, , ,

Medicaid Planning with Overstreet Law

Florida Medicaid planning is a critical issue for the aging population in Florida. Planning for long-term medical care costs is not as simple as it may sound due to the exponentially rising cost of long-term medical care for seniors. At an average cost range of at least $5,000 per month, life savings can be wiped out in a relatively short period of time.

What is Medicaid Planning?

  • Medicaid Pre-Planning prepares for long-term care. It applies to a nursing home, assisted living facility, or special home health care services. Pre-planning is essential to prevent financial devastation.
  • Crisis Medicaid Planning is when an individual enters a nursing home within a short period of time. Or they are already in a nursing facility and needs to qualify for Medicaid immediately.

In Florida, three categories are utilized for Medicaid eligibility:

  • Institutional or Nursing Home Medicaid
  • Home and Community-Based Services (HCBS)
  • Regular Medicaid

Institutional or Nursing Home Medicaid is available to all those who are eligible and in need of nursing home care.

Home and Community-Based Services (HCBS) support long-term care services that are provided in the home, at assisted living residences that have a managed care system, adult foster care, or adult day care homes. This Florida program utilizes one agency that takes care of all these types of long-term care needs. 

In the past, Florida offered “HCBS Medicaid waivers” but those are no longer available. Like those waivers, this managed care program limits the number of participants to space that is available to them and, therefore, there could be a long waiting list for these services.

Regular Medicaid in Florida is described as for the “Aged and Disabled (MEDS-AD)” and is available to all those who are eligible for the services. With this program, benefits are either provided in a home or adult daycare setting. 

Why Is Medicaid Planning Important?

Medicaid planning usually involves considering the welfare of both senior partners. One spouse may be attempting to qualify for Medicaid so that the cost of long-term nursing care is paid, and the other partner may still be healthy and prefers independent living at home. Here are some facts about Medicaid eligibility that may be helpful:

  1. First, the rules and regulations for Medicaid eligibility vary from state to state. Just because one senior may be ineligible for Medicaid does not mean the other will also be ineligible.
  2. Every Medicaid application has to have solid documentation as to why the senior needs Medicaid and has proof that his assets are less than $2000 if single and $3,000 if married.

The eligibility rules for Medicaid can be complex and confusing, and that is why a lawyer is often called upon to help. All seniors who apply for Medicaid benefits to cover the costs of a nursing home are required to complete the Medicaid Long Term application, in addition to the Medicaid application. 

This form will require the senior to disclose all income and assets, and what has been given away over the past five years. For example, if a senior wants to become eligible for Medicaid, he or she simply cannot transfer all the assets to children or a relative. Medicaid does a thorough background check to ensure that no transfers have been made in the past five years.

Florida Medicaid planning requires time and effort. If you are considering applying for Medicaid long-term care benefits and want to make sure things are done the right way, consult with a knowledgeable Florida Medicaid attorney. A lawyer who knows the “ins and outs” of the Medicaid rules in Florida can be an immense help. Contact our office to schedule a Medicaid Planning consultation. 

/0 Comments/by
,

Back To School Estate Planning with Overstreet Law

For many families, the month of August signifies summer coming to an end and the kids going back return to school. Checklists are made for open house, school clothes shopping, school supplies, and physicals. One item that is often overlooked, but equally important, is making sure to have the proper paperwork on hand to receive the information you need about your student. 

Parents of teenagers that are entering their senior year of high school or their first year as a college freshman may have reached an important milestone over the last year — they turned 18. As their parent you become accustomed to being able to receive access to their protected records – medical, financial, and academic.

For parents, we get used to being their unequivocal voice in all matters regarding their education and medical needs. However, the moment your child turns 18, your access to these records stops without the proper paperwork. Legally adults, these high school seniors and collage freshman are now responsible for all decisions regarding their health. Furthermore, due to the Privacy Rule of the Health Insurance Portability and Accountability Act (HIPAA), parents have no legal right to their adult children’s medical records or other healthcare-related information.

