The average person usually doesn’t know much about how their assets are distributed at the end of their life. How is the will handled? What does probate even mean? How can a revocable trust help you in the probate process?

These are all very good questions. This uncertainty is why you need to have them answered by an experienced Daytona Beach probate attorney.

What Is Probate?

When someone dies, the legal process of finalizing their estate and last wishes is called probate. During this process, a deceased person’s assets and debts are administered by the probate court. If there is a Last Will and Testament, that document will control what happens to the assets. If there is no Last Will and Testament, the assets will pass to the heirs at law.

In Florida, a probate case must be handled by an attorney.  In addition to the attorney fees, there are additional costs such as filing fees.  The process can also be time consuming.

A Revocable Trust is designed to help avoid the costly and time consuming probate process.

An estate planning attorney in Daytona Beach will be able to help you set one up.

How a Daytona Beach Probate Attorney Helps with Revocable Trusts

A revocable trust is a document that, like a Will, will determine the recipients of your assets when you pass.  However, by placing you assets in the trust, your beneficiaries will be able to obtain the assets without a lawyer or a court!  You will name someone you trust, a Trustee, to be in charge of this process.

The Law Office of Debra G. Simms will guide you through the process of setting up a Revocable Trust.

Formal administration and summary administration are two forms of probate used when a deceased person’s assets do not have a “payable on death” provision, joint owner, or beneficiary designation.

Summary administration is only available when the total value of the assets subject to probate is less than $75,000 or if the decedent has died more than two years before the filing.  It can also be used when the only asset is a Florida homestead.  Formal administration is used for all other estates or if a personal representative, or executor, is necessary.

Considerations for Choosing Summary vs. Formal Probate

Summary probate has a shorter time frame than formal administration — an average of 3-6 months vs. 6-18 months — and typically costs less. It’s also less complicated, and the probate court doesn’t require as much documentation as a formal administration.

However, with a summary administration, a personal representative is not appointed by the court.  Often times, a life insurance company or retirement plan will require a personal representative even when the assets are below $75,000.

Formal probate, also known a full administration is a lengthier process and requires more documentation than summary administration.

In formal administration, the court will appoint the personal representative who is granted the authority to gather information about any debts or assets belonging to the deceased.

The personal representative is issued Letters of Administration, which gives them access to banking and other financial information. They may also deal with creditors on behalf of the estate and negotiate any claims they deem invalid or questionable.

Formal administration takes longer than summary, costs more, and requires more steps to settle the estate.

Which Method Is Better?

Determining the correct course of access to settle the estate depends on the total value of the deceased’s assets, any debts, and whether there is pending litigation against the estate’s assets.

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.

 

Probate, also called “estate administration,” is a court process that transfers assets owned by a deceased person to the beneficiaries named in their Will.

In probate, the person who died is referred to as the “decedent.” Anything that the decedent owned when they died is collectively referred to as the “estate.” An estate may contain bank accounts, real estate, vehicles, tools, jewelry, art, guns or any other personal property owned at the time of death.

Probate is required even when a decedent has a valid Will. When someone dies with a Will, a probate judge must “admit the Will” to probate by finding that the will is valid. If the decedent died without a Will, otherwise known as “intestate”, the probate will proceed and assets will be distributed to the next of kin.

In legal terms, “beneficiaries” are people named in a will, and “heirs” are the next of kin who receive property in the absence of a will. Whether a decedent died with or without a will, the court’s main priority is to ensure that the correct beneficiaries/heirs are identified to receive the decedent’s property.

If a decedent had a valid Will, that document nominates who will be the “Personal Representative.”  The Personal Representative must be represented by an Attorney and is responsible for overseeing the probate process and distributing the assets to the beneficiaries.

There are two types of probate administration in Florida, formal administration and summary administration. Summary administration is a simpler process, while formal administration is required for certain estates that need the services of a personal representative or are too large for summary administration. The differences between these two types of probate proceedings are outlined for you later in this guide.

When the beneficiaries or heirs of the decedent’s estate are identified and the correct probate documents are submitted to the court, the judge will sign orders allowing the estate assets to be transferred. Prior to property being distributed, the probate judge must be satisfied that all interested parties have received proper notice, that eligible estate creditors have been paid, and that any disputes among the beneficiaries are resolved.

Chapters 731-735 of the Florida Statutes contain the probate laws for our state, however each county in Florida has specific requirements that must be met before the probate court will allow a case to move forward.

The Covid-19 pandemic has changed the way that most probate courts operate, many judges now hold hearings by video conference.

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.

The loss of a family member is an incredibly difficult time. In addition to coping with your grief and potentially planning a memorial service or funeral, there are usually many financial decisions that will need to be made.

