Frequently Asked Questions

At Allen Law we are happy to answer your questions on legal matters and give legal advice. That is why we offer an initial consultation. This page contains Frequently Asked Questions, if you have a question please contact us.

Real Estate

• How can I save my house from foreclosure?
• How do I transfer ownership of real property to another person?

Probate

• My loved one had many creditors but doesn't have many assets. Can his/her estate file bankruptcy?
• As an heir of the deceased, can I be held personally liable for their debt?
• My parents died without a will. Who can act as the executor/personal representative of the estate?
• How long will it take to probate my loved one's estate?
• What are the responsibilities of the Personal Representative?

Wills

• I have a disabled child on government benefits, but I don't want to cut him/her out of my will. Do I have options?
• Why should I use an attorney to draw up my will?
• My spouse and I are separated. Can I exclude her from my will?

Divorce

• How long will my divorce take?
• My spouse lives in a different state. Can I still file for divorce in Florida?

Medicaid Planning

• How much can I have in assets and income for Medicaid qualification?
• What resources count?
• What resources don't count?
• What can I do if my assets exceed the Medicaid limit?
• What happens if I transfer income or resources to someone else?
• Are any transfers allowed?
• How much does the patient pay to a Medicaid Nursing Facility?
• How much does Medicaid pay?
• My spouse needs full nursing homecare, but I am still able to live on my own. How can we still qualify for Medicaid and still provide me the means to live on?
• What if there are other dependents?
  

Real Estate

How can I save my house from foreclosure?

If you are faced with financial hardship and cannot continue to make your mortgage payments, you may have options that can help you save your home. You can ask your lender for a workout of your mortgage, where the lender may provide you with a loan modification, forbearance, repayment, or restructure of your loan. Depending on your situation, a short sale or a deed in lieu of foreclosure may be your best option. Please keep in mind that your lender has the right to foreclose on your property for non-payment, and we strongly advise you to retain an attorney to handle your legal foreclosure case.

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How do I transfer ownership of real property to another person?

A person can convey their interest in real property by way of a deed. There are different types of deeds, including a warranty and quit claim deed.  An attorney can help you determine the desired type of ownership of a specific property, and whether a person would like to property to pass automatically to another person, like their children (through survivorship).  A property can be held as tenants by the entirety, which is common for married couples, or as tenants in common, where each tenant holds a separate interest.  It is important to consult an attorney as to which type of deed and ownership would best suit your intended objectives.

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Probate

My loved one had many creditors but doesn't have many assets. Can his/her estate file bankruptcy?

The short answer is “no”. If an estate is insolvent (meaning more liabilities than assets) creditor’s claims will be paid proportionately based on what is available for payment to creditors after all other estate expenses. The type of claim filed will also dictate how much the claimant will receive. For example, administration expenses are paid first as level 1 claims, then funeral expenses as level 2 claims, then Federal debts and taxes as level 3 claims, hospital bills for the last 60 days prior as level 4 claims, and creditor claims falling near the bottom as level 8 claims. It is important to note that, with some limited exceptions, creditors must timely file a claim in the probate court if they want to collect.  If there are not enough funds to satisfy all the claims, then the unpaid claims are compromised to what can be paid and the rest of the debt does not get paid.  This is similar to discharging debt in a bankruptcy.

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As an heir of the deceased, can I be held personally liable for their debt?

No. Creditors will often contact the surviving family members with letters that may appear to be collection letters and leading the family members to believe they are responsible for the debt. Surviving family members are not legally responsible for this debt or any portion of debt left unpaid due to lack of assets after probate.

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My parents died without a will. Who can act as the executor/personal representative of the estate?

The Florida statutes provide an order of preference as to who may act as personal representative, starting with the surviving spouse, then the one nominated by a majority in interest of the heirs, then the kin closest in relation, and if more than one, then the one best qualified.

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How long will it take to probate my loved one's estate?

Like with any legal undertaking, there is no one answer and is dependent on a number of factors. Some of the factors include size of the estate, whether there is a will involved, whether the family members are cooperative or disagree on matters, how many creditors’ claims are involved, and whether there is any suits filed against or on behalf of the estate. A consultation with an attorney in our firm, however, can help provide you with a general idea.

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What are the responsibilities of the Personal Representative?

The personal representative is responsible for gathering all the assets, notifying creditors of the decedent’s death, paying all the valid debts of the estate, and distributing the remaining assets to the heir in accordance to the terms of the will or, if the decedent died without a will, according to the intestacy statute.

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Wills

I have a disabled child on government benefits, but I don't want to cut him/her out of my will. Do I have options?

