I saw the well acclaimed movie, “The Descendants”, last night.  It was ok – not great, a little slow, and sometimes over the top.  But it’s one of those movies that makes you think. About love, money, parenting, life and death.
While my movie companion thought the scenes between father and daughters revolving around their dying mother’s adultry were very unrealistic, I thought they were true to life and depicted a father-husband dealing with shock, grief, anger, and fear.  After 24 years of practicing law and dealing with families during the hardest times in their lives, I thought George Clooney’s reactions and actions were completely understandable and probably not that uncommon.  He certainly deserved my compassion.
Viewing the movie as an estate planning attorney, I was also struck with how important it was for the family that their dying mother had made her end of life issues clear and legal.  She had prepared a health care advance directive and left no doubt that if she were in a vegetative state she would not “want to lay there and spoil like milk.”  Her clear directives made it possible for the family to carry out her wishes and begin to move on with their lives.  No one, not her parents, her brother, or her close friends, could take issue with Clooney’s actions to end his wife’s life support.
Advance health care directives and living wills are important for all of us at any age.  Please call me for a consultation.

How often do you hear this? “What, you don’t have a Will? The State will take everything from you!”

Well, not true, not true at all. Unless nobody knows you died and nobody comes forward to claim your money!

However, most of us have heirs who stand to receive a share of our assets after we die, even if we don’t have a Will.

What does happen if you die without a Will? This is what is known as intestacy. If you die intestate, then the law of the state you live in when you die governs how your property is distributed. This law is based upon your marital status and whether you have any descendants.

Is your estate planning up to date?

The intestacy law of Florida significantly changed in Florida on October 1, 2011. Under the new law:

    • If you die without a will and you are married and have no children, or your children are of this marriage, then your spouse inherits all your property.
    • If you are married and have children from another relationship(s), then your spouse receives one-half of your assets.
    • If you have children with your current spouse, but your spouse has children from other relationship(s), your spouse receives one-half of your assets.
    • If you have no survivng spouse, your children inherit your property.
    • If you have no children or grandchildren, then one-half of your assets pass to your mother and one-half to  your father, or all to the survivor.
    • If neither of your parents are alive, then to your brothers or sisters.
    • If you have no living brothers or sisters, then to your nieces or nephews.
    • If you  have no nieces or nephews,  your assets will go to your grandparents; however, if you have no living grandparents, then to your uncles and aunts and then to their children.
    • If you have no relatives on either your mother’s or father’s side, then all your assets pass to the descendants of your last deceased spouse.

Now here is the part where the State gets all your money.  If there is no one in the line-up discussed above, then your property passes to the State.  In Florida, it is deposited with the Chief Financial Officer in the state school funds.  If no one comes forward to claim the funds in 10 years, then the State gets to keep the money.   To see if there is any money waiting for you, go to: Florida Treasure Hunt at:  http://www.fltreasurehunt.org/index.jsp

So, do you need a Will?  Maybe not.  In fact, you may not need a will as much as your family will need a lawyer to sort things out after your death. At the Law Office of Debra G. Simms, we don’t just sell documents. We sell relationships and the ability to help families when they are dealing with the loss of a loved one.

Is your estate planning up to date?

Contact us to discuss all your estate planning needs.

Call our Orlando office at 407-331-4LAW. 

Effective Oct. 1, 2011 Florida’s new durable power of attorney statute becomes law.  This is the first major change to the statute since Oct. 1, 1995.
Durable powers of attorney now require two witnesses and a notarization, but under the new law, out-of-state durable powers of attorney will be honored if they were valid in the home state at the time of execution.

This is good news for Florida snowbirds, who finally got it right and adopted our state as their own, right?  Not so fast!  Florida has some very picky durable power of attorney interpretation statutes that still can still trip up an out-of-state durable power of attorney.

