If you’ve ever experienced the passing of a loved one, you’re likely to be familiar with probate. Probate can be a challenging and time-consuming process, but there are methods to help avoid it altogether.

If you’re looking to create an estate plan, a probate attorney can help you with a revocable living trust. It can help avoid probate in Florida and create a more peaceful transition for your family at your passing.

What Is Probate?

Probate is a court-supervised process allowing for the identification and distribution of a person’s property and assets after they’ve passed. Additionally, it helps the individual responsible for the person’s estate, called the personal representative, achieve other tasks, including paying off creditors and taxes.

When an individual passes away with an estate plan, including a will but no trust, probate becomes necessary.

What Is a Revocable Living Trust?

If you’re looking to set up a trust, there are many to choose from. Revocable living trusts are among the most common.

A revocable living trust is a document you create during your lifetime that helps create a plan for your money and assets after your passing. It helps distinguish who your beneficiaries are and who gets what when you die.

A revocable trust is revocable because you can modify or revoke it at your discretion, as opposed to an irrevocable trust that cannot be changed or revoked.

When you create a trust, you retitle all of your assets in the name of the trust. You select a trusted individual, a trustee, to manage and distribute those assets to your named beneficiaries once you’ve passed. 

With a revocable trust, you, the grantor, still have access to your assets, but they’re protected in case of your death.

Benefits of a Revocable Trust

There are many advantages to a revocable trust, the most important of which is the grantor’s ability to modify the terms of the trust or void it altogether at any time.

While many are familiar with wills, revocable trusts can offer similar protections but better. A will dictates who gets what at your passing but doesn’t go into effect until you’ve passed. When you have a revocable trust, your assets are protected even if you remain living but become incapacitated. 

Avoiding Probate with a Revocable Living Trust

Another important benefit to having a revocable trust is its ability to help bypass the probate process.

Even if you have a will, it does not guarantee it won’t need to be probated at your death. When you have a revocable trust, the trustee will be able to transfer your assets to the designated beneficiaries without the need for probate.

Probate can be a long, drawn-out, and sometimes contentious process for many families. Having a revocable trust can help avoid the need for probate, saving valuable time and money.

A Probate Attorney in Daytona Beach Can Help You

If you’re looking to set up a revocable trust or your loved one has passed, and you need assistance with probate, a knowledgeable lawyer can provide top-quality legal assistance.

Estate planning and the probate process can be confusing and stressful. Let a Daytona Beach probate attorney help you.

What Property and Assets Go Through Probate in Florida?

Any asset owned by someone who has passed away is subject to probate in Florida. The exception to this rule is property that had a named beneficiary or rights of survivorship. Examples of property that may have a named beneficiary would be a life insurance payout, a retirement account, or a bank account with a “pay on death” designation. An example of property with rights of survivorship would be real estate that has a deed indicating that a surviving co-owner will take the full ownership of the property upon the death of the other owner. Property purchased by a husband and wife typically has rights of survivorship in Florida, even if that specific language does not appear on the deed to the property. This type of survivorship is called “tenancy by the entirety,” and only requires that title be held by husband and wife, in which case, the deed will automatically transfer to the survivor upon the death of one spouse.

If an asset does not have a named beneficiary or rights of survivorship, it will have to go through probate to change ownership pursuant to the Florida Probate Rules (2022). The most common assets that go through this process are bank accounts, real estate, vehicles, and personal property. To determine if a specific financial account is subject to probate, the financial institution should be contacted. To determine if real estate is subject to probate, an attorney should examine the deed to the property.

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.

 

Do You Need a Revocable Trust?

Everyone should have a durable power of attorney that appoints someone to act for them should they become incapacitated, however, in some circumstances it is not enough. In these cases, a revocable trust can help.

A durable power of attorney allows you to appoint someone you trust to step in for you to handle financial and legal matters if you become incapacitated. Everyone is at risk of incapacity from illness or injury, whether temporary or permanent. The current state of the world, global pandemic raises this risk and of course, this risk rises as we get older. Without someone in place to handle legal and financial matters, bills can go unpaid, contracts can’t be signed, homes can’t be refinanced, leases can’t be terminated, investments go unmonitored and unadjusted, and families often fight over who is in charge.

 

The alternative is your family or loved ones seeking court-appointed conservatorship. This is expensive and time-consuming. It is in everyone’s best interest that you pick your own person for this role.

While this is important, it’s not always enough. Financial institutions often don’t honor older powers of attorney and agents sometimes don’t step in until it’s too late. These problems can be remedied through the use of a revocable trust.

