Probate, also called “estate administration,” is a court process that transfers assets owned by a deceased person to the beneficiaries named in their Will.

In probate, the person who died is referred to as the “decedent.” Anything that the decedent owned when they died is collectively referred to as the “estate.” An estate may contain bank accounts, real estate, vehicles, tools, jewelry, art, guns or any other personal property owned at the time of death.

Probate is required even when a decedent has a valid Will. When someone dies with a Will, a probate judge must “admit the Will” to probate by finding that the will is valid. If the decedent died without a Will, otherwise known as “intestate”, the probate will proceed and assets will be distributed to the next of kin.

In legal terms, “beneficiaries” are people named in a will, and “heirs” are the next of kin who receive property in the absence of a will. Whether a decedent died with or without a will, the court’s main priority is to ensure that the correct beneficiaries/heirs are identified to receive the decedent’s property.

If a decedent had a valid Will, that document nominates who will be the “Personal Representative.”  The Personal Representative must be represented by an Attorney and is responsible for overseeing the probate process and distributing the assets to the beneficiaries.

There are two types of probate administration in Florida, formal administration and summary administration. Summary administration is a simpler process, while formal administration is required for certain estates that need the services of a personal representative or are too large for summary administration. The differences between these two types of probate proceedings are outlined for you later in this guide.

When the beneficiaries or heirs of the decedent’s estate are identified and the correct probate documents are submitted to the court, the judge will sign orders allowing the estate assets to be transferred. Prior to property being distributed, the probate judge must be satisfied that all interested parties have received proper notice, that eligible estate creditors have been paid, and that any disputes among the beneficiaries are resolved.

Chapters 731-735 of the Florida Statutes contain the probate laws for our state, however each county in Florida has specific requirements that must be met before the probate court will allow a case to move forward.

The Covid-19 pandemic has changed the way that most probate courts operate, many judges now hold hearings by video conference.

Call the Law Offices of Debra G. Simms at 386.256.4882 to learn more.

This blog post is not case-specific and is provided only for educational purposes and is not intended to provide specific legal advice. Blog topics may or may not be updated and entries may be out-of-date at the time you view them.

 

The loss of a family member is an incredibly difficult time. In addition to coping with your grief and potentially planning a memorial service or funeral, there are usually many financial decisions that will need to be made.

How do you know what you’re supposed to do? It can be incredibly overwhelming. Here is a list of steps to help reduce stress during this time.

  • Contact your financial advisor so they can help you evaluate the financial aspects of the situation.
  • Also, contact the person’s estate attorney to see if they have an estate plan. This might include a will and revocable trust, for example. The attorney should be able to tell you if there is an:
    • Executor of the will and who it is
    • Trustee of any trusts that exist
    • A guardian for the care of a child and financial management while the child is a minor
  • Keep track of your phone calls and contacts (e.g., dates, times, status) in an online document or notebook. It will be helpful to find the individual’s passwords and have them in one place.
  • Locate a local notary, as they will be needed, the attorney’s office may have a notary available.
  • Obtain multiple copies of the certified death certificate. Some companies will not accept a photocopy. This is common with insurance policies and annuity contracts, and transfer of deeds for example.
  • Obtain a certificate of appointment to document the authority to act as personal representative, if required in your state. Keep in mind that language used to describe aspects of settling an estate can vary in each state.
  • Open an estate checking account, if necessary, to pay bills and receive accounts/assets associated with settling the estate. If you open a checking account for the estate, you’ll need to get an employer identification number through IRS Form SS-4, Application for Employer Identification Number.
  • Determine how the person’s assets/property will be maintained during the estate settlement process.
  • Contact the Social Security Administration. Inquire about survivors’ benefits. You might also be eligible for a one-time death payment.
  • Look into veterans’ benefits (if applicable) and possible assistance with burials costs for veterans and their spouses.
  • Contact financial organizations to find out how to update ownership and beneficiary designations on joint financial accounts (investment, bank, and credit accounts).
  • Contact financial organizations to determine how to close single-owner financial accounts and transfer assets.
  • Update names and beneficiaries on insurance policies, including life, health, and auto policies. Among the insurance providers, also confirm the coverage requirements to maintain the person’s assets (including the car).
  • Update the property title(s) for real estate. If property was owned in multiple states, review the probate process in each state. (For non-resident states, ancillary probate may be necessary.)
  • Contact a deceased spouse’s employer (if applicable) if there is a 401(k) account and a group insurance policy. It may also be necessary to contact former employers that may have provided a group life insurance policy. The person may also have retirement plans through former employers.
  • Contact all three major credit bureaus to minimize the risk of identity theft.
  • Locate the title and registration for any cars, so that you can update the vehicle title and registration; cancel the driver’s license.
  • Close email and social media accounts.
  • If the deceased is a spouse then the surviving spouse previously named their now-deceased spouse as their durable power of attorney or medical power of attorney, they will need to name a new person.

The entire process can be overwhelming, it is important to have a board-certified estate planning attorney involved to ensure all aspects of the estate plan are followed.