The new durable power of attorney statute still requires specific authority to grant certain powers to your agent or your agent will not have that power.  Broad grants of authority, like “to do everything the grantor could do,” are invalid.
However, the new statute now requires that the person making the power of attorney initial or sign next to certain types of powers in the document for those powers to be authorized. These powers involve changing beneficiaries, creating trusts, making certain gifts, or other estate planning transactions.
The new statute also includes some very special language for banking and investment transactions. Financial institutions now have only four days to review a durable power of attorney presented to them.  But, since this period can be extended under some circumstances, it is probably a good practice to give your financial institution a copy of your durable power of attorney. That way, the bank can review it, and you can be assured it will be honored when it is needed.
People often ask me how often they should have their legal documents reviewed.  When it comes to Powers of Attorney,the time is NOW.
Call our offices for a consultation so we can review your existing documents.
Altamonte Springs, FL
Toll free- 1-877-447-4667
A large part of practice as a Florida estate planning attorney is devoted to working with new retirees who have decided to give up their residency up north and become permanent residents of Florida.  Aside from helping them overcome the hurdles created by their former northern state of residence that still wants to collect tax dollars from retirees who maintain what they now consider to be their second home, another obstacle that must be overcome is an estate plan drafted in their northern state that will most likely not work very well in Florida.  Here is a list of the problems with northern estate plans that I run into frequently:

1.  The last will and testament is not self-proved.  F.S. §732.503 provides that a last will and testament can be made self-proved when the testator signs an affidavit in front of two witnesses and a Notary Public who also sign the affidavit in front of the testator and Notary.  The affidavit can then be used as evidence that the testator and witnesses signed the will with proper legal formalities required by Florida law.  Unfortunately many wills I review that were not created under Florida law lack a self-proving affidavit.  What does this mean?  It means that before the will can be admitted to probate in Florida, at least one of the people who witnessed the will must be located and asked to sign an affidavit attesting to the fact that they actually witnessed the testator signing the will.  This, in turn, will create extra steps and expenses and can significantly delay the appointment of a personal representative.

2.  Disqualified personal representatives are named in the last will and testament.  Florida law requires that the person named to serve as the personal representative of a Florida estate must either be a Florida resident or related to the testator by blood or certain marital relationships (see F.S. §733.304).  This means that if a friend who isn’t a Florida resident or the attorney from up north who drafted the will is named to serve as the personal representative, then he or she will be disqualified from serving in Florida.  And that’s it, there isn’t any argument that can be made or exceptions to the rule, the disqualified person will simply not be allowed to serve.

3.  Revocable living trusts ignore Florida homestead laws.  Many northerners who buy a second home in Florida title the home in the name of their revocable living trust in order to avoid Florida ancillary probate after they die.  But then when the owner decides to make their Florida second home their primary residence and apply for the Florida homestead exemption with regard to real estate taxes, their northern drafted revocable living trust won’t contain any references to Florida homestead laws, and so the Florida property appraiser will have to reject the homestead application.

4.  Revocable living trusts of married couples ignore Florida homestead laws.  What happens when the northerners are married and decide to title their Florida second home in the name of their revocable living trusts, and then, as above, the couple decides to make the Florida home their primary residence?  If the couple’s northern drafted revocable living trusts contain typical estate tax planning through the use of AB trusts, then when one spouse dies the Florida home will not pass into the A trust or B trust but will instead be distributed as provided by Florida law.  This, in turn, will completely defeat the couple’s estate planning goals and may very well land the surviving spouse and children in court, particularly if the deceased spouse had children from a prior marriage. 
 5.  Durable Powers of Attorney are inadequate.  On October 1, 2011, Florida enacted a new power of attorney law that made sweeping changes to the laws governing durable powers of attorney.  Florida law now requires that the powers delegated to an agent under a power of attorney must be very specific.  In other words, a catch-all phrase such as “my agent can do anything that I can do as if standing in my shoes” won’t cut it anymore.  Instead, the powers given to the agent must be enumerated in detail.  Anyone who owns assets in Florida should consider signing a new power of attorney that complies with the new Florida power of attorney law.
The bottom line:  Many wills, trusts, powers of attorney and other estate planning documents drafted in northern states won’t cross state lines into Florida very well.  If you’re making the move to become a Florida resident, or if you’ve already become a Florida resident but haven’t updated your estate plan, then it’s very important to have your northern-drafted wills, trusts and other documents reviewed by a Florida attorney estate planning attorney to insure that your estate plan will work in Florida the way you expected it to work up north.

