligence under the same circumstances as an individual but considering the caps permitted under the law. In addition to the caps from 768.28, Florida has also presented a series of barriers in the form of conditions. Failure to comply with all notices, disclosures, and obligations can result in rejecting the claim.

Further, the government is not responsible for policy-making decisions, only those acts that are considered “operational” in nature.  One way of looking at it is this that the decision on whether to put up a stop sign at an intersection is immune from lawsuit.  However, once the decision to install it is made, if it is placed or installed in a wrong manner, not maintained or itself causes a harm, there can be a claim.

Florida imposes certain limitations on the types of claims that plaintiffs or victims can bring, which include but are not limited to:

  • Government employees cannot be held personally liable for damage unless they have caused it on purpose;
  • Claims against the state of Florida are limited to a total of $200K per person or $300K per incident;
  • The state may appeal any resolution of a case; and
  • Actions against State Universities must be brought in the county where the University’s campus is located.

From a practical standpoint, due to the cap on damages, the most the government will have to pay to a plaintiff is the capped amount, so an actual interest in settling pre-suit is very rare, forcing the claimant to sue.

Quite often lawyers do not take cases of damages against the county, city, or state of Florida because the injuries suffered and the medical bills are usually higher than what these cases can recover. What many lawyer try to investigate and seek out are other private parties that could be sued and held liable.

Florida’s sovereign immunity restrictions apply to almost all cases of negligence filed against the state or any of its Cities or Counties, including:

  • Car accidents caused by county employees;
  • Public hospital malpractice cases; and
  • Defective city property that causes injuries.

No matter how many people were harmed, how severe the injuries, or how many negligent parties, the government will, unfortunately, only pay the cap per incident. The maximum settlement will always be $200K per person and $300K per incident, which, as mentioned, usually is not enough to cover the actual damages. This limitation applies when dealing with injuries caused in Florida accidents involving the following, among others:

  • Public transportation vehicles;
  • Police car accidents;
  • Unposted street signs; and
  • Anything related to the municipality’s negligence.

In addition to the government agencies themselves, the Florida Legislature has passed laws giving private entities “sovereign immunity” privileges as if they were governmental bodies.  These include private charter schools, the South Florida Fair, and some hospitals and doctors.  

Additional limitations apply to cases filed against law enforcement officers or agencies. public health agencies, and the Florida Space Agency.  Claims coming from inmates of the Florida Department of Corrections are also subject to special time limits.        

Punitive damages are not allowed against Florida public entities as well as prejudgment interest, and Florida law limits attorney fees to 25% in cases against the government as a disincentive to pursue these cases.

There is a way around or beyond the $200,000 cap on cases against the State or government. It is not an easy process, but the state allows for a process called a Claims Bill. 

To get a claims bill, a victim will need legislators to draft such a bill seeking compensation beyond the sovereign immunity limit.  It is usually done after a trial and judgment has been entered, and after all appeals have been exhausted.  

If the judgment is larger than the cap, one can seek a claims bill.  But after a bill is filed, it will be sent to a special master who will re-examine the facts and circumstances, there will be hearings, and most claims bills die in committee. 

If bill does not die in committee, most special master or referee recommendations are at a reduced amount of what the award was. The legislature (House or Senate or both) may take a recommended amount and reduce it.  Both the House and Senate must pass the exact same bill and then the Governor must sign it.  There are very few claims bills that are passed and signed each year.

Bear in mind that Cities, Counties and the State generally have their own legal departments, so they will most likely litigate the case through the court system knowing that, even if they lose, they will not have to pay more than $200,000.  Accordingly, the applicable governmental entity is in a position where it will rarely voluntarily pay the full liability amount pre-suit.

Personal injury claims in Florida made against public entities can be complicated and complex, but that does not mean that a Plaintiff or victim lacks recourse when a governmental employee or agency harms them in an accident.

The foregoing is just a general overview of the subject of Personal Injury claims against government entities 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.

Real Estate and Inheritance in Florida

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If one inherits a house by a Florida Last Will & Testament when the owner passes away with his or her name alone as the owner on the deed, in order to sell it, the inheritor will need to go through the Florida probate court.

