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

  1. 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.
  1. 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.
  1. 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.
  1. 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!

 

Don’t forget Estate Planning!

My kids are Millennials.  So I know that when asked their list of plans, they say things, like getting married, starting a family, getting a great job, or going on a special vacation.

Folks in their 20’s and 30’s don’t have Estate Planning on the top of their mind.  If they think about it all, they think that Wills, Powers of Attorney and the like are for “older” folks in their 60’s or 70’s.

That’s a big mistake.  The reality is that EVERYONE needs to be thinking about estate planning.

For families with children, estate plans are especially important because a good estate plan will designate a guardian for your children should something ever happen to you and it directs who will be in control of your assets while your children are minors.

Parents should also have an advance directive for their children so that someone else can make health care decisions if the parent is out of town or ill.

Young adults should also have a Durable Power of Attorney and a Health Care Directive.  Accidents and illness can happen to anyone.  And Living Wills will ensure that you aren’t kept alive indefinitely if there is no hope of recovery.

And these days, many millennials live together but do not marry.   This means there is no state law in place to handle the division of assets or health care decisions unless the couple has entered into a Domestic Partnership Agreement.

Digital Assets is another area of growing importance.  Millennials usually do all their banking, investing and spending online.  It is practically impossible to access online accounts and social media without the proper legal documents in place.

Please do not delay in seeking legal advice because you are too young.  Life happens to everybody.

The Law Office of Debra G. Simms will be glad to assist you with estate planning no matter how old you are. Call us today at (386) 256-4882.

A common estate planning question is what (if any) assets are handled outside of probate?

There are a number of different kinds of properties that may pass outside the provisions of your Will.

The list includes life insurance, retirement plans, individual retirement accounts, and annuities. When you purchased or set up these types of assets and accounts, you were probably asked to fill out a form listing the beneficiaries who will receive payments upon your death. These investments will pass to the named beneficiaries regardless of whether you have a Will. However, if you don’t have a beneficiary named if the beneficiary named is your “estate,” or if all the beneficiaries are dead, then those investments will be paid to your estate and pass under your Will.

Certain bank and brokerage accounts will also pass outside your Will. For instance, payable-on-death accounts (sometimes called “POD” accounts) will be distributed to the named beneficiary. Additionally, accounts set up by one or more persons as joint tenants with rights of survivorship will pass to the surviving account holder or holders.

Some banks allow you to set up what they call trust accounts even though there is no written trust agreement. These types of accounts will pass to a named beneficiary without going through probate as well.

Not all joint accounts pass to the survivor. When joint accounts are set up as tenants in common, the portion of the account that was owned by the decedent passes under his or her Will.

Many people have decided to create revocable or irrevocable trusts as part of their estate plan. Virtually all such trusts are designed to pass directly to persons or other trusts named in the document rather than under a Will.

You may find that most of your estate consists of non-probate property. Therefore, it is extremely important to coordinate the beneficiaries of all these properties to make certain your assets will be distributed as you want when you pass away.

The Law Office of Debra G. Simms, will be glad to assist you with estate planning and ways to avoid probate. Call us today at (386) 256-4882.

 

 

I love reading the local newspapers. I like to feel connected to my community, especially here in New Smyrna Beach and Port Orange where I live and practice law.

This week I read about a 100th birthday party held at a local assisted living facility for a lovely lady who is not only a centenarian but is also the oldest WWII veteran in the U.S. Navy WAVES, in Volusia County.

Then, I got to thinking: I know folks are living longer, but just how many centenarians are there in the USA?

According to the most recent Census Bureau statistics on this topic, nationwide, the centenarian population has grown by 44% in recent years, from 50,000 in the year 2000 to 72,000 in 2014!

This is means that more of us are going to need long-term care in residential settings. Not all of us will have enough money to pay for that care. Today, in Florida, the median annual cost for a room in an assisted living facility is over $3000. Care for a private room in Florida skilled nursing averages $8000 per month.
Now is the time to consider your options. If you do not have private long-term care insurance, and most Americans do not, you should consider an Asset Protection Plan which will allow eligibility for Medicaid Long Term Care assistance.

The Law Office of Debra G. Simms, will be glad to assist you with Asset Protection Planning. Call us today at (386) 256-4882.

I often get calls from folks who need to make financial and legal decisions for an aging or ill spouse or parent.

The first question I ask is:  Are you the agent under a Durable Power of Attorney?

If the answer is no, and the parent or spouse still has the mental capacity to understand and execute a Power of Attorney, then I urge them to do so before it’s too late.

Unfortunately, often times the call comes when it is too late.  The loved one no longer has the mental capacity to understand the nature and effect the document.  The only option left is a Guardianship.

A Guardianship is a type of legal proceeding where the Court determines that an individual (called the “Ward”) is legally incapacitated and also appoints a Guardian, usually a family member, but sometimes, a professional guardian, to manage the Ward’s personal and financial affairs.

The Courts look at a number of factors in determining legal incapacity.

First, let’s look at how Florida law defines incapacity:

Florida Statute Section 744.102 (12):

“Incapacitated person” means a person who has been judicially determined to lack the capacity to manage at least some of the property or to meet at least some of the essential health and safety requirements of the person.”

