Author Archives: adminslf

Last month I wrote about a Polk County gay couple who adopted a child in Florida now that an appellate court has ruled that the Florida statute banning homosexuals from adopting is unconstitutional.
Today I represented a couple in a gay adoption case in Seminole County, Florida and it was one of the happiest cases I have ever had.

Christy and Grace

My clients, partners Christy and Grace,  first came to see me a few years ago for estate planning.  Christy was pregnant, through artificial insemination with an anonymous donor, and both were concerned about many issues including who would get custody of the child if something happened to Christy.  The couple was also worried that their child would not be able to inherit from Grace or receive her government and veteran’s pension benefits.  Their worries were well founded.  Some of their concerns could be addressed in estate planning documents, but many could not.
As of today, Grace is the adoptive parent of their 4 year old son and has the same rights and responsibilities as Christy.  No one can ever take him away from her.  And their son will have all the benefits of a biological child when it comes to Grace’s governmental benefits, health insurance, etc.
It was a happy day in court with tears and smiles and lots of photo’s.  Grace and Christy were proud mama’s and I was a proud lawyer – proud of my clients, our judge, our judicial system, and the State of Florida.
Debra G. Simms

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

Are you concerned about keeping your home outside of probate when you pass away?  If you are like most people, you don’t like the idea of tying up your property in legal limbo for months before your beneficiaries can take possession of or sell your home.
A Lady Bird Deed conveys the property to your beneficiaries but you have the right to remain in your home for the rest of your life.  You can also sell the home at any time without having to notify or obtain the consent of your beneficiaries.
A Lady Bird Deed also has other benefits:  it is far less costly to set up than a Trust; it can protect your home from creditors, and it allows you to keep all the benfits of Florida Homestead protection.
Call me to discuss whether a Ladybird Deed is right for you and your loved ones.
Debra G. Simms
There may never be a better time to give your money away.
For those of you who are fortunate to have large estates, gifting now is an important estate planning tool due to the pending expiration of a favorable estate and gifting environment, the low interest rate environment, and the abundance of undervalued assets.

Without Congressional action by year’s end, the Bush Tax Cuts will expire or “sunset.  Currently, many folks take advantage of their ability to make tax-free annual gifts of $13,000 per person per recipient, in addition to unlimited direct gifts for medical and educational expenses. And the 2012 federal applicable exemption amount for life time gifts and gifts made at death is $5,120,000. If the Tax Cuts expire, the exemption will go back to the former $1 million lifetime cap on gifts. This five-fold increase in the exemption was a major “gift” to those families wealthy enough to take advantage of such government largess.

Making lifetime gifts is a simple and effective estate tax minimization strategy. Giving assets at no gift tax cost will allow both the current principle and its appreciation to forever escape the Federal estate tax. And taking that concept one step further, smart estate planning will leverage those gifts, while allowing for some control. By using various types of trusts, LLC’s, asset sales, insurance, promissory notes and other planning tools, lifetime gifting can be dramatically increased. Think of this the same way you think of prefunding college expenses for children and grandchildren; what I am talking about is prefunding one’s inheritance with any remaining taxable estate directed towards charity, directly or through foundations.

Planning for large gifts should be carefully reviewed in the context of income tax considerations, portfolio investment, cash flow, and many other considerations. Now is the time to meet with your financial planner and estate attorney. This is an election year and none of us can predict what the winds of political Washington will bring next.

Debra G. Simms
There should only be one original of your will.  Here are some of your options: a home or business safe, bank safe deposit box, with your lawyer, or in some jurisdictions, with the clerk of court.
Before deciding to store your documents at home, consider purchasing a fire proof safe.  Make sure it is always locked and be certain that someone you trust has the combination. If you store your will in the bank, consider that the laws in some jurisdictions require the bank to seal the box immediately upon your death.  This can result in delay and additional probate costs.   If you decide to keep the original with your lawyer, ask your lawyer what will happen if he or she is unavailable when you need your document.  Ask if there is an additional fee – I offer to store my clients’ estate documents at no charge.
 
