Category Archives: Estate Planning

In Florida, the practice of using “lady bird deeds” to transfer property following a death has become increasingly popular. The term got its name from former president Lyndon B. Johnson, who used a deed to leave property to his wife, Lady Bird, after his passing.

What Is a Lady Bird Deed?

A lady bird deed is a kind of estate deed that enables you to leave your real estate to your beneficiaries without probate.

You are able to maintain full control of your property while you are alive.

This type of deed is also frequently used when a person is preparing to apply for Long Term Care Medicaid, since the “gift” does not occur until you die.

Advantages of a Lady Bird Deed in Estate Planning

There are several advantages to using a lady bird deed in Florida. The single largest benefit is the ability to prevent your real estate from going through probate after your death.

A lady bird deed also has the benefit of separating the property from Medicaid eligibility while the deed is in effect. Under this approach, you can keep ownership of your home while still qualifying for Medicaid.

Since you maintain full control of the property, this means that you may still do many things with the property, such as sell it, get a mortgage on it, or give it away, without having to notify the people designated to receive the gift following your death.

Contact a Daytona Beach Probate Attorney

Florida is one of the only states in the country where lady bird deeds are legal. A Daytona Beach probate attorney has the experience and expertise to guide clients through the lady bird deed process.

If you’re looking for a way to transfer property ownership without going through the probate process, a lady bird deed may be the right solution. This type of deed gives the owner continued control over the property until their death, after which it’s automatically transferred to new owners.

While this may be a great way to avoid probate, there are also some downsides to consider before making a decision. Here, we will have a look at the pros and cons of lady bird deeds so you can make an educated choice.

Pros of a Lady Bird Deed

A lady bird deed offers several advantages. These include:

  • It can help you avoid probate
  • It gives you more control over what happens to your assets
  • It offers you full control of the asset throughout your lifetime
  • It can help protect your assets from being used to pay for long-term care costs
  • It may provide tax benefits for your beneficiaries

If you’re considering creating a lady bird deed, this list of pros might help you make a decision.

Cons of a Lady Bird Deed

Of course, there are also potential drawbacks to a lady bird deed. These include:

  • This type of deed requires very specific language and may require the assistance of an attorney
  • It must be recorded to be effective.

If you’re considering using a lady bird deed in your estate planning, seek legal counsel to ensure it is the best option.

How an Attorney in Daytona Beach Can Help

While some people may view consulting an attorney in Daytona Beach as an unnecessary expense, attorney services can save you a lot of money and headache in the long run. Whether you’re drafting a lady bird deed or any other legal document, it’s important to have an attorney review it to ensure everything is in order.

A lady bird deed can be a great tool for estate planning, but it may not be right for everyone. Contact an attorney in Daytona Beach to decide whether a lady bird deed is best for you.

What is a Valid Will in Florida?

A will is a document that determines who receives a person’s property when they pass away. Florida law requires that a will must be signed by the testator (the person writing the will) and two witnesses to be enforceable. The testator must either sign in front of the witnesses or tell the witnesses that he or she previously signed the will. The witnesses must sign together in the presence of each other and in the presence of the testator. The rules for the execution of wills are found in Florida Statute 732.502.

It is not necessary for a will to be notarized for the document to be valid. Notarized wills are preferred as they are easier to admit to probate court. A notarized will is referred to as a “self-proved will.” When a will is not notarized, a witness to the will must make a statement to the probate court confirming that they witnessed the will. When a will is notarized, a witness statement is not required. It is easier to have a will notarized.

What Happens When You Die in Florida Without a Will?

When a person dies without a will, their assets go to their spouse and/or closest relatives. Florida Statute sections 732.102 and 732.103 specifically determine how a decedent’s property is divided when they die without a will under the 2022 Florida Probate Rules. This process is referred to as intestate succession.

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.

 

What Property and Assets Go Through Probate in Florida?