Florida does not have an inheritance tax or estate tax. A beneficiary (by Last Will) or heir (without a Last Will) of a deceased person in Florida does not owe any state taxes on inherited property.

Accordingly, to transfer real property from an estate to an heir or beneficiary, the executor or Personal Representative issues and records a deed of transfer in the name of the new owner(s). If the property was held in a trust, then the Trustee will issue the deed to the new owner as directed by the terms or provisions in the declaration of trust by the trustee.

In Florida, there are no separate property taxes, but beneficiaries or heirs will owe federal taxes if the inherited property is sold after transfer. The heir or beneficiary should only owe taxes on the gains (i.e., capital gains) of the property, or if it increased in value from the point of transfer until the point of sale.

With a Lady Bird Deed, under Florida law, when a person dies, the remaindermen (like a designated beneficiary on real property) automatically take possession of the property. No other disposition is legally necessary. Since they inherit by deed in Florida, the said remaindermen are not subject to probate.

It is generally better to receive real estate as an inheritance rather than as an outright gift because of capital gains implications. That is because of the cost basis, which is the cost of the property used to determine the capital gain, if any, when it is transferred. One must pay Capital Gains Tax if they decide to sell the property that was inherited, or a second home or buy-to-let property, in the future. If the property has increased in value since it was inherited or bought it, then the Capital Gains Tax will be deducted from the profit.

As the recipient of an inherited property, one will benefit from a step-up tax basis, meaning they will inherit the home at the fair market value on the date of inheritance(death of the prior owner), and they will only be taxed on any gains between the time the said property was inherit and when it was sold.

The surviving spouse may inherit everything if there are no children or all children are common to both the said spouse & the deceased party. However, if one dies with children or other descendants from the deceased and the surviving spouse, and the surviving spouse also has descendants from previous relationships a different result will occur. Consequently, the surviving spouse inherits half of the intestate (without a Will) property and the descendants inherit the other half.

Florida will afford all intestate heirs an equal share of the estate’s property, which is legally known as “per stirpes.” For example, if a deceased party has four biological and/or adopted children and they were deemed the sole legal heirs to one’s property, each of them would receive 25%.

If one’s heir wishes to mortgage, sell, or rent out the entire property, they must obtain consent from all of the other heirs, yet an heir can sell their individual interest, even to an outsider, without the consent of other heirs.

State laws may vary slightly, but the typical scheme of most states, including Florida (§732.101 to §732.111), is that intestate property passes in this order: spouse, descendants (children or grandchildren), biological and adopted, parents, grandparents, and siblings (and children of deceased siblings).

Formal administration is the more involved form of Florida probate. Formal administration is required for any estate with non-exempt assets valued at over $75,000 when a decedent died within the last two years.

Non-probate assets encompass jointly held property (land, bank accounts) or assets with beneficiary designations or with payable on death designations (life insurance, annuities IRAs).

Exempt property shall consist of: (a) Household furniture, furnishings, and appliances in the decedent’s usual place of abode up to a net value of $20,000 as of the date of death. (b) Two motor vehicles as defined in Stat. 316.003, which do not, individually as to either such motor vehicle, have a gross vehicle weight in excess of 15,000 pounds, held in the decedent’s name and regularly used by the decedent or members of the decedent’s immediate family as their personal motor vehicles.

The favorable aspect is that one could gift their home to their children and if they lived for at least seven years after the gift was made, it would be removed from their estate and no inheritance tax would be due.

In the state of Florida, a $25,000 exemption is applied to the first $50,000 of their property’s assessed value if the property is their permanent primary residence and they owned the property on January 1 of the subject tax year. This exemption applies to all taxes, including school district taxes.

If a person dies before executing a deed to transfer assets to a new owner, the said property will be distributed pursuant to the provisions in the Last Will after probate is concluded. Dying without a Last Will results in intestacy, which requires the court to distribute the deceased party’s assets following Florida’s intestacy laws(i.e., to next of kin).

Inheritances are not considered income for Federal Tax purposes, whether one inherits cash, investments, or property. However, any subsequent earnings on the inherited assets are taxable, unless it comes from a tax-free source.

