Category Archives: Estate Planning

Who will care for Simba, Fluffy, or Lucy, our beloved pets, after we die?
There has been a recent surge of interest in Pet Trusts as high-profile individuals have died with significant provisions in their Wills or Trusts for their animals.  Last week it was reported that ALEXANDER MCQUEEN, Brittish fashion design legend, left $82,000 to his 3 dogs, Minter, Juice, and Callum.  According to the Daily Telegraph of London, the dogs received the same amount as each of McQueen’s long time housekeepers.  He also left a fortune to Battersea Dogs and Cats Home and animal welfare charity, Blue Cross.

Providing for pets has a long history in the courts.  In 1889, an English court upheld a testamentary gift for the maintenance of horses and dogs. And, McQueen isn’t the first celebrity who has seen fit to provide for a pet beyond the grave. In 2007, Leona Helmsley’s dog, Trouble, made headlines when it was discovered that Helmsley left Trouble $12 million. A judge later reduced this amount to $2 million – still sizeably more than McQueen’s relatively deprived threesome!

Pets are very real members of the family that need to be addressed in the estate planning mix.  The Humane Society of the U.S., estimates that about 400,000 pets a year need to find new homes because their owners die.

Creating a pet trust is one way to ensure your furry or feathered companions are well taken care of, even after you’re gone. Don’t simply leave behind written instructions on how you’d like your pet to be treated, as these are not enforceable.

To learn more about how to provide for you pets, read more about Pet Trusts, by Debra G. Simms.  Also, check it out at
Please call our office for a Pet Trust consult.
Debra G. Simms

When you think about a Revocable Living Trust, the first thing that comes to mind is probably the fact that it is useful for avoiding probate when you pass away. But your Revocable Living Trust can be used for another valuable purpose during your lifetime.  It can help you avoid Guardianship if you are ever incapacitated.

Guardianship is the process your family would likely need to go through if you were rendered incapacitated because of illness or injury. For example, if you developed Alzheimer’s disease and lost the ability to pay your own bills, manage your own financial accounts, or even make your own decisions regarding your medical care, your family would have to go to court to have a guardian appointed for you. This person would then take charge of handling all the day-to-day responsibilities of managing your affairs.

Guardianship proceedings involve legal fees and court costs, it’s a public process, it’s time consuming, and it means that a judge you have never met will be in charge of choosing a guardian to take over your life and your finances. And the guardian the judge selects might not be someone you would have chosen. If you have an incapacity plan in your revocable living trust, these uncertainties can be avoided.

When you establish a Revocable Living Trust, you appoint a trustee to take charge in case you’re ever incapacitated. This person will have the authority to take control of all the property you’ve transferred into your trust, and he or she will manage that property on your behalf, according to the instructions in your trust document. You can choose someone you trust, or a corporate trustee and provide for the smooth transition of management of your property if you cannot do so for yourself.

However, there are limits to what a Revocable Living Trust can do; your trustee will only have control over property that has been transferred into your trust. Any property that is left out will be beyond the trustee’s reach. So, you will also need a Durable Power of Attorney appointing an agent to manage your non-trust assets.

You might also want an Advance Health Care Directive and Living Will, letting your doctors know what medical interventions you do and do not want.

We at the law firm of Debra G. Simms, P.A, can help you explore your options and choose the strategy that is best for you and your loved ones.

Debra G. Simms is located at 781 Douglas Ave., Altamonte Springs and can be reached at 407-331-4(LAW). Estate Planning consultations are available.

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.

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.

It’s holiday time again and I just love Thanksgiving!  Last night my daughter and I were talking about how disappointed we are if we are invited out for Thanksgiving and the food isn’t good.  Then we get all bummed out because we have to wait a whole year to eat this kind of food again – in bulk – with little or no guilt!  That’s something to be thankful for – gluttony with no guilt!  So, usually, we just cook it ourselves!
Holiday time brings another joy besides food.  Don’t get me wrong, food is high up there.  But, for me, it’s extra special when I can be with all my daughters in one place!  It’s one of the few times that all 5 girls can make the time to come from the 4 corners of the earth and share a few days with mom.  And this year, we have an extra bonus – their dad is coming, too.  We haven’t had the whole family together at one time for a holiday in over 10 years!
So, all this family time, and seeing the girls all grown up (sort of) has given time to reflect on my own estate plans.  Don’t tell my secret, but my own estate plan isn’t up to date.  You know that famous quote about how the shoemaker’s children go without shoes?  Well, it’s the same with lawyers.

Discuss estate planning

But, this year, I am resolved to talk to my girls about what I want for my later years and also discuss estate planning.  I am even trying to give some of my stuff away, but they won’t take it!  I know this is hard for children to talk about, none of us wants to think about our parents aging.  But, since I preach these topics all day to my clients, it’s time that I take stock and make sure that me and my children are all on the same page.
I think the end of the year is a good time to put your affairs in order.  It’s a good time to look at your old wills, powers of attorney (did you know the law just changed in November on Powers of Attorney?), Medical Directives, and Living Wills.  It might be time to think about setting up a Revocable Trust or doing a Lady Bird Deed.  And it will cost you nothing if you come to see me.  My estate planning consults are free.  And, while you’re there, ask about Long-Term Health Care Planning. We might need to take a look at some Elder Care issues such as Medicaid Planning.  After all, we already paid for Medicaid in every single paycheck, right?
Call now and get a free Estate Planning consultation.  Don’t wait until it’s too late!
Happy Thanksgiving!
Debra G. Simms, Esq.
To contact attorney Debra G. Simms, P.A. in Port Orange or New Smyrna Beach, FL please call 877.447.4667.