Call the Law Offices of Debra G. Simms at 386.256.4882 to learn more. We are currently offering free consultations via video conference to assist you with your needs.

This blog post is not case-specific and is provided only for educational purposes and is not intended to provide specific legal advice. Blog topics may or may not be updated and entries may be out-of-date at the time you view them.

UPDATING YOUR WILL AS LIFE CHANGES

If COVID has taught us anything, it is that life is unpredictable and things are constantly changing. Due to the ever-changing aspects of life, you should update your estate plan as your life situation changes. 

Below are a few life events that may spur a change or at least a review of your estate plan:

  • Children, grandchildren, & dependents
    • Have you had children or have your children had children?
    • You may need to add or remove beneficiaries based on the children being born or even dying. 
    • You must also consider college funds and other accounts similar in nature. 
  • Changes in assets and ownership 
    • Have you acquired new properties?
    • New or old businesses? 
  • Gifts and Donations
  • Home and Health 
  • Changes in-laws 
    • have changes already occurred
    • are they expected to change?
  • Marital status

This is not an all-inclusive list but it will get you started on thinking about those life changes that you need to think about and redo your estate plan!

Call the Law Offices of Debra G. Simms at 386.256.4882 to learn more. We are currently offering free consultations via video conference to assist you with your needs.

This blog post is not case-specific and is provided only for educational purposes and is not intended to provide specific legal advice. Blog topics may or may not be updated and entries may be out-of-date at the time you view them.

Have you had “The Talk” with your loved ones?

Many of my clients are concerned that their elderly parents do not have an adequate estate plan.  They tell me that their folks are private or just don’t want to talk about death.

Here are some tips to help you talk to your elderly parents:

  1. Don’t ask them if they have a Will – ask them if they have made a “plan”.  This sidesteps the emotional and uncomfortable topic of “who gets what when they die”.
  2. Ask them to identify the people they deal with: attorney, financial planner, accountant, insurance brokers.
  3. Who do they want to be appointed to take care of their affairs if they get sick or pass away?  This will lead to talks about the Will, Power of Attorney, etc.
  4. Ask about insurance policies.  Do they have life insurance?  Long-term care insurance?  Many an adult child has paid for long term nursing care not knowing there was adequate insurance in place!
  5. Discuss end-of-life wishes. This topic is always emotional but will lead to a discussion of a Living Will – the document that will ensure that your parents are not kept alive artificially even though there is no hope of recovery.  Do they want to be cremated?  Donate organs?  What kind of memorial service do they want?

These conversations will likely be tough and emotional no matter what strategy you use, but “The Talk” is key to ensure an effective estate plan.

Call the Law Offices of Debra G. Simms at 386.256.4882 to learn more. We are currently offering free consultations via video conference to assist you with your needs.

This blog post is not case-specific and is provided only for educational purposes and is not intended to provide specific legal advice. Blog topics may or may not be updated and entries may be out-of-date at the time you view them.

Common Mistakes in Estate Planning

Do you think that you do not need an estate plan because all your bank accounts are POD (Payable on Death) and your IRA has a beneficiary?  You could be very mistaken.

What about your house?  Your cars?  What if one of your designated beneficiaries dies or is incapacitated? 

And what about the cost of Probate?  Without an estate plan, your assets can be depleted by the expenses of the Probate Court.

But, even if you already do have an estate plan, mistakes can be made if:

  • You do not update your beneficiaries and legal representatives after marriage, divorce, the birth of a grandchild, or other big life events.
  • You do not keep documents organized and able to be easily located.
  • You change your mind about your estate plan, but do not revise your estate planning documents.

An estate plan requires thought and action – now is the time to seek the services of Estate Planning Lawyer.

Call the Law Offices of Debra G. Simms at 386.256.4882 to learn more. We are currently offering free consultations via video conference to assist you with your needs.

This blog post is not case-specific and is provided only for educational purposes and is not intended to provide specific legal advice. Blog topics may or may not be updated and entries may be out-of-date at the time you view them.

ESTATE PLANNING ESSENTIALS

In Florida, an estate planning attorney can help with the completion of four very important documents that are necessary such as a: 

  • last will and testament with or without guardianship depending on a scenario where there are minor children, 
  • an advanced healthcare directive,
  • durable power of attorney, and
  • living will

  A Last Will and Testament is important for the purposes of explaining where and how an individual would like their assets divided, debts resolved and who will be the Personal Representative of the Estate.

An Advance Healthcare Directive is the document that details the type of care you want administered in the event you become disabled and cannot speak for yourself. In Florida this essential documentation is sometimes called a medical directive or advance directive.

A Durable Power of Attorney designates another person to conduct business on your behalf when you cannot. In the event of disability all other powers of attorney become ineffective except for this one document; the durability of this document allows it to survive disability and is fundamental to estate planning.

A Living Will is a declaration regarding your choices of medical care if you are in an end-stage condition, persistent vegetative state, or terminal condition, AND where there is no medical probability of recovery.

