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.

Last Wills & Testaments and Living Trusts as well as Designations of Beneficiary and Lady Bird deeds allow a Florida resident to decide what will happen to their property and assets after death. Unfortunately, there are individuals who take advantage of ill or elderly adults to manipulate their estate planning documents to benefit themselves. Under Florida law, this manipulation is called Undue Influence.  It is a common basis for a family member to contest such Last Will or Trust, etc. 

Undue influence is complicated to prove and requires more than a mere hunch or gut feeling. In Florida, one needs solid evidence showing not only that undue influence was present but that it also affected the distribution of assets. If one is concerned that a loved one’s Last Will or Trust was impacted by undue influence, they should reach out to an attorney experienced in the area of Undue Influence.

Undue influence occurs when one party takes advantage of another, more vulnerable party. Undue influence can be present in many situations, but it is commonly seen in the cases of Last Wills and Trusts. If an individual suffers from illnesses such as Alzheimer’s disease or dementia which result in limited mental faculties or is dependent upon another person for care, it can leave that individual open to control, influence and/or manipulation. More commonly, one sees people exert undue influence to financially benefit themselves by either adding themselves as a beneficiary in estate planning documents or by increasing the share they receive and potentially removing other beneficiaries.

Undue influence can show up in many different ways, but there are signs commonly seen which show that an individual was experiencing undue influence when creating their estate planning documents:

• Terms of the document – If the document has provisions or distributions that are unexpected or unreasonable, that is a telltale sign of undue influence. Examples of such terms include leaving a close family member out of the Last Will or Trust or leaving a surprisingly large amount to certain individuals or organizations with no explanation.
• The capacity of the individual – If, at the time the estate planning document was created, the individual creating such document suffered from circumstances that made them vulnerable, that may have been another sign undue influence may have occurred. Circumstances that make an individual vulnerable can include illness, injury, or medications the individual was taking.
• Dependency – If the individual creating the estate planning documents is dependent on another person for care, this unequal power dynamic can lead to undue influence. The subject individual may feel that they need to follow their caretaker’s instructions to ensure their own wellbeing.

There are certain relationships that make undue influence more likely, including:

• Family relationships – Most often, undue influence occurs between family members. Family members tend to have a closer, more confidential bond, which can be utilized for financial gain. The exploitation of elderly family members is very common, and undue influence is just one way it can manifest.
• Caretaking relationships – Whenever a person is dependent on another for care, they are more likely to be exploited. Often, a caretaker is also a family member, but it is not necessary. Paid caretakers can also exploit those they care for and can be the ones exerting undue influence.
• Legal relationships – By definition, legal relationships are confidential and often close. Individuals often confide in their legal representatives that they would not share with others.  This kind of relationship can make an individual more susceptible to undue influence.

Proving undue influence can be a challenge. Oftentimes, the person unduly influencing the individual has what looks like a close relationship with the said individual. It can be difficult to ascertain if that close relationship ever turned into exploitation. In order to assist individuals on demonstrating that undue influence occurred, the Florida courts have determined specific factors to use when evaluating a claim of undue influence. These factors are designed to help determine if a person actively procured a change in terms of a Last Will or Trust, including:

• Was the individual accused of excessive or undue influence when the document was drafted and executed?
• Was the individual accused of asserting undue influence present when the desire to create the document was expressed?
• Did the individual accused of undue influence recommend an attorney to prepare the documents?
• Was the individual accused of undue influence aware of the contents of the document prior to its execution?
• Did the individual accused of undue influence provide instructions to the attorney preparing the document?
• Did the individual accused of undue influence assist with securing witnesses for the document signing?
• Did the individual accused of undue influence keep the document after it was executed?

It is crucial to be aware that a claim for undue influence cannot be pursued until the grantor or testator has passed away. There can be a significant amount of time between the undue influence and the grantor or testator’s death, which makes undue influence even more difficult to prove. In many cases, events occurred so long ago that the person being accused of exerting undue influence is the only one left with firsthand knowledge of the circumstances surrounding the execution of the documents in question.

The courts in Florida recognize this difficulty, and to make it easier to prove undue influence, the court will alter or shift the burden of proof in certain cases. 

