Estate Planning and Trusts Blog

Will my Illinois Will Work When I Move to Florida?

In this video, Cindy answers a common question regarding whether new estate planning documents are needed when you move to Florida from another state.

Other articles/videos you may find interesting:

What’s a Lady Bird Deed?

Durable Power of Attorney: What You Need to Know

***Want to learn more about how to protect your family from the government, lawsuits, accidental disinheritance, or nursing homes? Click THIS LINK to book a seat at one of our upcoming fun and educational workshops.***

What’s the Difference? Living Will, Health Care Surrogate, DNR

DNR Living Will
A Florida Do Not Resuscitate Order (DNR) must be printed on yellow paper.

Confused about the differences between a Designation of Health Care Surrogate, Living Will, and a Do Not Resuscitate Order (DNR)? Here’s a quick explanation…

Living Will

Your Living Will (sometimes called a Declaration of a Desire for a Natural Death) informs your doctors that, if you’re terminally ill and/or in a vegetative state, and your doctors have said there’s no reasonable medical probability of recovery, you do not want extraordinary medical measures (CPR, ventilators, tube feeding, etc.) taken, especially those that would cause you pain or discomfort, if those measures would only prolong the dying process. In Florida, your Health Care Surrogate has a duty to enforce your Living Will. Anyone can deliver this document to your doctors if your Health Care Surrogate is unavailable.

Designation of Health Care Surrogate

Your Designation of Health Care Surrogate authorizes your Health Care Surrogate to make medical decisions for you if you cannot express your wishes or make the decisions yourself. It also allows your Health Care Surrogate to, among other things, hire and fire medical providers, and to obtain copies of your medical records.

Do Not Resuscitate Order (DNR)

A DNR is not prepared by a lawyer. It is a state-specific health care form that deals specifically with the refusal of cardiopulmonary resuscitation (CPR) in the event of cardiac or pulmonary arrest. It is a physician’s order, signed and dated by the patient (or Health Care Surrogate) and the physician.

A DNR is honored in most health care settings, including hospices, adult family care homes, assisted living facilities, emergency departments, nursing homes, home health agencies and in hospitals. In addition, when the DNR is presented to an emergency medical technician or paramedic in a setting other than a health care facility, the form may be honored.

Florida law requires that the form must be printed on yellow paper. The form is not valid unless it is printed on some shade of yellow paper. EMS providers and hospitals are not obligated to honor a form printed on white paper or any other color than yellow. The DNR form should be kept in a noticeable, easily accessible place such as the head or foot of a bed, or on the refrigerator.

Other articles you may find interesting:

9-Step Guide for a Personal Representative

Preparing for the Challenges of Aging

Would you like to learn more about estate planning, elder law, asset protection planning, probate, and Medicaid planning in an informal, no-obligation setting?

Sign up for one of our free, educational workshops here.

Free Legal Advice – Worth Every Penny

legal advice ahead
“Free advice is often overpriced.” ~ Charles E. McKenzie

As an estate planning and elder law attorney, I focus on planning. I try to help my clients avoid potential problems later on by setting things up correctly now. One of the most frustrating things I come across is when good people rely on bad legal advice from their friends or neighbors, their hairstylist, their golfing buddy, or random people on Facebook. The sad part is that most people won’t even know they received bad advice because things won’t blow up until they’re incapacitated or dead.

Believe me, I get it. Lawyers cost money. It’s much cheaper to ask for free legal advice. And sometimes the person tendering the advice is actually correct. But what happens when they aren’t?

The problem is that what may be the best legal advice for one person may be completely wrong for another. Or, the laws may have changed. And, what works in New York or Illinois may not work the same way in Florida.

