Category Archives: Estate Planning

 Probate is the name of the court process for passing ownership of a deceased person’s property to his or her beneficiaries.

For real estate, there are two types of probate administration under Florida law: formal administration and summary administration. Even if you have a Will, your property must pass through probate before your beneficiaries can obtain legal title to your property.

Summary Administration is available if the value of your property subject to probate in Florida is not more than $75,000, and if you have no creditors.  Summary administration is also available if the date of death is more than two years prior to opening the estate.  Summary Administration is usually less expensive and less time consuming than a formal probate.

If the total value of your estate is more than $75,000 or if there are actual or potential claims against your estate, then your heirs or beneficiaries will have to open a formal probate. This process is more expensive and usually much more time consuming than a summary probate.

In either event, your heirs or beneficiaries will need to hire a lawyer, pay court and other costs, file a publication notice, and wait until the Judge signs the required Orders before they can own or sell your land.

Even the simplest of probate estates must be open for at least the three-month creditor claim period; it is reasonable to expect that a simple probate estate will take at least five or six months to properly handle.

There are a number of ways to avoid this costly and lengthy procedure.

If you have a Revocable Living Trust, you can transfer your real estate to your Trust.  If you do not already have a Trust, it is a good idea to consult with an attorney to determine whether this solution is right for you.  Once you have a Trust, a deed must be prepared and recorded, transferring the real estate to your Trust.

Another option to avoid Real Estate is to consult an attorney about a “Lady Bird Deed”.  This is a type of deed used in Florida to transfer real estate to your intended beneficiaries automatically upon your death without the need for a probate.

If you own your real estate jointly with another individual, with rights of survivorship, or as Husband and Wife, then upon your death, the other individual will automatically own the property and no probate will be required until the second individual passes away.  You can still have a Lady Bird Deed if you own the property with another individual as long as you both agree on who will receive the property when you both pass away.

If you own the real estate with another individual, but the deed does not say “husband and wife” or “joint tenants with rights of survivorship” then your share of the property must pass through probate before your heirs or beneficiaries can receive it.

Questions? The Law Office of Debra Simms is here to help. Call us today 386.256.4882

 

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.

 

 

 

After a lifetime of hard work, many people have a large portion of their wealth tied up in their IRA’s. But, they might not think it wise to leave such a large sum of money to certain heirs or beneficiaries. Most money managers tell their clients that they can only name individuals on their IRA beneficiary forms. Is this true?

No. You can leave your IRA assets to a beneficiary in trust. But, here’s the catch…it must be a Retirement Benefits Trust which contains specific language that satisfies the IRS because these assets have not yet been taxed.

If properly drafted, a Retirement Benefits Trust can preserve your assets for your beneficiary and the tax deferral treatment will not be lost.

I recommend the use of a Retirement Benefits Trust in a variety of circumstances such as:

• You have remarried and want your new spouse to have the use of your IRA income, but not control over the principal
• You have minor children or your children are not responsible with money
• You have a beneficiary who is in the middle of a lawsuit or in the middle of a divorce and subject to alimony
• You have a beneficiary with Special Needs

There might be other circumstances where it is not appropriate to leave your Retirement Benefits outright to a beneficiary. The use of a Retirement Benefits Trust can preserve these assets and the tax benefits for your loved ones.

Questions? The Law Office of Debra Simms is here to help. Call us today 386.256.4882

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.

As an Elder Law Attorney, families often come to see me when a loved one is sick and time is limited.  Handling a death in the family is always difficult, but handling the legal details is the last thing you will want to do in a time of mourning.  The death of a loved one is not only terribly painful, but the aftermath can be complicated, expensive, and a lot of work.

Here are some tips to help you minimize the stress:

Discuss and arrange funeral arrangements ahead of time.  Discuss burial and cremation.  Cemetery plots are sometimes already purchased, especially when the other spouse has died; if not, try to discuss your loved ones’ preferences and do as much as possible in advance.

Funerals are expensive.  Hopefully, your loved one has made pre-paid funeral arrangements, but if not, discuss the details.  Since life insurance proceeds and inheritances may take a while to receive, discuss how the funeral will be paid.  Did your loved one put some money aside that is easily accessible?  Remember, you won’t be able to use their credit card after they are gone.

