Probate and Guardianship - Simms Law Firm

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 Blog topics may or may not be updated and entries may be out-of-date at the time you view them.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

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.

Why Seniors Should Not Share a Joint Bank Account with an Adult Child

Case Study: 85 year old Mom comes to see me because she received a notice from her bank that her entire savings account is frozen. There is a court judgment against her by VISA credit card. Mom does not have a Visa account. Grown-up son does. Mom put grown-up son on her bank account so he could “take care of her” if she got sick. What Mom didn’t know is that she made HER money now her son’s money, too. What Mom also did not know is that son did not pay his Visa credit card.

Beware seniors: you might think that by putting your child’s name on a bank account (or home) you are saving a trip to the lawyer’s office. Why do you need a power of attorney or will if your child is already on the account?

As you can see by the illustration above, adding a child to a bank account may expose the parent’s hard earned money to that child’s creditors.

Another reason not to take this short cut, if the child is married, and then gets divorced, YOUR money is his money and is subject to division in the divorce.

Need another reason? For even the best intentioned child, the temptations of money may be too great. Maybe they have an alcohol or drug issue? Maybe they need to pay off debts. The child may feel that there is no true harm by taking some money “early”.

Think again, Mom. Keep your money safe.

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.

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.

Problems With Probate

What is Probate?

Probate is the legal process that wraps up a person’s legal and financial affairs after their death. During the probate process, property is identified and given a value. Outstanding debts and taxes are paid. It can be a complex process filled with very specific legal requirements.

If a person dies with a valid Will, the probate court must ensure that the person’s assets are distributed according to their wishes.

If a person dies without a Will, the probate court sees that the person’s assets are distributed according to the laws of the State.

Probate Process

Probate can take a long time – form months to more than a year.

Probate can be expensive. The attorney fees are usually calculated on the value of the estate, but legal costs can rise if there is real estate to be sold, the will is contested, or for a variety of other reasons.

Probate is public. The Will, Inventory, and other documents are filed in a public court. Many of these documents can be viewed by the public.

Avoiding Probate

Assets can be structured so they may not have to go through probate in order to be distributed to your beneficiaries. Here are some of the ways:
Jointly held property
Death benefits from life insurance
Retirement accounts with a named beneficiary
Assets with a payable on death designation
Property held in Trust

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

AGING SOLO? BUILD A TEAM!

Many of my senior clients live alone – some never married, some are widowed or divorced, and many of my clients never had children or their children are deceased or estranged. With no family member to rely on, they need someone trustworthy to pay bills and make critical decisions if they become ill.

Here are a few suggestions:

Think creatively when selecting someone who can manage your affairs. It might be a cousin or niece or nephew, or maybe a trusted financial or legal advisor.
Try to select a health care agent who lives nearby or who can easily travel to you if you are ill. If not family, perhaps a close friend or clergy would be willing to help.
Simplify your financial life by consolidating your assets. This makes management easier for you or anyone who takes over.
Consult with an attorney about a Living Trust and Durable Power of Attorney. If you do not have a family member or close friend to serve as trustee or agent, talk to your attorney about a financial institution or other professional. You can name co-trustees, say, a financial institution and a relative or friend, and require them to act together.

What’s most important is – have a plan. Failure to plan is planning to fail.

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

An old saying goes that there are only two things that certain in life – death and taxes. While neither of these things is anyone’s favorite subject, they both point towards the importance of Estate Planning.

When we talk about Estate Planning, we automatically think about Wills, Trusts, and other types of legal documents. However, your estate planning documents will do little good if your family or trusted friends do not know where to find them.

Once you have put the finishing touches on your written estate plan, I recommend setting aside some time to talk about it with your family. Tell them where your documents are kept and explain your wishes clearly. While this might be an uncomfortable conversation, it can save your family from additional stress and confusion down the road.

If you need advice on estate planning, call the Law Office of Debra G. Simms today at 386.256.4882

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