Here are some examples of really bad legal advice give by well-meaning folks pretending to be lawyers:

  • “You don’t need a Will or Trust. Just put beneficiaries on everything.” Yeah…that rarely works except maybe between spouses. Probate can be triggered by the oddest things: a car, a forgotten bank account, a safe deposit box no one can access, a valuable piece of personal property that beneficiaries are arguing about, the death of a named beneficiary, a lawsuit that was in progress before your death or initiated after your death, etc. Who’s going to foot the bill for the probate when you gave all of your money to people who might not have any skin in the game? Or who spent it as soon as they received it? Which child is going to use his own money to maintain your home and/or pay the mortgage, taxes, and insurance during the time it takes to clean it out and sell it?
  • “Don’t worry about getting married again even though both of you have kids from prior relationships. Whatever assets you go into the marriage with are still yours at your death and you can give them to whoever you wish.” Nope. Not unless you execute a good prenup, which covers what happens if there’s a divorce and also at your death. Florida’s rules for divorce and death are completely different, and you should know exactly what they are before combining families. Florida won’t allow a married person to leave everything to his or her kids at death. And, generally, a second marriage/blended family situation is going to require revocable living trusts  – not a “simple Will” – to accomplish each spouse’s goals.
  • “Want your home to go right to your only child at your death without going through probate? Just add her as a joint owner now.” Great idea if you want to expose your home to your child’s creditors, including a divorcing spouse. Also great if you want to ensure your child suffers adverse income tax consequences when he sells the house and if you want to make sure you suffer adverse consequences if you have to apply for Medicaid.
  • “Need to qualify for Medicaid for nursing home care? Just give your assets to your kids.” Not only is this really bad advice that could disqualify you from Medicaid, but if you don’t disclose the transfers to Medicaid, you’re also committing criminal fraud.

The point is that the advice given above MAY work for one particular person if their particular situation is just perfect. But only a lawyer will know whether it’ll work in your particular situation. And, he or she may have other options that may work better. So, while you can certainly ask people what they’ve done, keep in mind that it may not be the best solution for you.

Schedule a phone or in-person appointment with a real lawyer because it always costs more to fix the results of bad legal advice than doing it right in the first place.

Other articles you may find interesting:

An Estate Plan Is Necessary for the Unthinkable

A Health Care Surrogate’s Powers

Would you like to learn more about estate planning, elder law, asset protection planning, probate, and Medicaid planning in an informal, no-obligation setting?

Sign up for one of our free, educational workshops here.

4 DIY Estate Planning Fails

In this video, Cindy discusses some common mistakes people make when they try to do their estate planning on their own. Don’t try this at home.

Other articles/videos you may find interesting:

Beneficiary Designations and Divorce

Durable Power of Attorney: What You Need to Know

***Want to learn more about how to protect your family from the government, lawsuits, accidental disinheritance, or nursing homes? Click THIS LINK to book a seat at one of our upcoming fun and educational workshops.***

Be Aware of Where You’re Getting Estate Planning Advice

estate planning advice
Learn as much as you can, but always be aware of who is giving the estate planning advice.

The title of this recent Forbes article How to Fix an Expensive Estate Planning Mistake caught my eye. I love to pass on articles that may help my clients, so I read this one. Hmm.

The author is primarily discussing the tax disadvantages of giving your home to your children during your lifetime (I tend to agree with him on that), but then he goes on to assert that probate is a relatively inexpensive non-event, and that gifting assets for Medicaid planning purposes is a “poor financial planning approach.” He suggests putting the home into a living trust or using a life estate or enhanced life estate (lady bird) deed instead – for better tax consequences and to avoid probate, if that’s a concern for you. He did close the article with a recommendation to see qualified estate planning advice.

Not awful advice, but certainly over-simplified and not appropriate for lots of people.

I sighed, and scrolled down to the bottom of the article to see who the author was. Oh, now I understood. He’s the CEO and Chief Investment Strategist of a financial firm. I’m certainly not knocking his creds when it comes to financial advice; I’m a Certified Financial Planner, so I’ve traveled in his world. And financial planning and estate planning go hand in hand – you can’t do one without the other. But his focus, as a financial professional, isn’t always in line with my focus, as a legal professional, or your focus, as a regular human being just trying to figure things out.

