Estate Planning - Simms Law Firm

Did You Include Your Pet in Your Estate Plan?

People consider their spouses and children when creating their estate plan. But, pets are family, too. An estate plan should consider every aspect of life – if you have a pet, having someone ready and willing to look after them is crucial.

Your Will and Power of Attorney should name at least two people who can take of your pet. Depending on timing, the first person named may not be able to take care of the pet. And if you don’t have a family member or friend, then there are charities such as no-kill shelters that can provide this care.

Even the nicest friend or a charity may not be willing to take care of your pet for free, so it is important to leave money to provide for the animal’s needs during their lifetime. You can easily do this with a Pet Trust.

Having some money placed in a Pet Trust can give you control and peace of mind that your pet will be well cared for. The amount of money you leave will depend on the type of animal, and its age, type of food, and medical costs.

Give yourself peace of mind. Don’t leave your beloved pet’s welfare up to chance.

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 Blog topics may or may not be updated and entries may be out-of-date at the time you view them.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 planning attorneys are often asked by their clients to prepare Wills that pass along their money with strings attached. I call this “dead hand control”.

A common example is making an inheritance contingent upon the beneficiary being married to a person of a particular religion. Another one is requiring that the beneficiary be drug-free for a period of time.

Is this legal? In general, courts tend to allow people to pass along their money with strings attached, provided that those strings do not foster behavior that is illegal or against public policy. In an Illinois case a few years ago, a man-made his grandchildren’s inheritance contingent on their marrying Jewish spouses. The Will was upheld by the Illinois Supreme Court.

Clients who want this are doing what they think is best for the beneficiary. But clients also need to understand that putting conditions on their bequests can cause their family pain.

Consider this Florida case: Grandma died leaving a sizable estate to her 3 granddaughters. The money was divided equally, but they would only get their inheritance if they were married to a person of Grandma’s religion. Two of the sisters were, but one was not -she was happily married to someone of a different religion and had 2 children. She would not inherit. All three of the sisters were shocked and angry. The Executor of the estate explained that its hands were tied and their only recourse was an uphill battle in the courts.

Conditional bequests, related to religion or anything else, should always be thoroughly discussed with your estate planning lawyer.

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

5 Tips for Securing Your Assets, Healthcare and Legacy

It’s your life and your legacy: Make sure you have an updated estate plan. And don’t wait until it’s too late!

Create or Update Your Estate Plan: avoid unnecessary taxes, family arguments, and creditors

Wills allow you to transfer property to your selected beneficiaries, permits a parent to name a guardian, can help protect beneficiaries against creditors, and reduces the burden on family
Revocable Trusts allow you to distribute your assets at death and can allow you to avoid probate.
Irrevocable Trusts can help you qualify for financial assistance if you need long-term care and can provide for strong creditor protection for you and your beneficiaries.
Special Needs Trusts allows you to leave assets to a disabled heir without risking the loss of Social Security, Medicaid benefits, or food assistance.

Create Your Durable Power of Attorney and Medical Directives.

A Durable Power of Attorney authorizes your named agent to act in your place for financial and legal decisions if you are incapacitated.
An Advance Medical Directive allows you to name someone to make health care decisions for you if you are incapacitated.
A Living Will allows you to express your desires about life-prolonging procedures if you are at the end of life with no hope of recovery.

Review and Update your Beneficiary Designations on your Life Insurance and Retirement Plans.

Consider New Laws. Do the new tax laws affect your estate?

Review Social Security and Retirement Benefits. What is your full retirement age? Should you delay your benefits to increase your monthly benefits?

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

Risks abound for Do It Yourself estate planners

Yes, you can do your estate planning without professional help.

However, just because you can, doesn’t mean you should. The risk of making a mistake is greater without help.

The problem with the forms found on websites is that Florida has strict rules on how those documents need to be executed in order to be valid. You can download those forms, but you have no way of knowing if you did it properly or if it was appropriate for you.

Your estate plan is your last testament to living family. Not understanding how property passes after death is a heavy consequence. Mistakes can leave loved ones disappointed and frustrated. And mistakes have financial consequences.

And remember, your estate plan cannot be fixed if you are not of sound mind and certainly not after death. You and your heirs could be stuck with an estate plan that has terrible consequences.

Saving legal fees is usually the motivation for DIY documents. But, is it worth the risk? If you make a mistake, the legal fees will be much greater later when mistakes have to be fixed. And attorneys can save you money in the long run. A lawyer can offer guidance and provide options for you that you might not even think about when you go online.

You wouldn’t do surgery on yourself, would you? Why do your own estate plan?

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

For families with young children or grandchildren, special attention must be given to how assets will pass to minors.

If the child is under the age of 18, thought must be given as to how the child should receive the assets and who will be in charge of those assets.

