Category Archives: Probate and Guardianship

I often get calls from folks who need to make financial and legal decisions for an aging or ill spouse or parent.

The first question I ask is:  Are you the agent under a Durable Power of Attorney?

If the answer is no, and the parent or spouse still has the mental capacity to understand and execute a Power of Attorney, then I urge them to do so before it’s too late.

Unfortunately, often times the call comes when it is too late.  The loved one no longer has the mental capacity to understand the nature and effect the document.  The only option left is a Guardianship.

A Guardianship is a type of legal proceeding where the Court determines that an individual (called the “Ward”) is legally incapacitated and also appoints a Guardian, usually a family member, but sometimes, a professional guardian, to manage the Ward’s personal and financial affairs.

The Courts look at a number of factors in determining legal incapacity.

First, let’s look at how Florida law defines incapacity:

Florida Statute Section 744.102 (12):

“Incapacitated person” means a person who has been judicially determined to lack the capacity to manage at least some of the property or to meet at least some of the essential health and safety requirements of the person.”

The Court makes the determination of incapacity by appointing an examining committee to meet with the alleged Ward and also to review prior medical records.  The members of the examining committee then file a detailed report with the Court as to their determination and an explanation of how they reached their decision.  Some of the factors the committee members consider are:

  • Can the individual make and exercise informed decisions regarding his right to contract?
  • Can the individual make and exercise informed decisions regarding his right to manage property or to make a gift?
  • Can the individual make and exercise informed decisions regarding his right to determine his residence?
  • Can the individual make and exercise informed decisions regarding his right to marry or vote?
  • Can the individual make and exercise informed decisions regarding his right to have a driver’s license or operate a motor vehicle?

This list is not exhaustive and the Court can always consider any other relevant factors.

Furthermore, the alleged Ward has the right to their own counsel and can object to any evidence introduced which supports a finding of incapacity.

If the Court makes the determination of incapacity, the next step is to appoint a legal guardian.

This is a complicated and costly process.  It’s not always unavoidable, but in most cases, a Durable Power of Attorney is a much better alternative.

We, at the Law Office of Debra G. Simms, are glad to assist you with a durable power of attorney and planning for incapacity. Call us today at (386) 256-4882.

LADY BIRD DEEDS

Many of my clients do not have Revocable Living Trusts.  Therefore, upon their death, any real estate they own will have to go through probate (unless it is owned jointly with a spouse or partner).

An option is an Enhanced Life Estate Deed/Lady Bird Deed as part of the estate plan. But, clients must be aware of the advantages and disadvantages of using this type of deed.

When you own property, you may execute a deed retaining the right to the property during your lifetime, with the right for someone else to receive the property after you die. The right to have the property during your lifetime is called a life estate. The right to receive the property after you die is referred to as a remainder interest.

For many years, in order to avoid probate, parents would have deeds prepared retaining a life estate in themselves, granting a vested remainder to their children. This worked well in avoiding probate, as well as preventing reassessment of their property for real estate tax purposes. It also preserved a step-up in tax basis at the death of the parent, since the property wasn’t considered transferred until death.

The disadvantages of this type of deed are that you could not easily undo the transaction. If the parent wanted to mortgage or sell the property, the parent would need the child to sign the mortgage or the deed. If the parent changed his or her mind and wanted to add or remove a child, the consent that child would be required. Even worse, if the child had financial issues and a judgment was recorded against him or her, that judgment could be a lien on the parent’s property. In addition, if any of the children died, his or her share could require probate.

Also, if the parent needed to apply for public benefits such as Medicaid to help cover the cost of Long-term Care, the transfer would be considered to be a transfer of assets which would create a penalty period hampering the parent’s ability to qualify for Medicaid.

The Enhanced Life Estate Deed/Lady Bird Deed adds language in the deed which basically says that the parent has the right to revoke the deed and sell the property to another person without the consent of the child. And, fortunately, this type of deed does not trigger a penalty period for Medicaid.  This type of deed transfer still avoids probate.

However, the law is presently unclear about other issues.

