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FAQs

Frequently Asked Questions

Find Answers to Commonly-Asked Questions About Estate Planning and Elder Law
  • Q:Does Florida have an inheritance (death) tax?

    A:Florida does not have an inheritance tax, but the federal government does. Currently your estate, if you are a U.S. citizen, would need to exceed 11.58 million as of 2020 for an individual. It is possible to shelter more than $23 million for a couple. Unfortunately, this level of inheritance tax that is exempt will decline at the end of 2025 to approximately $5 million for an individual adjusted for inflation.

  • Q:I want to leave my son my house when I die, can I just put him on the deed now?

    A:Yes, however it is not recommended. There are a number of tax issues involved, as well as concerns regarding any liabilities that your son may incur, which could attach to the house. As an alternative, Florida permits what are called enhanced life estates, otherwise known as “Lady Bird Deeds.” This would allow you to deed the property to your son, but reserve a life estate for yourself along with the ability to still encumber the property, sell it, or change the deed itself. Upon your death, the property will could pass to your son free of probate.

  • Q:I want to establish a durable power of attorney and would like to make it contingent upon my being incapacitated. Is that possible?

    A:That type of deed is a durable power of attorney with “Springing Authority”. The State of Florida does not permit the power of attorney being contingent upon incapacity. You should discuss with your attorney other safeguards to prevent possible abuse of your durable power of attorney.

  • Q:I heard that if I go into the nursing home, I will not be able to use Medicaid, unless I have virtually no assets. Is that true and can I just give away my assets now?

    A:In order to qualify for Medicaid an individual must have no more than $2000 in nonexempt assets. However, you can establish a plan, which may, or may not, include an asset protection trust to deal with these issues. Yes, you may transfer or give away assets now, but there is a five-year look back period for the transfer of assets. Also, the assets may no longer be used for your care, and ir would be subject to the claims of creditors of the person you transferred the asset. There are also gift tax issues to be considered. You may want to establish an asset protection trust early on before you actually have the need for nursing home assistance. This would protect much of your wealth and be available for your future care. You can also spend down your assets, but you then left with nothing to supplement your care should you need government assistance, such as medicaid.

  • Q:I am divorced with one minor child of that relationship. I want to leave my residence to my girlfriend you will. Is that a problem?

    A:Absolutely, Florida law does not freely permit the devise of the Homestead when there is minor child.

  • Q:I’ve owned my house for over 30 years and have recently married. I want to leave my house to my children and provide life insurance to assist my new wife, if I were to pass. My attorney says I cannot do it.

    A:Your attorney is mainly correct. You can provide for it in the will, but your spouse can object in a probate. The wife can elect to live in the house until she passes, or receive a ½ interest in the property. You need to have a strategy in place so that both your wife and children are provided for in a manner that will meet your goals. This might have included a post-nuptial agreement. Also, the division of assets may need to be revisited. There are specific strategies for dealing with these types of situations, which you should discuss with your attorney.

  • Q:Can I put my house into a trust without losing my homestead exemption?

    A:In Florida, Yes.

  • Q:Can my wife and I have one trust?

    A:If it is revocable living trust, the answer is yes. However, it may or may not be in your best interest to do so. Everybody’s situation is different, and the attorney needs to analyze the benefits and detriments of each method of establishing and drafting the trust. For instance, if there are stepchildren involved, one spouse may not wish to leave an equal division to stepchildren. There also may be certain tax implications and creditor issues which may cause a spouse to seek a separate trust. If it is an Irrevocable Asset Protection Trust, it is often advisable to have a single trust for a number of reasons, including tax concerns, although joint trust are possible.

  • Q:I do not want my children fighting over my property and care should I become incapacitated. What should I do?

    A:You should establish a durable power of attorney and designation of healthcare surrogate. These documents will recite who you want to be in charge of your financial and personal care. You should also consider in these circumstances having a Pre-Need Guardian document, which would state who you would want to be your Guardian, if a petition for guardianship was made to a court by one of your children. You may also specifically exclude who you would not want to be your Guardian. This will put the court on notice as to your wishes and who to be specifically concerned about in such a disputed guardianship proceeding.

  • Q:What is a Special Needs Trust?

    A:A special needs trust is a legal arrangement established for the benefit of an incapacitated person to receive income without interfering with their eligibility for public assistance benefits.  

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Why Our Clients Hire Richard A. Heller, P.A.

What You Can Expect With Us
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    Se habla español! We offer our services in both English and Spanish.

  • Experience

    With nearly 60 years of combined experience, our team of attorneys has the knowledge to handle your estate planning, family law, or elder law matters with efficiency and skill.

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