The sooner you discuss the details, the better.  Talking about death is easier when it feels farther away.

Legal documents should be located.  If anything is needed to pass on property and assets after death, do it now.  As long as your loved one has mental capacity, Wills, Trusts, and Medical Directives can be prepared or updated.  Try to take steps to avoid probate.  Probate is the last thing you want to deal with after your loved one dies.  Probate is not only stressful but time-consuming and expensive.  Seek out legal counsel before it’s too late.

Questions? The Law Office of Debra Simms is here to help. Call us today 386.256.4882

It is now “The Law of the Land” that same-sex marriages are legal.  This means that your same-sex spouse, unlike a same-sex partner, has certain rights to your property when you die.

In Florida, same-sex spouses are entitled to inherit a certain percentage of your estate and have rights to your homestead property even if your Will says otherwise.

For this reason, it is important to consult with an attorney before the marriage takes place.  It is possible to enter into a prenuptial agreement to avoid unintended consequences.  If the marriage has already taken place, an attorney can help you prepare a post-marriage agreement.

A same-sex marriage is a sensible time to review the arrangements you have made in all of your estate planning documents.  This is a good time to reconsider who you will appoint as your substitute decision maker for financial and health decisions if you become incapacitated.

In Florida, if you do NOT have a valid Advance Medical Directive, then your spouse will be your decision maker by default.  For some families, the new spouse is not always the best person for the job.

 

 

A Florida Durable Power of Attorney is an important part of your estate plan.  This legal document gives control over who will manage your property during periods of lifetime incapacity.

Recent changes to the Florida Power of Attorney statute make this an excellent time to re-evaluate and possibly update existing powers of attorneys.

A Power of Attorney is a powerful document.  People create these documents to ensure continuity of their financial affairs in the event of future incapacity, naming trusted family members, friends, or professional fiduciaries who can step in to manage what is needed.

Unfortunately, these individuals can and do, sometimes abuse their authority.  Updating your Power of Attorney can give you additional protections.

First, who is your designated agent?  Is this person still the person that you trust the most?   Have you named a successor agent in case your named agent is unwilling or unable to serve?

Second, the new Florida Power of Attorney gives added protections for the Principal (the person creating the document) by requiring the Principal to specifically grant or withhold certain powers.  For example, if you are creating a Power of Attorney under the new law, you can decide whether or not to allow your agent to make gifts, or change beneficiary designations on your accounts.

If you created a Power of Attorney under the old law, your document is still in effect.  However, since the new law includes many advantages over the previous one, it is a good idea to create a new one to obtain the added protections under the new law.

Many of my clients live in a Manufactured Home.  They are concerned about how to avoid Probate if the home is not titled jointly.   Probate is certain to be required if you are not leaving the home to your spouse, all children equally, or if your children cannot amicably agree among themselves upon a division of this asset. You will also need a Probate if your estate has any debts.

A solution for this problems is to put your Manufactured Home in a Revocable Living Trust.  First, of course, you must contact an attorney to create a trust for you if you do not already have one.  Then, you must contact the Florida Department of Motor Vehicles to change the registration.  There are forms to fill out and processing fees to pay, but the process is relatively easy and much less expensive than Probate.

If the Manufactured Home is your Homestead, you will not lose this valuable exemption simply by putting it in a Trust.

Also, sometimes the owner also owns the land underneath the Manufactured Home.  If this is the case, then a deed will also need to be prepared and filed with the Clerk of Court. If you own the land, another option is to “retire” the title to the mobile home by filing certain documents with the Clerk of Court and the Department of Motor Vehicles.  If this step is taken, the mobile home can be transferred by deed to the trust.

Taking the above steps will give you some peace of mind in protecting your beneficiaries from Probate.  It will save your beneficiaries time and large legal fees, and allow for the smooth transitions of your assets

 

HAVE YOU REVIEWED YOUR ESTATE PLAN IN LIGHT OF RECENT CHANGES IN THE ESTATE TAX LAWS?

If you have not looked at your will, trust, and powers of attorney recently, now is the time to do so. Estate planning documents need to be updated as the laws change and as your family and financial circumstances change.