For one, if a parent wants to sell or mortgage the property, some title companies or lenders require the children to sign the deed or mortgage. Any judgment against the child is still, in some cases considered a lien on the parent’s property. This is a very controversial issue and is typically decided on a case by case basis by the title company or lender. Moreover, if the parent changes his or her mind and wants to add or remove a child, the consent of the existing children is still required by many title companies. Finally, if one of the children dies, his or her share may still need to be probated.

While the advantages mostly outweigh the disadvantages, it is important to understand the pros and cons of using an Enhanced Life Estate Deed/Lady Bird Deed.

We, at the Law Office of Debra G. Simms, are glad to assist you in determining if this is the right plan for you. Call us today at (386) 256-4882.

 

If you are now a Florida resident and your estate planning documents were prepared in another State, there are many potential problems.

  • Your out of state Will might not be admissible in a Florida Probate.  If your Will is not “self-proving” (meaning that there is an affidavit stating that you signed your Will in front of the witnesses and a notary all at the same time), then a Florida Probate Judge might not admit the Will without further proof that the Will is authentic.  This adds cost and delay to the probate process.

 

  • Your out of state Will might name a Personal Representative (sometimes called an Executor) who is not a qualified person under Florida Law.  In Florida, the Personal Representative must either be a relative or a resident of Florida.  If you have not named a qualified successor Personal Representative, this could create conflict with your heirs and would certainly add cost and delay to the probate process.

 

  • Your revocable living trust might hold Florida real estate.  If that real estate is your homestead, your trust must contain certain language addressing Florida Homestead requirements.  You do not need a new trust, but might very well need to add an amendment to your existing trust.

 

  • Your out of state Power of Attorney and Medical Directive might not comply with Florida Statutes.  This could create issues and delay when dealing with Florida banks, government agencies, health care providers, etc.  It is best to have Florida specific powers of attorney, especially if you become incapable of handling your own affairs.

 

 

Planning Techniques to Avoid Probate

What is Probate?

Probate is the legal process the Court takes to distribute your property and pay your debts upon your death.  During the probate process, your property is identified, inventoried, and then distributed to your beneficiaries.  The Court makes certain that any and all debts and taxes are paid before any final distribution of assets to the beneficiaries.  If you have a Will, the Court will make sure your assets reach your named beneficiaries; if you do not have a Will, the Court will distribute the property according to the rules of “intestate succession” which is in the Florida statutes.

The probate process has very specific legal requirements and cause problems including:

Delay:

Probate can take a lot of time, anywhere from 3-6 months to over a year.  If you have creditor claims, unpaid taxes, or heirs who contest the Will, the process can take longer.

Higher Legal Fees:

The probate process can become expensive.  According to Florida law, you must have an attorney is required in most probate proceedings.  Attorney’s fees are based on a percentage of the value of the probate estate, but could be based on an hourly rate.  The longer the probate takes, the more it will cost, leaving the heirs with less than intended.  If there are any challenges to the probate, the cost can be very high.

No privacy:

When your Will becomes part of the probate file in the Court, it is a public document; how much you left behind, how much you owe to creditors, and who are your beneficiaries are no longer private family matters.

Ways to Avoid Probate

Build a Trust

One of the best ways to avoid probate is to create a living revocable trust.  A living trust is very similar to a will and allows the role of a trustee to take control in the event of death.  This makes your property no longer part of your probate estate and it avoids the probate process entirely.  You can instruct your trustee, upon your death, how they should transfer the property to the proper beneficiaries.

Joint Tenancy

Another way to avoid probate is to have your property held jointly.  If your spouse or significant other passes, the jointly held property will go to the surviving member, completely avoiding the probate process.  Of course, unless the surviving member then takes further steps to avoid probate, there will be a probate when he or she passes.

Beneficiary Designations and Payable on Death Accounts

If you have completed beneficiary designations on retirement accounts and life insurance policies those assets will pass to the named individual, completely avoiding the probate process.  It is always a good idea to name a secondary or contingent beneficiary, in case your beneficiary predeceases you.

For bank and investment accounts, you can designate the account be “payable on death” or “transfer on death” to a named beneficiary.  This, too, will completely avoid the probate process.

Lady Bird Deed

A “Lady Bird Deed” offers a simple, inexpensive way to transfer real estate upon your death, without probate.  These deeds work to transfer the property upon your death, much like a transfer on death account.  These deeds have some drawbacks, however, and it is advisable to discuss your situation with an estate planning attorney.

