Category Archives: Estate Planning

When a loved one passes away you may need help in following his or her wishes regarding the distribution of his or her property and money after death.  Unless all of the person’s assets were titled in trust, or passed through a beneficiary designation form, or by rights of survivorship, you will need to hire a probate attorney to represent you in the administration of the estate, a process known as probate.

The services a probate attorney provides include determining how assets will be distributed, payment of debts and taxes, filing necessary motions, and making arguments in court should the will be contested. Sometimes a probate lawyer will be needed to assist you in locating unknown assets.

Debra G. Simms, is an experienced attorney and is Board Certified by the Florida Bar in guiding families through the Probate process.  Our clients are often the adult children of Florida retirees. There is no need to travel to Florida – we can handle the entire Probate process using e-mail, telephone, etc.  Courts now accept photocopies of pleadings so that documents can be signed and either faxed or e-mailed back to us for filing!

If you have lost a loved one residing anywhere in Florida at the time of death, please contact our offices for a consultation.

Debra G. Simms

What are the” five wishes” we all keep hearing about when the topic of making a will comes up?

Recently one of my clients told me that his doctor was insistent that he draw up the Five Wishes in order to make proper arrangements for his family after his passing.

Five Wishes is a document that was originally circulated in 1997 by a non-profit organization devoted to health and health care issues. In the document you can let your family and your doctor know your wishes about:

 

    1. Who you want to make health care decisions for you when you can’t make them

 

    1. The kind of medical treatment you want or don’t want

 

    1. How comfortable you want to be

 

    1. How you want people to treat you

 

    1. What you want your loved ones to know

 
Now I have nothing against these forms. If nothing else, they will get you thinking about difficult end of life decisions. But, understand, the Five Wishes is NOT a legal document in Florida or most other states. In Florida, these types of decisions must be made in a legal document that is governed by law. They are commonly known as Advance Health Care Directives or Living Wills. They must be witnessed to be valid. And, the ones I prepare deal with all sorts of issues, such as the HIPPA privacy laws, whether or not you would want a feeding tube even if it would only serve to prolong life, etc.

My point is this: Don’t rely on the Five Wishes as your legal documents for health care decisions. If you complete the form, you still need valid Florida documents which will be honored by your health care providers.

My office prepares Advance Health Care Directives and Living Wills for a very affordable and reasonable cost. Everyone, of all ages, should have them.

Debra G. Simms
As an estate planning and probate lawyer in Orlando, I have learned that the only thing more expensive than estate planning is probating an estate where the person did no planning. This is not the time to take shortcuts in the hope of saving a few bucks.  It makes sense to pay a reasonable fee to a lawyer who will write out a will that will stand up in court. The lawyer’s fee can range from $150 for a simple will to $250 per hour to draft a complex estate. But, either way, that’s way cheaper than a costly court battle.
Contact our office to learn more about setting up a simple will or schedule an appointment to discuss our estate planning services. Call 1-877-447-4667
Debra G. Simms
I often hear people say:  I really need to get a Will! I tell them: Don’t wait until it’s too late, because when it comes to a will and other estate planning documents, when it’s too late, it’stoo late.
The 4 Basic Estate Planning documents that I always recommend are:
Will, Durable Power of Attorney, Advance Health Care Directive, Living Will
What happens if you don’t have these estate planning documents in advance?  The State will write them for you!
Call our office now for your Estate Planning consultation at 1-877-447-4667
Debra G. Simms

How often do you hear this? “What, you don’t have a Will? The State will take everything from you!”

Well, not true, not true at all. Unless nobody knows you died and nobody comes forward to claim your money!

However, most of us have heirs who stand to receive a share of our assets after we die, even if we don’t have a Will.

What does happen if you die without a Will? This is what is known as intestacy. If you die intestate, then the law of the state you live in when you die governs how your property is distributed. This law is based upon your marital status and whether you have any descendants.

Is your estate planning up to date?

The intestacy law of Florida significantly changed in Florida on October 1, 2011. Under the new law:

    • If you die without a will and you are married and have no children, or your children are of this marriage, then your spouse inherits all your property.
    • If you are married and have children from another relationship(s), then your spouse receives one-half of your assets.
    • If you have children with your current spouse, but your spouse has children from other relationship(s), your spouse receives one-half of your assets.
    • If you have no survivng spouse, your children inherit your property.
    • If you have no children or grandchildren, then one-half of your assets pass to your mother and one-half to  your father, or all to the survivor.
    • If neither of your parents are alive, then to your brothers or sisters.
    • If you have no living brothers or sisters, then to your nieces or nephews.
    • If you  have no nieces or nephews,  your assets will go to your grandparents; however, if you have no living grandparents, then to your uncles and aunts and then to their children.
    • If you have no relatives on either your mother’s or father’s side, then all your assets pass to the descendants of your last deceased spouse.