Many parents do not realize they can no longer make medical decisions or gain access to these records for their adult students. We get asked all the time if it makes a difference that they still live at home, are still on their parents’ medical insurance or are still in high school.  the answer is the same in each these scenarios, not without the proper documentation. 

There are four essential documents that can be filled out between you and your adult student so that you have the authority to access their records and make the needed decisions for them should something unforeseen arise. 

  • Medical Surrogate – This document allows an individual to designate another person to be their agent in the event they’re no longer able to make decisions regarding their own healthcare.
  • Power of Attorney -. A document that can be used to give another person the authority to make healthcare decisions, make financial transactions, or sign legal documents on an individual’s behalf if they become mentally incapacitated or otherwise unable to perform these activities on their own.
  • Living Will – A legal document that provides a list of advance directives in which you specify the medical treatments, procedures, and medications you do or don’t want to receive. If you’re ever incapacitated and can’t speak for yourself
  • HIPPA Release – A legal document that allows an individual’s health information to be used by or disclosed to a third party.

In a perfect world, you’ll never need to rely on these forms. However, it’s always better to be prepared if things don’t go as planned. Taking a few hours to obtain and complete these documents allows you to protect them like you always have by knowing you can easily step in if situations arise where you are needed. 

We hope that circumstances never require having to use any of the documents but being prepared now can save you a great deal of stress down the road. One last tip: Be sure to keep copies of all documents on your phone or computer so that you can easily access them if necessary.

Knowing you have done everything you can to protect your children by hiring knowledgeable professional estate planning attorneys, like the attorneys at Overstreet Law, P.A can help alleviate worst case scenarios from happening. Along with the added benefit of peace of mind! Call us or contact us online for a confidential consultation, and we’ll let you know what to expect and how we can help!

/0 Comments/by

Should I have a Trust in my Estate Plan?

Living (Revocable) trusts are useful estate planning tools, and they have an important place in many people’s estate plans. If you find any one of the following benefits appealing, then a living trust may be appropriate for you.

Benefit #1: No Probate.

When a person dies, most properties pass either under a person’s Will or under a living trust. Some properties–such as life insurance, IRAs, and certain types of bank and brokerage accounts–pass directly to named beneficiaries. If property passes under a Will, then the Will must be probated at the courthouse. Probate entails hiring a lawyer, filing a number of papers with the court, possibly attending one or more hearings, and providing a written inventory to the court valuing the properties which passed under the Will.

Some people don’t want this type of involvement with the court, so they opt for a living trust. By transferring all properties which would otherwise pass under your Will to a living trust, you can avoid the probate proceeding. For estates which owe no estate taxes, there is usually less work for the lawyers, and that translates into reduced estate administration costs.

Court involvement is not eliminated entirely however. Florida now requires the trustee of a living trust to file a notice of the trust with the appropriate court containing information about the person who created the trust and the trustee. Also, in certain circumstances, the trustee may be required to pay expenses of administering the decedent’s estate as well as the claims of creditors against the decedent’s estate.

Benefit #2: More Privacy.

As mentioned above, when a person dies with a Will, an inventory must be filed with the court. You may not want your friends, neighbors, or the media to be able to read a listing of what you own and what it is worth. After all, an inventory is a public record. With a living trust, your properties and their values remain private.

Benefit #3: Plan for Future Incapacity.

You may be worried that one day you won’t be able to manage your own finances, and you may want to name someone to handle these types of matters for you. You can address this potential problem with a power of attorney or with a living trust. A power of attorney will usually be accepted by banks, title companies and the like, but there is always the risk that an institution’s legal department will reject it. The same person who may be denied the ability to use a power of attorney will likely be allowed to do anything he or she wants when acting as trustee of a living trust.

Benefit #4: Harder to Challenge.

If you are planning to disinherit one of your children or grandchildren, you may be better off with a living trust because there is nothing filed at the courthouse. Also, it is a little harder to contest a living trust than a Will. Many people are interested in doing as much as possible to prevent a successful challenge to their estate plan.

Benefit #5: Avoid Out-of-state Probate.

If you own property in another state, you can avoid a costly probate proceeding in that state by transferring the property to a living trust.