There have been significant changes with respect to the federal estate tax laws in the recently enacted “Tax Cuts and Jobs Act,” signed on December 22, 2017.  These changes mean your current estate planning documents may no longer accomplish your intended goals.

For those who feel they will never be affected by the estate tax in light of the new increase in the exemption amount, there are still many reasons you may need to update your documents.

If you answer “yes” to any of the following questions, then your estate plan should be reviewed:

  • Did you change your state of principal residence?
  • Did you marry or divorce?
  • Did your spouse pass away or become incapacitated?
  • Did you have or adopt any children?
  • Did any of your beneficiaries marry, divorce, have children, pass away or become incapacitated, or have financial problems?
  • Did any of your designated fiduciaries/representatives pass away or become unfit to serve in their designated roles?
  • Did you retire?
  • Did your financial situation change?

Questions? The Law Office of Debra Simms is here to help. Call us today 386.256.4882

Wills

  • A Will allows transfers of property to your beneficiaries when you pass
  • In a Will, you, and not the State of Florida, get to name your beneficiaries
  • A Will permits a parent to name a guardian
  • A Will permits you to name your Personal Representative (Executor)
  • A Court process called Probate will be necessary to transfer your assets when you pass

Revocable Trusts

  • Like a Will, a Revocable Trust allows transfers of property to your beneficiaries when you pass
  • Like a Will, you, not the State of Florida, get to name the beneficiaries
  • With a Revocable Trust, you can plan for future incapacity by designating a Trustee to manage your assets
  • With a Revocable Trust, your beneficiaries will not have to be involved with Probate in order to receive title to your assets when you pass
  • A Revocable Trust does not require any court filings so your assets and values remain private
  • A Revocable Trust is harder to challenge.

Questions? The Law Office of Debra Simms is here to help. Call us today 386.256.4882

Probate is a court-supervised process for identifying and gathering the assets of a deceased person, paying the decedent’s debts, and distributing the decedent’s assets to his or her beneficiaries.  The order of distribution is governed by the Florida Statutes.  In general, the decedent’s assets are used first to pay the costs of the administration, the funeral expenses, the decedent’s outstanding debts, and then the remainder is distributed to the decedent’s beneficiaries.

There are two types of court-supervised probate administration under Florida law: formal administration and summary administration.  Summary administration only applies in limited circumstances: when the probate assets of the estate are less than $75,000 and when there are no known creditors.

In general, probate administration applies only to those assets held in the decedent’s sole name at death.  In some cases, assets such as life insurance or retirement funds might also need to go through probate if there are no individually named beneficiaries or a beneficiary is deceased.

Probate is necessary to pass ownership of the decedent’s probate assets to the decedent’s beneficiaries.  If the decedent had a valid Will, the Will must be admitted to probate and will be effective to pass ownership of probate assets to the decedent’s beneficiaries.  If the decedent had no Will, or the Will is not valid under Florida law, then probate is necessary to pass ownership to those persons entitled to receive them under Florida law.

Questions about probate?  The Law Office of Debra Simms is here to help. Call us today 386.256.4882.

 

Do you use Facebook, Twitter, or Amazon?  Do you bank online?  Use Google, have an Apple account?

These are Digital Assets and they have personal and financial value to you.  Because they have value, these assets need to be identified and protected in the event you become incapacitated and when you pass away.

Gone are the days when your agent under a Power of Attorney or the Personal Representative of your Estate can stand by your mailbox and wait to see where you keep your money or what bills are due.  Most of us don’t even get much mail anymore!

Florida has recently enacted the “Florida Fiduciary Access to Digital Assets Act”.  This law allows gives our representatives the ability to access our digital assets by allowing us to direct the disclosure of these assets and in some cases, to obtain the content of these assets.  Prior to the enactment of this law, representatives often had to go to Court and obtain a Court Order directing the bank or social media company to disclose the incapacitated or deceased’s person’s accounts.

What this means is that your Will and Durable Power of Attorney should be updated to include the language required by the statute.  If your documents are older than 2016, and you do ANYTHING online, you should consult a lawyer to update your documents.  The cost should be minimal and far less than going to Court!

Questions? The Law Office of Debra Simms is here to help. Call us today with questions.  386.256.4882

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