If the person bringing the claim for undue influence can show all the following, then the court will shift the burden of proof to the individual accused of undue influence:

• The person accused of undue influence receives a substantial benefit as the document is written.
• The person accused of undue influence had a confidential relationship with the grantor or testator.
• The person accused of undue influence was actively involved in the procurement of the Trust or Last Will.

Some of the above items are easier to prove than others. The terms of the Last Will or Trust are straightforward, and the relationship between the parties is also easier to determine as there are usually witnesses who can testify to the nature of the relationship.

Showing an individual was actively involved in the procurement of the document is more challenging. The seven factors outlined above are strong indicators of active procurement, but there is no one specific factor that definitively proves undue influence, and the court will examine additional factors that may be presented or provided.

On such occasions, it is particularly beneficial to have an experienced attorney on the challenger’s side. An attorney who is familiar with undue influence and estate litigation can assist in the identification of these nuanced factors and work with a family member to create the most effective case possible. An experienced attorney will also ensure that the family member understands all the issues surrounding the burden and proof and the impact the judge has on their claim moving forward.

Even though the court may decide that the above-listed elements have been met and the burden of proof shifts, this does not mean that undue influence is sufficiently proven, and the document will be invalidated. It only means that the individual accused of undue influence must demonstrate by a preponderance of the evidence that they did not exert undue influence.

Similarly, if the burden of proof does not shift, that does not mean that your case is automatically over. One will still be able to demonstrate that the individual exerted undue influence, but they will be the one who has an obligation to prove it.

To contest a Last Will or Trust due to undue influence, a party has to have legal standing. Legal standing means that the person challenging the document has an interest in the estate. The most obvious parties to have standing to challenge a Last Will or Trust are the beneficiaries and/or family members. However, the issue of standing is not always clear.

A party can argue that they have standing if they have an interest in the current Trust, a prior Trust, the Trustee, or the Grantor. This is a large group that may include numerous individuals.  If one is uncertain if they have the standing to challenge a document and bring a claim of undue influence, then they should contact an experienced estate litigator who can review the facts and advise them of their rights.

If a Florida resident is concerned that a loved one’s Last Will or Trust was the product of undue influence or if they themselves have been accused of exerting undue influence, they should not hesitate to act. Such a person needs a lawyer who is on their side and can guide them through this process. Effectively arguing the subject matter can be difficult, stressful, and complicated. A Florida estate litigation attorney experienced in handling undue influence claims will be able to fight to ensure that their loved one’s true wishes are fulfilled.

The foregoing is a brief and general overview of what may be considered Undue Influence 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.

A parent should consider advising their teenage child who is now a new legal adult of their family about Estate Planning.

Better yet, a parent should take their son or daughter to their attorney’s office and have the estate planning lawyer prepare a number of basic documents such as a simple Trust or Last Will & Testament, a Durable Power of Attorney, a Healthcare Surrogate or  Power of Attorney, and a Living Will (Advance Directive).

Actually, it will be a benefit to both the said adult child as well as parent because once a child reaches legal age, their parent will no longer be able to make decisions for the  child’s health and finances (or even have access to their child’s healthcare or financial information) without the appropriate legal documents authorizing them to do so.

If one’s child becomes ill or injured and cannot handle their own financial affairs, a parent will not be able to step in and conduct business on their child’s behalf (e.g., sign checks, sell assets, access private school or medical information, etc.) unless their child has a trust or a durable power of attorney and has named their parent as successor trustee or agent. If not, the parents will have to go through the courts for a legal Guardianship, which will take time, cost significant money, and restrict them in ways they could never imagine. Some financial institutions and/or governmental agencies may not even accept a durable power of attorney or may also require their own forms; consequently, make sure the parent and the adult child check with each financial institution and/or governmental agency.

If one’s adult child cannot make his or her own healthcare decisions, it will be much easier for a parent to make them if the subject adult child has a healthcare power of attorney which names the parent as healthcare agent, surrogate, or proxy. Further, what if said child were to become seriously ill or injured in which he or she is placed on life support before the parent arrives at the hospital? Unless the child has made his or her wishes known through the proper legal document, the parent may not be able to have the equipment removed without court approval.