When I looked out the window to see my clients pull in the parking lot, I saw a new sports car. The couple who entered my office was well dressed and the wife was wearing a sizable diamond ring and a designer hand bag. The intake sheet listed a home address in a lovely gated community.

The veneer of wealth vanished on page 2 of the intake form. Home equity? None. Mortgage payments? Two of them.  Credit cards?  A dozen maxed-out and using another to pay minimum balances.

You are thinking that this couple came to see me for bankruptcy advice. Nope. Estate Planning! They were expecting a large inheritance from husband’s mother. Due to a terminal illness, the nest egg was about to pass down the line.

According to the Center on Wealth and Philanthropy at Boston College, despite the current economic downturn, more than $20 trillion will be transferred to heirs in the next 50 years — the largest transfer of wealth in U.S. history.

The prospect of an inheritance stirs a cauldron of emotions — in this case, my clients felt they deserved more than their siblings because they did so much more to take care of mom in her later years, especially during the last illness. But most parents distribute assets equally between children, not wanting to play favorites, even if one child did more for them.

Family feuds over inheritance are as old as the Bible (Jacob tricked his twin brother Esau out of his birthright and their father’s blessing), and the feuds are even more complicated in blended families. There are ex-wives and ex-husbands, children and stepchildren, parents and stepparents.

My advice: Make a plan. Don’t expect that your children will divide everything up fairly and amicably. Bitter will contestsand trust disputes are costly and can destroy family relationships. I’ve seen it happen even when there isn’t much wealth to go around to begin with.

Don’t wait until it’s too late. Plan now. Contact the law office of Debra G. Simms for an estate planning consultation.

Planning for the end of life…..hard to do….

Last week my dear Uncle Bernie died. He was 80 years old. He didn’t plan to die, but I know that he didn’t plan to live forever, either. One thing I know for sure, he PLANNED.

A death in the family is one of the hardest times in a person’s life. We all know that grief causes both emotional and physical pain and can keep us from sleeping, eating, working, and certainly keeps us from thinking clearly for a long time.  But during the chaotic and stressful days after the loss of a loved one, a lot of important decisions must be made.

Is your estate planning up to date?

A well thought out and properly drafted Last Will and Testament can alleviate a good deal of stress for the ones you care about the most.  And for those of us who aren’t really sure whether our kids or grandkids are ready to handle money, then setting up Trusts can delay when your bounty reaches their hands.

My Uncle Bernie had a lot of plans. He didn’t get to all of them when illness struck, but when he passed, his sons were able to carry out his wishes and instructions because he did plan for death. By making a Will, you know that you put your affairs in order, and your family will know that you cared enough to do so.

Call the Law Office of Debra G. Simms.   We offer consultations to help you decide what estate plan is best for you.

Orlando

Toll free: 1-877-447-4667

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.
Orlando: 407-331-4529
Efforts to find relief for people crushed by private student loan debt are buried again in the halls of Congress.

Illinois Sen. Richard Durbin re-introduced the Fairness for Struggling Students Act of 2013 on Jan. 23, and it apparently is going nowhere. The bill would provide a bankruptcy escape for people unable to pay back college loans issued by private lenders. Those loans account for about $150 billion of the estimated $1 trillion in outstanding college loan debt.

The bill was co-sponsored by Sen. Al Franken, D-Minn., Sen. Tom Harkin, D-Iowa, Sen. Jack Reed, D-R.I., Sen. Elizabeth Warren, D-Mass., and Sen. Sheldon Whitehouse, D-R.I.