Any asset owned by someone who has passed away is subject to probate in Florida. The exception to this rule is property that had a named beneficiary or rights of survivorship. Examples of property that may have a named beneficiary would be a life insurance payout, a retirement account, or a bank account with a “pay on death” designation. An example of property with rights of survivorship would be real estate that has a deed indicating that a surviving co-owner will take the full ownership of the property upon the death of the other owner. Property purchased by a husband and wife typically has rights of survivorship in Florida, even if that specific language does not appear on the deed to the property. This type of survivorship is called “tenancy by the entirety,” and only requires that title be held by husband and wife, in which case, the deed will automatically transfer to the survivor upon the death of one spouse.

If an asset does not have a named beneficiary or rights of survivorship, it will have to go through probate to change ownership pursuant to the Florida Probate Rules (2022). The most common assets that go through this process are bank accounts, real estate, vehicles, and personal property. To determine if a specific financial account is subject to probate, the financial institution should be contacted. To determine if real estate is subject to probate, an attorney should examine the deed to the property.

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.

 

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.

 

Do You Need a Revocable Trust?

Everyone should have a durable power of attorney that appoints someone to act for them should they become incapacitated, however, in some circumstances it is not enough. In these cases, a revocable trust can help.

A durable power of attorney allows you to appoint someone you trust to step in for you to handle financial and legal matters if you become incapacitated. Everyone is at risk of incapacity from illness or injury, whether temporary or permanent. The current state of the world, global pandemic raises this risk and of course, this risk rises as we get older. Without someone in place to handle legal and financial matters, bills can go unpaid, contracts can’t be signed, homes can’t be refinanced, leases can’t be terminated, investments go unmonitored and unadjusted, and families often fight over who is in charge.

 

The alternative is your family or loved ones seeking court-appointed conservatorship. This is expensive and time-consuming. It is in everyone’s best interest that you pick your own person for this role.

While this is important, it’s not always enough. Financial institutions often don’t honor older powers of attorney and agents sometimes don’t step in until it’s too late. These problems can be remedied through the use of a revocable trust.

Powers of Attorney Can Be Rejected
Financial institutions often reject older powers of attorney; they have no way to know whether the document has been revoked since its original signature. Sometimes the institution will require the drafting attorney to attest to the fact that the document hasn’t been revoked. The attorney may not have met with the client for many years and has no way of knowing everything the client has done during that time.

Financial institutions are uncomfortable honoring powers of attorney because they do not want to be held liable for any malfeasance by the agent appointed under the document. Most estate planning attorneys agree that this institutional rejection is contrary to the law. There is no good remedy for this situation when it occurs, filing a lawsuit against a large bank is expensive and would be time-consuming.

Refresh your documents periodically. Financial institutions are more likely to accept newer documents than older ones. It’s a good idea to execute new durable powers of attorney every five years.

Use the financial institution’s forms. Many banks and investment companies have developed their own durable power of attorney forms. They are more comfortable accepting their own forms than general ones you may have found online or the one your attorney prepared. Contact each financial institution where you have an account and ask whether it has a durable power of attorney form. You will still need a general durable power of attorney since the financial institution’s form only governs accounts held at that institution.

Create a revocable trust. Financial institutions accept revocable trusts more easily than a durable power of attorney.  Revocable trusts have the added advantage that you can appoint a co-trustee to serve with you so that if you become incapacitated, the co-trustee can step in and act.

As we age, we all become increasingly susceptible to making financial mistakes and falling victim to scammers. Having a financial advocate in place can help you avoid both. An important step is to name an agent under a durable power of attorney. However, such agents often don’t step in until it’s too late and you or a loved one may have already lost a significant amount of money.

A co-trustee on a revocable trust is already named on the accounts in trust. Even if the co-trustee doesn’t take an active role, he or she can monitor the accounts to make sure nothing strange is occurring. When and if it’s necessary to step in, the co-trustee can do so immediately and seamlessly. In contrast, an agent under a durable power of attorney must present credentials to the financial institutions and go through the institution’s vetting procedure, this delays access to the accounts.

