Avoiding Florida Probate Costs

Anyone who’s dealt with Probate in Florida knows how costly it can be.  There’s the filing fees (currently at $400.00).  There’s the publication fee (varies from county to county, $75-$300), and then there’s the attorney’s fees.
Some attorneys charge a flat fee for summary administration  (estate assets are less than $75,000 or death occurred over 2 years ago) but for a formal probate most attorneys charge an hourly rate or a percentage of the estate.  Some attorneys use a blend of hourly rates and a fee based on the percentage of the total assets.  Florida law allows attorneys to charge up to 3% of the amount of the assets.

Personal Representative Fee

Then there is the fee paid to the Personal Representative.  That can also be up to 3%.  Many times, a family member will refuse to be compensated for his or her duties as a Personal Representative.  But, not always.  I have encountered many situations where the designated Personal Representative is a family member and seizes this opportunity to receive a greater share of the inheritance.

Many of my clients come to me and ask for information about revocable living trusts to avoid probate. They have heard  tales of probate horror stories with the result that many Florida residents want these trusts.  What they don’t know is that  their designated trustees, who are also often the beneficiaries, (in most cases, their children) can be personally liable to the deceased’s creditors for up to 2 years if there are assets in the trust.
Fortunately, the summary probate with a publication of notice to the creditors can solve this dilemma.  There is always at least one asset left out of trust, and if not, items such as cash, personal property, car, can be used to open a Summary Administration.  The notice of Summary Administration is then published and filed with the Court.  Now, all claims not filed  withing 3 months of publication of the notice “shall forever be barred.”
So, by all means, consider a revocable living trust to avoid the costs of a full probate administration.  But, remember, you may have creditors when you die and they need to be paid.  Consult with an attorney to learn the best ways to accomplish all your Estate Planning goals.
Call for a consultation for Estate Planning and Probate.
Debra G. Simms
To contact attorney Debra G. Simms, P.A. in Port Orange or New Smyrna Beach, FL please call 877.447.4667.
A woman who used a commercial will instead of hiring an attorney apparently thwarted her intent of disposing of some of her property and sparked litigation that cost many times what she saved by using the generic form.

Does the E-Z Legal Form Work?

