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Miami Estate Planning Law Blog

Wills and mental incapacity

Approaching the topic of a will can result in many mixed emotions, especially when the loss of a loved one could be near. However painful discussing plans after death may be, establishing a will can offer support for surviving family members for years to come. The following information delves into the basics when a Floridian's mental capacity is diminished, leaving families with important decisions to make as a result.

Health resource Compassion and Support outlines steps to take when an aging loved one exhibits intellectual disabilities. Generally, a wise first step is to ask the family member who they trust to make important health care decisions. For cases in which an individual cannot make that choice, families may appoint a guardian to make medical decisions. These decisions can include life-support treatment. A person who can make these judgements on his or her own will need two adults present during the signing of documents; Compassion and Support reminds readers that one adult witness cannot be connected to the residential facility in any way, and one witness must be a certified clinical psychologist or physician. 

What is a special needs trust?

If you live in Florida and have a disabled child or other family member for whom you care, you may wish to consider setting up a special needs trust so that (s)he continues to receive the needed care if and when you are no longer there to provide it. As FindLaw explains, a special needs trust is one you set up to benefit your loved one who does not have the mental or other abilities required to manage his or her own finances.

The special needs trust can cover and contain virtually anything you wish it to. For instance, it can contain funds received from the following sources:

  • Governmental benefits such as Medicaid and/or Supplemental Security Income
  • Money that your disabled loved one inherits
  • Money that (s)he receives in settlement of a lawsuit
  • Money that you and/or other family members donate to the trust

What challenges do my parents face as they age?

When you are coming to terms with your parents' mortality, getting their estate affairs in order and protecting them from financial abuse are priorities. However, you and other Florida residents with aging parents may also be concerned about their emotional and physical well-being. For many, the challenges during the golden years can lead to depression and isolation. You and your relatives may play a vital role in helping your parents age with dignity and continue to feel useful and important to the family.

Nobody wants to feel left out or like they no longer matter as much as they once did, states Focus on the Family. This is especially true for seniors as they age and are unable to keep up with their younger relatives like they used to. You might address these challenges by involving your parents in your life as much as possible. You could schedule regular lunch dates or dinners with the children and grandchildren. Your parents may enjoy writing in a journal or making videos recounting the adventures and wisdom accrued throughout their lifetime. These activities can help them feel valued and bridge the gap that often develops between old and young.

What is a pour over will?

If you are a Floridian who set up a living trust, you also may wish to consider executing a pour over will. As FindLaw explains, a pour over will is one stating that any of your assets that you neglected to transfer into your living trust during your lifetime will automatically go there upon your death, and from there to your designated trust beneficiaries.

A pour over will gives you many advantages, including the following:

  • It is the only document you need to ensure that your entire estate will go into your living trust at your death. Consequently it is the most efficient way to accomplish this goal and also makes things simple for your estate executor.
  • It relieves you of the responsibility of remembering each and every asset you have and specifically mentioning them in your will or trust.
  • It keeps your assets and therefore your financial information as private as possible. While your will, pour over or otherwise, may become a matter of public record during probate, your living trust and the assets in it are completely private.

Help your elderly parents avoid being a victim of common scams

It can be heartbreaking to see your parents' physical and cognitive abilities decline in their golden years. They took care of you, and now you worry that others might take advantage of them. At the Law Offices of Frye & Vazquez, P.L., we understand there are many scams in Florida and elsewhere that target vulnerable elderly citizens, and we are prepared to assist you in keeping this from happening to your parents.

Financial abuse happens to about one out of 20 elderly Americans, states the National Adult Protective Services Association. If they are suffering from a cognitive impairment like Alzheimer's disease or dementia, your parents may be at risk of numerous scams, including the following:

  • Computer scammers claiming their laptop is at risk unless they pay to have it "cleaned"
  • Fraudulent lottery or sweepstakes winnings stating they must first pay a processing fee
  • Aggressive door-to-door salespeople or charities
  • False IRS calls stating your parents will go to jail if they do not pay overdue taxes they do not actually owe
  • Unscrupulous family members or caregivers coercing them into signing over access to their bank account or making them the sole heirs to their estate

Does the new tax law make my estate plan obsolete?