Now here is the part where the State gets all your money.  If there is no one in the line-up discussed above, then your property passes to the State.  In Florida, it is deposited with the Chief Financial Officer in the state school funds.  If no one comes forward to claim the funds in 10 years, then the State gets to keep the money.   To see if there is any money waiting for you, go to: Florida Treasure Hunt at:  http://www.fltreasurehunt.org/index.jsp

So, do you need a Will?  Maybe not.  In fact, you may not need a will as much as your family will need a lawyer to sort things out after your death. At the Law Office of Debra G. Simms, we don’t just sell documents. We sell relationships and the ability to help families when they are dealing with the loss of a loved one.

Is your estate planning up to date?

Contact us to discuss all your estate planning needs.

Call our Orlando office at 407-331-4LAW. 

Debra G. Simms
I saw the well acclaimed movie, “The Descendants”, last night.  It was ok – not great, a little slow, and sometimes over the top.  But it’s one of those movies that makes you think. About love, money, parenting, life and death.
While my movie companion thought the scenes between father and daughters revolving around their dying mother’s adultry were very unrealistic, I thought they were true to life and depicted a father-husband dealing with shock, grief, anger, and fear.  After 24 years of practicing law and dealing with families during the hardest times in their lives, I thought George Clooney’s reactions and actions were completely understandable and probably not that uncommon.  He certainly deserved my compassion.
Viewing the movie as an estate planning attorney, I was also struck with how important it was for the family that their dying mother had made her end of life issues clear and legal.  She had prepared a health care advance directive and left no doubt that if she were in a vegetative state she would not “want to lay there and spoil like milk.”  Her clear directives made it possible for the family to carry out her wishes and begin to move on with their lives.  No one, not her parents, her brother, or her close friends, could take issue with Clooney’s actions to end his wife’s life support.
Advance health care directives and living wills are important for all of us at any age.  Please call me for a consultation.
Debra G. Simms
Effective Oct. 1, 2011 Florida’s new durable power of attorney statute becomes law.  This is the first major change to the statute since Oct. 1, 1995.
Durable powers of attorney now require two witnesses and a notarization, but under the new law, out-of-state durable powers of attorney will be honored if they were valid in the home state at the time of execution.

This is good news for Florida snowbirds, who finally got it right and adopted our state as their own, right?  Not so fast!  Florida has some very picky durable power of attorney interpretation statutes that still can still trip up an out-of-state durable power of attorney.

The new durable power of attorney statute still requires specific authority to grant certain powers to your agent or your agent will not have that power.  Broad grants of authority, like “to do everything the grantor could do,” are invalid.
However, the new statute now requires that the person making the power of attorney initial or sign next to certain types of powers in the document for those powers to be authorized. These powers involve changing beneficiaries, creating trusts, making certain gifts, or other estate planning transactions.
The new statute also includes some very special language for banking and investment transactions. Financial institutions now have only four days to review a durable power of attorney presented to them.  But, since this period can be extended under some circumstances, it is probably a good practice to give your financial institution a copy of your durable power of attorney. That way, the bank can review it, and you can be assured it will be honored when it is needed.
People often ask me how often they should have their legal documents reviewed.  When it comes to Powers of Attorney,the time is NOW.
Call our offices for a consultation so we can review your existing documents.
Debra G. Simms
Altamonte Springs, FL
Toll free- 1-877-447-4667
Debra G. Simms
A large part of practice as a Florida estate planning attorney is devoted to working with new retirees who have decided to give up their residency up north and become permanent residents of Florida.  Aside from helping them overcome the hurdles created by their former northern state of residence that still wants to collect tax dollars from retirees who maintain what they now consider to be their second home, another obstacle that must be overcome is an estate plan drafted in their northern state that will most likely not work very well in Florida.  Here is a list of the problems with northern estate plans that I run into frequently:

1.  The last will and testament is not self-proved.  F.S. §732.503 provides that a last will and testament can be made self-proved when the testator signs an affidavit in front of two witnesses and a Notary Public who also sign the affidavit in front of the testator and Notary.  The affidavit can then be used as evidence that the testator and witnesses signed the will with proper legal formalities required by Florida law.  Unfortunately many wills I review that were not created under Florida law lack a self-proving affidavit.  What does this mean?  It means that before the will can be admitted to probate in Florida, at least one of the people who witnessed the will must be located and asked to sign an affidavit attesting to the fact that they actually witnessed the testator signing the will.  This, in turn, will create extra steps and expenses and can significantly delay the appointment of a personal representative.

2.  Disqualified personal representatives are named in the last will and testament.  Florida law requires that the person named to serve as the personal representative of a Florida estate must either be a Florida resident or related to the testator by blood or certain marital relationships (see F.S. §733.304).  This means that if a friend who isn’t a Florida resident or the attorney from up north who drafted the will is named to serve as the personal representative, then he or she will be disqualified from serving in Florida.  And that’s it, there isn’t any argument that can be made or exceptions to the rule, the disqualified person will simply not be allowed to serve.