According to Harkin’s office, the bill was referred to the Senate Judiciary Committee, where it apparently is all but forgotten underneath more pressing issues

The purpose of the Fairness for Struggling Students Act is to give people a chance to rid themselves of excessive debt incurred while in college. Provisions of the bill force the borrowers to make a legitimate effort to repay the loans before they can be included in bankruptcy procedures.

Current laws put all student loan debt in the same category as child support and criminal fines, meaning debts that can’t be forgiven, even in bankruptcy. Many people, seeing no way to dig themselves out of the substantial holes the college loans created, simply give up.

“Too many Americans are carrying around mortgage-sized student loan debt that forces them to put off major life decisions like buying a home or starting a family,” Durbin said in press release. “We can no longer sit by while this student debt bomb keeps ticking,”

But that’s exactly what is happening. The bill was referred to committee last year and died there without getting a vote.

He brought it back this year, along with a similar bill, Know Before You Owe Act, that would require schools to advise students if they have federal aid available before they take on private student loan debt. Students typically pay considerably higher interest rates for private loans than for federal loans.

Durbin, Franken, Harkin, Reed, Warren and Sen. Sherrod Brown, D-Ohio, sent a letter to 13 major banks on March 1, asking them to work at reducing the number of students defaulting on private loans. According to the Consumer Financial Protection Bureau, 850,000 students have defaulted on private loans, totaling $8.1 billion.

“We need the public and private sector to work together to prevent a calamity for middle-class students,” Reed said in a statement. “I hope we can get everyone to the table to find workable solutions to controlling costs and reducing the debt burden for students and families.”
We at the offices of Debra G. Simms urge you to engage your lawmakers on this issue and help ensure a fair and effective bankruptcy system for all of us.

One of the most important aspects of my job as a Financial Representative is helping my clients and their families gain financial security in a tax efficient manner.  With the return of the Estate Tax looming in 2011 it is more important than ever for people to address their estate planning needs.

The 2011 Budget calls for a $1 million exemption level and a top rate of 55% on taxable estates.  One important tool I recommend to all my clients as a means to counteract this tax in your estate planning is through Permanent Life Insurance.

Permanent Life Insurance can be an important estate planning tool.  As long as insurability requirements are met and premiums are made, life insurance creates an estate –possibly a sizeable estate-not limited by the insured’s net worth or the nature or value of other assets.  With few exceptions, the life insurance provided liquidity is not subject to income tax for the beneficiary.  Moreover, with proper estate planning, the value of the life insurance is not subject to estate, inheritance, or gift taxes.  Thus, there are tax incentives for including life insurance in your estate plan. 

Contact the law offices of Debra G. Simms, P.A. for an estate planning consultation.  Call our toll free number at:
 1-877-447-4667.

On December 12th, Orlando’s City Council voted to enact Central Florida’s first domestic partner registry.  This is an historic event for Orlando as it the first time that families – gay or straight – will be able to record their relationship in a government database. The registry opens on Jan. 12th.  For a $30 fee registered couples will have some of the same rights that married people take for granted: the ability to visit one another in the hospital or jail, to make health care decisions for an incapacitated partner, and to make funeral plans.

The registry applies only to hospitals, funeral homes and other institutions located within the city limits, but couples who live outside the city are free to register. Orange County is considering bringing forward similar legislation that would apply countywide.

The registry is also being touted as good for business.  Proponents have said the registry will make it easier for companies to transfer and hire LGBT employees from cities that have better diviersity practices in place.
A cautionary note:  The registry does not cover all areas where gay and straight unmarried couples may need to make decisions for one another or be recognized as the proper legal authority.  The registry is not a substitute for a well thought-out and drafted estate plan, durable power of attorney, advance health care directive and living will.
The Law Office of Debra G. Simms offers consultations for estate planning matters.
Call today and ask for our year end web special of 20% off our basic estate planning package.  Book your appointment by January 30th to receive this special offer.
Attorney at Law
Orlando
Toll free: 1-877-447-4667

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823 Dunlawton Ave. Unit C
Port Orange, FL 32129
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