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Elder Law | Legal Services

ElderlyNo matter where we live, what our income, what political views we hold, all of us face the prospect that we are growing older in a world that is constantly changing. Navigating this changing economic and cultural environment can create anxiety and uncertainty for the elderly.

Seniors provide a rich source of untapped knowledge, experience and wisdom yet; many fail to plan adequately for a time when they may be faced with challenges unique to an older population. Aging is made more difficult, if adequate planning hasn’t been done to anticipate expected future life changes.

We need to learn how to adapt on a timely basis to: Decreasing income and perhaps a smaller family to assist us as we inevitably become older and less able to handle the physical chores we once handled with ease.

We offer you these legal services:

    • Preservation/transfer of assets seeking to avoid spousal impoverishment when a spouse enters a nursing home.
    • Medicaid and Medicare claims.
    • Disability planning, including use of durable powers of attorney, living trusts, “living wills,” for financial management and health care decisions, and other means of delegating management and decision-making to another in case of incapacity.
    • Conservatorships and guardianships.
    • Estate planning, including planning for the management of one’s estate during life and its disposition on death through the use of trusts, wills and other planning documents.
    • Administration and management of trusts and estates.
    • Assistance with long-term care placement in nursing home and life care communities.
    • Nursing home issues including questions of patients’ rights and nursing home quality.

This article is for general reference only, and it is not intended to be a substitute for the hiring of an attorney. It is always best to consult an attorney about your legal rights and responsibilities regarding your particular case.

Premarital Agreements

 Premarital agreements in Florida are governed by statute – F.S. 61.079 – The Uniform Premarital Agreement Act. Premarital agreements become effective upon the marriage of the parties and must be in writing and signed by both parties, although there may be some limited circumstances where oral agreements are enforceable. They are enforceable without consideration other than the marriage itself. They can be amended, revoked or abandoned only by a written agreement signed by the parties.

The act provides that the parties to a premarital agreement may contract with respect to property rights, spousal support, the making of a will or trust and the disposition of property upon separation, divorce or death or the occurrence of any other event or any other matter as long as it is not in violation of either public policy or the criminal statutes.

Premarital agreements generally must be fair and entered into voluntarily. There must be fair and reasonable disclosure of the financial status of the party who proposes the agreement.

Defenses to the enforcement of a premarital agreement can be such things as: fraud, duress, coercion or overreaching.

Certain things can be waived in a prenuptial agreement such as the right to spousal support following dissolution of the marriage, the right to modify alimony where the waiver is expressly stated, the right to equitable distribution of property, spousal rights in a probate context such as right to intestate succession, pretermitted spouse and elective share rights, homestead rights

Some things cannot be waived in a prenuptial agreement, such as temporary support, child support, child custody and visitation.

It is unclear whether a provision contracting away a future obligation to pay attorneys’ fees for contesting the agreement can be upheld. The issue of whether an impecunious spouse should be prevented from challenging the validity of the agreement because of inadequate resources remains unclear.

It is also unclear whether pension rights can be validly waived in a prenuptial agreement. Pension rights are governed by the U.S. statute known as ERISA which requires that pension rights be waived by a spouse, not a spouse to be. Accordingly a premarital agreement should be separately re-executed by the waiving party after the marriage and separate waivers should be signed.

Finally, the timing of the financial disclosure, the negotiations and the signing of the premarital agreement should all be well in advance of the wedding. Otherwise, if all these things occur shortly before the wedding, it will be easy for a challenging spouse to make claim for duress or undue influence.

Visitation Disputes

Sad boy with arms folded while parents quarreling in the kitchenVisitation is agreed to and established by the parties or the court at the time of the Final Judgment of dissolution of marriage by virtue of the marital settlement agreement and parenting plan which the parties sign and which are incorporated into the Final Judgment. These agreements will customarily have enforcement provisions in them.

Examples of such provisions are:

  1. prohibiting the removal of the child from the state or country without written permission from the other parent;
  2. requiring notarized written permission from both parents or a court order or both to allow a child to leave the country;
  3. prohibiting the removal of the child to a country which has not ratified or acceded to the Hague Convention on the Civil Aspects of Child Abduction or without obtaining written permission of the other parent;
  4. requiring surrender of the child’s passport;
  5. requiring the posting of a bond or other security. F.S. 61.45 contains detailed provisions on these issues and the conditions under which a court will allow them.