Finally, if one’s adult child were to die without a Last Will, the court will distribute the subject child’s assets according to the laws of the state (Intestacy or next of kin) in which the said child resided, regardless of what either of the child or their parents would have wanted or intended.

As time passes, make sure the new adult child understands that all these documents will need to be updated as the said child’s,  as well as their parent’s, life changes such as when the child accumulates more assets, and as the child and their own loved ones move, marry, have children, divorce, and pass away.

Assisting and advising one’s children to begin with this responsibility now they become legal adults is an important task one has as a parent.  It goes hand in hand with teaching them how to balance a checkbook, manage a credit card, and purchase insurance.

Chances are, it will be a long time before any of these documents will actually be needed. However, a Florida resident will be sending their adult child out of the family home and into the world with a full layer of protection, just in case.

The foregoing is a brief and general overview of what a Florida parent should recommend to their new adult child regarding Estate Planning.

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.

For a multitude of reasons, Florida residents may want some or all their assets to pass directly to specific individuals upon their deaths, outside of the probate process. One way to carry this out is to list a designation of beneficiary or set up an “in trust for” (ITF) or “payable on death” (POD) account for money in a bank account, IRA. 401(k), etc., or a “transfer on death” (TOD) account if funds are in a brokerage account.

Probate is the process by which a Florida court determines how to distribute property or assets after an individual’s death. Some assets are distributed to heirs by the court (probate assets) and some assets bypass the court process and go directly to beneficiaries (non-probate assets). With ITF, POD, TOD and/or designated beneficiary on accounts, the account owner names a beneficiary (or beneficiaries) to whom the account assets are to pass or be distributed when the owner dies. Usually, all that is required to get the money or control of the account is for the beneficiary to show a bank officer or the brokerage firm an original death certificate of the owner as well as various requested forms of identification for the beneficiary and possibly a claim form. The funds pass outside of probate, meaning that the beneficiaries can receive the money quickly without the involvement of the county Florida Probate Court. The account assets also receive a “step-up” in basis when the original owner passes away, meaning that the beneficiary gets the value as of the owner’s date of death for capital gains tax purposes.  However, one should never hesitate to consult their accountant, CPA, or Tax advisor to confirm it.

During the account holder or owner’s lifetime only the account owner has access to the assets.  The named beneficiaries have no control over the subject account, and the owner can change beneficiaries at any time, if competent to do so. If the named beneficiary predeceases the account owner, then the assets are distributed to the remaining beneficiaries or to successor, contingent or alternate beneficiaries, depending on what the owner names or lists on the beneficiary designation form or online. If there is only one beneficiary and that beneficiary predeceases the said owner, and the owner makes no subsequent changes to the beneficiary designation, the assets go into the account owner’s probate estate and will be administered via the probate process in court.

Ultimately, receiving assets could become a problem for certain beneficiaries, such as a child with special needs who depends on Medicaid and/or receives other public or governmental benefits. If the account amount is sufficiently large that could jeopardize the beneficiary’s eligibility for needed governmental benefits, then, it would be advisable to do special needs planning, such as naming a Special Needs Trust as the beneficiary to avoid the subject assets interfering with the receipt of governmental benefits.

Further, another issue with passing assets through accounts like these is that individuals sometimes forget about the accounts, and their existence can confuse an individual’s estate plan. For example, the Last Will & Testament may show that everything should be distributed equally to the account owner’s four children, but the said account passes assets to only one child, creating unequal shares among the children. Therefore, planning the estate should take all these aspects into consideration so they accomplish the overall desired result. 

If avoiding probate is the goal, a Lady Bird deed can be used for Real property (especially the primary residence), or one may put assets into a revocable trust that clearly expresses by its terms who should get what.  However, these potential problems are much less of an issue if the estate is a basic or simple one, i.e., where there is one surviving parent with only one child as the beneficiary.

The foregoing is a brief and general overview of what the concept is regarding designation of beneficiaries 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.

Elder Law is a large umbrella encompassing many aspects of life and can be defined as any legal issue involving health and personal care planning for senior citizens and their caregivers.

