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Dawn Marie Bates-Buchanan, Esq, Susannah C. Savitsky, Esq.

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September 22, 2017


Medicaid Planning


Some people have been lucky enough to save money or have money to care for them into their older age. However, sometimes that money may not be enough. Medicare only cover 80%. If a person does not have supplemental insurance or "Gap" insurance, then Medicaid may be needed to cover that 20%. However, getting approved for Medicaid means that you are within their income and asset limits.


If you or someone you know will or may be entering a nursing home and are concerned with the cost, then you should be aware that Medicaid will pay for the nursing home for individuals that qualify. Many people are concerned that their entire life savings must be spent before Medicaid will begin to make payments and wish to avoid this circumstance. Proper planning with an attorney and or wealth management person can help individuals qualify for Medicaid when otherwise they would not.


The Medicaid Institutional Care Program is a federally funded and state administered program that pays nursing home costs for individuals who qualify. Eligibility is determined by the Department of children and Families, and administered by the Agency for Health Care Administration. There are three elements that must be met to qualify for the Medicaid program.


The first element is that the applicant must be medically needy to be in a nursing home.

The second element is an asset limit

The third is an income cap.


As of 2017 the asset limit is set at $2000.00 in countable assets for an individual and $3000.00 for a couple, the income cap is $.00/month. Applicants over the asset limit or whose income is greater than the income cap will be denied Medicaid.

An attorney can help preserve assets for an applicant that may seem not to meet the elements by aggressively, creatively and legally reclassifying the assets and income. You should consult with an attorney before transfers are made or an application is filed because mistakes could result in an ineligibility period penalty.


There are look back periods and penalties for transferring assets and converting income. For more information see chart


SSI - Medicaid Related Financial Eligibility July 1, 2017


August 22, 2017




Many people thing that they just need a will and that they do not have enough assets to need a Trust. You have worked hard for your money so it's only natural that you want some control over what happens to your assets after your die.


Even if you are a person of modest means, you have an estate. There are several strategies to choose from to ensure your assets are distributed according to your wishes. There is also the importance of the cost of the distribution of your assets and the that they are able to be distributed in a timely fashion. This is your estate plan. The right strategy depends on your circumstances.


For some, a living trust can be a useful and practical tool. For others, it may be a waste of time and money. What is a living trust anyway? And how does it differ from a last will?


What Is a Will?

A will is a written document—signed and witnessed—that indicates how your property will be distributed at the time of your death. It is revocable and subject to amendment at any time during your lifetime. It also allows you to appoint a guardian for your minor children.


What Is a Living Trust?

A living trust provides lifetime and after-death property management. If you are serving as your own trustee, the trust instrument will provide for a successor upon your death or incapacity. Court intervention is not required. Livings trusts also are used to manage property. If a person is disabled by accident or illness, the successor trustee can manage the trust property. As a result, the expense, publicity, and inconvenience of court-supervised distribution of your estate can be avoided.


If a living trust is properly written and funded you can:

  • Avoid probate on your assets
  • Plan for the possibility of your own incapacity
  • Control what happens to your property after you are gone
  • Use it for any size estate; and
  • Prevent your financial affairs from becoming a matter of public record


While a trust sounds appealing, there are drawbacks. A living trust cane be an added expense to set up. Most importantly, however, a living trust is useless unless it is funded. A living trust only can control those assets that have been placed into it. If your assets have not been transferred or if you die without funding the trust, the trust will be of no benefit as your estate will still be subject to probate and there may be significant estate tax issues.


You can be your own trustee or you can appoint someone else to be your Trustee and manage your estate, now and after you pass away. This is called Wealth Management and your Trustee can pay your bills, discuss investment and otherwise help you when you need help financially.


Will vs. Living Trust Considerations

There are many positive reasons to establish a trust but do not overlook the fact that it will involve more upfront effort and expense. To determine if you should make the extra effort and invest in the expense of a trust, answer these questions:


Is informal probate an available option? In Florida there are two types of administration, Summary and Formal. If the estate as less than $75,000.00 in assets (not including Homestead), then it can be processed through Summary Administration, otherwise the estate must be processed through Formal Administration. The average cost for attorney's fees for Summary Administration is $750.00, plus the Court's fees (usually around $350.00 dollars). The average costs for attorney's fees in a Formal Administration is $3,000.00 to $5,000.00 depending on the complex nature of the estate, plus the Court's fees (usually around $400.00).


Do you have minor children? A trust allows you to establish provisions specifying when a child will be entitled to any assets held in trust. A trust can set up distributions for children's care through a trustee.


Do you have children, grandchildren, or other dependents with special needs? In those instances the access or control those heirs have over their inherited property may need to be limited. With a standard will your property can be passed on to those heirs but a will alone does not allow you to exercise much control over their use of the property.


Will your estate be subject to estate taxes? If the value of your estate exceeds the current estate tax threshold, you may wish to consider setting up a trust with tax planning provisions. The estate tax threshold frequently changes, so be sure to check with the IRS to determine whether or not estate tax is a concern for you.


So what is best for you? In many respects, a living trust and a will accomplish similar objectives. A trust, however, allows you to realize other objectives that a will cannot. But those advantages don't come without a price. Whether or not a living trust is better for you than a will depends on whether the additional advantages are worth the cost. When choosing, remember that one size does not fit all. What is right for one person may not be right for everyone. Your estate plan should be prepared in a way that best meets the needs of you and your family.


Bates-Buchanan and Savitsky Law Group fees for a simple Living Trust is $350.00 per person.


March 15, 2017




In 2014 the 4th DCA grappled with a tragic case involving a dispute between two divorced parents over the disposition of their deceased son’s cremated remains. The father hoped to split his son’s ashes 50/50 with his ex-wife by arguing they’re assets of his son’s probate estate, and thus subject to equal partition.


The 4th DCA ruled against him in Wilson v. Wilson based on centuries of common law. Appellate decisions are fine, but life’s a whole lot easier when a rule’s plainly stated in a statute, which is what finally happened. Effective July 1, 2016 the common-law rule on ashes not being probate property was codified in new F.S. 497.607(2) as follows:

Cremated remains are not property, as defined in s. 731.201(32), and are not subject to partition for purposes of distribution under s. 733.814. A division of cremated remains requires the consent of the legally authorized person who approved the cremation or, if the legally authorized person is the decedent, the next legally authorized person pursuant to s. 497.005(43). A dispute regarding the division of cremated remains shall be resolved by a court of competent jurisdiction.

This was one small change incorporated into a wide-ranging bill that revamped much of Ch. 497, which governs Florida’s funeral home industry.


By the way, the statute’s last sentence should jump out to probate litigators.

A dispute regarding the division of cremated remains shall be resolved by a court of competent jurisdiction.

What this sentence is telling us is that the old rules regarding litigation over remains haven’t changed. If there’s a dispute, a person’s ashes will be disposed of according to his intent, as established by clear and convincing evidence in a Court of law.