If the parties are unable to resolve the dispute……

  • The court can enforce the provisions of the agreement by contempt. Generally, it is improper to withhold child support or alimony as a sanction for failure to honor visitation agreements. It is also improper to modify a time sharing agreement solely as a sanction for contempt.F.S. 61.13(4)(c) contains other remedies if visitation agreements are not honored, such as:
  • The court can award compensatory time to the nonoffending party.The court can award attorneys fees and costs to the nonoffending party.The court can order the offending party to attend a parenting class.
  • The court can order the offending party to perform community service.
  • the court can order the offending parent to bear the financial burden of time sharing if the parent and child live more than 60 miles apart from the other parent.
  • On the request of the nonoffending parent the court can modify the parenting plan if it is in the best interest of the child.
  • The court can impose “another reasonable sanction”

The remedy of Habeas Corpus may be available to seek the return of a missing child and as a remedy for violation of visitation agreements. The proper venue for such a proceeding is in the county where the child is being detained or wrongfully withheld. This is an extraordinary remedy and you must seek the advice of an attorney on this issue.

If your child is missing, you may be eligible to use the parent Locator Service offered by state of Florida Department of Revenue under the Child Support Enforcement Program. See F.S. 409.2577 SEE ALSO 48 USC 653. There is an application fee for parents not receiving public assistance.

There is also a service offered by the Defense Manpower Data Center (DMDC) through which the public can verify whether someone is in the military.The link is: www.dmdc.osd.mil/scra/owa/home. Each branch of the armed services, except for the army, can also be contacted to determine if the person is on active duty. The army locator service is only available to active duty personnel.

Living Trust

Living Trust Questions and Answers

A living trust is a written document that creates a form of ownership in which assets originally owned by the grantor of the trust are legally re-titled in the name of a trustee (who can be the same person as the grantor) who manages the assets for the benefit of the trust’s beneficiaries named in the writing. Creating a revocable living trust is the most effective means of avoiding probate and guardianship.

It is safer than joint ownership to avoid probate because the trustee named by the grantor does not personally own the assets of the trust, as is the case with joint property; the trustee hold title to the assets IN TRUST for the benefit of the beneficiaries named in the trust. Continue reading Living Trust

How to help your trustee make good decisions for your family

Yogi Berra.  File photo 1965 by Indy photographer Fred Parrish.
Yogi Berra. File photo 1965 by Indy photographer Fred Parrish.

As Yogi Berra supposedly said, “It’s hard to make predictions, especially about the future.” Yet when you create a trust for your heirs you have little choice but to make predictions about what their needs will be many years down the road.

Because circumstances change, it’s a good idea to make your trust flexible enough to accommodate the unexpected. If you tell your trustee what to do in too much detail, the trust might end up being useless or counter-productive if something unforeseen happ Continue reading How to help your trustee make good decisions for your family

Inherited IRAs are not protected from creditors

If you’re planning to leave an IRA or other retirement account to your heirs, you might want to consider creating a trust to hold the account. That’s the upshot of a recent ruling from the U.S. Supreme Court.

That’s because IRAs that are inherited from anyone other than a spouse are no longer protected from creditors in a bankruptcy. Heidi Heffron-Clark and her husband Brandon filed for bankruptcy after their pizza shop failed in 2009. They owed their landlord $74,000, but didn’t have enough cash on had to pay the debt. Continue reading Inherited IRAs are not protected from creditors

New Danger When Doing IRA Rollovers

IRS_logoThere’s now a big danger if you’re rolling money over from one IRA into another IRA, as a result of a decision from the US Tax Court. Under feferal law, you can only do one IRA-to-IRA rollover per year. If you try to roll over more than one IRA in a 365-day period, it’s considered a distributionm and you’ll be subject to significant taxes and penalties.

In the past, the IRS has told taxpayers that this means you can’t roll over the same IRA within a year. So if you rolled your Fidelity IRA over to Schwab, and you later wanted to roll the same IRA over to Vanguard, you had to wait at least 365 days.

But the Tax Court says this is wrong, and in fact you can’t roll over more than one IRA per year ….even if they’re different IRAs.

So if you had two IRAs at Fidelity, and you wanted to roll them both over to Schwab, you’d have to roll one over, and then wait a whole year to roll over the second one. There’s an easy solution to this problem: Instread of rolling the funds over (having them made payable to you and then depositing them at the second instituion), move them with a direct trustee-to-trustee transfer. As long as the funds move directly to the second institution, and you never touch them, it’s not considered a rollover.

But you have to be very careful and make sure that the formalities are followed and the first instituion doesn’t actually send you any money. Otherwise, it could be a tax nightmare.

Eight States are Easing Their Estate Taxes in 2015

estatetaxsmallEight states are reducing their estate tax burden in 2015, which is good news for anyone who lives or owns property in those states.