This area of practice encompasses all aspects of planning for aging, illness, and incapacity, including advance directives; lifetime planning; family issues; fiduciary representation; capacity issues (i.e., Alzheimer’s and Dementia, Parkinson’s); guardianship and guardianship advocates (for minors, adults, and people with developmental disabilities); powers of attorney (medical and financial); financial planning; public benefits (Medicaid and Veteran’s Benefits) and health insurance (such as Medicare); resident rights in long-term care facilities; housing opportunities and financing; employment and retirement matters; income, estate, and gift tax matters; estate planning (Last Wills and Trusts); probate; nursing home claims; elder abuse; age or disability discrimination and grandparents’ rights, depending on the state.  Another part of elder law may include disability planning. This area includes the planning of monetary gifting to a disabled family member or loved one (particularly those diagnosed with developmental disabilities such as autism, down syndrome, cerebral palsy, etc.) while still protecting public benefits such as Medicaid and SSI, through the creation of a Special Needs Trust.

This area of law can also include the civil and criminal defense of individuals who are civilly sued or criminally charged with violations of their positions regarding their duties towards the elderly in their family or custody and/or care.

In Florida, elder law clients are primarily senior citizens and their caregivers (familial or professional), or the family of individuals diagnosed with developmental disabilities; the specialization requires a practitioner experienced in the legal issues affecting these clients.

Mistreatmentof the elderlyis a recognized concern and will undoubtedly increase over the next several decades. With the population aging and people living longer, elder abuse is increasingly prevalent.

​Elder abuse, or financial exploitation, is also known as financial abuse.  This abuse occurs when someone misuses or takes money from a vulnerable elderly person.

Financial abuse can include the misuse of powers of attorney and guardianship, illegal transfers of property, and outright fraud and theft. Financial exploitation can also occur after a person’s death, through the mishandling of a deceased party’s estate and distribution of property.

In order to detect the ongoing situation, one can look for certain signs, and if one observes an elderly person who appears to be affected by any of the following situations, then some proactive measures should be taken. Signs can include when the senior becomes isolated from friends and/or family; seems afraid to speak in front of caregiver/companion/family member; is receiving care well below the level they can afford; is unable to spend money the way they want; seems as if they are being forced to sell or give away property, sign over Power of Attorney, or change title of property to someone else; sudden changes in their financial situation or their bank account shows unusual activity; and/or sudden changes in their beneficiaries in their Last Will or Trust.

Financial abuse against seniors is particularly difficult to detect since they are often unreported by victims. In many cases, it is up to family and friends to discover the wrongdoing and file a complaint. Concerned friends, neighbors, and family members can help prevent financial abuse of the elderly by checking in with the person from time to time as many vulnerable victims are isolated from others. A few preventative measures might include occasionally arriving at the elderly person’s home without calling, asking questions when circumstances do not appear quite right, and listening and observing carefully for any potential problems.

If a Florida resident believes that an elderly person may be a victim of financial fraud, or any other type of abuse, then should act promptly. Time is of the essence and the proper course of action will depend on the urgency of the situation. If the situation involves physical danger, it is best to call 911, or get the local police involved. In Florida, one can also contact the local Adult Protective Services through the Dept. of Children & Families (DCF) who can investigate the situation.   

​If an individual suspects that a family member or loved one is no longer capable of making good financial decisions on their own, they can initiate guardianship or conservatorship proceedings.
  

To Report Elder Abuse, Neglect, and Exploitation, the same can be reported by phone – call Florida Abuse Hotline at 1-800-96-ABUSE (1-800-962-2873), then press two (2) to report suspected abuse, neglect, or exploitation of a vulnerable adult. This toll-free number is available around-the-clock.

Pursuant to Florida statute Chapter 415- Adult Protective Services terms are defined: (1) “Abuse” means any willful act or threatened act by a relative, caregiver, or household member which causes or is likely to cause significant impairment to a vulnerable adult’s physical, mental, or emotional health.

To demonstrate there was a breach by the fiduciary or someone else, one or more of the following must be proven:

1. Extensive withdrawal from monetary accounts.
2. Increased or changed spending habits.
3. Someone added to the senior’s financial accounts.
4. Unpaid health care costs or no health care.
5. Changes in the senior’s estate.
6. Changes in the senior’s personality.
7. Payments or gifts that seem excessive.