Estate planning and elder law is very complex – we have to look at many areas of your life, including financial, health, taxes, and, most complicated of all, family. What’s appropriate for one family isn’t right for another. For example, while it’s true that, in general, it’s not tax-efficient to give your home to your kids while you’re alive, maybe there are other personal reasons that outweigh that.

Same with probate – many of my clients have a deep aversion to having the government sticking its head into their private business. And as for claiming that the probate fees are “only” a certain percentage of the assets going through probate…sort of. Lawyers have to charge a minimum fee for even the simplest probate because they’re extremely time-consuming for the law firm. Probate is also very time-consuming and aggravating for the family; I tell clients that they’re essentially giving whoever they name as their Personal Representative a second job for 6-9 months. The dollar signs aren’t always the deciding factor.

His advice about putting the home in a revocable living trust is generally a good idea in most cases. But, it depends on what else is going on in the estate plan and in the family. Life estate deeds and enhanced life estate deeds (lady bird deeds) aren’t actually estate “planning.” They actually bypass planning, just as TOD (transfer on death) and POD (payable on death) accounts do. They all present their own issues, which I won’t go into here.

As for gifting for Medicaid planning reasons…I’m afraid many financial professionals don’t understand this concept at all. They confuse the typical irrevocable trusts used by the ultra-wealthy to remove assets from their taxable estate with the much more relaxed irrevocable trusts used for Medicaid asset protection. There are so many different legal strategies available for the middle class to keep their money invested for their spouse and their children, instead of losing a good chunk of it to nursing home costs, but few financial professionals discuss this with their clients.

Medicaid planning is really not ethically different from using certain legal tax strategies to reduce income, gift, capital gain, or estate taxes. No one writes a check to the IRS based on their gross income, foregoing all deductions, credits, and exemptions – but they certainly could. Why not use the legal deductions and exemptions available under Medicaid law to keep your hard-earned money where it belongs – in the hands of your spouse, children, and grandchildren?

The trick, of course, is to start Medicaid planning sooner than later. The closer you are to needing nursing home care, the fewer the strategies available to you and the more expensive the legal fees will be to implement those strategies. You can pay a few thousand dollars now to potentially save everything, or tens of thousands of dollars later to save a small portion.

Anyway, read as much as you can about estate planning and elder law, but always be aware of who is giving the advice. We all look at things through our own lenses, judging what’s important and what’s not. A financial professional, consumer agency, self-help guru, divorce lawyer, and elder law attorney all have different points of view.

But when you’re ready to do or re-do your own estate plan, sit down with a lawyer who only does estate planning and elder law. Find someone who will educate you (workshops are a great no-pressure way to get education without incurring any financial obligation!), spend time with you, answer your questions, and present you with options. That way, you won’t make any expensive estate planning mistakes that will need to be fixed. 🙂

Other articles you may find interesting:

Have an IRA? The CARES Act of 2020 Impacts You

To Probate or Not to Probate?

***Want to learn more about how to protect your family from the government, lawsuits, accidental disinheritance, or nursing homes? Click THIS LINK to book a seat at one of our upcoming fun and educational workshops.***

Preparing for the Challenges of Aging

cognitive impairment
With aging comes many blessing and challenges. One of those challenges is the possibility of cognitive impairment at some point in your life. A solid estate plan addresses that issue.

For family members, the warning signs can be hard to spot, and the person may even try to hide them. There may be confusion over regularly performed tasks, forgetting to pay a bill or missing a meeting. According to the Taunton Gazette’s article “Preparing for complications associated with aging,” family members must keep their eyes open for clues, including lapses in judgement about financial matters, like sending money to a phone call scammer, or changes in behavior.

A conversation should be part of estate planning or when talking about regular financial planning. Address the potential problems, while parents still have mental capacity. As soon as any warning signs are evident, the time frame for preparedness needs to speed up.

When discussing the estate plan, several documents are used to prepare for cognitive impairment. In addition to a last will and testament, the estate plan needs to have a health care power of attorney and a durable power of attorney.

