Will - Simms Law Firm

Do You Have a Living Will?

Clients come to my office to talk with me about planning for incapacity and death. These are hard conversations to have, even in an elder law attorney’s office.

Of all the documents that I prepare, the Living Will, gives my clients the most trouble.

This document, a dying declaration, states what kind of end-of-life care you want when there is no medical probability of recovery. Most people do not want to be kept alive artificially.

But what does that mean? Do you want a feeding tube? Hydration? Blood transfusion? How far are you willing to go? And what about dementia? Do you want to be force fed when you no longer have hunger or the ability to feed yourself?

And who should be your advocates or decisions makers? A family member (who might not be willing to let you go) or a medical person that you trust?

Knowing your legal rights and putting them in writing will help ensure that your wishes are met.

An elder law attorney can help guide you through this difficult conversation.

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 Blog topics may or may not be updated and entries may be out-of-date at the time you view them.

How to Dispose of your Personal Property When you Pass

Florida law permits the use of a separate writing referred to in a Will to dispose of tangible personal property if it is not otherwise mentioned in the Will. The separate writing must be signed and dated by the maker of the Will and must describe the items with certainty- think “my diamond ring with 2 side rubies”.

The writing does not need to be witnessed or notarized and may be prepared after the execution of the Will. It can be changed, but it’s a good idea to resign and re-date the new writing so there is no confusion as to your intent. The most recent writing will be deemed to revoke any prior writing.

There is no prescribed form for this writing- some lawyers provided sample forms, but you could use any paper-even the back of an envelope!
Tangible personal property does not include cash, bank accounts or real estate. A separate writing is commonly used for jewelry, art, or sentimental items of value to you or your loved ones.

While a separate writing can be altered or revoked by marking through the entry and then re-signing and re-dating, never do this on a Will or Trust. Codicils or amendments to your Trust must be made with the same formalities as the original instruments.

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

Keeping Digital Assets in the Family

Nowadays, many of us have “digital assets”. Digital assets include Bitcoin, blogs that earn income, reward points for credit cards or airlines, and those with sentimental value such as digital photographs and social media.

To make sure that these important files can be passed on to your heirs, you need to take certain steps.

First, make a digital asset inventory. Second, ensure your spouse, heirs, or representatives can access them.

You can have a password manager on your computer or smart phone for these devices. But federal privacy laws may prohibit others from accessing your account.

Some companies such as Google and Facebook now have settings where you can name a person who will take over your account after your passing.

For other accounts, you should have an up to date Will, Trust, and Durable Power of Attorney which specifically permits your designated agent to access these accounts. Florida is one of the states which now has a Fiduciary Access to Digital Assets statutes which governs and enforces these documents.

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

AFTER THE DEATH OF A SPOUSE

After a spouse has died, it can seem impossible to focus on the details, let alone make important decisions. Here is a list of what should not be delayed:

Connect with attorneys, accountants, and financial advisors
Secure your finances – most importantly find out what assets are immediately available to you
File paperwork to claim insurance proceeds and retirement funds
Locate the Will and/or Trust

Later on, focus on:

Estate administration- are there are tax returns to file? Is a probate needed?
Analyze assets and cash flow needs – take a closer look at the full picture of assets available presently and in the future. Have you inherited IRA’s? Should a new investment adviser be consulted?
Do you need to update your own estate plan? Have you updated your beneficiary designations on your IRA’s and life insurance?

As you move from short to long-term considerations, take the time you need to make these important decisions and create your own team of investment and legal advisors.

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

END OF LIFE OPTIONS

One of the services that I offer my clients is a Living Will. This document is a legal declaration of what type of care your wish to have if you are in the end stage of life and there is no medical probability of recovery.

Many of my clients struggle with this document-typically it is because they cannot decide whether they would want a feeding tube or artificial hydration at the end stage.

Here are some common myths that contribute to this difficult decision along with the response of Tani Bahti, nurse:

Myth: If people don’t eat, they should get a feeding tube or they will starve to death.

