Estate Planning - Simms Law Firm

AFTER THE DEATH OF A SPOUSE

After a spouse has died, it can seem impossible to focus on the details, let alone make important decisions. Here is a list of what should not be delayed:

Connect with attorneys, accountants, and financial advisors
Secure your finances – most importantly find out what assets are immediately available to you
File paperwork to claim insurance proceeds and retirement funds
Locate the Will and/or Trust

Later on, focus on:

Estate administration- are there are tax returns to file? Is a probate needed?
Analyze assets and cash flow needs – take a closer look at the full picture of assets available presently and in the future. Have you inherited IRA’s? Should a new investment adviser be consulted?
Do you need to update your own estate plan? Have you updated your beneficiary designations on your IRA’s and life insurance?

As you move from short to long-term considerations, take the time you need to make these important decisions and create your own team of investment and legal advisors.

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 Blog topics may or may not be updated and entries may be out-of-date at the time you view them.

Yes, there can be.

Many of my new clients tell me that they do not need certain estate planning documents because their adult child (or other trusted person) is a joint owner on their bank accounts. They believe that this will avoid the need for probate and will allow the other person to have access to the accounts if they become incapacitated.

Doing this is usually not worth the risk.

Risk #1: The joint holder will have complete access to your money because once they become a joint holder, it is their money too. The joint holder can also have your name removed from the account. This is done by someone you believed you could trust; however, most cases of elder financial exploitation are perpetrated by family members and trusted friends.

Risk #2: You could lose Medicaid eligibility for long term nursing care; when you put someone else’s name on your accounts, you are legally making a gift to them. This could cause you to be ineligible for Medicaid for up to 5 years from the date of the gift.

Risk #3: There are circumstances beyond the joint holder’s control which could put your property at risk. A judgment against the joint holder (think car accident) could result in the loss of your assets.

Risk #4: Putting someone else’s name on your primary residence is never worth the risk. In Florida, your homestead has constitutional protection against any creditor. But, if the joint holder does not live in the home, it is not their homestead. The creditors of the joint holder can reach this asset which could result in the loss of your home.

Risk #5: Adverse Tax Consequences. Gifting property to a beneficiary during your lifetime (and this is what putting someone else’s name on your asset means) creates certain tax consequences which are much less favorable than allowing your beneficiary to inherit the property.

My advice is that you not put property in joint names with persons other than your spouse. The avoidance of probate is not worth risking the loss of your assets. Consider other options to avoid probate such as a revocable trust or ladybird deed. Handle incapacity issues with a Durable Power of Attorney.

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

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.

Many of us tend to procrastinate about making hard decisions. Unfortunately, with estate planning and elder care, this can have dire consequences.

Recently, an 80 year old lady came to see me about doing her Will. She was clear in her mind about who she wanted to leave her money to when she died and who should take care of her finances if she became too ill. And, she knew what kind of care she wanted if she could no longer live alone.

I was hired to do a basic Estate Plan for her – Will, Durable Power of Attorney, Health Care Directive, and Living Will. I prepared the documents and called her to come in to sign. No Answer. Next day, No Answer.

It turns out my client had a stroke and was unlikely to recover. She had no legal documents in place to authorize any of her children to handle her finances or make decisions regarding health care. The children could not agree, and a guardianship case was opened in court while my client remained in the hospital unable to communicate.

This is an all too familiar story in my Elder Law practice.

Why do people procrastinate about these important planning tools? It’s simple:

No one wants to think about mental incapacity or death.
No one likes to pay attorney fees.
No one likes to expose their personal life to another person, even an attorney.
No one wants to give a child the authority to “put them in a home”.
Sometimes it’s not easy to decide how to divide your estate.

It’s wise to start your estate planning early. Here are some top reasons:

The top reason, of course, is my 80 year old client. You might lose your ability to sign documents.
Like my client, you might lose your ability to communicate your wishes to your family or doctors.
Keep harmony among family members – my client’s children could not agree what to do – they went to court!
You might need someone to handle your finances if you cannot.

After watching my client and many others like her, I know how important it is to plan ahead.

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

What actually is your estate?

An estate is your net worth on your date of death.

It includes all property that you own or control such as bank accounts, real estate, life insurance policies, stocks, and personal property like artwork, jewelry, and vehicles.

And, an estate also includes your debts, such as car loans, mortgages, and credit card debt.

What is an Estate Plan and Why is it so Important to have one?

No one likes to think about death, but, it is important to be prepared when the time comes so that your loved ones have a clear understanding of your final wishes.

Estate planning is making a plan in advance that provides details of how you want things handled when you pass.

So, basically an estate plan is a set of written instructions that describes how and to whom you want your property to be distributed after you die.

An estate plan may also provide other details such as funeral arrangements and care for pets when you have passed.