Selling at lower than fair market value means that an individual will have to report the gift to the IRS. Under IRS rules, as of 2022, one can provide a gift of up to $16,000 as a gift of equity before one (the donor) has to pay gift taxes. As the seller and gift-giver, one must pay the gift tax.

There are several ways to avoid paying capital gains tax on inherited property: Sell the inherited property quickly; Make the inherited property one’s primary residence; Rent the inherited property; Disclaim the inherited property and Deduct selling expenses from capital gains, among others.

Again if a person dies without a will or trust and has assets in their name ONLY, then probate is required to distribute property and monies.

A Florida Lady Bird deed, also known as an Enhanced Life Estate Deed, was created to allow property owners in Florida to transfer property to others automatically upon their death while maintaining use, control and ownership while alive.

As an example, unless the Last Will explicitly states otherwise, inheriting a house with siblings means that ownership of the property is distributed equally. The siblings can negotiate whether the house will be sold and the profits divided, whether one will buy out the others’ shares, or whether ownership will continue to be shared. However, under Florida law, if the siblings cannot agree, and any of the siblings want to sell the house they inherited, they can use a legal proceeding known as a “partition action” to force the sale. This legal proceeding is both expensive and time-consuming.

An executor or Personal Representative of the probate estate can sell the house as soon as it is transferred into their legal possession. The job as Florida Personal Representative is to protect estate assets during probate. So, one does not want to wait too long to sell the house after the person dies.

Under Florida law, a Last Will & Testament can be voided if the said Last Will was procured by fraud, duress, or undue influence. A person must file a petition in a probate court case to contest a Florida Will.

In most circumstances, there will need to be a court order to transfer the property. In Florida, that means opening a probate court proceeding or administration. In the state of Florida, probate is a court proceeding that is filed in the county where the deceased person last resided. The two types of probate are summary and formal administrations.

If probate is not filed, the probate court will not distribute the assets of the estate. The probate process provides a legal mechanism for resolving disputes over the estate, and without it, beneficiaries or heirs may have to resort to litigation to assert their rights.

There are key assets that are protected from creditors in Florida which include: A homestead property, with some acreage limitations; The wages of someone who qualifies as head of household; Annuities; Life Insurance cash value; Retirement Accounts, and Tenants by entireties property when the judgment is against one spouse in a marriage(not both).

Property which is jointly owned with a survivorship right will avoid probate. If one owner dies, title passes automatically to the remaining or surviving owner. There are several joint ownerships- with rights of survivorship for anyone and Tenancy by the Entirety for spouses/married couple.

A Florida homestead is not subject to probate. Probate proceedings involve only assets subject to creditor claims. The Florida homestead is exempt from creditors, so it is not part of the probate estate. Therefore, title to a Florida homestead transfers to heirs quickly (at the time of owner’s death) without waiting for the completion of probate proceedings.

Florida is one of the few states that allow enhanced life estate deed or Lady Bird deeds. These deeds allow residents to preserve their eligibility for Medicaid during their lifetimes while keeping valuable assets in the family. After death, the real property named in a Lady Bird deed passes automatically to beneficiaries without probate, which means that assets cannot be taken by the state to recoup any Medicaid benefits used by the decedent.

Again the decedent’s homestead is not part of the probate estate, because it is not subject to creditors. However, the Personal Representative of the deceased’s estate often needs to obtain a court order stating that the property was the person’s homestead/primary residence, particularly if the family plans to sell the former homestead. The heirs can request or petition a court to issue an Order Determining Homestead Status of Real Property.

Title companies will not insure the sale of a deceased party’s homestead unless the title examiner is sure that the property legally qualified as an exempt homestead, free of potential creditor claims and the heirs or beneficiaries are determined.

A title company knows from the public records that a deceased parent owned their home. However,  it may not be clear from the public records that the residence was, for example, the parents’ homestead because public records do not indicate whether an owner resided in a property at or before death. Even though the owner may have previously applied for a homestead tax exemption, there is nothing recorded in the real estate or Official public records identifying the occupant of the subject property. The deceased parent may have abandoned residency before death; for example, the parent may have been living with a child and may have rented the former homestead property to a tenant to get rental income to live on.