How do you know what you’re supposed to do? It can be incredibly overwhelming. Here is a list of steps to help reduce stress during this time.

  • Contact your financial advisor so they can help you evaluate the financial aspects of the situation.
  • Also, contact the person’s estate attorney to see if they have an estate plan. This might include a will and revocable trust, for example. The attorney should be able to tell you if there is an:
    • Executor of the will and who it is
    • Trustee of any trusts that exist
    • A guardian for the care of a child and financial management while the child is a minor
  • Keep track of your phone calls and contacts (e.g., dates, times, status) in an online document or notebook. It will be helpful to find the individual’s passwords and have them in one place.
  • Locate a local notary, as they will be needed, the attorney’s office may have a notary available.
  • Obtain multiple copies of the certified death certificate. Some companies will not accept a photocopy. This is common with insurance policies and annuity contracts, and transfer of deeds for example.
  • Obtain a certificate of appointment to document the authority to act as personal representative, if required in your state. Keep in mind that language used to describe aspects of settling an estate can vary in each state.
  • Open an estate checking account, if necessary, to pay bills and receive accounts/assets associated with settling the estate. If you open a checking account for the estate, you’ll need to get an employer identification number through IRS Form SS-4, Application for Employer Identification Number.
  • Determine how the person’s assets/property will be maintained during the estate settlement process.
  • Contact the Social Security Administration. Inquire about survivors’ benefits. You might also be eligible for a one-time death payment.
  • Look into veterans’ benefits (if applicable) and possible assistance with burials costs for veterans and their spouses.
  • Contact financial organizations to find out how to update ownership and beneficiary designations on joint financial accounts (investment, bank, and credit accounts).
  • Contact financial organizations to determine how to close single-owner financial accounts and transfer assets.
  • Update names and beneficiaries on insurance policies, including life, health, and auto policies. Among the insurance providers, also confirm the coverage requirements to maintain the person’s assets (including the car).
  • Update the property title(s) for real estate. If property was owned in multiple states, review the probate process in each state. (For non-resident states, ancillary probate may be necessary.)
  • Contact a deceased spouse’s employer (if applicable) if there is a 401(k) account and a group insurance policy. It may also be necessary to contact former employers that may have provided a group life insurance policy. The person may also have retirement plans through former employers.
  • Contact all three major credit bureaus to minimize the risk of identity theft.
  • Locate the title and registration for any cars, so that you can update the vehicle title and registration; cancel the driver’s license.
  • Close email and social media accounts.
  • If the deceased is a spouse then the surviving spouse previously named their now-deceased spouse as their durable power of attorney or medical power of attorney, they will need to name a new person.

The entire process can be overwhelming, it is important to have a board-certified estate planning attorney involved to ensure all aspects of the estate plan are followed.

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.

  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 ensure 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.

We all know that you can find “Do It Yourself” Wills online. We all know that it costs less money to do your own estate plan than to hire an attorney.

But… what if you press the wrong key when answering the prompts?  What if you don’t know how to even answer the question in the prompt?

A few years ago,  new clients asked me to review their DYI estate plan.  On the bottom of each page in very small print were the words “Nebraska Law applies”.  I asked my clients if they lived in Nebraska when they did their Wills.  They NEVER lived in Nebraska! 

Another client called to say her Durable Power of Attorney was refused by an insurance company.  The Do It Yourself document did not include the language required to deal with insurance companies. 

And, even more disastrous, was the client whose Will’s beneficiaries included a physically disabled adult child who was receiving federal benefits.  These benefits would be lost as soon as the child inherited his rather modest bequest.  Did these parents ever hear of a Special Needs Trust?  No, the forms they used didn’t have such a provision.

So… remember the old line, penny wise, pound foolish?  Do It Yourself documents are plain dangerous.  The cost of using a good estate planning attorney could save you or your heirs much more.

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.

Few decisions are more difficult than the one to place a spouse or parent in a nursing home.  Most families try to care for a loved one at home for as long as possible, only accepting the inevitable when no other alternative is available.

The placement decision can be less difficult if, to the extent possible, all family members are included in the process, including the senior, if he or she is able to participate.

I recommend the following steps as you begin this process.

  • Try to have a family meeting, either with the family alone or with medical and social work staff.  If you cannot meet in person, use the telephone or e-mail.
  • Research all options.  Look at-home care, daycare, respite care, assisted living and skilled nursing.
  • Consider using an Elder Law attorney and a geriatric care manager to help with placement and cost decisions.  Try using a senior placement service such as Assisted Living Made Simple in Florida– they know how to “match” the senior with the care facility.

These steps won’t make the decision easy, but they can help make it less difficult.

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.

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