Complete estate plans should also include health care instructions if you should become ill or disabled before you pass. You should also direct who can make financial and legal decisions for you if you become ill or disabled.

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

The content of your will and other estate planning documents is very important. If you choose to write your will yourself, your family could face a number of obstacles after you are gone. As your will passes through probate court, its content could be challenged by anyone who feels they were wronged. An estate planning attorney can help you avoid such dilemmas by ensuring that all wording is clear and that your intentions are understood.

Your will can also be challenged if it was not signed according the requirements of your state’s statutes. Having a wrongly signed will is the same having no will at all.

An experienced attorney can also help avoid having to probate your will, resulting in cost and time savings for your family.

An estate planning attorney also has knowledge of financial issues that may affect your estate. Drafting a will is not just about who will end up with your money and your house. An attorney will look at all aspects of your finances, such as any retirement accounts you may have and will also consider your debts. There might be other details to consider such as who will care for your pet when you pass.

A properly drafted estate plan can give you peace of mind. It is important to remember that having a will is important no matter the size of your estate. Each estate is different, and an attorney can help you find an estate plan that best meets your needs.

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

“Problem” Heirs

Do you have a child or heir with credit problems or a drug or alcohol problem? Or maybe your child is having marital problems and you do not want their spouse to end up with your money! None of us want our life’s earnings to be squandered, and an inheritance could end up making matters worse.

You might not want to disinherit your child entirely because of his or her personal problems. Here is a solution to allow you to control your child’s inheritance and insure that it won’t be squandered or misused.

Create a Trust! A Trust can pass wealth to an heir while controlling how, when, and why your heir can access the funds. One of the advantages of a Trust is flexibility. Here are some of the ways you can accomplish your goals:

Appoint a Trustee who can resist the pleas of a desperate beneficiary. Do you have a close relative who can do this? If not, appoint a professional Trustee, such as the trust company of your bank.

Specify the specific circumstances under which the funds will be paid out. Or, you can give the Trustee complete discretion over disbursement decisions. For example:

If you heir has drug or alcohol problem, require drug testing before the funds are paid. Or give your heir incentive to change by structuring lump-sum disbursements after prescribed periods of time – perhaps require five years of sobriety.

Create an incentive for work by disbursing funds that are tied to wages or earnings.

Direct that payments must be made directly to third-party providers such as a landlord, mortgage company or utility company.

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

Many people ask me why they have heard that they should avoid probate.

Here is how the probate process works:

Probate is a legal process that wraps up a person’s legal and financial affairs after their death. During this court process, property is identified and inventoried. Also, during this process, outstanding debts and taxes are identified and paid.

Probate is a complex process filled with very specific legal requirements. Property cannot be distributed to beneficiaries until all these requirements are met.

The most common misunderstanding is that probate is not required if there is a Will. When a person dies with property in his or her sole name (no co-owner or beneficiary designation) there must be a probate – will or no will.

Probate can take a long time. I have handled probates that were open from 6 months to 3 years!

Probates are expensive. Legal fees and costs can depend on the size of the estate or the time it takes to complete the process. Even small estates can take a long time, depending on the circumstances.

Probate is a public process. Every document filed with the court is a matter of public record. Others can see how much the deceased left behind and how much each beneficiary received.

If you have concerns about the probate process, contact our office to learn how you can structure your assets to avoid this probate process.

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

Same-Sex Couples (unmarried) Are Legal Strangers

Unmarried same-sex couples need to protect themselves and their partners from interference by other people, including family members. Here is a partial list of the areas in which unmarried same-sex couples are treated as legal strangers:

Burial or cremation
Claim to the body
Organ donation
Medical decisions regarding treatment and providers
Hospital and nursing home visitation
Child custody, support, and visitation
Wrongful death
Property division and support when relationship terminates
Inheritance

Also, Social Security and Veterans’ benefits are not payable to the survivor. And most pension and retirement plans restrict survivor benefits to a “surviving spouse”.

If you are in unmarried same-sex partnership, it is essential to create a life and estate plan.

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

Essential Legal Documents for Unmarried Same-Sex Couples

Because unmarried same-sex couples are legal “strangers”, it is essential to have certain legal documents to protect each person’s interests and rights:

Domestic partnership agreement
Advance Medical Directive
Living Will
Durable Power of Attorney for finances
Co-parenting agreement (if no adoption by the second parent)
Wills
Trusts
Nomination of a guardian for adult and minor child
HIPPA (Privacy Law) authorization
Authorization for disposition of remains and funeral arrangements

These documents create the core of planning for unmarried same-sex couples.

Additionally, there might be estate or gift tax issues facing unmarried couples who cannot avail themselves to favorable tax treatment for married couples.

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