Before you decide that a living trust is right for you, you need to understand the potential downsides, which include the following:

#1: Time-consuming to Set Up.

Depending on how many different types of properties and accounts you own, it can take quite some time to switch everything over to the name of your living trust.

#2: Complicated.

Wills are usually shorter and simpler to understand than living trusts. Also, with a Will, you can sign it and forget about it. But with a living trust, you need to put your property into the trust and run your life out of it for as long as you live. For many people, this downside outweighs all the potential benefits.

#3: Time-consuming to Revoke.

A year after you set up the living trust, you may decide you don’t want it any more. At this point, you will need to return to every bank and brokerage house, and undo everything you had done to establish the trust.

#4: Post-Death Costs Not Eliminated.

If you have a taxable estate (which is generally an estate over $11,700,000 – in 2021), there will be a lot of work to be done after death regardless of whether probate is required. Typically, there are tax returns to file, trusts to establish, assets to value, and more. Avoiding probate will only marginally reduce the cost of administering a taxable estate.

#5: May Still Need to Probate Will.

If you leave just one bank account or one piece of real estate out of the trust, probate will still be necessary. And probate takes about as long when there is one asset as when there are twenty.

Call our office at 407-847-5151 to schedule a consultation with one of our experienced Estate Planning attorneys. We look forward to working with you.

/0 Comments/by
,

If I Don’t Have Any Assets, Why Do I Need A Will?

Estate planning may sound like something wealthy people do to make sure their businesses, mansions, and money go to the people they wish after they die. In fact, it goes far beyond making a will, and it’s something every adult, at every stage of life, ought to do, whether or not they have financially significant assets. Estate planning, especially establishing advance directives and establishing power of attorney is vital to take care of now.

Advance Directives

An advance directive is a legal document that allows you to make choices about your health care before that care is needed. For example, you can set out your instructions for your care circumstances like an accident that leaves you unconscious; whether or not you want to be sustained on life support, and in what circumstances; your desires in case you become terminally ill or mentally ill. You can also establish your wishes for what is to be done with your body in case of your death. Do you want to be an organ donor? Would you want your body donated to a medical school or for research? Most commonly, advance directives for health care are handled through a living will or a health care proxy, which is a specific type of power of attorney, granted for making health care decisions.

Power of Attorney

In addition to health care decisions, you can designate someone to make financial or business decisions on your behalf, if you are not capable. That person you grant power of attorney is called an attorney-in-fact. By planning ahead, you have the opportunity to make considered choices. You can designate different attorneys-in-fact for health care and financial decisions, or choose one person to handle both.

Florida enacted new legislation in 2011 that made changes to the ways power of attorney documents are established and implemented. One important change is that power of attorney documents must now include a much more comprehensive list of authorities granted to the attorney-in-fact. Where the law once assumed that authorities not specifically excluded in a power of attorney document were included, it is now assumed that authorities not specifically included are excluded.

Providing For Children 

If you have minor children, and especially if you’re a single parent, you need to include provisions for those children in your will. You need to make sure you’ve named the people you want to become their legal guardian after your passing, and that you’ve done so in a legally binding way. Likewise, you’ll need to ensure that any life insurance benefits are used as you wish for the support of your children. If you don’t already have life insurance, getting covered will be an important part of planning for the future care of your children.

Estate Planning Is For Everyone

 Estate planning should cover all aspects of your current life, whatever that looks like. In addition to leaving instructions for your own care and finances, it covers issues like care of your pets if something happens to you, and access to your home and distribution of your personal property. That property may not have high monetary value, but there are likely items that hold high sentimental value, and you should be able to decide who should have them by designating beneficiaries and a trusted executor to carry your wishes out. The trust and estate planning attorneys at Overstreet Law, P.A. can guide you through the process of making an estate plan that covers the important matters in your life today, and into the future. Call or contact us online for a consultation and to learn more about estate planning for your specific stage of life.