The Law Office of Debra G. Simms can be of assistance in the preparation of estate planning documents. The initial 30 minute consultation is free.

Call the Law Offices of Debra G. Simms at 386.256.4882 to learn more.

This blog post is not case-specific and is provided only for educational purposes and is not intended to provide specific legal advice. Blog topics may or may not be updated and entries may be out-of-date at the time you view them.

We all know that you can find “Do It Yourself” Wills online. We all know that it costs less money to do your own estate plan than to hire an attorney.

But… what if you press the wrong key when answering the prompts?  What if you don’t know how to even answer the question in the prompt?

A few years ago,  new clients asked me to review their DYI estate plan.  On the bottom of each page in very small print were the words “Nebraska Law applies”.  I asked my clients if they lived in Nebraska when they did their Wills.  They NEVER lived in Nebraska! 

Another client called to say her Durable Power of Attorney was refused by an insurance company.  The Do It Yourself document did not include the language required to deal with insurance companies. 

And, even more disastrous, was the client whose Will’s beneficiaries included a physically disabled adult child who was receiving federal benefits.  These benefits would be lost as soon as the child inherited his rather modest bequest.  Did these parents ever hear of a Special Needs Trust?  No, the forms they used didn’t have such a provision.

So… remember the old line, penny wise, pound foolish?  Do It Yourself documents are plain dangerous.  The cost of using a good estate planning attorney could save you or your heirs much more.

Call the Law Offices of Debra G. Simms at 386.256.4882 to learn more.

This blog post is not case-specific and is provided only for educational purposes and is not intended to provide specific legal advice. Blog topics may or may not be updated and entries may be out-of-date at the time you view them.

Facing the Realities of Aging

Getting older is definitely not a cakewalk.  If there is one thing that is true for every living person on this planet it is that we all get older and eventually die.  No one yet has ever figured out a way around this fact of life! 

It is also a given that as our bodies age every one of us will be more susceptible to developing a disability or dementia. 

But many seniors fail to plan for this.  It’s certainly easy to put off making decisions about who will take care of our finances and make medical decisions if we need help.  And what about end of life care?  Who wants to think about that?

But failing to make a plan is planning to fail.  Now is the time to see an elder law attorney.  Don’t wait until it’s too late. 

Call the Law Offices of Debra G. Simms at 386.256.4882 to learn more.

This blog post is not case-specific and is provided only for educational purposes and is not intended to provide specific legal advice. Blog topics may or may not be updated and entries may be out-of-date at the time you view them.

Annual Reminders

The end of the year is a great time to review various aspects of your estate and financial plan. 

  • Request a free credit report through annualcreditreport.com
  • Consider placing a fraud alert on your credit cards.
  • Create or update a list of all your electronic user names and passwords.  Properly safeguard this information.
  • Review your Will and/or Revocable Trust to ensure that you are comfortable with your bequests, Personal Representatives and Trustees.
  • Review agents named under financial and medical powers of attorney to ensure they are still appropriate.  Review your Living Wills to make sure you are comfortable with your end of life instructions.
  • Review your beneficiary designations for your insurance policies and retirement plans.

Call the Law Offices of Debra G. Simms at 386.256.4882 to learn more.

This blog post is not case-specific and is provided only for educational purposes and is not intended to provide specific legal advice. Blog topics may or may not be updated and entries may be out-of-date at the time you view them.

The Role of an Estate Planning Attorney

Planning for end of life is a difficult but necessary process.  Part of this planning is the creation of a legally binding estate plan that dictates your wishes and appoints certain people with the responsibility of carrying out those wishes.

Using an experienced estate planning attorney is advised. The attorney can walk you through the process from start to finish, prepare the documents, and make sure that the documents are properly executed.

Another advantage of using a professional estate planning attorney is to ensure that your real estate and other assets are properly titled to be certain that legal title is clear and assets can be transferred to your selected beneficiaries. This process can include advising on deeds, pre- and post-nuptial agreements, and marital settlement agreements after divorce.

An experienced estate planning attorney can also advise you on other end-of-life choices, such as financial and medical directives, organ donation, disposition of remains, and similarly important decisions. Without an estate planning attorney’s assistance, you may find yourself setting your family up for more hardship as the result of poor planning.

An attorney can also advise clients about how to best provide for beneficiaries with special needs, educational requirements, or other considerations. The attorney can also create a plan for meeting philanthropic goals and include charities or other organizations in your estate plan.

Planning ahead is important for everyone, no matter how large or small the estate. Using an experienced estate planning attorney will ensure that your plans can be carried out.

Call the Law Offices of Debra G. Simms at 386.256.4882 to learn more.

This blog post is not case-specific and is provided only for educational purposes and is not intended to provide specific legal advice. Blog topics may or may not be updated and entries may be out-of-date at the time you view them.

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:
646 N Dixie Fwy
New Smyrna Beach, FL 32168
Local: 386.256.4882
Toll Free: 877.447.4667