Questions & Answers

Here are some of the questions I hear most often from people. To see the answer, click on the question.

How much do you charge for an initial consultation?

Normally, I charge a consultation fee of $100. If you retain me to help you with any work after our first consultation, the consultation fee amount is charged against the total fee I quote you. However, if you’ve been referred to my office from a nursing home or assisted living facility, the consultation fee is waived.

How do you charge for services?

I charge flat fees for nearly everything I do, instead of charging by the hour like many attorneys.

Do you do financial planning as well?

No, I don’t do financial planning myself, but I work closely with a number of excellent financial planners and investment advisors in the area to offer a complete service package to my clients if they’re interest in financial planning.

Isn’t it true that probate is a nightmare that takes forever and costs a lot of money?

Not necessarily. In Florida, there are a few different types of probate proceedings that can be used, depending on certain factors. A “regular” probate usually takes around six months, and can cost around $4,000 – $6,000 in court costs, other required costs and attorney’s fees. This may seem terrible, but when compared to other states, it’s actually not bad. For example, probates in California regularly take a year or more and can cost well over $10,000. The thing that makes probates take a lot of extra time and money is fighting amongst the family. As long as everybody can get along and agree to split the deceased’s persons assets according to the wishes they left behind (or according to the law, if they didn’t have a will), then the process will go smoothly. If they’d rather spend months and thousands of dollars fighting over mom’s bedroom suite instead, then that’s their choice.

I have a will, so my family won’t have to go through probate when I die, right?

Wrong. A will doesn’t allow you to avoid probate; instead, a will instructs the probate court how to distribute your assets. If you die without a will, your assets will go to your spouse and/or next of kin, depending on the specific situation. Either way, probate will still be necessary.

So, how can I avoid probate?

In most cases, it’s difficult to avoid probate entirely. The main rule to remember: the things that usually have to go through probate when you die (which are also called “probate assets”) are things that are (a) just owned in your name and (b) don’t have any named pay-on-death beneficiaries. So, for example: a piece of real estate that you own jointly with your spouse doesn’t have to go through probate, but a piece of real estate that’s just in your name does. An IRA or 401(k) that’s just in your name but that names your child as a pay-on-death beneficiary doesn’t have to go through probate, but a normal checking or savings account that’s just in your name does. To avoid probate entirely, some people use trusts, but this solution doesn’t work for everyone.

I’ve heard that I should get a trust. Do I need one?

Maybe. Unlike some other folks, I don’t try to sell a trust to everyone I meet just because I can make more money drafting a trust than just drafting a simple will. For some people and situations, trusts work wonders. For others, they’re like killing a fly with a bazooka: sure, it will probably work, but it’s too much firepower for what the situation requires. In order to determine if a trust is right for you, it’s best to sit down with a knowledgeable attorney and go over your goals, assets and family situation first.

What are some situations where a trust would be a good idea?

There are a variety, but two of most common ones are (a) when one or both members of a married couple have been married before and have children from previous marriages, and they want to make sure that if they die, their surviving spouse can be provided for and their own children will still inherit, and (b) when a person wants to make sure a child/grandchild/niece/nephew/etc. is provided for, but they know that person is irresponsible and shouldn’t just be left a large sum of money. In these and many other situations, a trust can be the perfect way to meet your goals.

I have a spouse/child/sibling/friend/etc. who will help out if I become incapacitated, so do I really need a Power of Attorney?

Yes, you really do. Everyone should have a good Power of Attorney, regardless of your family situation or how much money you may or may not have. Just because someone is your spouse, family member or best friend since you were in second grade, this doesn’t automatically give them the legal right to make many health care or financial decisions on your behalf if you become incapacitated. Only being named as an agent under a Power of Attorney can give them that right. Also, it’s important to remember that not all Powers of Attorney are created equal. In order for the documents to give you the most protection possible, they should be drafted by an experienced attorney with knowledge of specialized elder law issues. A cheap document from an office supply store or online document service might be okay in some situations, but not most.

What happens if I’m incapacitated and I don’t already have a Power of Attorney in place?

In most situations, a guardianship would be necessary. This is a legal process in which a petitioner asks the court to have you declared legally incompetent to manage your own affairs, and to name someone (usually the petitioner) as your legal guardian to handle things on your behalf. Guardianship proceedings can take a long time and cost thousands of dollars, which can usually be avoided if you have a Power of Attorney before something happens.

My mom is going into a nursing home. Is there a way to qualify for and receive Medicaid benefits while still protecting her assets?

In most cases, absolutely! In order to qualify for Medicaid, your mother’s regular monthly income and your assets must fall under certain limits. However, Medicaid had different rules regarding what “counts” as an asset and what doesn’t, and it’s possible to qualify while keeping much more of your assets than you think. All of this differs from person to person, so to determine how the rules apply to your mother specifically, give me a call!

My dad’s assets are under the Medicaid limit, but his monthly Social Security and pension income are just over the income limit. Can he still qualify for Medicaid?

Absolutely. Florida allows Medicaid applicants to use special trusts called Qualified Income Trusts (or QITs for short) to receive Medicaid benefits, even if their income is over the monthly income limit of $2,199. For example, I once had a client who received nearly $4,500 in income a month between his Social Security, military retirement and civil service retirement checks. However, it was costing him $7,000 each month to stay in the nursing home, so he was still losing $2,500 every month. Using a QIT, we were able to get him qualified for Medicaid, even though his income was over double the limit. However, it’s important to remember that QITs are not used in every situation, and unlike other documents, they can only be prepared by a licensed attorney.

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