Title companies regularly insist on or require a court order that the property was the owner’s homestead through death when the deceased owner had creditors. A court order requires a court proceeding, and the appropriate court proceeding is a probate. As a result, surviving family members wanting to sell the parents’ former primary residence may have to open a probate proceeding even if the parents conveyed the house to a living trust and there are no probate assets.

The sole purpose of the probate is filing a court petition to declare the deceased’s residence to be their exempt homestead. The probate court routinely grants an order determining homestead status. This order ensures that the house is exempt from unknown claims and leads a title insurance company to issue insurance to potential buyers and their mortgage company.

There are a few states that levy taxes on the estate of the deceased, generally referred to as the inheritance tax (or the death tax). Fortunately, Florida does not have a separate state inheritance tax. Even further, heirs and beneficiaries in Florida do not pay income tax on any monies received from an estate because inherited property does not count as income for Federal income tax purposes (and Florida does not have a separate state income tax).

If an asset does not have a named beneficiary or remainderman, or rights of survivorship, it will probably have to go through probate to change or transfer ownership pursuant to the Florida Probate Rules (2023). The most common assets that go through this process are bank accounts, real estate, and certain personal property.

The foregoing is just a general overview of the subject of Real Estate and Inheritance 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.

Florida Probate Formal Administration versus Summary Administration-An Overview

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The Probate process in Florida is generally the legal transfer of ownership of assets from a deceased party to surviving heirs or beneficiaries as well as the payment taxes, creditors, if any, and expenses. A more legal description may be the legal process of distributing or administrating a deceased person’s estate to their beneficiaries, heirs, and their creditors. The deceased person’s wishes are carried out using valid or properly prepared estate planning documents such as Last Wills & Testaments and Trusts. However, if a deceased person did not have a Last Will or other estate planning documents, their estate will be distributed according to state law (intestacy or next of kin) and what the probate judge determines.

There are two types of probate in Florida. There are Formal and Summary Administrations. The basics of what is required and the differences between the two are generally as follows.

Formal Administration

  • A Formal Administration can be used for any kind of estate or if a Personal Representative is necessary for whatever reasons.
  • It takes longer to go through a Formal Administration; it will typically cost one more, and it is a more involved process.
  • One key aspect of a Formal Administrations is that it involves the appointment of a Personal Representative. This representative will be in charge of the subject probate estate securing information about the assets and debts of the decedent. The term Personal Representative is used instead of Administrator or Executor for the probate proceeding in Florida.
  • Typically, one would want to choose this type if they expect that there will be a need to go to court over the decedent’s estate, or if the decedent has a number of known creditors or needs to execute forms, pursue a lawsuit, continue operating a business, etc.

Summary Administration

  • An estate is eligible for Summary Administration if the total value of the decedent’s assets that are subject to probate is $75,000 or less, or if they have been dead for more than two (2) years from the date of filing.
  • The mere fact that the estate is eligible for this simpler process does not necessarily mean it is the best choice. Summary administration limits what one can do with the estate.
  • This summary process may go faster than Formal Administration.
  • No Personal Representative is appointed. This aspect makes it substantially more difficult to get through the probate process since there is not one person who is in charge of getting the decedent’s assets and debts together. The assets are directly distributed to the heirs and debtors.

Whether one selects Formal or Summary Administration, there are many legal nuances and pitfalls which could potentially complicate the probate process and the advice and guidance of an experienced Probate and Estate Planning Attorney may prove invaluable.

The foregoing is just a general overview of the subject of the Probate process 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.

FLORIDA LADY BIRD DEED & ITS BENEFITS

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A Lady Bird deed in Florida is a legal document which transfers property upon death inexpensively and without the need for a probate legal court proceeding. A lady bird deed allows the current property owner to use and control the property during the owner’s lifetime, while the property automatically transfers upon death to designated beneficiaries. The lady bird deed is legal in the state of Florida.

In Florida, a Lady Bird deed is also called an enhanced life estate deed. The Lady Bird deed is a version of a life estate deed with enhancedpowers reserved for the original owner(s) of the property.

