Most people are not aware of the value of a certified estate planning attorney. Most people generally believe they have planned well if they have a will in place. A will may not be the best plan because a will does not avoid probate when you die. Interesting fact: a will must be examined by the probate court judge before it can be admitted to probate. A defective will not be accepted and your estate will be administered as though you don’t even a have a will!

Basic estate planning definitions:

  • Will – Only goes into effect when you die. It is a legal document that names the beneficiaries who inherit a person’s assets and names a representative to administer and distribute the estate.
  • Probate – Legal process used by the court to ensure debts are paid and assets distributed in accordance to your will. If you don’t have a valid will your assets are distributed according to state law.
  • Living Trust – Legal document, similar to a Will in that it contains your instructions for what you want to happen to your assets when you die; however, it avoids probate at death because your assets pass to a trustee and then to your beneficiaries; an additional advantage is that it can provide for control of your trust assets while you are alive which prevents the court from controlling your assets if you become incapacitated. In other words, a living trust which provides for incapacity can avoid a Guardianship proceeding whereby you would become a Ward of the State!

The Simms Law Firm recommends a simple and proven alternative to a will which is the revocable living trust. It avoids probate and lets you keep control of your assets while you are alive- even if you become incapacitated – and after you die.

So what is the downside of probate?

Four simple points really.

Expensive – Legal/executor fees and other costs have to be paid before assets can be fully distributed to your heirs.
Time – Probate can take six months to two years to process an estate. Nothing can be distributed or sold without court and/or executor approval. Tough break if your family needs the funds for living expenses.
● No privacy – Probate is a public process. That means “interested parties” cull these notices and can slow down the process to contest the will.
● No control – The process is tied up internally in the court process – this takes the whole process out of your hands. Courts move slowly because of the court calendar; public information and claims on the estate.

Debra G. Simms

To contact attorney Debra G. Simms, P.A. in Port Orange or New Smyrna Beach, FL please call 877.447.4667.

Ladybird Deed Benefits

In recent years a new form of transferring real estate has been gaining popularity in Florida. The “enhanced life estate deed,” or “Ladybird Deed” (according to legend, former President Johnson once used this type of deed to transfer some property to his wife, Ladybird Johnson) is an attractive way to avoid the probate process when transferring real estate to your children or other beneficiaries after you die.Here is why this type of transaction works so well in Estate Planning in Florida. In the hope of making things simple and avoiding probate, many senior citizens quitclaim their property to their children or add their children’s name to their deeds. There are potential problems with this way of avoiding probate. For example, if your child’s name is on your deed, then his or her creditors could obtain an enforceable lien against the property because the child cannot claim the home as homestead. (In Florida, the homestead, or primary residence, is exempt from creditors’ claims). Further, if your child is married, his or her spouse can claim an interest in the property in the event of divorce. And what if you want to sell the property? Your child would have a say in this decision!

The benefits of the Ladybird Deed are numerous. You remain the owner of the property and can change the deed or sell your property without the permission of your child. The property is not subject to the claims of your child’s creditors or the claims of a divorcing spouse. At your death, the property passes to your child automatically, without probate expenses or delays. Further, in my Elder Law practice, an added bonus for those who are concerned with long-term nursing home costs, is that this type of transfer does not affect Medicaid eligibility.

The time is right for this type of transfer on death deed. Folks are familiar with payable on death arrangements for bank accounts, life insurance, and retirement accounts. For real estate, transfer on death deeds have the same benefits.

If you are interested in including a Ladybird Deed in your estate planning, contact the Law Office of Debra G. Simms for a consultation. A deed can be prepared inexpensively and avoids the costs and delays of 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.

Florida Probate Law

There are a number of reasons to be wary of Probate. Here are some of those reasons.

1. Probate can be expensive The legal fees can eat up a chunk of your estate, and the costs can go up significantly for larger estates.

2. Probate can tie up an estate. The length of time depends on how complicated the case is and whether anyone is objecting. Even short delays can hurt beneficiaries. Assets may be completely unavailable until the probate is opened and and personal representative (called an executor in some states) is appointed. This can really hurt a spouse and young kids, or those who are called upon to advance funds for funerals and attorneys.
3. Probate also raises privacy concerns because it puts the will into public record. Some people may not want others to know to whom they left their assets.

Responding to these concerns, many states have enacted streamline procedures, at least for small estates. In Florida, for instance, estates under $75,000 (not including the primary residence, the family car, and household belongings) may be eligible for a Summary Administration.

Way to Avoid Florida Probate

Other ways to avoid Probate is to keep assets out of Probate’s reach.

Here are some of the most common and least expensive ways to do so.

1. Create and fund a revocable living trust. Living trusts have become more and more common and really coming to the fore in estate planning. The average cost for a living trust for a married couple is $1,500.00. This can save thousands of dollars of probate costs.

2. Payable on Death Accounts or Transfer on Death Accounts. There is no cost to doing this, it’s just a matter of setting up your bank and brokerage (non-retirement) accounts in this way.

3. Beneficiary Designations. For Life Insurance, Retirement Accounts, and Annuity type financial products, you can simply fill out a form which designates your primary and secondary beneficiaries. Doing this will avoid these assets from passing to your estate and requiring a Probate before they can be distributed.

4. Transfer on Death Deeds. This is the latest trend in estate planning, and allows real property to pass directly to the named transferee(s) upon the property owner’s death. Like a Transfer on Death Bank Account, the property transfers outside of a Will and is not subject to Probate.

The upcoming blog posts will explore these ways to avoid probate. But, don’t do it yourself. DYI is never a good idea in estate planning. Contact a lawyer to make sure your documents are bullet proof.

Debra G. Simms

To contact attorney Debra G. Simms, P.A. in Port Orange or New Smyrna Beach, FL please call 877.447.4667.

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