Yes. Consider establishing a Special Needs Trust and then making a devise into that trust for his/her benefit. This will provide her with certain “luxuries” that her government benefits do not cover and help her enjoy a better standard of living. And because the trust will be established by a third party (meaning you), you are able to name beneficiaries to the remainder that is left after he/she passes; however, it is important that none of the disabled child’s assets are placed in this trust, or the remainder will have to first go to the government to repay for benefits paid out on behalf of the disabled child before any remainder is paid to the other beneficiaries.

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Why should I use an attorney to draw up my will?

An attorney who draws up wills as part of his/her practice will be familiar with the formalities that are necessary to have a valid will. Further, an attorney who takes the time to understand your goals with the disposition of your estate after your death can draft the will with the appropriate language to meet your goals. The language used in a will to devise a gift can make the difference between a gift lapsing (no longer available to be made) or being replaced. This can lead to a smoother process in probate of your estate, minimizing conflict between family members, and thereby costing your estate and your loved ones less money.

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My spouse and I are separated. Can I exclude her from my will?

In Florida, unless you are divorced or there is a pre or post-nuptial agreement in place where you spouse has waived his or her right to your property, in most situations you cannot cut out your spouse.  A spouse may then take against the will and demand an elective share of your estate.  This is equal to 30% of all probate and most non-probate property.  You may also be able to reduce or eliminate the spouse’s elective share by executing an Elective Share Trust.

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Divorce

How long will my divorce take?

There are no guidelines on how long a divorce will take as it depends on many factors.  Of course, a divorce where both parties agree can move as quick as the courts will allow given the number of cases in their system.  Divorces that are contested, and/or involve children take much longer, and have even been known to drag on for years.

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My spouse lives in a different state. Can I still file for divorce in Florida?

There are three parts to a divorce action:  the marriage itself, the property, and the children.  The marriage is sometimes referred to as the res, and the res travels with each spouse.  As long as the spouse meets the residence requirements, a spouse may divorce another spouse who lives in a different state.  If the property of the marriage resides in Florida, then the courts can obtain jurisdiction over the property in order to divide the property between the parties.  If the property is located elsewhere, it will be necessary to have the property issues resolved in that state.

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Medicaid Planning

SSI Factsheet

How much can I have in assets and income for Medicaid qualification?

Generally, eligibility for Medicaid benefits is barred if the nursing home resident's income exceeds $2,022 a month (for 2010) and they have more than $2,000 in "countable" assets. For couples in the same facility the limits are $4,044 in income and $3,000 in countable assets.

All assets are counted against these limits unless the assets fall within the short list of "non-countable" assets. These include the following:

• Homestead, if the individual or a dependent lives there, or if the individual is absent but intends to return;
• Vehicle (one is excluded);
• Burial funds up to $2500 (or $1500 for SSI recipients);
• Irrevocable pre-paid burial contracts; and
• Life insurance, if the total face value of all policies owned by the individual for any one insured does not exceed $2500 (exclusions is $1500 for SSI recipients).

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What resources count?

• Real property, other than homestead
• Bank accounts, Certificates of Deposit (CDs), Money market funds
• Stocks, Bonds
• Trusts
• Life insurance cash value if the face value of the policies owned on any incurred individual totals more than $2,500 (exclusions is $1,500 for SSI recipients)

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What resources don't count?

• Homestead, if the individual or a dependent lives there, or if the individual is absent but intends to return
• Vehicle (one is excluded)
• Burial funds up to $2500 (or $1500 for SSI recipients);
• Irrevocable pre-paid burial contracts; and
• Life insurance, if the total face value of all policies owned by the individual for any one insured does not exceed $2500 (exclusions is $1500 for SSI recipients).

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What can I do if my assets exceed the Medicaid limit?

You can spend down your assets to bring them within acceptable limits.  Spending down assets may consist of the person converting countable assets into non-countable assets, such as a new car (no matter what the value), an irrevocable burial contract, a burial account in a bank, and a life insurance policy of limited value.  Spending down may also mean sinking countable assets into home improvements to the applicants homestead, including such things as new appliances, flooring or a new roof, or even paying down or paying off a mortgage.

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How is gross income determined?

All gross monthly income is generally counted, including:

• Social Security
• Veterans Administration (VA)
• Pensions
• Interest
• Income from mortgages
• Contributions, etc.
  
  Note: Gross income includes the amount deducted from the individual's Social Security check for the Medicare premium before their account is credited (or the check is mailed to them).

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What can I do if my income exceeds the Medicaid limit?

An attorney can help you establish a Qualified Income Trust, also known as a "(d)(4)(B)" or "Miller" trust, in which the excess income is paid into and is then paid from the trust to the nursing home.