End of life medical care

I am writing this because I help people make decisions about end of life medical care. I am not a doctor; I am a lawyer. I constantly hear from my clients about how their loved ones were tortured before they died. That’s right. I said tortured. Not suffered. What they are telling me is that their parents were given useless care, wasteful care, and futile care. And, for many of them, unwanted care. Unwanted treatment seems especially common near the end of life.

  I believe one of the most urgent issues facing American medical care today, is people getting medical interventions that if they were more informed, they would not want. It happens all the time. The U.S. medical system was built to treat anything that might be treatable, at any stage of life, even near the end, when there is no hope of a cure.
  Yet, most of my clients tell me they would prefer quality time and relative normalcy to all-out intervention. Let’s face it – it’s almost impossible to be really in charge when we are sick and in the hospital. We are helpless, confused, and scared. We must exercise control while we still have it-before we get sick.

Law Offices of Debra G. Simms

At the Law Offices of Debra G. Simms, we help our clients make end of life, quality of life, decisions by preparing legal documents that direct who will make medical decisions for us once we cannot do so on our own, and documents that direct how far medical treatment should go if we are in a vegetative state, an end-stage condition, or terminal condition and there is no hope of recovery. We, at the Law Offices of Debra G. Simms believe that when people receive good communication and understand what’s involved, many will not want aggressive treatment at the end of life. Call us for a free appointment to discuss your legal rights to end of life medical decisions. It’s YOUR life.
Debra G. Simms
In my estate planning practice, there is one very popular rant.  It goes something like this:
Caller:  “Do you do wills?”
Me: “Yes, would you like to make an appointment to discuss the will?”
Caller:  “How much?”
Me: ” The initial consultation is free. We will go over your options and I will quote your fee.”
Caller:  “How much for a simple will?  I just want a simple will.”
Me:  “It depends on your situation.  Are you married?  Do you have children?  What kind of assets do you have?  This is why I like to have an initial consultation.”
Caller:  No, I just want a simple will.  What is your price for a simple will?”
Me:  “Well, it’s going to depend on a couple of factors.  Do you want to set up a free consultation?”
Caller:  ‘I just want a simple will.  I have been married for 30 years and I have one son.  I just want a simple will.”
Me:  “Ok, then does your son have any children?”
Caller:  “Yes, and he has a terrible wife.  I don’t want her to have any rights to my money.  And ther kids aren’t responsile.  They shouldn’t get the money until they are 25!”
So it’s not so simple.  A friend of mine calls this the LegalZoom mindset.  Law as a commodity.
I don’t do volume esate planning work.  I am not LegalZoom.  I do quality estate planning for a very reasonable fee.  It’s good for you and it’s good for me.
Call me for a free estate planning consultation.  Don’t wait until it’s too late.
Debra G. Simms
Orlando
Daytona Beach
407-331-4529 or toll free: 1-877-447-4667
Debra G. Simms

Digital Afterlife

social media when your deadI heard a really interesting program on National Public Radio tonight. It featured Evan Carroll and John Romano who have written a book called Your Digital Afterlife.  I had been wondering what happens to all my e-mails after I’m gone.  Sometimes, I dwell on the macabre.
Answering the question posed above, the authors say, “This is a simple question and we wish there was a simple answer. Unfortunately there isn’t a standard way that Internet users can expect service providers to handle their accounts after death. Every provider is different.”
I will be researching estate planning for our “digital afterlife”, but in the meantime, here is a rundown on the most popular sites:
Facebook‘s privacy policy states that your heirs can request that your account be deleted or “memorialized.” Memorialized profiles restrict profile access to confirmed friends and allow friends to write on the user’s Wall in remembrance.  Anyone can request that it be memorialized by simply notifying Facebook and showing a death certificate or a news article that indicates your death.
Gmail’s help documents outlines the steps to gain access, which include a death certificate, an email you have received from the account in question, and proof that you have legal authority over the estate.
Twitter‘s help documents tells us: “If we are notified that a Twitter user has passed away, we can remove their account or assist family members in saving a backup of their public Tweets”.  Your heirs need to provide their contact information, their relationship to the deceased user, the username of the account or a link to the profile page, and a link to the obituary. Twitter also offer survivors an archive of the user’s public Tweets.

YouTube‘s policy is pretty simple – fax or mail the representative’s contact information, a copy of the death certificate, a copy of the document that gives the representative authority, and access to the account will be given.

Yahoo is a different story. Yahoo (which owns services like Flickr and Delicious) has a terms agreement that says there is “No Right of Survivorship” and that accounts are “Non-Transferable.” Upon receipt of a copy of a death certificate, your account may be terminated and all contents permanently deleted.  You might want to instruct your executor or personal representative to archive your Yahoo account before the death certificate is presented.

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