As a savvy Florida resident, you know that Congress passed and President Trump signed into law the Tax Cuts and Jobs Act in late December. What you may not have asked yourself, however, is whether or not this new law affects your estate plan.

As Market Watch explains, the new law may well rid your estate of the need to pay federal estate taxes, the infamous "death tax" that plagued so many estates for so many years. Under the old law, your estate had to pay an estate tax if its value was over $5.6 million. Under the new law, that tax-free value is now $11.2 million. Since Florida does not have its own estate tax, this means that unless you are among the uber-rich, your heirs now get more than they would have had you died last year.

Creative things you might include in your pet's trust

Hollywood may have contributed to the erroneous belief that you can leave your inheritance to your beloved cat or dog if you have no other heirs. However, real life is not as simple for our furry friends. You may consider your pets to be members of your family, but the law does not see it that way. Fortunately, at the Law Offices of Frye & Vazquez, P.L., we know how you and other Florida pet owners can include pets in your estate planning and make sure their needs are taken care of if they outlive you.

We have brought up the topic of pet trusts previously in this blog. As you know, you can designate someone to take over as caregiver to your animals. Pet trusts can be as customized as you need, points out the American Society for the Prevention of Cruelty to Animals. You might consider adding the following points to your pet trust, which could ensure your pet's emotional as well as physical well-being:

  • The walking or playtime schedules your dog enjoys, as well as his favorite toys and treats
  • Instructions on how to cook homemade cat or dog food with fresh ingredients
  • Your wishes on how to care for your pet when he or she reaches old age, as well as compassionate euthanasia preferences
  • Not only your first choice as your pet's caregiver, but a second and third choice if the first choice is unwilling or unable to take on the responsibility
  • A monetary reward for caring for your pets, which you may want to keep a "surprise" until the caregiver agrees, to ensure nobody is solely driven by the prospect of a financial reward

For what reasons can you challenge a will in Florida?

If you feel that someone's Florida will disinherited you or insufficiently provided for you, you may be wondering if you should challenge it. The first thing you need to know is that not everyone can challenge a will. You can only do so if you are an "interested party;" i.e., a close family member who has the legal right to inherit from the decedent had (s)he died without making a will.

A will challenge is difficult, and upwards of 99 percent of wills go through probate without one. There are only a few reasons why a probate court will overturn someone's will, but if you can prove that one of those reasons applies to the will you are challenging, you may prevail.

What is a living will?

If you are a Florida resident who has very strong preferences about what kind of end-of-life medical care you want to receive and/or what types of medical treatments you want and do not want should you become incapacitated by illness or injury, you may wish to consider having a living will. As FindLaw explains, a living will, often called an advance directive, is not really a will as people normally use that word.

Whereas a regular will contains your instructions regarding who you want to receive which pieces of your property when you die, a living will contains your instructions to doctors and hospitals regarding the medical treatments and procedures you want them to perform - or not perform - if you become terminally ill or sustain injuries that leave you in a permanent vegetative state.

What does it mean to die intestate in Florida?

If you are a Florida resident who has not yet gotten around to making a Last Will and Testament, you may wish to reconsider your recalcitrance. While no one likes to think about their own death, having a will is one of the best ways for you to make sure that when you die, your property will go to those and only those to whom you wish to distribute it. If you die before you make a will, you will be considered to have died intestate and the state of Florida will decide who your heirs are and which of them gets which portion of your assets and property.

The Florida Bar explains that by law your descendants, and therefore your heirs, are your current spouse and your children, natural or adopted, whether by your current spouse or a previous relationship. Under some circumstances your descendants could also include your grandchildren, parents, siblings and other people more distantly related to you.

What Our Clients Are Saying

  • It is difficult enough to cope with the emotional challenges of closing a parent's estate, and when you are also faced with the issue of your parents having insufficient documentation, and being remote from your siblings… - Zara L.
  • Austin Frye provided legal services to my father while alive and to his estate after his death; when showing the EP docs his firm prepared to other professionals (lawyers, financial advisors, accountants)… - Mark S
  • I've been a client of Austin Frye's for over 10 years. In that time, he's handled my estate/trust planning and asset protection as well as complicated business deals. - Leslie
  • Mr. Frye recently set up a complicated special needs trust for my son and, as usual, did a great job explaining it and in putting our minds at ease about our son's future well-being. - Dr. Howard
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