Whatever you decide, make sure a family member or close friend knows the location of your original will.
Contact our office to learn more about our estate planning services.  Call 1-877-447-4667
Debra G. Simms

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

Already struggling with home foreclosures, harsh bank and credit card fees, and now, other financial challenges such as the damage from Hurricane Sandy, Americans have also been falling victim to the threat of debt settlement schemes that promise to make clients “debt free” over a relatively short period of time. Unfortunately, in my legal practice, I have too often seen clients who have pursued private debt settlement services before seeking my help, and have found themselves facing not relief, but even steeper financial losses.
I am stating this loudly and clearly: the vast majority of uninformed consumers end up with more red ink, not the promised debt-free outcome.
There is widespread documentation that despite the fact that the debt settlement industry is regulated by state Attorneys General and the FTC, entering into an agreement with debt settlement companies is very risky, very expensive, and often times, very unsuccessful.
 Here is one trap: The debt settlement company tells you to default on your debts. The reason they are telling you this is because many creditors will not negotiate reduced balances if you are still current on your bills. But if your debt is not settled out, you will face fines, penalties, higher interest rates, and even more aggressive debt-collection efforts including litigation and wage garnishment. In most cases, the consumer is left worse off than when they started.
 Another risk that these companies don’t tell you about is that if you are successful in debt settlement, you may find yourself with a new bill: tax liability. If reported to the IRS, and unless you are legally insolvent, the amount of forgiven debt is considered income and is taxable!
 Real help for debt relief is available. If you have a single debt and some cash on hand, try to negotiate the settlement by yourself. Creditors typically require 25 to 70 percent on the dollar to settle a debt. If you have multiple creditors and either cash on hand or extra cash at the end of the month, you may want to consult a non-profit credit counseling agency. But make sure to check it out first.
Better yet, consult an attorney – attorneys are debt collectors and we are regulated by our state bar associations. We can negotiate debt. We can also discuss other options, such as bankruptcy,which is a legal proceeding that offers a fresh start for consumers who can’t repay their debts.
The Law Office of Debra G. Simms, P.A. offers consultations for debt negotiation and bankruptcy. Call us now for your consult in one of our central Florida offices. We can meet with you in Orlando, and Daytona Beach.
Debra G. Simms

New Florida Power of Attorney Act

On October 1, 2011, the new Florida Power of Attorney Act went into effect. This is a brand new law that will completely replace and supersede Florida’s current law governing powers of attorney executed by individuals and will apply to powers of attorney created on, before, or after October 1, 2011.

The top six things you need to know about the new Florida Power of Attorney law:

1.Signing formalities are crucial. The new law requires a person making a Florida power of attorney (called the “principal”) to sign the document in front of two witnesses and a Notary Public (note that the Notary can act as one of the two witnesses). The new law also provides that powers of attorney properly executed under the laws of another state will be recognized in Florida; however, a third party located in Florida that is asked to accept an out-of-state power of attorney can require a legal opinion as to the document’s validity under the other state’s laws.

2.Be aware of the new rules governing multiple agents. Under current Florida law, if two or more agents are named in a power of attorney to act at the same time, then they must act unanimously, and if three or more agents are named, then they must act by majority vote. This is not so under the new law – instead, the new law provides that multiple agents named to act at the same time can act independently of each other unless the power of attorney specifies otherwise.

3.Filing for divorce triggers revocation of a spouse’s authority. The mere filing of a petition for divorce will terminate the authority of the principal’s spouse to act under the principal’s power of attorney.

4.Powers of attorney will no longer be allowed to “spring” into action. Springing powers of attorney will no longer be allowed to be created in Florida, instead all new powers of attorney will be effective immediately. But note that springing powers of attorney signed before October 1, 2011 will remain valid.

5.Specific authority must be granted. The following catch-all phrase that commonly appears in powers of attorney can no longer be relied on:

“In general, to do all other acts, deeds, matters, and things whatsoever in or about my estate, property, and affairs, whether or not particularly or generally described and any and all other acts, deeds, matters, and things not particularly or generally set forth herein, as fully and effectively to all intents and purposes as the undersigned could do if personally present; and to employ, retain in employment and discharge such persons (both professional and otherwise) as my Agent may deem necessary to assist in the performance of any of the foregoing.”
Instead, a power of attorney must list with specificity the authority being granted.
 
