Category Archives: Will

  • Do you have a Will?
  • Do you have a Trust?
  • Do you have a Power of Attorney?
  • Do you have a healthcare proxy?
  • Do you have a Living Will?
  • Do you have all your important documents in one place?
  • Do your next of kin know where your papers are in case of emergency?
  • Have you talked to your doctor and provided a copy of your advance directives to enter into your medical records?

If you have answered no to any of the above questions, please speak with a licensed attorney.

Here at the Law Office of Debra G. Simms, we offer a free consultation to address these concerns.

Probate is a court process that transfers assets owned by a deceased person to the beneficiaries named in their Will.

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.

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.

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.

There are many ways to transfer your assets to your beneficiaries and also AVOID PROBATE.  Avoiding probate will save your beneficiaries time and money.

Contact the Law Offices of Debra G. Simms to learn how you can avoid probate.

What is a Valid Will in Florida?

A will is a document that determines who receives a person’s property when they pass away. Florida law requires that a will must be signed by the testator (the person writing the will) and two witnesses to be enforceable. The testator must either sign in front of the witnesses or tell the witnesses that he or she previously signed the will. The witnesses must sign together in the presence of each other and in the presence of the testator. The rules for the execution of wills are found in Florida Statute 732.502.

It is not necessary for a will to be notarized for the document to be valid. Notarized wills are preferred as they are easier to admit to probate court. A notarized will is referred to as a “self-proved will.” When a will is not notarized, a witness to the will must make a statement to the probate court confirming that they witnessed the will. When a will is notarized, a witness statement is not required. It is easier to have a will notarized.

What Happens When You Die in Florida Without a Will?

When a person dies without a will, their assets go to their spouse and/or closest relatives. Florida Statute sections 732.102 and 732.103 specifically determine how a decedent’s property is divided when they die without a will under the 2022 Florida Probate Rules. This process is referred to as intestate succession.

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.

 

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.

 

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.

No one wants to think about dying and for some of us, death is a subject that we would rather not discuss. We believe that there is no hurry to consider the issue and that we have plenty of time left. However, this line of thinking about end-of-life matters can often result in delaying dong the mechanics of it until it is too late.

Your will is not merely a legal document. It is an expression of your wishes and it is also a way for us to continue providing for our loved ones even after we are gone. Even without a Will, there are default rules that will apply to distribute your estate. These rules are in most cases cast in stone and may not take into account the specific needs and circumstances of our chosen beneficiaries. Caring and loving our family should not stop with our death, we can easily create legal documents including a will that will ensure our wishes are carried out. A will is an easy way to look after our loved ones when we are gone.

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.

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.

Key elements of an estate plan:

An experienced estate attorney can develop personalized strategies and documents that meet your needs. This could include a:

  • Will. A legal document that defines the distribution of your property and the care of any minor children.
  • Revocable trust. A legal entity created for ownership of your assets. You can change or end your revocable trust at any time.
  • Power of attorney. A legal document giving a person you choose the ability to make decisions for property, finances, and/or medical care when you are unable to do so.
  • Healthcare directive. Written documentation of your health care wishes for when you cannot communicate them yourself.
  • Beneficiary designations. A will does not supersede beneficiary designations in determining who receives your assets after you die. For that reason, all financial accounts (regardless of size) should have beneficiaries named — and updated over time, as needed.

HIPAA authorization. Allows health care providers to discuss your medical condition/health information with family members or others you choose.

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.

Do you have more than one child or grandchild that you need to consider in your estate planning? In order to avoid conflict, many parents and/or grandparents decide to leave their children the same inheritance. While this makes it easy it may not be equitable.

The pandemic has increased the number of wills being drafted and executed, this issue is coming up more frequently.

There are many examples of this situation we can refer to, in particular one in which a family with multiple children felt that their primary caregiver should inherit more than the children who did not live near them and did not participate in their care.

This often causes disagreement and contention between family members, while it is a difficult conversation to have it is one that should take place to avoid costly drama after the fact.

According to a survey by Merrill Lynch Wealth Management and the consultant Age Wave, “two-thirds of Americans 55 and older said a child who provided them care should get a bigger inheritance than children who did not.”

Different families approach these situations based on what their personal definition is of fair. Some families decide to divide things equally between their family members to avoid conflict, others based on “merit” or who they feel earned more in the long run.

Equal is not always fair and fair is not always equitable.

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.

 

When creating an estate plan, dividing your assets can be very difficult. You are more than likely trying to figure out how to allocate your possessions in a way that will not create tension between your family members after you are gone.

Although cash is usually easy to divide, tangible things like jewelry and heirlooms will not be as easy to divvy up. You may also have items that hold sentimental value that multiple family members are hoping to have. Many a family fight has been centered around these types of objects. 

You should make it very clear who you choose and why you have chosen them. 

Below are a few steps to help you along the way:

  • List the most important or valuable items in your will
  • Direct that certain items be sold
  • Give some items away now
  • Get an appraisal
  • Use a letter 

If you make these decisions instead of leaving them in the hands of your family, the process will be much smoother.

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.

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