/by
,

Why Millennials Need Wills, Too

The Millennial Generation is at the beginning of its adult life, and many Millennials are far more concerned about starting careers, buying homes, paying off college, and starting families than they are about planning their estates. Many believe that it’s too soon to start thinking about estate planning because they are young and healthy. At a bare minimum, even young adults should have a legally binding Power of Attorney, Health Care Surrogate Designation and a Last Will and Testament in place, and should have those documents reviewed periodically, because circumstances change over the course of a lifetime.

Plan Against The Unexpected

More than either their parents’ or grandparents’ generations, Millennials tend to prefer active and adventurous travel, often to more exotic locations. Before you head off to Bali for your trip of a lifetime, consider leaving travel insurance documentation in the hands of the person you want making emergency decisions for you, along with your power of attorney, health care surrogate designation, and a simple will. You never know when that diving trip may take a turn for the worse, and it’s better to have an unneeded plan than to have a problem and no plan in place.

Think About Your Pets

Financial assets aren’t the only things you need to plan ahead for, in case something happens to you. Do you have arrangements made for someone to take care of your pets if you’re incapacitated, or if you die unexpectedly? Does that caretaker have access to your home in case of an emergency? Do they know where to find your pet’s supplies and belongings, and where to reach your vet? Planning for the temporary or permanent care of your pets could make the difference between them living their lives out in a loving home and having them end up in a high-kill shelter if something were to happen to you.

What Happens To Your Digital Life?

Millennials have far greater digital presences than any previous generation. Because the development of legal standards regarding digital presences lag far behind the growth of those presences, it’s anything but clear what should be done with people’s social media accounts and websites when they die. It’s another perfect example of why Millennials need wills at an earlier age than their parents and grandparents ever did. Include an inventory of your accounts and sites in your estate plan, designate a caretaker, and make your wishes known. Certain media, like Facebook, allow you to appoint someone to take your account over in case of emergency, but others would require you telling your designee how to log in and what you want them to do with each account.

Items Of Sentimental Value

You may not be wealthy, but you probably have items that are rich in sentimental value that you’d like to go to people who will appreciate them, rather than a charity shop after you’re gone. You also don’t want friends and family squabbling over these things. It may seem silly to make an inventory of such things and list beneficiaries for them in a will, but you should. You might even consider working on a personal description of each item over time, so the eventual recipient will read in your own words why you consider the item a treasure and why you wanted them, in particular, to have it.

Millennials Need Wills & Estate Plans 

For people who are just starting out and don’t have major assets and complicated family ties, estate planning with an experienced attorney can be a surprisingly affordable step. The attorneys at Overstreet Law, P.A. can help you make your first will and estate plan, and review it for you as your life, finances, and family change in the future. Call or contact us online for a consultation. “Adulting” can be a challenge, but we can help you establish a solid estate plan for a firm foundation.

/by
,

Estate Planning Is Twice As Important In A Second Marriage

Preparing a will is important for Florida residents of all ages. When you’re planning to enter into a second marriage, or you’re already married for the second or subsequent time, thorough estate planning goes well beyond leaving a simple will, and it’s a critical step in ensuring that your assets are ultimately distributed as you intend.

Your Will May Not Be The Final Word Under Florida Law

While you may have given a great deal of thought and care in preparing your Last Will and Testament, and most people assume that that will be the end of any questions about distributing their assets after they die, there are some situations in which the law overrides your decisions. It’s critical to be aware of those potential issues and create a comprehensive estate plan that takes them into account.

The Florida Elective Share law says the surviving spouse is entitled to at least 30 percent of the estate of their deceased spouse, including their individually owned property, revocable trust, and share of any property jointly owned with a third party. The provisions of this law supersede any contradictory terms the decedent’s will may have included. While you may trust your spouse to set their right to make such a claim aside, and comply with the terms of your will, you should consider the fact that your surviving spouse may not be the one making the decisions in the future. If he or she is or becomes incapacitated, another person may be authorized to make an elective share claim against your estate on your surviving spouse’s behalf, even against that spouse’s wishes.

Florida law pertaining to homesteads may also override the terms of your will, in certain cases. Homestead law allows the homestead to be willed to a surviving spouse or minor child, but not to anyone else, if a spouse or minor child is still living. If your wish is to leave your homestead property to a parent, sibling, or anyone else, you’ll need additional estate planning measures to allow that bequest under the law.