Financial abuse of the elderly includes an array of behaviors from the theft of property to “borrowing” property from an elderly individual with the intention of keeping it because of the individual’s poor memory or lack of will or ability to retrieve it. It also occurs if someone uses undue coercion or influence to convince an elderly person to change their Last Will or convey property. 

There are many people who can commit financial elder abuse, including friends, family members, and even service providers, such as nursing home employees, caretakers, attorneys, and accountants. Even strangers may befriend an elderly person to try and gain access to their property. 

In the state of Florida, anyone who is in a position of confidence or trust in an elderly person is expected to put the elderly person’s needs first and not to use or obtain the assets belonging to the elderly for their own or someone else’s purposes. The potential legal consequences of violating the elder exploitation laws in Florida are severe and may include attorney’s fees, triple damages, and punitive damages. 

The crime of Exploitation of an Elderly Person or Disabled Adult of $10,000 to $50,000 is a Second-Degree Felony in Florida and punishable by up to fifteen years in prison, fifteen years of probation, and a $10,000 fine.

The types of elder abuse include:  Neglect, Physical abuse, Sexual abuse, Abandonment, Emotional or psychological abuse, Financial abuse, and/or Self-neglect.

When a caregiver or other person uses enough force to cause unnecessary pain or injury, even if the reason is to assist the older person, the behavior can be considered abusive. Physical abuse also encompasses behaviors such as hitting, beating, pushing, shoving, kicking, pinching, burning, or biting.

Florida Statute section 415.1111 gives “vulnerable adults” a civil cause of action for damages, punitive damages and attorney fees and costs when they have been financially exploited. There are also criminal penalties that can be pursued by the State of Florida through their local States Attorney’s office.

The Department of Justice describes the term “exploitation” as referring to the act or process of taking advantage of an elderly person by another person or caregiver whether for monetary, personal, or other benefit, gain or profit. Undue influence is the misuse of one’s role and power to exploit the trust, dependence, and fear of another to deceptively gain control over that person’s decision in a particular matter. Along with capacity and consent, undue influence is a key concept in elder law.  Federal agencies such as the Departments of Justice (DOJ) and Health and Human Services (HHS) are also involved in protecting people from such abuse.

Under Florida Statute 775.15(10), the statute of limitations requires that the prosecution is commenced within five (5) years after an offense is committed in violation of the following:

• Section 825.102 prohibits the abuse or neglect of the elderly or disabled; or
• Section 825.103 prohibits the exploitation of the elderly.

On March 22, 2020, Attorney General Ashley Moody announced the creation of Florida’s Senior Protection Team. The intra-agency group of experts works in tandem to fight fraud committed against the elderly. Florida’s Senior Protection Team is comprised of members from: the Attorney General’s Office of Statewide Prosecution, Consumer Protection Division, Medicaid Fraud Control Unit and Office of Citizen Services.

The Florida Department of Law Enforcement also helps Florida’s Senior Protection Team with investigations into civil, criminal, and healthcare fraud committed against Floridians who are sixty (60) years of age and older.

Although Florida’s Senior Protection Team deals with elder exploitation issues, those issues are typically handled within the jurisdiction and expertise of local law enforcement or other state agencies, like the Florida Department of Children and Families, the Florida Department of Elder Affairs, and/or the Department of Financial Services.

Even physicians, nurses, and other health care providers can be accused of exploitation of a disabled adult or elderly person. The Florida Attorney General’s Medicaid Fraud Control Unit oversees many of these investigations. Related charges can include being engaged in a scheme to defraud.

The foregoing is a brief and general overview of what is considered Elder law and Elder abuse 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.

In general, Estate Planning involves making a written plan in advance for whom a person wishes to receive one’s assets after death and naming who they wish to make decisions for them if they become incapacitated.

1. It provides instructions for what to do with one’s assets and property after they have passed away.
2. It provides instructions for a person’s care and how to manage their finances if they become incapacitated.
3. It identifies a Guardian or Custodian and a Trustee to manage one’s minor children and/or their inherited assets.
4. It helps prevent disputes among beneficiaries and/or surviving family members.
5. It can provide for family members with special needs without disqualifying them from government benefits.
6. It can include life insurance to provide for one’s family at their death; disability income insurance to replace income if one cannot work due to illness or injury; and long-term care insurance to provide assistance in case of an extended illness or injury.
7. It enables the transfer of a party’s business from their retirement, disability, or death.
8. It takes care of loved ones who may be irresponsible with money or who may need to be protected from creditors or ex-spouses.
9. It can reduce taxes, court costs, and unnecessary legal fees.
10. It can be altered and updated as one’s family and financial circumstances, and relevant laws, evolve or change over their lifetime.