 

Contact the Law Office of Debra G. Simms for your free consultation to discuss how you can avoid Probate.

Probate law

probate-lawYou may be a resident of the Volusia County or of New Smyrna Beach or of Port Orange or of Daytona area or anywhere in the surrounding areas, and are in need of a probate lawyer. You need not worry about finding one. There are a number of registered law firms in these areas who can be of help to you.

The legal process that is adopted to distribute the assets of a deceased person to the heirs and beneficiaries by following that person’s will is called probate. The will is first submitted in the court for probate. The probate attorney will help you understand the nuances of probate and its proceedings.

The proceeding

A probate proceeding is started when the person who wishes to be appointed as the personal representative of an estate files a petition seeking such an appointment. An attorney files the petition. The person who wants to become the representative will be in charge of the estate. He or she will look after the payment of all bills and ensure the estate is distributed equitably among the beneficiaries.

A representative is needed when the estate has a significant amount of assets. The court decides the role of the representative. It will issue letters of administration to the representative to clarify the administrative duties of the representative.

Need for the process

In Florida, probate administration is a process supervised by the court. The process helps to identify and gather the assets of the deceased person. It is a means of ensuring that the claims made by creditors of the decedent (the deceased), paying the required taxes and the resulting expenses of administration are addressed and carried out.

If there is a proper will left behind by the deceased, it has to be submitted to the court for probate. The court will follow the will to determine that all desires of the decedent are being followed properly. In the instance that there is no will, the court will follow the Florida Intestate Succession laws and use the process of probate to handover ownership of the property and assets of the decedent to those who are entitled to inherit them.

Probate for non-residents

It may happen that the deceased person is not a resident of Volusia County or anywhere in Florida but has property in Volusia County. But as the property is in Florida, it will fall under Florida Probate laws and rules. A Florida Court in the Volusia County will administer the probate rules and laws. A probate action specific to Florida will be required to pass ownership of the property to the rightful heirs and beneficiaries of the deceased person.

The probate process is very complicated. It requires thorough and expert attention. If you are residing in Volusia County or have estates and property in Volusia and need help regarding probates or want to understand the laws related to it, do not hesitate to contact Debra G. Simms’ law firm. Have a look at the website https://simmslawfirm.com/.

To contact Florida attorney Debra G. Simms, P.A. in Port Orange or New Smyrna Beach, FL please call 877.447.4667.

Probate is the court process for passing ownership of a deceased person’s assets to the beneficiaries. It is also necessary to wind up the decedent’s financial affairs and make sure all the decedent’s creditors are paid.

Probate Assets

Probate assets are property (real and personal) that the decedent owned in his or her sole name on the date of death. They do not include bank or investment accounts that are held jointly with right of survivorship with another individual or accounts that are payable or transferable on death to another. They also do not include a life insurance policy or retirement account that is payable to a specific beneficiary.

There are two types of probate administration under Florida law: formal administration and summary administration. There is also a non-court supervised administration proceeding called “Disposition of Personal Property Without Administration.” This type of administration applies only in limited circumstances when the amount of the assets is very small.

Florida probate law: formal administration and summary administration

In a formal probate administration, the required documents are filed with the Clerk of the circuit court in the county where the decedent lived at the time of his or her death. The Circuit Court judge assigned to the case signs all Probate Orders and presides over hearings in the matter. If there is a Will, the judge approves the Will and appoints the Personal Representative named in the Will. If there is no Will (this is called “intestacy”), the judge appoints the surviving spouse or another family member to be the Personal Representative.

The Personal Representative is in charge of the administration of the decedent’s probate estate and has a legal duty to administer the probate estate pursuant to Florida law. In most cases the Personal Representative will be required to be represented by an Attorney who will provide legal advice throughout the process. Many legal issues arise, even in the simplest probate estate administration, and most of these issues will be unfamiliar to non-attorneys. The attorney for the personal representative is not the attorney for any of the beneficiaries of the decedent’s probate estate.

“Summary Administration” is generally available only if the value of the estate subject to probate in Florida is not more than $75,000, and if the decedent’s debts are paid. Summary administration is also available if the decedent has been dead for more than two years and there has been no prior administration.

