Category Archives: Probate and Guardianship

More About the Dangers of “Do It Yourself” (DIY) Estate Plans

I once had a widowed client who used an online do-it-yourself will that failed to mention what would happen if his only son predeceased him. Well, that is what happened.  And, because this son did not have any children, I advised my client that if he didn’t update his will, his assets would then pass to his “heirs” at law.  In his case, this meant a niece and nephew.  He had no relationship at all with these folks.

We updated the will and my client named a close friend and made some charitable bequests. That is the reason to have an attorney assist you with this process. We know the questions to ask, and we know what to do with the answers.

Also, without a lawyer advising you, you might not understand the terms in your documents.  This can be dangerous.  For example, a Durable Power of Attorney essentially gives someone else (the “agent”) the power to take care of your finances if you become incapacitated.  Without understanding all the terms in the document, you could inadvertently give someone more power than you want to when creating a durable power of attorney.  If that person isn’t trustworthy, he or she could steal from you. It happens all the time.

Another problem with DYI documents is that if the document isn’t executed properly—in Florida, you need 2 witnesses and a notary to your signature in a Durable Power of Attorney—then the document will not even be valid.

A lawyer with expertise in estate planning can end up saving you and your family lots of money.  It is very sad when families call me after a loved one has become incapacitated or dies and there are mistakes in the documents.  By then, it’s too late.

If you need advice on preparing such documents, call the Law Office of Debra G. Simms today at 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 Blog topics may or may not be updated and entries may be out-of-date at the time you view them.

 

 

The Dangers of “Do It Yourself” (DYI) Estate Planning

Whenever I speak about estate planning at a seminar or before a civic group, I am asked this question:  Why can’t I just use the forms I can find online?

My answer:  You can.  But, remember, you get what you pay for.   You CAN do it yourself – but it’s really not a very good idea.  DYI estate planning breeds mistakes because when it comes to legal issues, one size never fits all.

My experience with reviewing DYI documents is that people tend to make mistakes when they fill out their own forms online.  Answering one question incorrectly or overlooking something such as appointing a guardian for children can lead to major problems down the road.

One of my prospective clients asked me to prepare a deed putting her home in her trust.  When I reviewed her trust, I saw that it was prepared according to community property and California law.  This lady lived in Florida and had never lived in California.  She sheepishly told me she found the trust on a celebrity money manager’s website.

Another client had a very well drafted trust he found online, but he had never funded the trust because he never received legal advice to do so.  Had he died before consulting with me, all of his assets would have gone through probate, even though his intent in doing a trust was to avoid probate.

Most people use online forms to save money.  I get that.  I like saving money, too.  At the Law Office of Debra G. Simms, we charge a flat fee for estate planning.  It is far more costly to fix mistakes than to do it right the first time.

If you need advice on preparing such documents, call the Law Office of Debra G. Simms today at 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.

 

Getting Your Affairs in Order

Making healthcare decisions for yourself or someone who is no longer able to do so can be overwhelming.  That is why I recommend that my clients make decisions and arrangements while they can participate in legal and financial planning.

I have created a checklist to ensure that your healthcare and financial arrangements are in place before a serious illness or a healthcare crisis.

  • START DISCUSSIONS EARLY with your family and friends.
  • CREATE DOCUMENTS that communicate healthcare, financial management, and end of life wishes and instructions. Get the legal advice needed to do so.
  • REVIEW PLANS REGULARLY, and update your documents as your circumstances change.
  • ORGANIZE YOUR PAPERS IN ONE PLACE. Make sure a trusted family member or friend knows the location.
  • MAKE COPIES OF healthcare directives for all the physicians you regularly see.
  • REDUCE ANXIETY for yourself and your loved ones by making funeral and burial arrangements ahead.

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.

 

I have a will. Why do I need anything else?

Having only a will may not be the best plan for you and your family.  A will does not avoid probate when you die.  A will must be filed and admitted to probate before it can be enforced.