The foregoing is a very brief and general overview of the assorted reasons to consider when preparing an estate plan for Florida residents.

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 law does not provide unmarried couples with the inheritance protections and automatic decision-making authority it provides to married couples.  Unmarried couples have virtually no rights under Florida statute. Consequently, many of those rights can be created with proper estate planning documents.  Unmarried couples, in particular, must take practical steps to plan for the future.  Unmarried couples should make estate planning a priority.

Estate planning in Florida is essential to guarantee the estate distributes property and assets according to the deceased person’s wishes. If a person should pass away without executing a Last Will & Testament, or Trust, his or her property will be distributed in accordance with Florida’s Intestacy law. Essentially, a married couple is treated as a single entity under the law. Domestic partners and others in non-traditional relationships do not count as heirs under Florida probate law.  Therefore, unmarried partners do not have access to these same protections. Florida does not recognize common law marriage, so even long-time partners could be cut off from interests in their partners’ property after their deaths.  Unmarried couples can also consider holding certain assets, such as real estate or bank accounts, in joint ownership with rights of survivorship.

It is estimated that the number of cohabiting unmarried couples or partners has increased by 88% between 1990 and 2007, and the committed unmarried couple is the fastest growing segment of the relationship population in the United States. This trend is expected to continue, as modern society struggles to find continuing long-term value in marriage, which is the principal legal fiction used to extend a legal relationship, which began by blood only but was expanded to adoption, to people who were not otherwise related by blood or adoption, i.e., by legal marriage, for purposes of the laws of descent and distribution.

While working with unmarried partners on the personal or human side of estate planning is not too dissimilar from working with married partners on their estate planning, current law treats these two groups, i.e., married v. unmarried, entirely differently on the legal side of estate planning. Again, the two principal differences are the laws of descent and distribution, both testate and intestate (the default rule for people who die without a valid Last Will & Testament which transfers their entire estates) and the laws of marriage, which imbues a married surviving spouse with preferred rights in a whole panoply of areas, including property and estate administration rights and responsibilities, as well as in personal care and taxation.

On the one hand, the lack of current applicability of the legal default rules of legal relationship (unmarried and otherwise unrelated people are strangers in the law) and descent and distribution give estate planners a tabula rasa, but there is no default rule safety net. For this reason, many experts in the field call estate planning for unmarried couples “the wild, wild west of estate planning.”

Estate planning must now focus on the unique problems and issues that unmarried couples and their estate planners face.  There are now numerous factors to consider such as:

• The legal atmosphere for an unmarried couple is different than for married couples-in the world of married couples, the legal institution of marriage eventually came with its preferential rights for surviving spouses by way of the laws of descent and distribution, in which the surviving spouse enjoys in virtually every set of intestacy laws throughout the nation. The legal atmosphere of unmarried partners is without these very effective default rules.
• Why unmarried couples’ estate planning needs to be done in an expedited way, discussing the risks attendant to no protection against the HIPAA privacy protection.
• Legal Status-putative or common law spouses-what about agreements or negating post-death attempts to claim status as a common law or putative spouse, or palimony.
• Property Agreements-Attorneys, and their clients should discuss the structure of a property agreement between unmarried partners and creative use of entities.
• Differences in the income and transfer tax treatment between married and unmarried couples.
• Domicile and Governing Law-This can become particularly acute if the couple lives part-time with each other or separately and part-time together in different jurisdictions.
• Life and Health Insurance; Other Benefits-should be discussed as well as the challenges in this area, including County Domestic Partner forms-for Insurance purposes and employment benefits, etc. and Domestic Partnership Agreements.
• At the Outer Edge-Adult Adoption; visitation agreements, etc.

The foregoing is a brief and very general overview of the various initial steps to consider when preparing an estate plan for an unmarried but committed couple in Florida, whether part-time or full-time residents.

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.