6. An agent has the duty to preserve the principal’s estate plan. Under the new law an agent acting under a power of attorney has the mandatory duty to try to preserve the principal’s estate planning goals to the extent known by the agent.
These are only a few of the highlights of Florida’s new Power of Attorney law. To lean more about the new law and whether your old document ought to be updated, contact our office for a consultation.
Debra G. Simms

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

5 Key Estate Planning Documents To Help Avoid Family Conflicts

 In case you haven’t heard ( and you probably haven’t) it’s National Estate Planning Week. The hope is to raise awareness about the importance of having the proper estate planning documents to protect you,  your family and your assets. The intent is to decrease family strife and discourse at the time of serious illness or death.

Below is a list of documents you may need to be sure your desires regarding your estate are legal and clear, hence minimizing conflicts and confusion in your family.

    1. The Advanced Health Care Directive is a specific form that lists your healthcare preferences to be used only at a time when you cannot communicate your wishes. It puts your family, doctors and hospitals on notice as to the types of treatments/tests/care you would or would not want.  It also lists those empowered to make health care decisions on your behalf should you not be able to express your desires. Everyone over the age of 18 should have this form completed.
    1. Power of Attorney for Asset Management appoints those that you trust to handle your financial affairs. The form also lists those areas in which you allow the individual to assist you. Having completed this form can be very important in avoiding guardianship should you become incapacitated. A durable power of attorney allows your agent to immediately act on your behalf.
    1. HIPAA Release Form. Several years ago the federal government passed a law to help protect our health care information.  In doing so, it made it more difficult for our family members or trusted individuals to deal with health insurance matters at a time of our incapacitation.  By having this special form completed ahead of time, you allow those individuals named in your advanced health care directive to have access to healthcare information to deal with important health care matters on your behalf at a time when you cannot do so.
    1. A Will is the method that many people use to transfer their assets upon their death. These are relatively inexpensive to acquire but in most cases will result in probate which can be time-consuming and expensive.  For many people who own real estate or have more than just modest assets, they may be better served by having a Living Trust.  Even those individuals having a living trust still need a will.
    1. A Living Trust is the preferred method of transferring assets upon death for many people.  When assets are transferred via the trust there is more confidentiality, less cost, more flexibility with distribution, faster distribution and your wishes are less likely to be contested than with a “probated will”. For those with a lot of wealth, the trust might also provide some estate tax benefits. The downside to the trust is that they are a little bit more expensive to create and maintain. If you have the trust, it is important to make sure that the trust is properly funded.  All real estate should be transferred to the trust as well as savings accounts, mutual funds and other investments.  Assigning your personal property to the trust and having the proper document allows the trustee to distribute your personal property to those that you list thus helping to avoid conflicts within the family when you’re gone.
You should always consult with an attorney who specializes in estate planning to make sure you have the correct estate planning documents for your situation.  Do not rely on the internet or “form” products to create your own  documents.  You might save a few dollars now, but will create havoc when you are not.
Call our office for a Estate Planning consultation.
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 Florida appeals court has decided that the ashes of a young man killed in a car crash cannot be legally divided between his divorced, feuding parents. The Court ruled that the remains of the young man are not “property” that can be halved into two equal parts, and ruled in favor of the boy’s mother who opposed the division of her son’s ashes on legal grounds.
“It is a sorrowful matter to have relatives disputing in court over the remains of the deceased,” wrote the Judge. Indeed, as a probate lawyer, I have seen many families fighting over this very same issue as well as over the initial decision whether to be cremated or not.
The Court in this case noted that the young man didn’t leave a will or any instructions on how to treat his remains. No one could contemplate this type of scenario. This young man, a recent University graduate, no doubt, ever contemplated any end of life decisions, let alone those concerning his remains. However, this case is a wake up call for those of us who wish to be cremated, or have any particular funeral or memorial wishes.
I always ask my estate planning clients if they have any particular wishes concerning these issues. Most folks today express a desire for cremation, and many have already made pre-need arrangements. But, too many do not want to think about it, or put their wishes in writing, and this could have unfortunate consequences if their loved ones have different ideas.
At the Law Office of Debra G. Simms, all end of life decisions are discussed. Even the uncomfortable ones. Please call us for your estate planning consultation.
Debra G. Simms