What is Probate?

Probate is the legal process through which the court sees that, when you die, your debts are paid and your assets are distributed according to your will.  If you don’t have a valid will, your assets are distributed according to state law.  These laws are known as the intestacy laws.  Through the intestacy laws, your assets will be distributed to your spouse, descendants, or next of kin.  This might not be your plan!

What’s so bad about Probate?

It can be expensive.  Legal fees and other costs, such as filing and publication fees, must be paid before your assets can be fully distributed to your heirs.  If you own property in other states, your heirs could face multiple probates, each one according to the laws in that state.

It takes time, usually at least 6 months or more.  This is because nothing can be distributed or sold without court or personal representative approval until the creditor notice period has elapsed.  In Florida, the creditor period is 3 month from the first date of publication.

There are privacy issues.  Probate is a public process, any “interested party” can see what you owned and who you owed at the time of your death.

What is a Living Trust?

A living trust is a legal document that, just like a will, contains your instructions for what you want to happen to your assets when you die.  But, unlike a will, a living trust avoids probate at death.  When you set up a living trust, you also transfer assets from your name to your trustee.  Legally, you no longer own your assets, everything belongs to your trust, so there is nothing for the courts to control when you die!  This simple estate planning tool keeps your heirs out of the courts.  And Living Trusts are private arrangements; they are not part of the public record.

Do you lose control of your assets that are in your Living Trust?

Absolutely not!  You keep full control of your assets. As the trustee of your trust, you can do anything you could do before- buy, sell, reinvest, and you even file the same tax returns.  Nothing changes except the way the assets are titled.

Doesn’t joint ownership avoid probate?

No, it usually just postpones probate.  When the first owner dies, full ownership does transfer to the survivor without probate, but when the survivor dies, or both die at the same time, the asset must be probated before it can go the heirs.  There are other problems with joint ownership, for example, the creditors or ex-spouse of the co-owner could be entitled to these funds.  With real estate, if you own it jointly with another, remember that all owners must sign to sell or refinance.  If a co-owner is unwilling or becomes incapacitated, the court will become your new co-owner.

Why would a court become involved with you or your property if you become incapacitated?

If you cannot take care of your own personal, legal, or financial affairs due to a physical or mental incapacity, only a court appointee, in Florida, called a guardian, can do so.  Guardianships are a public process and can be expensive, embarrassing, time-consuming and difficult to end if you recover.  It does not replace probate at death, so your heirs may have to go through the probate court again.

How can you avoid a Guardianship if you do become ill?

A Durable Power of Attorney can prevent a guardianship.  A Durable Power of Attorney lets you name some you trust to manage your financial and legal affairs if you are unable to do so.  These are very powerful documents – it is like giving someone a “blank check” to do whatever he or she wants with your assets- so it should be well thought out, and the person you name should be someone you completely trust.  You can also have a Pre-need Guardianship Designation, which allows you to name your own guardian if that is ever necessary.

A Living Trust is another technique to avoid court intervention if you become incapacitated.  As mentioned, when you set up a living trust, you transfer your assets to the trustee of the trust.  Legally speaking, you no longer own the assets, your trust does.  Your successor trustee will have the legal authority to manage your assets according to your instructions in your trust and will not need court approval.

Isn’t a Living Trust expensive?

It does cost more to have a trust than just a will.  But you can pay for it now, or you can pay the courts and attorneys to do it later.

 

For more information on how you can avoid probate and guardianship with a living trust, contact our office for a free consultation.

(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

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

Comprehensive financial and estate planning is crucial for all families.  But, when a family includes a loved one with special needs, comprehensive planning is of utmost importance.

For example, families with special needs individuals must pay careful attention to the income and assets of the special needs individual and the method in which gifts or inheritances are received.  These financial matters can affect a disabled person’s eligibility for important government benefits – Supplemental Security Income (SSI) and most importantly, Medicaid.