There are no Florida statutes specifically authorizing lady bird deeds. However, the general legal consensus is that Lady Bird deeds are authorized under common law, particularly by the Florida Supreme Court in Oglesby vs. Lee, 73 So. 840 (Fla. 1917) and Aetna Ins. Co. vs. La Gasse, 223 So.2d 727 (Fla. 1969).

Florida is one of the few states where a lady bird deed is legal. The states which offer Lady Bird deeds include Florida, Michigan, Texas, Vermont, and West Virginia. Some other states may have what is called a transfer on death deed. Otherwise, property in those states must usually be put into a trust to avoid probate upon the owner’s death or else be held with rights of survivorship.

The foregoing document makes the probate process easier or may avoid it entirely. The Enhanced Life Estate deed (also known as the Lady Bird deed) has inherit powers permitting a property owner to retain control over real property during his/her/their lifetime. Equipped with the power to transfer real property located in Florida to others upon the owner’s death (identified as “remaindermen” within the deed), exclusive of a Last Will & Testament and outside of the probate process, the Lady Bird Deed is an attractive and useful tool to customize even the most complicated estate planning regime. There is no doubt, avoiding probate coupled with a grantor’s advantage to maintain control over the real property, where the grantor can sell, lease, gift or encumber the real property during their lifetime, makes the Enhanced Life Estate/Lady Bird Deeds something to seriously consider by Florida homeowners.

A Lady Bird deed must be recorded to be effective. Once the property owner executes the Lady Bird deed, the deed should be recorded to document the conveyance as part of the property’s legal chain of title. Recording the Lady Bird deed should not involve significant documentary stamp taxes, even if the property is mortgaged.

A property owner can change the beneficiaries under a Lady Bird deed even after the original Lady Bird deed is recorded. The owner must execute and record a second Lady Bird deed that names the new person or people (i.e., remaindermen) whom the owner chooses to inherit the property.

Most major title insurance companies fully understand Lady Bird deeds and are not concerned about insuring the title of a property subject to a Lady Bird deed. Title companies should not require the signature or consent of the people listed as remaindermen (similar to designated beneficiaries) when the Enhanced Life Estate or Lady Bird owner sells the property since the beneficiaries or remaindermen have no vested property interest during the owner’s lifetime.

Some smaller or less experienced title insurance companies may not understand a Lady Bird deed, and these companies may require the remaindermen to sign a release. Even worse, the companies may require any judgment holders against the remaindermen to release any claim of lien against the properties. These requirements stem from a lack of understanding about how Lady Bird deeds work.

A Lady Bird deed allows a property owner to transfer property upon death while avoiding probate. The deed is inexpensive, revocable, and simple compared to a Trust. Again, some of the advantages of Lady Bird deed include:

  • Avoids probate. A Lady Bird deed allows a property to transfer on death to named beneficiaries without probate.
  • Low cost. A Lady Bird deed can be obtained for a relatively low cost compared to a more complicated and expensive Living Trust.
  • Simple. A Lady Bird deed does one thing and does it well: it transfers a person’s real property upon the death of the said property owner.
  • Revocable. The property owner is free to change their mind at any point during their lifetime. The property owner can enter into a new deed which gives the remainder interest to someone else or cancels the lady bird deed entirely.
  • Gift Taxes. Transferring property by Lady Bird deed does not trigger a gift tax. The transfer is not a completed gift during the lifetime of the property owner.
  • Capital Gains. In addition, the beneficiary of the Lady Bird deed should still enjoy a step-up basis in the property. A stepped-up basis means that if the property is eventually sold by the beneficiary/remaindermen, the remainderman will pay income tax only on the appreciation in value from the date when the original property owner died and not when the subject property was originally purchased.
  • Medicaid Eligibility. Said deed does not risk the Grantor’s Medicaid eligibility because it is not considered a “transfer” until the Grantor/Owner passes away.
  • Property Taxes. The Owner keeps their homestead real estate tax exemption, and the county will not reassess the property to raise taxes.

