FREQUENTLY ASKED QUESTIONS

Why do I need an Estate Plan?

An estate plan does the following:

• It allows you to choose who your estate is to be distributed to;
• It allows you to chose when you want to distribute your estate;
• It allows you to name the person you want to handle distribution of your estate;
• It could allow you to avoid probate expenses and death taxes;
• It allows you to choose who you want your financial and health related decisions to be made by in the event you become incompetent;

What are the benefits of a revocable living trust?

• Assets placed into the trust name are not part of the probate estate
• The trust may continue to provide for minor children by disbursing income/principal amounts periodically or per the trustee’s discretion.
• The trust can be amended or revoked.
• No difference in your filing status for income tax purposes.

What is a pour-over will?

• A pour over will directs any remaining property not disposed of by the will to be “poured-over” into the trust.

What is a durable power of attorney?

• A durable power of attorney appoints an “attorney in fact” to handle your finances.
• A durable power of attorney differs from a normal power or attorney in that it remains valid when the person appointing the attorney in fact becomes incompetent.

What is a health care surrogate?

• A health care surrogate allows a family member to make health, medical and surgical decisions for you if you become incompetent or disabled.
• This surrogate should be someone trustworthy and familiar with your beliefs regarding receiving medical treatment.

What Is Probate?

Probate is the legal process of administering the estate of a deceased person by resolving all claims and distributing the deceased person’s property under the intestacy statutes or pursuant to a valid will.

A probate court interprets the instructions of the deceased, decides the executor as the personal representative of the estate, and adjudicates the interests of heirs and other parties who may have claims against the estate.

Why Is Probate Necessary?

Probate is necessary to pass ownership of the decedent’s probate assets to the decedent’s beneficiaries. If the decedent left a valid will, unless the will is admitted to probate in the court, it will be ineffective to pass ownership of probate assets to the decedent’s beneficiaries. If the decedent had no will, probate is necessary to pass ownership of the decedent’s probate assets to those persons who are to receive them under Florida law.

Probate is also necessary to wind up the decedent’s financial affairs after his or her death. Administration of the decedent’s estate ensures that the decedent’s creditors are paid if certain procedures are correctly followed.

What is Medicaid Planning?

Medicaid planning is the process of protecting your estate assets from the cost of long term nursing home care. Most people are unaware that Medicare and private Medicare supplement insurance benefits do not cover the cost of long term care. For the average individual or married couple who have worked hard all their married lives, nursing home costs and costs of long-term care can eliminate their entire life savings in months.

There are three options to people facing potential long term care in a nursing home:

1. Pay the costs out of pocket;
2. Purchase long term health care insurance; or
3. Qualify for public benefits including veterans and Medicaid benefits.

Veteran’s benefits may be available for a wartime veteran or his widow under specific circumstances (usually for an assisted living resident or with a full time aide). A veteran can receive up to approximately $1700 per month; a widow approximately $1000 per month. A veteran DOES NOT have to have been injured in a war to be eligible for these benefits.

Can I start Florida Medicaid Planning after I have been in a nursing home and paying out of pocket?

Yes. The Toney Law Firm can help you become eligible for Florida Medicaid in a short timeframe and assist you in protecting your assets.

Do I have to give away my assets to qualify for Florida Medicaid?

You don’t have to be completely destitute to get Florida Medicaid. There are several strategies available to legally restructure your assets, so you don’t deplete your life savings, to become Medicaid eligible. For example, if your spouse or dependent children live in your home, you don’t have to sell the home. Further, you may also keep personal items, a car, and some life insurance.

DO NOT GIVE AWAY ANY ASSETS BEFORE CONSULTING AN ATTORNEY AS GIFTS MAY RESULT IN DENIAL OF BENEFITS FOR EXTENDED PERIODS.

Why do I need an attorney for a real estate closing?

Real estate transactions, from the purchase or sale of your home/condo to refinancing your mortgage, are likely to be the largest investments that you will make. Accordingly, it is very important that you exercise caution in entering into real estate transactions.

Many people will use a title company to handle these transactions. However, a title company cannot represent your legal rights. As an attorney owned title agency, we will protect your legal rights and close the transaction. The Toney Law Firm will not only issue the title insurance as a title company, but will also make sure that the transaction from contract to closing is handled properly and your rights in the transaction are fully protected.

We will also work to cure any defects in title such as probate, quiet title and other legal issues which may arise. In addition, the fees and costs with our firm are comparable to and, in most cases, lower than many title companies.