A Health Care Power of Attorney is a legal document that gives caretakers, usually an adult child, and sometimes a trusted friend, the legal ability to speak with health care providers about medical treatment. These documents need to be kept current so there are no obstacles to their use. Every three to five years, they should be updated, or as circumstances change. Without them, the caretaker won’t be able to have a conversation with a loved one’s doctor regarding any health issues, including cognitive impairment.

A Durable Power of Attorney allows another person, who is called the “agent,” to handle almost everything in your life. This should be current, since many banks and financial institutions will balk if they are handed a POA that is more than five years old – sending it to their legal department and holding things up while they await an answer.

Cognitive impairment is an important reason many aging adults rely on trusts. Unlike assets held in an individual’s name, assets owned by a trust can easily be managed by a trustee. If you’re the trustee and become mentally incapacitated, your chosen back-up trustee can manage the assets. The trustee needs to be someone you trust who is willing to take on this task.

One of the challenges of cognitive impairment is transferring the management of a person’s assets and their health care decisions to someone who is not impaired. The aging parent may be very good at hiding their disability, and they can often mislead family members for extended periods of time.

One unusual and creative idea: create a “disability panel” or “disability board of directors”— a group of family members, friends, or beneficiaries who decide if the loved one needs help. This is far easier than relying on doctors to declare incompetency or needing to apply to the court for guardianship when you show signs of cognitive impairment.

Your estate planning attorney will be able to help you prepare for the challenges of aging by creating a plan for incapacity as part of your overall estate plan.

Reference: Taunton Gazette (July 12, 2019) “Preparing for complications associated with aging,”

Other articles you may find interesting: 

What Types of Senior Care are Available for Veterans?

Dementia: Losing Your Self

***Want to learn more about how to protect your family from the government, lawsuits, accidental disinheritance, or nursing homes? Click THIS LINK to book a seat at one of our upcoming fun and educational workshops.***

Gun Trusts Gone Bad

In this video, Cindy discusses some gun trust horror stories she’s come across in her practice. There’s no wiggle room when you mess up a gun trust that hold NFA firearms. Can you say “contraband”?

Other videos and articles you may find interesting:

When Will the Supreme Court Clarify the Scope of the Second Amendment?

Pet Trusts: Because Moose Isn’t an Xbox

***Want to learn more about how to protect your family from the government, lawsuits, accidental disinheritance, or nursing homes? Click THIS LINK to book a seat at one of our upcoming fun and educational workshops.***

Does Mom Have to Pay Dad’s Credit Card Debt after He Dies?

credit card debt
Consult with a probate attorney before paying a deceased person’s credit card debts.

When a family is grieving after the death of a loved one, the last thing any of them wants to deal with is unpaid debts and debt collectors.

nj.com’s article asks “Is mom liable for my dead father’s credit card debt?” The answer: generally, any unpaid debts are paid from the deceased person’s estate.

In many states, family members, including the surviving spouse, typically aren’t required to pay the debts from their own assets, unless they co-signed on the account or loan. This includes credit card debt.

All the stuff that a person owns at the time of death, which includes everything from money in the bank to their possessions to debts they owe, is called an estate. When the deceased person has debt, the executor of the estate will go through the probate process.

During the probate process, all the deceased’s debts are paid off from the estate’s assets. Some assets—like retirement accounts, IRAs and life insurance proceeds—aren’t included in the probate process. As a result, these accounts may not be available to pay creditors. Other assets can be sold to pay off outstanding debts.

A relative or the estate executor will typically notify any lenders, like credit card companies, when that person passes away. The credit card company will then contact the executor about any balances due. Note: the creditor can’t add any additional fees, while the estate is being settled, and the executor SHOULD NOT arrange to make any payments without first consulting with a probate attorney.

If there’s not enough money in the estate to cover credit card debts, the card issuer may have no recourse. The executor and the heirs aren’t responsible for these debts. Unlike some debts, like a mortgage or a car loan, most credit card debt isn’t secured. Therefore, the credit card company may need to write off that debt as a loss.

You should start learning about the probate process in your state to have the best defense for dealing with creditors and debt collectors.