Some disadvantages to Lady Bird deeds in Florida include:

  • Lack of Asset Protection. A creditor of the current owner may place a lien on the property, other than a homestead (i.e., primary residence), conveyed by a Lady Bird deed.
  • Constitutional Restrictions. A person cannot use a Lady Bird deed to disinherit a spouse or minor child if homestead real property.
  • Unexpected Deaths. If the holder of the remainder interest dies before the life tenant/owner dies, it may become unclear as to what happens to the property when the original life tenant or owner later dies.
  • Changes to the Estate Plan. It will require extra work for the original owner to change their plan should they later decide not to leave the property to the named remaindermen.

Despite the disadvantages, individuals and families in Florida often use Lady Bird deeds as a simple, inexpensive way to transfer their home upon death without probate.

The following are a few more benefits relating to Florida’s Enhanced Life Estate/Lady Bird Deed:

  1. Individuals will NOT lose their homestead protection. The Enhanced Life Estate Deed or Lady Bird Deed enables a Florida real estate property owner to maintain their homestead and other applicable exemptions (both creditor and tax) if homestead protections apply, even though the grantor holds a type of life estate during their lifetime.
  2. It is automatic. For a proper conveyance to take place, special Florida caselaw language must be contained or written within the Lady Bird Deed. Once a properly executed Enhanced Life Estate Deed is executed and the life estate owner dies, the transfer to the named remaindermen is automatic rendering a stress-free process for the named beneficiaries/remaindermen.
  3. It is relatively easy. The Florida real property will transfer to the individual (i.e., remainderman) named in the deed upon the death of the grantor/last surviving owner without the need to prepare an added deed to complete the transfer. Moreover, it is an easy transfer process. The beneficiary of the property may have to record the death certificate and file a statement of facts with the appropriate county to affirm ownership but there is no need to prepare additional formal legal documents to complete the transfer.
  4. The owner is allowed to change their mind. Equipped with the power to control the subject property, the Lady Bird Deed is so much more than just a life estate. It enables the owner to live in the property for their entire lifetime and also reserves more than just that option. The owner, during their lifetime, reserves the right to sell, lease, gift, and encumber the property without the remaindermen’s consent or notice. If the Florida homeowner is changes their mind, Florida’s Enhanced Life Estate Deed enables the current owner control over the property where the grantor can simply execute another deed to better suit their changes wishes.
  5. It is cost effective. The Lady Bird Deed can be used as an inexpensive estate plan for people whose Florida residence is the primary or only asset which may need to be transferred upon death. Where probate is time consuming and can cost thousands of dollars, the Lady Bird Deed is a desirable alternative.
  6. The deed can serve as a Last Will & Testament substitute. The owner may name more than one remainderman who will take over the property upon his or her death without ever having to prepare a proper Florida Last Will & Testament. A Lady Bird Deed may also have a provision for descendants of a remainderman or alternate of said beneficiary who predeceases the original owner.
  7. Remaindermen also hold creditor protections. The remaindermen receive the property only if the grantor still owns it at the time of death, and since the owner can always change his or her mind prior to death, the remaindermen has no interest in the real property throughout the owner’s life. As such, the remaindermen are protected from creditors during the owner’s lifetime. Since the remaindermen really have no interest in the property until the grantor’s death, the real property is protected during the owner’s lifetime from claims by named remainderman creditors. HOWEVER, Tax liens are different. An IRS lien against a remainderman attaches to the property once the remainderman is named on the lady bird deed.
  8. Consent is not needed. The remaindermen have no rights to the Florida real property whatsoever during the owner’s lifetime, which helps because the owner does not need their consent and the remainder’s creditors cannot claim any rights to the real property. This is one of the major differences between a traditional life estate (where consent is needed) and an Enhanced Life Estate or Lady Bird deed where the grantor or current owner maintains complete ownership control.
  9. Lady Bird Deeds can be executed remotely. In Florida, deeds must be signed before a notary and two witnesses. As of January 1, 2020, Florida Remote Online Notarization laws allow deeds, such as the Lady Bird or Enhanced Life Estate Deed, to be signed remotely before a notary and two witnesses using video and audio online technology.

A Lady Bird deed or Enhanced Life Estate deed is a useful estate planning tool, however, despite its many benefits, it might not be suitable for all people who own Florida real estate. It is best to discuss the matter with an experienced Florida estate planning attorney.

The foregoing is just a general overview of the subject of Lady Bird Deeds 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.