The needs of the body and its ability to process food changes in the final months of life. People do not die because they are not eating, but rather they do not eat because they are dying. Complications due to forced feeding and the use of tube feedings can actually hasten dying.

Myth: Not drinking leads to painful dehydration.

Natural dehydration is comfortable and releases endorphins which promote comfort. Unlike in a healthy person, providing artificial fluids near the end of life may actually increase discomfort. Natural dehydration results in less chance of nausea and vomiting, swelling, and lung congestion.

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

The Role of an Estate Planning Attorney

Planning for end of life is a difficult but necessary process. Part of this planning is the creation of a legally binding estate plan that dictates your wishes and appoints certain people with the responsibility of carrying out those wishes.

Using an experienced estate planning attorney is advised. The attorney can walk you through the process from start to finish, prepare the documents, and make sure that the documents are properly executed.

Another advantage of using a professional estate planning attorney is to ensure that your real estate and other assets are properly titled to be certain that legal title is clear and assets can be transferred to your selected beneficiaries. This process can include advising on deeds, pre- and post-nuptial agreements, and marital settlement agreements after divorce.

An experienced estate planning attorney can also advise you on other end-of-life choices, such as financial and medical directives, organ donation, disposition of remains, and similarly important decisions. Without an estate planning attorney’s assistance, you may find yourself setting your family up for more hardship as the result of poor planning.

An attorney can also advise clients about how to best provide for beneficiaries with special needs, educational requirements, or other considerations. The attorney can also create a plan for meeting philanthropic goals and include charities or other organizations in your estate plan.

Planning ahead is important for everyone, no matter how large or small the estate. Using an experienced estate planning attorney will ensure that your plans can be carried out.

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.

The content of your will and other estate planning documents is very important. If you choose to write your will yourself, your family could face a number of obstacles after you are gone. As your will passes through probate court, its content could be challenged by anyone who feels they were wronged. An estate planning attorney can help you avoid such dilemmas by ensuring that all wording is clear and that your intentions are understood.

Your will can also be challenged if it was not signed according the requirements of your state’s statutes. Having a wrongly signed will is the same having no will at all.

An experienced attorney can also help avoid having to probate your will, resulting in cost and time savings for your family.

An estate planning attorney also has knowledge of financial issues that may affect your estate. Drafting a will is not just about who will end up with your money and your house. An attorney will look at all aspects of your finances, such as any retirement accounts you may have and will also consider your debts. There might be other details to consider such as who will care for your pet when you pass.

A properly drafted estate plan can give you peace of mind. It is important to remember that having a will is important no matter the size of your estate. Each estate is different, and an attorney can help you find an estate plan that best meets your needs.

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

“Problem” Heirs

Do you have a child or heir with credit problems or a drug or alcohol problem? Or maybe your child is having marital problems and you do not want their spouse to end up with your money! None of us want our life’s earnings to be squandered, and an inheritance could end up making matters worse.

You might not want to disinherit your child entirely because of his or her personal problems. Here is a solution to allow you to control your child’s inheritance and insure that it won’t be squandered or misused.

Create a Trust! A Trust can pass wealth to an heir while controlling how, when, and why your heir can access the funds. One of the advantages of a Trust is flexibility. Here are some of the ways you can accomplish your goals:

Appoint a Trustee who can resist the pleas of a desperate beneficiary. Do you have a close relative who can do this? If not, appoint a professional Trustee, such as the trust company of your bank.

Specify the specific circumstances under which the funds will be paid out. Or, you can give the Trustee complete discretion over disbursement decisions. For example:

If you heir has drug or alcohol problem, require drug testing before the funds are paid. Or give your heir incentive to change by structuring lump-sum disbursements after prescribed periods of time – perhaps require five years of sobriety.

Create an incentive for work by disbursing funds that are tied to wages or earnings.

Direct that payments must be made directly to third-party providers such as a landlord, mortgage company or utility company.

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

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