For these reasons, revocable trusts often work better than durable powers of attorney. However, be aware trusts only control the accounts actually held by them. So, for the trust to work, you must retitle your accounts into your trust.

Even if you have a revocable trust, you still need a durable power of attorney.  This will cover any accounts that were not transferred into the trust. Also, the trust only governs financial matters. Your agent under your durable power of attorney can also handle legal ones on your behalf, including signing your income tax returns.

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.

 

 

 

Estate plans should evolve over time, it is important to keep your living documents current by reviewing your estate plan every 5 years, or whenever you or your family or beneficiaries have a major life event.

The following points should be reviewed with your attorney.

DISTRIBUTION OF YOUR ESTATE

Does your plan effectively distribute your assets according to your wishes?

Do you have distribution provisions for your spouse?

What are the distribution provisions for your children? Should assets pass outright to your children or stay in trust for a longer period of time? If you decide on a continuing trust for a child, consider whether distributions should be staggered over time or whether the trust should be drafted to protect family assets from your children’s future creditors, including a divorcing spouse.

Do you want to include a trust for your grandchildren in your estate plan?

Do you hav a disabled beneficiary to consider? Do you need to incorporate special needs trust provisions for them to preserve the beneficiary’s eligibility for public benefits.

FIDUCIARY NOMINATIONS

Are you happy with your current choices for Personal Representative and Successor Trustee.

PLANNING FOR INCAPACITY

Is it time to update your Durable Power of Attorney and Health Care Proxy. Discuss the individuals you want to serve as your agents in these documents, as well as alternate agents.

TITLING AND BENEFICIARY DESIGNATIONS

What is the appropriate titling and/or beneficiary designations on your assets and accounts?

What assets should be owned by your Revocable Trust and how to effectively transfer ownership of assets into the name of the Trust (or how to designate the Trust as the transfer-on-death beneficiary).

Review the beneficiary designation for all your retirement accounts. Consider whether it is appropriate to leave retirement accounts directly to your spouse and/or children, or to your Revocable Trust so that the Trustees can administer the assets.  Discuss whether your Revocable Trust qualifies for the maximum payout period for a beneficiary under the SECURE Act, which became effective January 1, 2020.

It is important to keep your estate plan up to date to ensure that your wishes are carried out.

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.

No one wants to think about dying and for some of us, death is a subject that we would rather not discuss. We believe that there is no hurry to consider the issue and that we have plenty of time left. However, this line of thinking about end-of-life matters can often result in delaying dong the mechanics of it until it is too late.

Your will is not merely a legal document. It is an expression of your wishes and it is also a way for us to continue providing for our loved ones even after we are gone. Even without a Will, there are default rules that will apply to distribute your estate. These rules are in most cases cast in stone and may not take into account the specific needs and circumstances of our chosen beneficiaries. Caring and loving our family should not stop with our death, we can easily create legal documents including a will that will ensure our wishes are carried out. A will is an easy way to look after our loved ones when we are gone.

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.

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.

Key elements of an estate plan:

An experienced estate attorney can develop personalized strategies and documents that meet your needs. This could include a:

  • Will. A legal document that defines the distribution of your property and the care of any minor children.
  • Revocable trust. A legal entity created for ownership of your assets. You can change or end your revocable trust at any time.
  • Power of attorney. A legal document giving a person you choose the ability to make decisions for property, finances, and/or medical care when you are unable to do so.
  • Healthcare directive. Written documentation of your health care wishes for when you cannot communicate them yourself.
  • Beneficiary designations. A will does not supersede beneficiary designations in determining who receives your assets after you die. For that reason, all financial accounts (regardless of size) should have beneficiaries named — and updated over time, as needed.

HIPAA authorization. Allows health care providers to discuss your medical condition/health information with family members or others you choose.

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.

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