If you need help, talk to an experienced estate planning attorney.

Reference: nj.com (Jan. 15, 2020) “Is mom liable for my dead father’s credit card debt?”

Other articles you may find interesting: 

College Kids Need Estate Planning,Too

What’s a Lady Bird Deed?

***Want to learn more about how to protect your family from the government, lawsuits, accidental disinheritance, or nursing homes? Click THIS LINK to book a seat at one of our upcoming fun and educational workshops.***

Financial Infidelity that Appears after One Spouse Dies

Financial infidelity
Financial infidelity – when one spouse is making significant financial moves without the knowledge of the other.

When one member of a couple handles all the finances and dies, the surviving spouse is often left with a serious problem. Locating investment accounts, passwords to online accounts and other important information becomes an overwhelming issue, according to the article “Why smart people don’t recognize financial infidelity” from The Mercury. It’s a relatively new term, but not a new dilemma.

Take the case of a recently widowed or divorced person who has met a new person who appears to be the new love of their lives. The person is kind to them, supportive, and well, perfect. It’s hard to believe that such a seemingly wonderful person could have a dark side. However, whenever a new friend, hobby, or investment idea starts having a major impact on the person’s financial life, or if they have simply been careless with their financial affairs, the impact can become catastrophic.

People who are not confident in their ability to manage money or investments often hand off that responsibility willingly to their partner. If in a prior life, your spouse managed all of the household money and you did not learn how to handle the tasks that are required to run a home or manage an investment portfolio (or work with advisors), you might be a little too willing to pass that job on to a new partner.

You may fall into the traditional role of one person being responsible for the outside bills and investments and the other handling all of the household tasks.

Financial infidelity also includes things like having accounts that are not known to the other spouse or taking out credit cards without the other person’s knowledge. The same goes for one spouse suddenly putting a lifetime of savings into a single investment, or someone who knows little about markets spending a great deal of time day trading with the family’s savings. Gambling or excessive spending can also be financial infidelity.

What can you do? Here are a few tips.

Don’t give up control of finances. It’s not uncommon for people to combine finances when they are first married. However, if you’re heading into a second marriage, you may want to keep your money separate at first. Not paying attention to what’s going on with your money at any stage of life can lead to problems.

Educate yourself about money. If one of you is better at money management, that’s fine—but the one who isn’t needs to get up to speed. There are classes in personal finance at the local high school or college, so cost should not be an issue.

Speak up. If one person is made to feel like they can’t talk with their partner about money, there’s a problem. There may be accusations of trust—but trust is not granted automatically. Trust is built between a couple through experience. Financial transparency between partners is a sign of respect.

Read and understand documents before you sign anything. If you have questions, don’t sign anything until you have a full understanding. You should not be pressured into making decisions or commitments until you’re completely comfortable with all of the information. If you don’t get a satisfactory answer, don’t sign.

Part of your protection from financial infidelity is an estate plan. Speak with an estate planning attorney about creating a plan to protect your assets after you pass and while you are living. An estate plan needs to include – at a minimum – a Will, a Durable Power of Attorney, Designation of Health Care Surrogate, and may include Trusts, Living Wills, and other documents, depending upon your situation.

Reference: The Mercury (Jan. 29, 2020) “Why smart people don’t recognize financial infidelity”

Other articles you may find interesting: 

Special People, Special Trusts: SNT FAQs

Power of Attorney vs. Guardianship

***Want to learn more about how to protect your family from the government, lawsuits, accidental disinheritance, or nursing homes? Click THIS LINK to book a seat at one of our upcoming fun and educational workshops.***

9-Step Guide for a Personal Representative

In this video, Cindy discusses 9 things anyone who is drafting a Will – or anyone who is named as a Personal Representative in a Will – should know.

Other videos you may find interesting:

Durable Power of Attorney: What You Need to Know

What’s a Lady Bird Deed?

***Want to learn more about how to protect your family from the government, lawsuits, accidental disinheritance, or nursing homes? Click THIS LINK to book a seat at one of our upcoming fun and educational workshops.***