Powers of Attorney Can Be Rejected
Financial institutions often reject older powers of attorney; they have no way to know whether the document has been revoked since its original signature. Sometimes the institution will require the drafting attorney to attest to the fact that the document hasn’t been revoked. The attorney may not have met with the client for many years and has no way of knowing everything the client has done during that time.

Financial institutions are uncomfortable honoring powers of attorney because they do not want to be held liable for any malfeasance by the agent appointed under the document. Most estate planning attorneys agree that this institutional rejection is contrary to the law. There is no good remedy for this situation when it occurs, filing a lawsuit against a large bank is expensive and would be time-consuming.

Refresh your documents periodically. Financial institutions are more likely to accept newer documents than older ones. It’s a good idea to execute new durable powers of attorney every five years.

Use the financial institution’s forms. Many banks and investment companies have developed their own durable power of attorney forms. They are more comfortable accepting their own forms than general ones you may have found online or the one your attorney prepared. Contact each financial institution where you have an account and ask whether it has a durable power of attorney form. You will still need a general durable power of attorney since the financial institution’s form only governs accounts held at that institution.

Create a revocable trust. Financial institutions accept revocable trusts more easily than a durable power of attorney.  Revocable trusts have the added advantage that you can appoint a co-trustee to serve with you so that if you become incapacitated, the co-trustee can step in and act.

As we age, we all become increasingly susceptible to making financial mistakes and falling victim to scammers. Having a financial advocate in place can help you avoid both. An important step is to name an agent under a durable power of attorney. However, such agents often don’t step in until it’s too late and you or a loved one may have already lost a significant amount of money.

A co-trustee on a revocable trust is already named on the accounts in trust. Even if the co-trustee doesn’t take an active role, he or she can monitor the accounts to make sure nothing strange is occurring. When and if it’s necessary to step in, the co-trustee can do so immediately and seamlessly. In contrast, an agent under a durable power of attorney must present credentials to the financial institutions and go through the institution’s vetting procedure, this delays access to the accounts.

For these reasons, revocable trusts often work better than durable powers of attorney. However, be aware trusts only control the accounts actually held by them. So, for the trust to work, you must retitle your accounts into your trust.

Even if you have a revocable trust, you still need a durable power of attorney.  This will cover any accounts that were not transferred into the trust. Also, the trust only governs financial matters. Your agent under your durable power of attorney can also handle legal ones on your behalf, including signing your income tax returns.

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 plans should evolve over time, it is important to keep your living documents current by reviewing your estate plan every 5 years, or whenever you or your family or beneficiaries have a major life event.

The following points should be reviewed with your attorney.

DISTRIBUTION OF YOUR ESTATE

Does your plan effectively distribute your assets according to your wishes?

Do you have distribution provisions for your spouse?

What are the distribution provisions for your children? Should assets pass outright to your children or stay in trust for a longer period of time? If you decide on a continuing trust for a child, consider whether distributions should be staggered over time or whether the trust should be drafted to protect family assets from your children’s future creditors, including a divorcing spouse.

Do you want to include a trust for your grandchildren in your estate plan?

Do you hav a disabled beneficiary to consider? Do you need to incorporate special needs trust provisions for them to preserve the beneficiary’s eligibility for public benefits.

FIDUCIARY NOMINATIONS

Are you happy with your current choices for Personal Representative and Successor Trustee.

PLANNING FOR INCAPACITY

Is it time to update your Durable Power of Attorney and Health Care Proxy. Discuss the individuals you want to serve as your agents in these documents, as well as alternate agents.

TITLING AND BENEFICIARY DESIGNATIONS

What is the appropriate titling and/or beneficiary designations on your assets and accounts?

What assets should be owned by your Revocable Trust and how to effectively transfer ownership of assets into the name of the Trust (or how to designate the Trust as the transfer-on-death beneficiary).

Review the beneficiary designation for all your retirement accounts. Consider whether it is appropriate to leave retirement accounts directly to your spouse and/or children, or to your Revocable Trust so that the Trustees can administer the assets.  Discuss whether your Revocable Trust qualifies for the maximum payout period for a beneficiary under the SECURE Act, which became effective January 1, 2020.

It is important to keep your estate plan up to date to ensure that your wishes are carried out.

Call the Law Offices of Debra G. Simms at 386.256.4882 to learn more. We are currently offering free consultations via video conference to assist you with your needs.

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.

