Will - Simms Law Firm

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 Blog topics may or may not be updated and entries may be out-of-date at the time you view them.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

Recent Court Decision is a Reminder to Carefully Plan Your Estate

The case involved a widow (the second wife) and the children form the first marriage. The decedent had executed a Will in 2005 and another Will in 2010 that gave most of the assets to his second wife.

The daughter sued the widow claiming she had exerted “undue influence” on the frail father and thus interfered with the daughter’s expected inheritance under the first Will. The daughter asked the Florida Probate Court to invalidate the 2010 Will and distribute assets to the children based on the 2005 Will.

After winding through the Courts, a Florida appellate court found in favor of the widow and probated the 2010 Will. The case was in court for 7 years!

As this prolonged dispute shows, estate matters can be complicated even when there is a written Will. Estate Planning involves several important considerations; “blended families” pose special challenges. Competent legal advice is based upon the specific circumstances.

Questions? The Law Office of Debra Simms is here to help. Call us today 386.256.4882

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

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

Is Your Will a Private Document? NO!

In Florida, a Will must be filed with the Clerk of Court in the county where you are residing at the time of your death. A Will is a public record. Other documents that must be filed during the probate process are the Inventory and Accounting-documents which contain very specific information about your assets.

This issue was recently in the news when The New York Times filed a lawsuit seeking access to the sealed Will of Harper Lee, author of To Kill a Mockingbird. The Times argued that “Ms. Lee’s privacy concerns were no different from those of others whose wills are processed through the court system.” The Times won, and Harper Lee’s Will is now a public record.

You can avoid this public process and keep your affairs private through the use of a Revocable Living Trust. Like a Will, a Trust’s main purpose is to control the disposition of your property at death, But, unlike a Will, one of the advantages of a Trust is that there is no Probate and no public airing of your assets in a filed Inventory.

With a Revocable Living Trust, your property and their values remain private.

Questions? The Law Office of Debra Simms is here to help. Call us today 386.256.4882

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

Wills

A Will allows transfers of property to your beneficiaries when you pass
In a Will, you, and not the State of Florida, get to name your beneficiaries
A Will permits a parent to name a guardian
A Will permits you to name your Personal Representative (Executor)
A Court process called Probate will be necessary to transfer your assets when you pass

Revocable Trusts

Like a Will, a Revocable Trust allows transfers of property to your beneficiaries when you pass
Like a Will, you, not the State of Florida, get to name the beneficiaries
With a Revocable Trust, you can plan for future incapacity by designating a Trustee to manage your assets
With a Revocable Trust, your beneficiaries will not have to be involved with Probate in order to receive title to your assets when you pass
A Revocable Trust does not require any court filings so your assets and values remain private
A Revocable Trust is harder to challenge.

Questions? The Law Office of Debra Simms is here to help. Call us today 386.256.4882

I was listening to the radio this morning and heard a woman, vacationing in Hawaii this past weekend, describe her fear and terror as she learned she was under threat of a (false) missile attack. What was her first thought? “I need to call home and tell someone where my Will is!” So….

Where is the best place to keep your signed original estate planning documents?

The best place is probably in a safe deposit box because it will protect the documents from theft, fire, accidental loss, and most other types of damage or harm. A potential problem, though, is getting it opened after your death.

If you decide to keep your estate planning documents in a safe deposit box, consider naming a family member or your Personal Representative or trustee as a joint holder on the box. That should simplify matters following your death because someone will be able to get into the box without delay.

Many people keep their original estate planning documents at home in a secure place. If you have a safe at home, that can be a good place to keep them. Be aware though, when thieves enter your home and discover a locked safe, they often take the whole safe thinking they’ll find cash and jewelry. The last thing they want is a file containing your estate planning documents, but that’s one of the things they’ll get if you keep them in your safe. Therefore, unless your safe is bolted to the foundation of your house, it may not be the best place to keep your originals.

More people than you would expect keep original Wills and other estate planning documents in an air-tight plastic bag at the bottom of their freezers. Freezers are well insulated and heavy, and have a way of withstanding fires, hurricanes, and tornadoes. Also, they don’t die or move away, and they are stolen far less frequently than in-home safes.

Should I give copies of my Will and other estate planning documents to my children and to the Personal Representatives of my estate?

For some people, their estate planning documents are as private as their income tax returns, and nobody is ever given copies. For other people, estate planning documents are no different than a spare key to the house, and every family member and Personal Representative and/or trustee named in the documents is given a copy.

If you are the type of person who values your privacy, who does not especially trust your children, Personal Representative, or trustee, or if you have written a Will or trust which does not treat all the children equally, then it may not be a good idea to hand out copies. Also, you may have more money than your children expect, and depending on how your Will or trust is written, giving them a copy may be letting them know too much about your personal business.

Questions? The Law Office of Debra Simms is here to help. Call us today with questions. 386.256.4882

This Law Office will be presenting seminars on Living Trusts. The upcoming dates are February 9^th and February 23^rd. 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:

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.

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.

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.

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!

Contact Us

Port Orange Office:
Prestige Executive Center
823 Dunlawton Ave. Unit C
Port Orange, FL 32129
Local: 386.256.4882