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

This is a topic near and dear to my heart.
Don’t let your ex trash your credit!
When my friend, Sally, got divorced last year, her ex agreed to pay off their $25,000 in  credit card bills.  This was part of the property division and was made part of the divorce judgment.
Ever since then, creditors have been calling and writing her because her ex is late or fails to make a payment.  Last week, she was served with a lawsuit from Capital One.
Despite the divorce agreement, Sally is still on the hook.  Her credit is trashed and now she has to deal with a lawsuit and possible wage garnishment.  Sally told me, “I just assumed my responsibility ended once the divorce was over.”
I always tell my divorcing clients:  Creditors don’t care how bills or loans are divided in divorce.  If it’s a joint debt, it stays that way.  The credit card agreement or mortgage note trumps the divorce.
So, what should Sally do now?  If she decides to pay off the cards and restore her credit, she might be able to go after her ex for reimbursement in divorce court.  If she can’t pay off the debts, she can always consider bankruptcy.
But, I consider myself a preventative law attorney, so I am going to tell you what to do BEFORE the divorce:
Track down all your credit cards.  Pull your credit report to make sure you know about all your active and open accounts,  even those with a zero balance.  Contact all the lenders and do the following: close or freeze the account and remove authorized users from account.  If you can’t close all the joint accounts because there is a balance or the lender requires both signatures, try to at least freeze the account.  If both signatures are required, do what you can to get it.  Follow up is crucial.
Meanwhile make sure the bills are getting paid.  Divorces can take months and all it takes is one late payment to hurt your credit.
And here’s a side note:  Don’t go crazy opening new accounts in your individual name.  This can actually have a negative effect on your credit score.  Only apply for the credit you need.  And that’s some good advice, whether you’re divorcing or not.
Debra G. Simms

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

The Respect for Marriage Act repeals the Defense of Marriage Act and allows the federal government in the United States to provide benefits to couples in same sex marriages, although it does not compel individual states to recognize same sex marriages. It is supported by the Religious Action Center, Catholics for Equality, Change.org, and Human Rights Campaign among others.
In recent Florida news, the Miami GOP Congresswoman Ileana Ros-Lehtinen joined the ranks of supporters for the Respect for Marriage Act. As the first and only GOP congressperson to co-sponsor the act, she has received both support and backlash from a number of organizations. The Christian Family Coalition is one of those speaking out against her decision, claiming that her support of the act could be viewed as deception to her constituents, donors, and volunteers. She was also attacked in a letter from the National Organization for Marriage, saying they were disappointed and deeply concerned by her abandonment of “traditional Republican principles of marriage, family, and democratic self government.”
On the flip side, there are far more organizations who are applauding her decision. She has been supported in her decision by both the Log Cabin Republicans, and the Freedom to Marry Group Equality Florida, a group that works to secure equality for Florida’s lesbian, gay, bisexual, and transgender community, saying that Ros-Lehtinen is a long time supporter. She was also a 2010 Voice for Equality Award honoree for her work to end Don’t Ask, Don’t Tell and was a founder of the Congressional LGBT Equity Caucus.

What effect could the Respect for Marriage Act have on today’s same sex couples?

Let’s take a look at the Census update on  Same-Sex Couples:

Recently, the United States Census Bureau put an official number on the amount of same-sex couples who are married in the United States – 131,729. This is the first time an official number has been calculated of those who are married and not just in domestic partnerships, which makes it seem like there is a decrease over past inclusive numbers. In Florida, the number of married same-sex couples reached almost 6,800, with 3,585 married male couples and 3,199 married female couples. The US Census Bureau also estimated that there are around 48,500 same sex couples total – both married and unmarried – in the state of Florida, and approximately 515,000 in the United States total.
The numbers were calculated based on two questions from the Census form: one asking the relationship to householder and another asking the sex of each person. It is possible that some opposite-sex married or unmarried couples filled out their forms wrong which could account for some inflation of the numbers, but they should hold fairly accurate as they have been reviewed and approved by three outside experts at UCLA and the University of North Carolina at Chapel Hill.
These figures were among the most highly anticipated statistics collected with the 2010 census. While this is the third census that has recognized same-sex couples, it is the first census since gay marriage became legal. Although not yet legal in Florida, it is legal in six states, and it is important that this portion of the population be accounted for.
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