The woman, Ann Aldrich, had written her will on an “E-Z Legal Form” which was properly witnessed and executed in 2004.  In it, she specified that her property was to be left to her sister, and if her sister died first, then her property would go to her brother.
The sister did die first, and left property and money to Ann.  The legal form had not contained any language, such as a residuary clause, to cover how that inheritance should be handled.   After her sister’s death, Ann attached a signed note to the form will indicating that her brother should get the property, with some funds going to a niece.
The Judge ruled that the note was not valid under the Florida Probate Code because it only had the signature of Ann and one witness, her daughter.  Therefore, the original Will, without the note, governed the disposition of Ann’s property.
Under the terms of the legal form Ann used, the brother, as Personal Representative, filed an action saying he should get the entire estate, including the inheritance from the sister. Two nieces contested the will arguing that since the form Will did not mention or make allowances for the inheritance, that part of the estate should be determined by the Florida intestacy laws.  (The intestacy laws deal with property when there is no valid will or no will at all)
The Court agreed with the nieces and ruled that state law governs how the property will be handled since the form will did not make mention of how to dispose of the later acquired property.
One of the Supreme Court Justices also wrote a separate opinion commenting on problems from using legal forms typically found on various internet sites.  She stated that these forms, intended to save money, instead can wind up in costly litigation.
The lesson here:  The decision to use  a form without an attorney can ultimately result not only in an unintended results, but payment of extensive attorney’s fees -the precise results that you are seeking to avoid in the first place.
Debra G. Simms
To contact attorney Debra G. Simms, P.A. in Port Orange or New Smyrna Beach, FL please call 877.447.4667.
You have probably decided who gets the house or the IRA when you die.  But what about your email accounts, bank accounts,  and all those photo’s stored on Face Book?
Grieving relatives might want access for sentimental reasons or to settle finances.  But if you give out your passwords, your children could read your exchanges on an online dating profile or your spouse could read your every e-mail!
But think about this- you might have a popular cooking blog or YouTube video that is worth considerable value to your estate.
The law on this topic has lagged behind our electronic footprints.  But, on July 16, 2014,a new act was approved by a national law group which provides comprehensive provisions governing access to digital assets.  www.uniformlaws.org
Privacy activists are skeptical and think a judge’s approval should be needed to access the Internet sites of a deceased person, to protect both the owners of the accounts AND those who communicate with them.
In the meantime, until your state adopts its own version of the Uniform Fiduciary Access to Digital Assets, sharing your passwords may not be a good idea.  Anti-hacking laws and most companies’ “terms of service” agreements prohibit anyone from accessing an account that isn’t theirs.
Several tech companies have come up with their own solutions.  Facebook will “memorialize” accounts by allowing already confirmed “friends” to view old photo’s and old posts.  Google, which runs Gmail, YouTube, and Picasa, offers its own version:  If a user doesn’t log on after a certain period of time, their accounts can be deleted or shared with a designated person, such as the Personal Representative of your Estate.  Yahoo users agree when signing up that accounts expire when they die.
Debra G. Simms
It’s finally official.  If your home is underwater (your house is worth less than the amount owed) and you have a second mortgage (sometimes known as  HELOC or junior loan) you might be able to get rid of the second mortgage in a Chapter 7 Bankruptcy.
If you meet the criteria to qualify for a Chapter 7 Bankruptcy, you may be able to get rid of your second mortgage all together, along with other unsecured debts, much like Visa, Sears, and medical bills. The Eleventh Circuit Court of Appeals ruled in the case of Malone v. Wilmington Trust that such “strip offs” are permitted in Chapter 7.  Formerly, strip offs were only permitted in the more costly and time-consuming Chapter 13 cases.
If you are interested in lowering your monthly debt on your home, and getting rid of your second mortgage, please call the Law Office of Debra G. Simms for your bankruptcy consultation.
Debra G. Simms

When a loved one passes away you may need help in following his or her wishes regarding the distribution of his or her property and money after death.  Unless all of the person’s assets were titled in trust, or passed through a beneficiary designation form, or by rights of survivorship, you will need to hire a probate attorney to represent you in the administration of the estate, a process known as probate.

The services a probate attorney provides include determining how assets will be distributed, payment of debts and taxes, filing necessary motions, and making arguments in court should the will be contested. Sometimes a probate lawyer will be needed to assist you in locating unknown assets.

Debra G. Simms, is an experienced attorney and is Board Certified by the Florida Bar in guiding families through the Probate process.  Our clients are often the adult children of Florida retirees. There is no need to travel to Florida – we can handle the entire Probate process using e-mail, telephone, etc.  Courts now accept photocopies of pleadings so that documents can be signed and either faxed or e-mailed back to us for filing!

If you have lost a loved one residing anywhere in Florida at the time of death, please contact our offices for a consultation.

Debra G. Simms
Let’s face it.  Long term nursing care, either in a facility or at home is expensive.  Depending on location and level of care, nursing homes cost between $35,000 and $150,000 a year.  Home health aid costs about $200 per day. Most people end up paying for nursing home care until their savings run out.  Then what?  Is there a way to protect your assets for your spouse, your children, or your favorite charity and still obtain the level of care that you need?
Medicare Part A covers up to 100 days of skilled nursing care. However, because the definition of skilled nursing is quite stringent, few people end up receiving the full 100 days of coverage.  What happens when your Medicare runs out?
Unless you purchased long-term care insurance when you were healthy, or qualify for Veteran’s benefits, you will need to become eligible for Medicaid.
Medicaid is this country’s “insurance plan” for long-term care.  Unlike Medicare, which is an “entitlement” program (all retirees and disabled individuals who receive Social Security benefits also receive Medicare as their health insurance) in order to be eligible for Medicaid, you must become “impoverished” under the program’s guidelines.
This is where an experienced Elder Law attorney comes in.  In my practice, I  advise my clients how to financially qualify for Medicaid even if they have too much money and want to preserve their assets for their families.  This can be done years ahead of needing the benefits or in a crisis situation.  Last week, I helped a family preserve Dad’s life savings even though they didn’t come to see me until one week before his Medicare ran out!
There are ways to quaify for Medicaid even if you have too much money.  Call the Law office of Debra G. Simms to consult us about Medicaid Planning.   Toll free: 1-877-447-4667.
Debra G. Simms

What are the” five wishes” we all keep hearing about when the topic of making a will comes up?