New York and Maryland are increasing their exemption amounts (the amount of assets an estate can have before any tax is due). For 2015, the New York limit goes from $1 million to just over $2 million, and the Maryland limit goes from $1 million to $1.5 million. Both states plan to gradually raise their limits to the amount of the federal limit by 2019. (The federal limit was $5.34 million in 2014 and will be $5.43 million in 2015.)

Tennessee’s limit will be $5 million in 2015, and the tax will be repealed altogether in 2016.

Rhode Island’s limit will go from about $1 million to $1.5 million next year, and Minnesota’s will rise to $1.4 million, increasing gradually to $2 million in 2018.

Also, starting next year, the exemption amounts in Rhode Island, Washington, Hawaii and Delaware will be indexed each year for inflation.

A NOTE OF CAUTION: BE CAREFUL IF YOU LIVE PART OF THE TIME IN FLORIDA AND PART OF THE TIME IN ANOTHER STATE. MOST STATES ARE HAVING BUDGET PROBLEMS AND WANT YOU TO PAY THEIR TAXES.CHECK WITH YOUR ATTORNEY.

Some gifts to charity should be made now… not in your will.

Charitysmall

In the past, many people’s wills included a sizable donation to charity. Because the federal estate tax was so burdensome, including charitable bequests in a will was a good idea since it reduced the amount of tax the estate had to pay.

Now, however, the federal estate tax applies only to estates of well over $5 million. As a result, for a great many people, leaving money to charity in a will no longer provides any tax benefit.

On the other had, the federal income and capital gains taxes have gone up, new surcharges have been added on investment income, and many states have raised their income and capital gains taxes as well. As a result, many pepple could reap signficant tax savings if they made planned annual gifts to charity while they’re alive, as opposed to making bequests in a will.

If you have an older will that includes a significant charitable bequest, this might be a good time to reconsider whether you could save taxes by writing the charity out of your will and instead making regular donations each year.

 

Points To Ponder In Picking An Executor

Thinking Smiling Woman With Questions Mark Above Head Looking UpOther than how you want to dispose of your assets, one of the most important things that you will have to decide in devising an estate plan is who your executor will be. The law requires that an executor {in some states called a personal representative) be appointed to handle an estate because someone must be responsible for collecting the estate’s assets; protecting the estate’s property; preparing the inventory of the property; paying valid claims against the estate (including taxes); representing the estate in claims against others; and distributing the assets to the beneficiaries.

Sounds like a lot of work, doesn’t it? And some of it can be complicated. However, the executor does not have to shoulder the entire burden. He or she can pay a professional out of the assets of the estate to take care of most of these functions, especially those requiring legal or financial expertise. Such an option will, of course, reduce the amount that goes to the beneficiaries. Therefore, handling an estate is often a matter of balancing expertise, convenience, cost, and other factors. There’s no consensus, even among lawyers, about who makes the best executor; it all depends upon your individual circumstances.

One approach is to appoint someone with no potential conflict of interest—that is, someone who does not benefit from the will. For this reason, many individuals avoid naming family members and business partners as their executors. This helps the estate to avoid claims by disgruntled relatives who may accuse the executor of dishonesty. Having a professional such as a lawyer handle the job can also save a spouse or other family member the hassle of dealing with estate issues while they are grieving, and the embarrassment of things such as collecting the debts that the estate is owed from friends and relatives. For a large estate, a paid professional executor is advisable.

For small estates, the fees of a paid professional executor may not be worth it. For estates under one million dollars, a spouse or a mature child is generally the best choice for an executor. However, be aware that choosing a child may create animosity among siblings.

If you decide to appoint an interested person as the sole executor and give that person discretionary power to decide who gets certain property, it makes sense to include the methodology by which those decisions should be made. The appointment of coexecutors may be another way to help deal with potential conflicts of interest.

So, what qualities should you look for in an executor? It’s important that the executor be capable of doing the job. Persistence in paying bills is a key trait of a good executor. Pick someone who has the time and inclination to deal with bureaucrats and forms.

The executor will probably have to hire a certified public accountant to deal with the final income tax return for income the deceased person accrued prior to death; the estate tax return; and the estate income tax return for income accrued after the person’s death.

The executor may have to hire an investment advisor if the estate includes stocks, particularly if the asset value has changed due to fluctuations in the market. However, no legal expertise is required to be an executor; the estate may hire a lawyer to help resolve legal issues.

Whoever you choose as executor, make sure your will provides for a backup in case the original executor is unable or unwilling to serve. If you do not, the court will assign one for you.