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Divorce brings a season of change to your life. Some of the changes may be difficult, while others are welcomed. But some changes are incredibly necessary. Updating your estate plan falls into the last category. It is essential your estate plan and documents be reviewed and modified following your divorce. Here are some of the top considerations to keep in mind as you go through the process of changing your estate plan.

Where to Start Updating Your Florida Estate Plan

As soon as it may be practical to do so, you should go over your estate plan and look for changes that need to be made, including:

Beneficiary Designations

If you have retirement accounts, life insurance policies, wills, or trusts set up, review the beneficiary of these. Many Floridians list their spouses as the beneficiaries of these accounts. Without updates, such a designation would continue even after your divorce is finalized.

Designation for Guardian and Power of Attorney

Perhaps you designated your ex-spouse as your children’s guardian and as your power of attorney in the event of incapacitation. Speak with your Daytona Beach probate attorney about possible parties you can name as guardians over your children. Likewise, your attorney may be able to suggest others who may be a more suitable power of attorney than an ex-spouse.

Gifts of Property

Your will may include gifts of specific property to in-laws and other extended family members. As you’re reviewing the beneficiaries of your will, ensure that any specific bequests of property are also updated as necessary.

Help from a Qualified Daytona Beach Probate Attorney

Changing beneficiaries for financial accounts and legally amending your will can be a complex process. An experienced probate attorney in Daytona Beach can be a helpful guide as you set out to accomplish these tasks in a timely, effective manner.

Can You Vote for a Disabled Person with a Power of Attorney?

NO.

In Florida, you cannot use a power of attorney to vote on behalf of someone else.

The point of a power of attorney is to act in place of the maker of the power of attorney. We normally see this being done in banking and healthcare decisions.

But, voting is an act that is uniquely personal, and a power of attorney is typically not permitted to perform acts that are so personal to the principal. Any exception would have to be made by statute.

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.

ESTATE PLANNING ESSENTIALS

In Florida, an estate planning attorney can help with the completion of four very important documents that are necessary such as a:

last will and testament with or without guardianship depending on a scenario where there are minor children,
an advanced healthcare directive,
durable power of attorney, and
living will

A Last Will and Testament is important for the purposes of explaining where and how an individual would like their assets divided, debts resolved and who will be the Personal Representative of the Estate.

An Advance Healthcare Directive is the document that details the type of care you want administered in the event you become disabled and cannot speak for yourself. In Florida this essential documentation is sometimes called a medical directive or advance directive.

A Durable Power of Attorney designates another person to conduct business on your behalf when you cannot. In the event of disability all other powers of attorney become ineffective except for this one document; the durability of this document allows it to survive disability and is fundamental to estate planning.

A Living Will is a declaration regarding your choices of medical care if you are in an end-stage condition, persistent vegetative state, or terminal condition, AND where there is no medical probability of recovery.

The Law Office of Debra G. Simms can be of assistance in the preparation of estate planning documents. The initial 30 minute consultation is free.

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

From the New York Times:

Sisters Joslin Roth and Darci Bernard realized years ago that there was a need in Seattle for pet death care. Ms. Roth says that “you could do stand-up paddleboard yoga with your dog but couldn’t visit a death care provider.” So in December 2016, the pair opened Resting Waters in West Seattle where they offer their clients aquamation, a water-based alternative to flame-based cremation.

Jerry Shevick, a former television executive, knew that the pet industry as a whole increases every year. Understanding this fact as well as the knowledge that owners want to care for their furry loved ones as they would a child or family member, he started Peaceful Pets Aquamation in Newbury Park, California, in 2013. He offers the service because of the decreased carbon footprint, stating that aquamation “really uses the same components that natural decomposition uses. With people paying attention to climate change, it’s becoming more interesting to people as well.”

The pet death industry is not yet as regulated as human funeral services. Occasionally, though, someone seeking to open an aquamation facility will have difficulty convincing wastewater-treatment officials that the process is sufficiently pure. Nearly 20 states that have recently legalized aquamation as a means of dealing with human corpses including Washington and California… (and Florida!)

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

Estate Planning for Singles

Single people with no children are usually able to save more money than others and yet it may be likely that they have not put much effort into their estate plans.

Here are 4 simple tips for single clients:

Execute a durable power of attorney and a healthcare advance directive.
- Even those without children do not live forever, even though mortality may not be showing in their faces like those with children! Establishing a durable power of attorney and a healthcare advance directive will allow another person to make important financial and medical decisions for a single client, if it becomes necessary to do so.
Make a will.
- With no direct descendants nor a spouse, a will is necessary in disposing of assets. The client can name the executor/personal representative to handle the affairs, and the will can name the beneficiaries.
Create a revocable trust.
- A trust can be used to avoid the costs and delays of probate.
Consider estate taxes.
- Singles have no direct descendants, so any beneficiaries will be receiving a windfall. If giving these beneficiaries more and the government less is important, the single individual should consider charitable giving as a means to lower taxes.

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

What is the difference between a Designation of Health Care Surrogate and a Living Will?

A Designation of Health Care Surrogate is a document that allows you to name an agent to make medical treatment decisions for you in accordance with your wishes if you are not able to do so yourself.

A Living Will is a document that allows you to address what kind of medical treatment you would like to receive if you ever face a terminal or irreversible medical condition. It is often referred to as the document where you tell the doctors to “pull the plug.” Most people request that all treatments other than those needed to keep them comfortable be discontinued or withheld so they can be allowed to die as gently as possible.

The main difference between the two documents is that the Living Will is where you actually express your own specific preferences as to the use of life-sustaining treatment, and the Designation of Health Care Surrogate is where you name one or more persons to make most medical decisions for you.

It is not uncommon to combine a Living Will and a Designation of Health Care Surrogate into a single form. Preparing the two documents as separate forms or as a single form are both valid ways to address the medical issues.

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

Many people do not revisit their estate plans once it has been created, but changes in circumstances mean that it’s time to pull it out and make changes. Death of a spouse, divorce, remarriage, birth of a disabled grandchildren, are some of the triggers.

Keep your beneficiary elections updated. These designations supersede your will or Trust. A first step for anyone who’s gone through a divorce is to check the beneficiary designations on retirement and other financial accounts. A lot of people walk away from their spouse, but never do any of the clean-up work.

Bottom Line. While it may seem easy to put off doing your initial estate planning or updating your planning until later, it’s the most important way you can protect your assets during your life and pass them along to those you care about. Final Wishes are just that – wishes. You need legally enforceable documents to ensure your wishes will be carried out.

Call the Law Office of Debra G. Simms for a free initial consultation.

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.

The New York Times Reports:

Nursing homes have long blocked abuse and harassment claims from reaching courts. A major new federal rule puts a stop to that.

The federal agency that controls more than $1 trillion in Medicare and Medicaid funding has moved to prevent nursing homes from forcing claims of elder abuse, sexual harassment and even wrongful death into the private system of justice known as arbitration. Read 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