If there is no provision in your estate plan, then the court will appoint a guardian to manage the minor’s property. But, often time, the guardian is not someone you would want. (think spendthrift son-in-law who is the father of your grandchild)

Another way of doing it is to set up a trust for minors and name an appointed trustee – someone you trust! And the trust can have manageable provisions, such as giving the trustee the right to make distributions to the minor for health, education, maintenance and support until such time as the child reaches a later age, typically 25 or even older.

Management for younger children is very important. It can keep them on track and provide for their education.

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

As our lives go digital, so will, inevitably, our death. Emails we send, photographs we post, and thoughts we share are all stored digitally. These are users’ digital remains that reflect their digital personalities and at the same time, make up the memories for friends and family.

Florida has now enacted laws regarding access to digital remains after death. These laws are important because a conflict might arise between the privacy expectations of the user, and his or her family and friends’ wish to use the digital remains for mourning and commemoration.

It is important to make sure that your estate planning documents incorporate the language of the new laws and that your desires are clearly spelled out. If your Will or Power of Attorney was created prior to 2014, it should be updated to address this concern.

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

What is a Charitable Bequest?

A charitable bequest is simply a distribution from your estate to a charitable organization through your last will and testament or trust. There are different kinds of bequests. For each, you must use very specific language to indicate the precise direction of your assets and to successfully carry out your final wishes.

In any charitable bequest, it is important to name the recipient accurately or your bequest may go to a charity you did not intend.

If you want your charity to use your gift is a certain way, you must also specify the purpose of your bequest.

You do not need to be wealthy to make a charitable bequest. A small gift is of value to all charitable organizations.

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

Should you give copies of your Will and other estate planning documents to your children and to the Personal Representatives of your estate?

For some people, their estate planning documents are as private as their income tax returns, and nobody is ever given copies. For other people, estate planning documents are no different than a spare key to the house, and every family member and Personal Representative and/or trustee named in the documents are given a copy.

If you are the type of person who values your privacy, who does not especially trust your children, Personal Representative, or trustee, or if you have written a Will or trust which does not treat all the children equally, then it may not be a good idea to hand out copies. Also, you may have more money than your children expect, and depending on how your Will or trust is written, giving them a copy may be letting them know too much about your personal business.

On the other hand, if you have a fairly open relationship with all your children, you regularly discuss finances with them, and you are leaving your estate to them in equal shares, then go ahead and give everyone a copy. Of course, if you decide to change your Will or revocable trust, you should be sure to give all the same people copies of the new documents. If you don’t, then there may be some arguments following your death over which document controls the disposition of your estate.

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

The best place to keep signed original estate planning documents

The best place is probably in a safe deposit box because it will protect the documents from theft, fire, accidental loss, and most other types of damage or harm. A potential problem, though, is getting it opened after your death.

If you decide to keep your estate planning documents in a safe deposit box, consider naming a family member or your Personal Representative or trustee as a joint holder on the box. That should simplify matters following your death because someone will be able to get into the box without delay.

Another place to keep your original estate planning documents is with the attorney who drafted them. However, I have decided not to retain original documents because of concern over theft, fire, flood, storms, or other loss of the document. It would also be prohibitively expensive to store hundreds or thousands of original documents. Also, what would happen if I were to die or my law firm was to cease operations?

Many people keep their original estate planning documents at home in a secure place. If you have a safe at home, that can be a good place to keep them. Be aware though, when thieves enter your home and discover a locked safe, they often take the whole safe thinking they’ll find cash and jewelry. The last thing they want is a file containing your estate planning documents, but that’s one of the things they’ll get if you keep them in your safe. Therefore, unless your safe is bolted to the foundation of your house, it may not be the best place to keep your originals.

More people than you would expect keep original Wills and other estate planning documents in an air-tight plastic bag at the bottom of their freezers. Freezers are well insulated and heavy and have a way of withstanding fires, hurricanes, and tornadoes. Also, they don’t die or move away, and they are stolen far less frequently than in-home safes.

Most importantly, make sure your designated representative knows where they are!

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

How to Dispose of your Personal Property When you Pass

Florida law permits the use of a separate writing referred to in a Will to dispose of tangible personal property if it is not otherwise mentioned in the Will. The separate writing must be signed and dated by the maker of the Will and must describe the items with certainty- think “my diamond ring with 2 side rubies”.

The writing does not need to be witnessed or notarized and may be prepared after the execution of the Will. It can be changed, but it’s a good idea to resign and re-date the new writing so there is no confusion as to your intent. The most recent writing will be deemed to revoke any prior writing.

There is no prescribed form for this writing- some lawyers provided sample forms, but you could use any paper-even the back of an envelope!
Tangible personal property does not include cash, bank accounts or real estate. A separate writing is commonly used for jewelry, art, or sentimental items of value to you or your loved ones.

While a separate writing can be altered or revoked by marking through the entry and then re-signing and re-dating, never do this on a Will or Trust. Codicils or amendments to your Trust must be made with the same formalities as the original instruments.

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

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