Recently one of my clients told me that his doctor was insistent that he draw up the Five Wishes in order to make proper arrangements for his family after his passing.

Five Wishes is a document that was originally circulated in 1997 by a non-profit organization devoted to health and health care issues. In the document you can let your family and your doctor know your wishes about:


    1. Who you want to make health care decisions for you when you can’t make them


    1. The kind of medical treatment you want or don’t want


    1. How comfortable you want to be


    1. How you want people to treat you


    1. What you want your loved ones to know

Now I have nothing against these forms. If nothing else, they will get you thinking about difficult end of life decisions. But, understand, the Five Wishes is NOT a legal document in Florida or most other states. In Florida, these types of decisions must be made in a legal document that is governed by law. They are commonly known as Advance Health Care Directives or Living Wills. They must be witnessed to be valid. And, the ones I prepare deal with all sorts of issues, such as the HIPPA privacy laws, whether or not you would want a feeding tube even if it would only serve to prolong life, etc.

My point is this: Don’t rely on the Five Wishes as your legal documents for health care decisions. If you complete the form, you still need valid Florida documents which will be honored by your health care providers.

My office prepares Advance Health Care Directives and Living Wills for a very affordable and reasonable cost. Everyone, of all ages, should have them.

Debra G. Simms
The answer to that question – in the Middle District of Florida – is NO.
If the amount of the first mortgage on a property exceeds the value of the property (the home is “underwater”) then a second mortgage or any other junior lien can be “stripped off” in a Chapter 13 Bankruptcy.
But, on July 28, 2010, the Bankruptcy court in the Middle District of Florida declined to follow a minority of courts which allow stripping in Chapter 7.   The Florida court ruled that a second mortgage on a primary residence can NOT be “stripped off” in a Chapter 7 Bankruptcy, even though there is a a significant number of homes which lack equity beyond the first mortgage lien and there is a “high rate of home foreclosures in this area”.
If you want to keep your home, but can’t afford the payments, Chapter 13 Bankruptcy relief may be your best option.  Call our offices for a consultation.
Debra G. Simms
As an estate planning and probate lawyer in Orlando, I have learned that the only thing more expensive than estate planning is probating an estate where the person did no planning. This is not the time to take shortcuts in the hope of saving a few bucks.  It makes sense to pay a reasonable fee to a lawyer who will write out a will that will stand up in court. The lawyer’s fee can range from $150 for a simple will to $250 per hour to draft a complex estate. But, either way, that’s way cheaper than a costly court battle.
Contact our office to learn more about setting up a simple will or schedule an appointment to discuss our estate planning services. Call 1-877-447-4667
Debra G. Simms
I often hear people say:  I really need to get a Will! I tell them: Don’t wait until it’s too late, because when it comes to a will and other estate planning documents, when it’s too late, it’stoo late.
The 4 Basic Estate Planning documents that I always recommend are:
Will, Durable Power of Attorney, Advance Health Care Directive, Living Will
What happens if you don’t have these estate planning documents in advance?  The State will write them for you!
Call our office now for your Estate Planning consultation at 1-877-447-4667
Debra G. Simms

Contact Us

Port Orange Office:
Prestige Executive Center
823 Dunlawton Ave. Unit C
Port Orange, FL 32129
Local: 386.256.4882
Toll Free: 877.447.4667
New Smyrna Beach Office:
817 E. 7th Ave
New Smyrna Beach FL, 32169
Local: 386.256.4882
Toll Free: 877.447.4667