3.  Revocable living trusts ignore Florida homestead laws.  Many northerners who buy a second home in Florida title the home in the name of their revocable living trust in order to avoid Florida ancillary probate after they die.  But then when the owner decides to make their Florida second home their primary residence and apply for the Florida homestead exemption with regard to real estate taxes, their northern drafted revocable living trust won’t contain any references to Florida homestead laws, and so the Florida property appraiser will have to reject the homestead application.

4.  Revocable living trusts of married couples ignore Florida homestead laws.  What happens when the northerners are married and decide to title their Florida second home in the name of their revocable living trusts, and then, as above, the couple decides to make the Florida home their primary residence?  If the couple’s northern drafted revocable living trusts contain typical estate tax planning through the use of AB trusts, then when one spouse dies the Florida home will not pass into the A trust or B trust but will instead be distributed as provided by Florida law.  This, in turn, will completely defeat the couple’s estate planning goals and may very well land the surviving spouse and children in court, particularly if the deceased spouse had children from a prior marriage. 
 5.  Durable Powers of Attorney are inadequate.  On October 1, 2011, Florida enacted a new power of attorney law that made sweeping changes to the laws governing durable powers of attorney.  Florida law now requires that the powers delegated to an agent under a power of attorney must be very specific.  In other words, a catch-all phrase such as “my agent can do anything that I can do as if standing in my shoes” won’t cut it anymore.  Instead, the powers given to the agent must be enumerated in detail.  Anyone who owns assets in Florida should consider signing a new power of attorney that complies with the new Florida power of attorney law.
The bottom line:  Many wills, trusts, powers of attorney and other estate planning documents drafted in northern states won’t cross state lines into Florida very well.  If you’re making the move to become a Florida resident, or if you’ve already become a Florida resident but haven’t updated your estate plan, then it’s very important to have your northern-drafted wills, trusts and other documents reviewed by a Florida attorney estate planning attorney to insure that your estate plan will work in Florida the way you expected it to work up north.
Debra G. Simms

Planning for the end of life…..hard to do….

Last week my dear Uncle Bernie died. He was 80 years old. He didn’t plan to die, but I know that he didn’t plan to live forever, either. One thing I know for sure, he PLANNED.

A death in the family is one of the hardest times in a person’s life. We all know that grief causes both emotional and physical pain and can keep us from sleeping, eating, working, and certainly keeps us from thinking clearly for a long time.  But during the chaotic and stressful days after the loss of a loved one, a lot of important decisions must be made.

Is your estate planning up to date?

A well thought out and properly drafted Last Will and Testament can alleviate a good deal of stress for the ones you care about the most.  And for those of us who aren’t really sure whether our kids or grandkids are ready to handle money, then setting up Trusts can delay when your bounty reaches their hands.

My Uncle Bernie had a lot of plans. He didn’t get to all of them when illness struck, but when he passed, his sons were able to carry out his wishes and instructions because he did plan for death. By making a Will, you know that you put your affairs in order, and your family will know that you cared enough to do so.

Call the Law Office of Debra G. Simms.   We offer consultations to help you decide what estate plan is best for you.

Orlando

Toll free: 1-877-447-4667

Debra G. Simms

When I looked out the window to see my clients pull in the parking lot, I saw a new sports car. The couple who entered my office was well dressed and the wife was wearing a sizable diamond ring and a designer hand bag. The intake sheet listed a home address in a lovely gated community.

The veneer of wealth vanished on page 2 of the intake form. Home equity? None. Mortgage payments? Two of them.  Credit cards?  A dozen maxed-out and using another to pay minimum balances.

You are thinking that this couple came to see me for bankruptcy advice. Nope. Estate Planning! They were expecting a large inheritance from husband’s mother. Due to a terminal illness, the nest egg was about to pass down the line.

According to the Center on Wealth and Philanthropy at Boston College, despite the current economic downturn, more than $20 trillion will be transferred to heirs in the next 50 years — the largest transfer of wealth in U.S. history.

The prospect of an inheritance stirs a cauldron of emotions — in this case, my clients felt they deserved more than their siblings because they did so much more to take care of mom in her later years, especially during the last illness. But most parents distribute assets equally between children, not wanting to play favorites, even if one child did more for them.

Family feuds over inheritance are as old as the Bible (Jacob tricked his twin brother Esau out of his birthright and their father’s blessing), and the feuds are even more complicated in blended families. There are ex-wives and ex-husbands, children and stepchildren, parents and stepparents.

My advice: Make a plan. Don’t expect that your children will divide everything up fairly and amicably. Bitter will contestsand trust disputes are costly and can destroy family relationships. I’ve seen it happen even when there isn’t much wealth to go around to begin with.

Don’t wait until it’s too late. Plan now. Contact the law office of Debra G. Simms for an estate planning consultation.

Debra G. Simms

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Port Orange Office:
Prestige Executive Center
823 Dunlawton Ave. Unit C
Port Orange, FL 32129
Local: 386.256.4882