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What happens if I transfer income or resources to someone else?

Transfers of income or resources may affect eligibility if they are made within 60 months, therefore it is important to consult an Elder Law attorney to determine if there are other means that may be employed to transfer or spend down income or resources, but which will allow the applicant to maintain eligibility for Medicaid or SSI. Assets transferred on or after January 1, 2010 may potentially affect eligibility for Medicaid ICP, Institutional Hospice, Home and Community Based Waiver programs, and Program of All-Inclusive Care for the Elderly for sixty months after the transfer.

A person may be ineligible for a period of time if income or resources are transferred for less than fair market value to become Medicaid eligible. The period of ineligibility will vary depending on the value of the transferred income or resource(s).

Anyone determined ineligible due solely to transferred income or resources cannot qualify for nursing facility payments. However, the individual may still qualify for basic Medicaid coverage (e.g., medicines, hospital coverage, etc.).

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Are any transfers allowed?

Certain transfers are allowable. The applicant/recipient may transfer:

• Any resource to a spouse of disabled adult child
• The homestead, without penalty, to one of the following relatives:
• His/Her spouse
• His/Her minor child (under 21 years) or his blind or disabled adult child
• His/Her sibling who has equity interest in the home and resides there at least one year prior to the client's institutionalization
• His/Her son or daughter who resided in the home for a least two years immediately before institutionalization and who provided care that delayed the client's institutionalization

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How much does the patient pay to a Medicaid Nursing Facility?

In general, all of the patient's monthly income, except for $35 for personal needs, must be paid to the nursing facility for the patient's care. This includes any funds deposited into a qualified income trust. The payment to the facility is called the "patient responsibility". In some cases, All or part of the patient's income may be set-aside for the spouse and/or dependents, reducing the amount the individual must pay to the nursing facility each month. See the next section, "Special ICP Policies That Apply to Spouses" for more information.

Some veterans receiving certain VA pensions may be allowed to keep more of their income. The eligibility worker calculates the patient responsibility amount.

Some individuals may be entitled to an Uncovered Medical Expense Deduction. Refer to SSI Factsheet for further information.

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How much does Medicaid pay?

Medicaid pays the difference between how much the patient pays (patient responsibility) and what the nursing facility charges under Medicaid.

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My spouse needs full nursing homecare, but I am still able to live on my own. How can we still qualify for Medicaid and still provide me the means to live on?

The Medicaid law provides special protections for the spouse of a nursing home resident to make sure she has the minimum support needed to continue to live in the community.

The so-called "spousal protections" work this way: if the Medicaid applicant is married, the countable assets of both the community spouse and the institutionalized spouse are totaled as of the date of "institutionalization," the day on which the ill spouse enters either a hospital or a long-term care facility in which he or she then stays for at least 30 days. (This is sometimes called the "snapshot" date because Medicaid is taking a picture of the couple's assets as of this date.)

In general, the community spouse may keep one half of the couple's total "countable" assets up to a maximum of $109,560 (in 2010). Called the "community spouse resource allowance," this is the most that a state may allow a community spouse to retain without a hearing or a court order.

In all circumstances, the income of the community spouse will continue undisturbed; he or she will not have to use his or her income to support the nursing home spouse receiving Medicaid benefits. But what if most of the couple's income is in the name of the institutionalized spouse, and the community spouse's income is not enough to live on? In such cases, the community spouse is entitled to some or all of the monthly income of the institutionalized spouse. How much the community spouse is entitled to depends on what the Medicaid agency determines to be a minimum income level for the community spouse. This figure, known as the minimum monthly maintenance needs allowance or MMMNA, is calculated for each community spouse calculated as follows:

• $1,822 (minimum monthly maintenance income allowance) + excess shelter costs* - community spouse's monthly gross income = community spouse income allowance**
• *Excess Shelter Cost is the amount by which the community spouse's shelter costs exceeds $547 per month. Shelter costs may include rent or mortgage payment, homeowner's insurance, condo maintenance fees, and a standard utility allowance of $317 (effective 10/2009) per month.
• **Total community spouse income allowance cannot exceed $2,739.

The MMMNA may range from a low of $1,822 to a high of $2,739 a month (in 2010). If the community spouse's own income falls below his or her MMMNA, the shortfall is made up from the nursing home spouse's income. In exceptional circumstances, community spouses may seek an increase in their MMMNAs either by appealing to the state Medicaid agency or by obtaining a court order of spousal support.

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What if there are other dependents?

Under certain conditions, a dependent allowance may be deducted from the institutionalized individual's income.

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