October, 2017 - Simms Law Firm

If you are now a Florida resident and your estate planning documents were prepared in another State, there are many potential problems.

Your out of state Will might not be admissible in a Florida Probate. If your Will is not “self-proving” (meaning that there is an affidavit stating that you signed your Will in front of the witnesses and a notary all at the same time), then a Florida Probate Judge might not admit the Will without further proof that the Will is authentic. This adds cost and delay to the probate process.

Your out of state Will might name a Personal Representative (sometimes called an Executor) who is not a qualified person under Florida Law. In Florida, the Personal Representative must either be a relative or a resident of Florida. If you have not named a qualified successor Personal Representative, this could create conflict with your heirs and would certainly add cost and delay to the probate process.

Your revocable living trust might hold Florida real estate. If that real estate is your homestead, your trust must contain certain language addressing Florida Homestead requirements. You do not need a new trust, but might very well need to add an amendment to your existing trust.

Your out of state Power of Attorney and Medical Directive might not comply with Florida Statutes. This could create issues and delay when dealing with Florida banks, government agencies, health care providers, etc. It is best to have Florida specific powers of attorney, especially if you become incapable of handling your own affairs.

Answer these 7 simple questions to find out!

Have you prepared a Will or Trust?

If you do not have a will, the State of Florida will determine how your assets will pass. This could have potentially undesired results!

If you have done a Will or Trust, has it been reviewed in the last 2 years?

You may have experienced family or financial changes since your plan was prepared. In addition, the laws in Florida may have changed which affect your particular planning documents. For example, Florida recently passed legislation allowing representatives to access and control online accounts and digital assets. Since most people use the internet for banking, social media, and emails, it is important to have specific language in your documents that gives this authority to your representatives.

An out-of-date estate plan perhaps is worse than no estate plan at all. Think of estate planning as a process, not an event.

Does your current plan provide your heirs with asset protection, divorce protection, and lawsuit protection?

Under Florida law, children and grandchildren can inherit property at age 18 without restriction. Proper planning is crucial to prevent an heir from squandering his or her inheritance. Are the distributions to your children protected from their creditors and divorce?

Do you only have a Will and not a Living Trust?

Many of your assets could be subject to Probate proceedings. Probates are costly and require many months to conclude. A properly funded Living Trust is an excellent way to avoid Probate.

Should your decision makers be changed?

Over time, many people change their minds about who is best suited to be their personal representatives, trustees, and health decision makers. Or the people designated in the original documents may have moved, died, become ill, or grown distant. You should also consider naming successors to act as back-up.

Is this your only marriage?

Second or subsequent marriages present unique planning issues, particularly if both have children from a prior marriage. Proper planning is critical to prevent undesired results.

Do you have assets titled jointly with a child or children, or someone else?

Holding assets jointly with someone else other than a spouse is quite common, but has some potentially devastating consequences of which most people are unaware. In Florida, a creditor of a joint tenant can claim the asset! A creditor would include a divorcing spouse, judgment creditor, or business creditor. Additionally, problems can be created if joint tenants die in the wrong order. There are better ways to allow your children to access your accounts.

Please contact the Law Office of Debra G. Simms for your free estate planning consult. Don’t wait until it’s too late!

Planning Techniques to Avoid Probate

What is Probate?

Probate is the legal process the Court takes to distribute your property and pay your debts upon your death. During the probate process, your property is identified, inventoried, and then distributed to your beneficiaries. The Court makes certain that any and all debts and taxes are paid before any final distribution of assets to the beneficiaries. If you have a Will, the Court will make sure your assets reach your named beneficiaries; if you do not have a Will, the Court will distribute the property according to the rules of “intestate succession” which is in the Florida statutes.

The probate process has very specific legal requirements and cause problems including:

Delay:

Probate can take a lot of time, anywhere from 3-6 months to over a year. If you have creditor claims, unpaid taxes, or heirs who contest the Will, the process can take longer.

Higher Legal Fees:

The probate process can become expensive. According to Florida law, you must have an attorney is required in most probate proceedings. Attorney’s fees are based on a percentage of the value of the probate estate, but could be based on an hourly rate. The longer the probate takes, the more it will cost, leaving the heirs with less than intended. If there are any challenges to the probate, the cost can be very high.

No privacy:

When your Will becomes part of the probate file in the Court, it is a public document; how much you left behind, how much you owe to creditors, and who are your beneficiaries are no longer private family matters.

Ways to Avoid Probate

Build a Trust

One of the best ways to avoid probate is to create a living revocable trust. A living trust is very similar to a will and allows the role of a trustee to take control in the event of death. This makes your property no longer part of your probate estate and it avoids the probate process entirely. You can instruct your trustee, upon your death, how they should transfer the property to the proper beneficiaries.

Joint Tenancy

Another way to avoid probate is to have your property held jointly. If your spouse or significant other passes, the jointly held property will go to the surviving member, completely avoiding the probate process. Of course, unless the surviving member then takes further steps to avoid probate, there will be a probate when he or she passes.

Beneficiary Designations and Payable on Death Accounts

If you have completed beneficiary designations on retirement accounts and life insurance policies those assets will pass to the named individual, completely avoiding the probate process. It is always a good idea to name a secondary or contingent beneficiary, in case your beneficiary predeceases you.

For bank and investment accounts, you can designate the account be “payable on death” or “transfer on death” to a named beneficiary. This, too, will completely avoid the probate process.

Lady Bird Deed

A “Lady Bird Deed” offers a simple, inexpensive way to transfer real estate upon your death, without probate. These deeds work to transfer the property upon your death, much like a transfer on death account. These deeds have some drawbacks, however, and it is advisable to discuss your situation with an estate planning attorney.

Contact the Law Office of Debra G. Simms for your free consultation to discuss how you can avoid Probate.

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