Debra G. Simms

To contact attorney Debra G. Simms, P.A. in Port Orange or New Smyrna Beach, FL please call 877.447.4667.

Avoiding Florida Probate Costs

Anyone who’s dealt with Probate in Florida knows how costly it can be.  There’s the filing fees (currently at $400.00).  There’s the publication fee (varies from county to county, $75-$300), and then there’s the attorney’s fees.
Some attorneys charge a flat fee for summary administration  (estate assets are less than $75,000 or death occurred over 2 years ago) but for a formal probate most attorneys charge an hourly rate or a percentage of the estate.  Some attorneys use a blend of hourly rates and a fee based on the percentage of the total assets.  Florida law allows attorneys to charge up to 3% of the amount of the assets.

Personal Representative Fee

Then there is the fee paid to the Personal Representative.  That can also be up to 3%.  Many times, a family member will refuse to be compensated for his or her duties as a Personal Representative.  But, not always.  I have encountered many situations where the designated Personal Representative is a family member and seizes this opportunity to receive a greater share of the inheritance.

Many of my clients come to me and ask for information about revocable living trusts to avoid probate. They have heard  tales of probate horror stories with the result that many Florida residents want these trusts.  What they don’t know is that  their designated trustees, who are also often the beneficiaries, (in most cases, their children) can be personally liable to the deceased’s creditors for up to 2 years if there are assets in the trust.
Fortunately, the summary probate with a publication of notice to the creditors can solve this dilemma.  There is always at least one asset left out of trust, and if not, items such as cash, personal property, car, can be used to open a Summary Administration.  The notice of Summary Administration is then published and filed with the Court.  Now, all claims not filed  withing 3 months of publication of the notice “shall forever be barred.”
So, by all means, consider a revocable living trust to avoid the costs of a full probate administration.  But, remember, you may have creditors when you die and they need to be paid.  Consult with an attorney to learn the best ways to accomplish all your Estate Planning goals.
Call for a consultation for Estate Planning and Probate.
Debra G. Simms
To contact attorney Debra G. Simms, P.A. in Port Orange or New Smyrna Beach, FL please call 877.447.4667.
Many of my clients are adult children or close relatives of seniors who are having serious memory problems.  In many cases, the senior did not, would not, and now, can not, make a durable power of attorney naming a trusted person to act as agent in case of incapacity.  What are the options now?
Usually, the only option at this stage is guardianship – a process whereby the probate judge oversees guardianship administration.
First, a petition for incapacity must be filed by an interested party.  The Court will appoint an examining committee of 3 persons to visit the ill person and determine if he or she is incapacited.  The nature of the incapacity can be limited to the person or the person’s property, or both, which is called plenary guardianship.  The ill person will also receive a court appointed attorney.  An incapacited person is referred to as the Ward in these proceedings.
Second, the person who desires to be appointed guardian must apply to do so.   The Court must approve the guardian.  Sometimes, a bond will be required, depending on the size and nature of the assets.  The new guardian is also required to take a guardianship education course, unless it is waived by the Court.
The responsibilities of the guardian are dictated by Florida statute.  A guardian of property is required to file an initial guardianship report within 60 days of appointment. Such report must contain an inventory detailing the property, assets, and income of the Ward.  The inventory must also include any trusts of which the Ward is a beneficiary.
Thereafter, each guardian must file an annual accounting with the Court.  The annual accounting must include a full and correct account of the receipts and disbursements of all the Ward’s property over which the guardian has control.  The accounting must also contain a statement of the Ward’s property on hand at the end of each accounting period.
Florida law also now provides that a plenary or limited guardian of the property of the Ward has the power to create or amend a revocable trust or create an irrevocable trust with the Ward’s property for estate, gift, or tax planning. This power is important in Medicaid planning and for Special Needs Trusts.
A guardian is a fiduciary and must always act in the Ward’s interests.  At the Law Office of Debra G Simms, we offer full guardianship services, from preparing the petition and guardianship pleadings, attending court, to assisting the guardian in executing the above detailed responsibilities.
Call us for a consultation.
Debra G. Simms
Orlando: 407-331-4529
Debra G. Simms

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