Some Common Misconceptions About Estate Planning

  1. I am not rich so I don’t need an estate plan
  2. Everybody knows what I want, so why do I need a will?
  3. Minimizing taxes is one of the most important goals in developing an estate plan. 
  4. My spouse and I have been separated for many years, but haven’t bothered to get a divorce. I am not going to leave him/her anything. 
  5. My significant other and I have been living together for many years and I want him/her to inherit everything I have. 
  6. I have a simple will that takes care of all my concerns and that is all I need. 
  7. I have got a trust and that takes care of everything. 

Here’s a checklist to help you deal with these concerns:

  1. Review your will or trust to make sure it remains consistent with your wishes.
  2. Check your medical directive and financial powers of attorney to insure that they remain consistent with your wishes.
  3. Review your beneficiary designations.
  4. What about your pets?
  5. Do you have specific wishes for a funeral and burial?

Call the Law Offices of Debra G. Simms at 386.256.4882 to learn more. We are currently offering free consultations via video conference to assist you with your needs.

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.

Common Mistakes in Estate Planning

Do you think that you do not need an estate plan because all your bank accounts are POD (Payable on Death) and your IRA has a beneficiary?  You could be very mistaken.

What about your house?  Your cars?  What if one of your designated beneficiaries dies or is incapacitated? 

And what about the cost of Probate?  Without an estate plan, your assets can be depleted by the expenses of the Probate Court.

But, even if you already do have an estate plan, mistakes can be made if:

  • You do not update your beneficiaries and legal representatives after marriage, divorce, the birth of a grandchild, or other big life events.
  • You do not keep documents organized and able to be easily located.
  • You change your mind about your estate plan, but do not revise your estate planning documents.

An estate plan requires thought and action – now is the time to seek the services of Estate Planning Lawyer.

Call the Law Offices of Debra G. Simms at 386.256.4882 to learn more. We are currently offering free consultations via video conference to assist you with your needs.

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.

The global pandemic of COVID-19 has all of us facing our own mortality.  Some of us are realizing that we do not have the basic estate planning documents.

To protect yourself and your loved ones now’s a good time to make sure that you have the following four documents prepared and updated.

  • A will or revocable trust.
    • We need to leave instructions as to who will inherit our assets and who will be in control of our estates. Revocable Trusts are a good tool to avoid probate.
  • Beneficiary designations on financial accounts.
    • Many assets do not pass through a will or trust, such as an IRA, 401(k) account, or life insurance policy, and instead the proceeds go to the person you name as the beneficiary of that account.
  • Advance Directive for Health Care.
    • This document will give the person you designate as your agent the ability to make the medical decisions you specify on your behalf.
  • Financial durable power of attorney.
    •  In the chance that you become incompetent, financial responsibilities continue. You can designate a trusted person to handle your financial and legal affairs if you cannot.

Call the Law Offices of Debra G. Simms at 386.256.4882 to learn more. We are currently offering free consultations via video conference to assist you with your needs.

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.

Some lucky retirees split their time between two different states. You do not need separate estate planning documents for each state, but it may make sense to do so. 

While your Will should be from the state that is your primary residence, your Durable Power of Attorney and Advance Medical Directive from another state might present challenges.

Financial and health care institutions are used to the documents used in their states and may refuse to honor out-of-state documents. In the case of health care documents, other states may use different terms for the document, such as “durable power of attorney for health care” or “advance directive.” Durable Power of Attorney requirements vary significantly from state to state.  (And the people reviewing your documents may not be willing to accept the other state’s language).

In the absence of a durable power of attorney and advance medical directive, family members often must resort to going to court for a guardianship.  This causes delay and and unnecessary legal fees.

So, if you spend a part of the year in another state, executing a local durable power of attorney and a medical directive is a good idea.

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.

Annual Reminders

The end of the year is a great time to review various aspects of your estate and financial plan. 

  • Request a free credit report through annualcreditreport.com
  • Consider placing a fraud alert on your credit cards.
  • Create or update a list of all your electronic user names and passwords.  Properly safeguard this information.
  • Review your Will and/or Revocable Trust to ensure that you are comfortable with your bequests, Personal Representatives and Trustees.
  • Review agents named under financial and medical powers of attorney to ensure they are still appropriate.  Review your Living Wills to make sure you are comfortable with your end of life instructions.
  • Review your beneficiary designations for your insurance policies and retirement plans.

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.

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.

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.

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:
646 N Dixie Fwy
New Smyrna Beach, FL 32168
Local: 386.256.4882
Toll Free: 877.447.4667