Disabled individuals must meet asset and income limit tests in order to receive these benefits.  The resource test places a $2000 limit on a single person’s assets.  The income limit is more complicated and can count earned income such as wages, or money received from other sources like free food and shelter, gifts, and inheritances. The income limit is tied to the Federal Benefit Rate, which is currently $735 per month for an individual.  (Some types of income do not count towards this limit)

Thus, in order to provide their disabled loved ones with a better quality of life, families must take special care in leaving inheritances to them.

Special Needs Trusts, also known as Supplemental Needs Trusts, are used to shelter assets of a disabled person to allow them to qualify or keep their government entitlements such as SSI and Medicaid.  Importantly, these trusts are designed to supplement government benefits and not to replace or supplant them.  Therefore, the proper drafting of these trusts is of utmost importance to keep these benefits in place.

Special Needs Trusts are the legal centerpiece of a plan for a disabled person.  Elder Law attorneys are professionals equipped with to training to assist families with special needs individuals.

 

This Law Office will be presenting seminars on Living Trusts.  The upcoming dates are February 9th and February 23rd.  They will be held at noon in our Port Orange office and lunch will be provided!

Many people assume that trusts are only for the very wealthy.  That’s not true.  Trusts are useful tools to give you control over how your money and property is used and protected, no matter how much money you have.  Here are 4 potential benefits to consider:

  1. Avoid Probate. If you do not have a Trust when you pass, all assets in your sole name will need to go through the Court process known as Probate in order for them to be received by your beneficiaries.  Probate takes time and Probate can be expensive.
  1. More Control. You can use a Trust to set conditions about when and how your beneficiaries will receive their inheritance.  For example, you could establish a Trust that sets a specific age, say turning 30, or a milestone (like graduating from college) before the money is made available.  Trusts can also help you reach charitable goals or improve tax efficiency.
  1. More Protection. Trusts can ensure that your children or other loved ones receive their inheritance if you are remarried.  They can also help shield assets if you or your heirs are sued.
  1. Incapacity Planning. A Trust lets you designate someone you trust, a family member, friend, or professional money manager, to handle your assets if you are incapacitated.  This avoids the possibility of a guardianship.  Nobody wants to be a Ward of the State.

For more on Trusts, come to one of our seminars!  Call us today at (386) 256-4882 to reserve your spot!

 

A common estate planning question is what (if any) assets are handled outside of probate?

There are a number of different kinds of properties that may pass outside the provisions of your Will.

The list includes life insurance, retirement plans, individual retirement accounts, and annuities. When you purchased or set up these types of assets and accounts, you were probably asked to fill out a form listing the beneficiaries who will receive payments upon your death. These investments will pass to the named beneficiaries regardless of whether you have a Will. However, if you don’t have a beneficiary named if the beneficiary named is your “estate,” or if all the beneficiaries are dead, then those investments will be paid to your estate and pass under your Will.

Certain bank and brokerage accounts will also pass outside your Will. For instance, payable-on-death accounts (sometimes called “POD” accounts) will be distributed to the named beneficiary. Additionally, accounts set up by one or more persons as joint tenants with rights of survivorship will pass to the surviving account holder or holders.

Some banks allow you to set up what they call trust accounts even though there is no written trust agreement. These types of accounts will pass to a named beneficiary without going through probate as well.

Not all joint accounts pass to the survivor. When joint accounts are set up as tenants in common, the portion of the account that was owned by the decedent passes under his or her Will.

Many people have decided to create revocable or irrevocable trusts as part of their estate plan. Virtually all such trusts are designed to pass directly to persons or other trusts named in the document rather than under a Will.

You may find that most of your estate consists of non-probate property. Therefore, it is extremely important to coordinate the beneficiaries of all these properties to make certain your assets will be distributed as you want when you pass away.

The Law Office of Debra G. Simms, will be glad to assist you with estate planning and ways to avoid probate. Call us 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