Pre- And Post-Marital Agreements

Both pre-marital agreements and post-marital agreements are signed by both parties, and they provide a way for each spouse to arrange distribution of their estate assets as agreed, without running into situations where state law overrides their plans. It’s a common misconception that this type of arrangement and contract is only for wealthy people with large, complicated estates, but in fact, a pre- or post-marital agreement can make planning modest estates smoother and more secure, too.

Trusts And Mutual Wills

By coordinating the terms of their wills, and placing assets in a trust, couples can create a situation where each is assured that any children from previous marriages will be provided for as intended. This type of preparation reduces the chance that a surviving spouse might change their will after the first spouse dies, or that a situation might arise where state law would apply in a way that violates the terms the spouses agreed to.

Establish And Review Your Estate Plan 

Estate planning is not a one-and-done matter. If you’ve already begun your estate planning, it’s wise to have those plans reviewed periodically, and any time your desired bequests change. The attorneys at Overstreet Law, P.A. have decades of experience helping people with estates of all sizes plan for the future. Call or contact us online to schedule a consultation to get started on your estate planning, or a review of the plans you’ve already made.

/by
,

Why Do I Need Probate If I Have A Will?

Many people plan their estate succession by creating a Last Will and Testament that specifies how they want their assets distributed after they die. Unfortunately, it’s a common misconception that creating a Will takes care of everything and avoids the requirement for the estate to go through the Florida probate process. While certain assets don’t require probate, others do, and if the heirs are not aware of this, they may be in for a surprise. Making effective plans for your estate in advance can spare your family a lot of stress and potential expense later.

What A Will Does

A Last Will and Testament is a legal document that, among other things, names the parties you wish to distribute your assets to after your death. In most cases, the Will also names a personal representative who will oversee the estate until the terms of the Will are satisfied and all other legal requirements for settling the estate are met.

What Assets Can Transfer Without Florida Probate?

In general terms, assets that have a named beneficiary or a pay-upon-death designation, like life insurance or bank account, won’t require probate process. Assets jointly owned with right of survivorship can also be transferred or liquidated without probate. Determining which assets can be transferred without going through the probate process can depend largely on the way the asset is titled and any applicable laws governing the specific asset type, e.g. retirement accounts.

What Happens In Probate Court?

The Florida probate process, in short, has the court overseeing the verification and distribution of estate assets. The Will, if there is one, is legally validated; heirs and creditors are identified and located; debts are paid, and remaining assets are liquidated or distributed to the beneficiaries, either according to the terms of the Will, or according to Florida law pertaining to intestate succession.

Estate Planning To Avoid Complications 

Creating a valid Will is an essential part of ensuring your assets are distributed to the intended heirs. Some don’t make it as far as leaving a Will, and when they die intestate, the legal process of determining their heirs becomes more complicated. Others attempt to create a D.I.Y. Will which may later be found invalid by the Florida probate court. Working with an experienced estate planning attorney now can help lighten the load for your heirs after you’re gone.

Florida Probate & Estate Planning Attorneys Can Help

The Probate, Wills, Trust, and Estate attorneys at Overstreet Law, P.A. are here to help you create or review your will, and make sound decisions regarding estate planning. Setting up a legally valid will and estate can help your heirs through the difficult time after you pass, and gives you the assurance that your assets will be distributed as you intend. Call or contact us online for a confidential consultation and learn more about protecting your estate assets and your heirs from unnecessary complications and expenses. Effective estate planning today helps your family’s future and removes a significant set of worries from the picture.

/by
,

What Happens When Someone Dies Without A Will?

When someone dies without a will things can get complicated. Who is responsible for making decisions? How do you know who inherits which assets? When there is no will to name a personal representative or beneficiaries, it can be difficult for a family to know where to begin when it comes to handling their loved one’s property.

Fortunately, every state has laws that govern how property and assets of a deceased person, known as a decedent, will pass to their heirs when a decedent dies without a valid will. called intestate succession. Intestate succession laws provide guidance for determining beneficiaries of the decedent’s assets that would have been determined by the decedent’s will.

