Last Will & Testament as a Suggestion
Portia B. Scott, J.D., L.L.M. • May 12, 2022

Your Final Word???

Many folks presume that a Last Will and Testament is an absolute declaration which must be followed. This is not the case.

 

Though given enormous weight by a Probate Court, a Will is often actually treated as an assortment of suggestions by the person whose signed the Will. For instance, if you, in your Will appoint your friend, Betty, to be your Personal Representative (sometimes called Executrix or Administratrix) but Betty lives in another state or is a convicted felon. She will not be eligible to be appointed by the Court as the Personal Representative (the “PR”) and a back-up choice will be needed.

 

Similarly, your PR has very limited authority until your Will is presented to a Judge in a Probate proceeding and the Judge finds that the Will is acceptable (“admitted into probate”) and so is the nominated PR (not a felon and either a close relative or resident of Florida).  Only then will the Court issue the document which gives authority to the PR, her “Letters of Administration.”

 

Once the PR is appointed and empowered, she starts gathering together your assets and making arrangements for finding out to whom you may owe money, for payment of your last expenses and reporting all of that to the probate Court, with proof. Only after all potential creditors of your estate are identified and their claims evaluated and paid (or contested), may your PR start making distribution of the remaining assets according to directions you put in your Will.

 

What if there are not enough assets in your estate to pay all your debts? (Consider that you died in an automobile accident which was your fault and the other driver was hurt very badly. The other driver gets a judgment against your estate and ends up with most of your assets.) 

 

If there are insufficient funds to make all of the gifts you have in your Will, the specific gifts get paid first. So, the $5,000.00 gift to your church (which you thought would be only a small percentage your estate when you signed the Will) gets paid before the other, less specific gifts. It could be, that you thought you were leaving $500,000.00 to your son and only $5,000.00 to the church. But if your estate is only $6,000.00 when all the debts are paid, then the church gets its $5,000.00 and your son, who was to inherit “everything else” only gets $1,000.00.

 

Better to leave a specific gift as a percentage with a cap, such as “1% of the value of my estate up to $5,000.00.” 

 

If your estate does not have enough money to pay all of your debts, even your specific gifts, such as shares of stock, bonds or your art collection, will not be given to the people you wanted to receive them. Those types of assets will be used to pay the debts of the estate.

 

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Odd Laws - Iceland

By Portia B. Scott, J.D., L.L.M. • January 31, 2025
Odd Law - Iceland

MEDICAID IN FLORIDA Part I

By Portia B. Scott, J.D., L.L.M. • June 11, 2024
Medicaid planning is a complicated concept with many moving parts, all of which need to work in tandem and cohesively together to achieve the goal of providing quality long term care and/or nursing services to a Floridian in need. People often merely state that Medicaid is always a payor of last resort, but that expression needs to be defined and discussed as part of an over-all plan. The first issue addressed, then, is what is meant by “The payor of last resort?” Medicaid is, indeed, the payor of “last resort.” Briefly, this means, when all other medical assistance care is gone, Medicaid may step up and help pay for some uncovered medical expenses. Although Medicaid is a Federal program, it is administered on a State-by-State basis. When Medicaid was first being created, each state in the Union submitted their own plan on how the funds available to their own State’s Medicaid applicants. Florida submitted its plan which continues (with some tweaks) as to be used by Florida’s Medicaid system. If the applicant (the “patient”) otherwise qualifies for Medicaid in Florida, the State’s Medicaid program will help pay the expenses of Long Term Care, including Nursing Home Care. So, if the patient has a privately purchased policy for Long Term Care Insurance, those benefits will have to be fully depleted before Medicaid will provide any financial help. If the patient has more than $2,000.00 in “countable assets,” those will need to be spent before Medicaid will help. (We do mean “spent,” too; not gifted away!) If the patient is on Medicare, Medicare will step back and no longer pay once Medicaid has taken over. This means that the patient’s Medicare premium will no longer be deducted from any Social Security payment, increasing the net income of the patient. Further, there will no longer be a need for supplemental health insurance since the policy (Medicare) which was being supplemented, no longer is paying. When good planning has been implemented, including, at times, some of the countable assets of the patient having been legally and permissibly transformed into uncountable assets, Medicaid will step in to help pay for the Long Term Care Nursing Home expenses. This is what is meant when the term “payor of last resort” is used.
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