Under Florida law, the decedent’s estate in inherited according to a prescribed hierarchy of family members.

  • Spouses – If the decedent was married and had no children, grandchildren great-grandchildren, etc., called lineal descendants, the spouse inherits all of the decedent’s assets. The same is true if the decedent had lineal descendants whose living parent is also the surviving spouse of the decedent. 
  • Children – When the decedent has children whose living parent is not the surviving spouse, the assets are split between the decedent’s spouse and children: The surviving spouse inherits half, and the children divide the other half. 
  • Parents – In cases where the decedent has no surviving spouse or lineal descendants, the decedent’s parents are next to inherit the assets of the decedent.
  • Siblings – Finally, if the decedent had no surviving spouse, lineal descendants, or living parents, any surviving siblings would share the inheritance.

Intestate Succession Laws Cover Some, But Not All Cases

Assets that are jointly held (between spouses or with rights of survivorship), or held in a living trust will are not subject to intestate succession. Those assets move from the decedent to the joint spouse by operation of law, or from trust to the beneficiaries by a separate legal process.

Because intestate succession laws only recognize legal relatives, unmarried couples do not inherit their partner’s assets through intestate succession.

Probate May Be Required 

It is important to know that intestate succession does not automatically transfer the assets from the decedent to the heirs. The decedent’s estate may require probate in order to transfer the assets to their heirs. An experienced probate attorney can help you get through the legal process smoothly.

The probate lawyers at the Kissimmee Law Firm of Overstreet Law, P.A. are highly experienced in helping families through these challenging circumstances. Call us at 407-847-5151 for a confidential consultation, and we’ll tell you how we can help your family navigate the probate process smoothly.

/by
,

When there’s not a will, there’s still a way

Losing a loved one is never easy, and it can be even more overwhelming when that loved one fails to leave a will behind. When there is no will to name a personal representative or beneficiaries, it can be difficult for a family to know where to begin when it comes to handling the decedent’s property. However, when there’s not a will, there’s still a way!

Below, we will briefly discuss what typically happens when a person, known as the decedent, dies without a will; how intestate succession laws work; and how to get started if you have a relative who passes away without a will.

Fortunately, every state has laws that govern how property and assets will pass to the heirs when a decedent’s estate is not disposed of by a valid will. This is called intestate succession. Intestate succession laws provide guidance for determining beneficiaries of the decedent’s assets that would have been determined by the decedent’s will. Not all assets are governed by intestate succession laws. Some assets, including, but not limited to, property held in the name of a living trust or jointly owned property, are not subject to intestate succession and pass from the decedent to their beneficiaries by separate procedures regardless of the presence of a will.

In Florida, determining who inherits the decedent’s assets through intestate succession depends on the familial status of the decedent at the time of death.*

If the decedent was married: Generally speaking, if the decedent is survived by a spouse but no lineal descendants (children, grandchildren, great-grandchildren, etc.), the spouse will inherit all of the decedent’s assets. If the decedent is survived by a spouse and children, the assets will pass to the spouse if all of the children are also children of the surviving spouse. If the spouse is not the parent of the decedent’s children, the spouse will inherit one-half of the decedent’s assets and the decedent’s children will inherit the remaining half of the assets.

If the decedent was not married: If the decedent was survived by children, but no spouse,  the assets will pass to the decedent’s children, per stirpes. If the decedent is not survived by a spouse or lineal descendants, the assets pass to the decedent’s parents. If the decedent’s parents are no longer living, the siblings of decedent will inherit their assets. Because intestacy laws only recognize legal relatives, unmarried couples do not inherit their partner’s assets through intestate succession.

It is important to know that intestate succession does not automatically transfer the assets from the decedent to the heirs. The decedent’s estate will require probate in order to transfer the assets to their heirs.

If you have a relative who passes away without a will, consult with an experienced probate attorney who will help you understand Florida’s intestate succession laws and ensure the decedent’s estate is properly distributed through the probate process.

* Please refer to Chapter 732, of the Florida Statutes for further information regarding intestate succession.

/by