The Court makes the determination of incapacity by appointing an examining committee to meet with the alleged Ward and also to review prior medical records.  The members of the examining committee then file a detailed report with the Court as to their determination and an explanation of how they reached their decision.  Some of the factors the committee members consider are:

  • Can the individual make and exercise informed decisions regarding his right to contract?
  • Can the individual make and exercise informed decisions regarding his right to manage property or to make a gift?
  • Can the individual make and exercise informed decisions regarding his right to determine his residence?
  • Can the individual make and exercise informed decisions regarding his right to marry or vote?
  • Can the individual make and exercise informed decisions regarding his right to have a driver’s license or operate a motor vehicle?

This list is not exhaustive and the Court can always consider any other relevant factors.

Furthermore, the alleged Ward has the right to their own counsel and can object to any evidence introduced which supports a finding of incapacity.

If the Court makes the determination of incapacity, the next step is to appoint a legal guardian.

This is a complicated and costly process.  It’s not always unavoidable, but in most cases, a Durable Power of Attorney is a much better alternative.

We, at the Law Office of Debra G. Simms, are glad to assist you with a durable power of attorney and planning for incapacity. Call us today at (386) 256-4882.

LADY BIRD DEEDS

Many of my clients do not have Revocable Living Trusts.  Therefore, upon their death, any real estate they own will have to go through probate (unless it is owned jointly with a spouse or partner).

An option is an Enhanced Life Estate Deed/Lady Bird Deed as part of the estate plan. But, clients must be aware of the advantages and disadvantages of using this type of deed.

When you own property, you may execute a deed retaining the right to the property during your lifetime, with the right for someone else to receive the property after you die. The right to have the property during your lifetime is called a life estate. The right to receive the property after you die is referred to as a remainder interest.

For many years, in order to avoid probate, parents would have deeds prepared retaining a life estate in themselves, granting a vested remainder to their children. This worked well in avoiding probate, as well as preventing reassessment of their property for real estate tax purposes. It also preserved a step-up in tax basis at the death of the parent, since the property wasn’t considered transferred until death.

The disadvantages of this type of deed are that you could not easily undo the transaction. If the parent wanted to mortgage or sell the property, the parent would need the child to sign the mortgage or the deed. If the parent changed his or her mind and wanted to add or remove a child, the consent that child would be required. Even worse, if the child had financial issues and a judgment was recorded against him or her, that judgment could be a lien on the parent’s property. In addition, if any of the children died, his or her share could require probate.

Also, if the parent needed to apply for public benefits such as Medicaid to help cover the cost of Long-term Care, the transfer would be considered to be a transfer of assets which would create a penalty period hampering the parent’s ability to qualify for Medicaid.

The Enhanced Life Estate Deed/Lady Bird Deed adds language in the deed which basically says that the parent has the right to revoke the deed and sell the property to another person without the consent of the child. And, fortunately, this type of deed does not trigger a penalty period for Medicaid.  This type of deed transfer still avoids probate.

However, the law is presently unclear about other issues.

For one, if a parent wants to sell or mortgage the property, some title companies or lenders require the children to sign the deed or mortgage. Any judgment against the child is still, in some cases considered a lien on the parent’s property. This is a very controversial issue and is typically decided on a case by case basis by the title company or lender. Moreover, if the parent changes his or her mind and wants to add or remove a child, the consent of the existing children is still required by many title companies. Finally, if one of the children dies, his or her share may still need to be probated.

While the advantages mostly outweigh the disadvantages, it is important to understand the pros and cons of using an Enhanced Life Estate Deed/Lady Bird Deed.

We, at the Law Office of Debra G. Simms, are glad to assist you in determining if this is the right plan for you. Call us today at (386) 256-4882.

The older population- persons 65 years or older- numbered 42.6 million according to the latest Census Bureau statistics.  In addition, according to the same National Population Projections, by the year 2033, the population 65 and older will outnumber people younger than 18 in the U.S.   Our nation is rapidly aging.

Improved healthcare and decreased fertility rates have generated these rising numbers of the older population.  These numbers represent a success story for increased longevity, but it also presents many challenges for the younger folks who are left to care for the aged.

Adult children, age 50 and over, taking care of their aging parents has tripled since 1994, according to AARP.  Caring for elder parents presents difficult challenges, especially when a crisis hits, such as a widowed mother or father who is diagnosed with Alzheimer’s or when a parent falls and is never able to fully recover their independence.  The adult child, often still working full-time, or even caring for their own young children, may become the only person to step in and manage the care.

Ideally, before the parent becomes ill, the family has already had “The Talk”.  This is where the adult children have discussed with their elders how they would like their senior years handled.  Unfortunately, this rarely happens, because we human beings aren’t really wired to think too much about aging and death.  It is also a very emotionally difficult talk; sometimes it’s not the elder who resists, but the child who cannot bear to think about losing a parent.  In this case, I  recommend that my elder clients put EVERYTHING in writing, not only their estate plans, but directions concerning personal health care decisions, and desires regarding aging in-home or in a residential facility.  And don’t leave out the MONEY TALK.  Senior care is expensive.  Children should have an understanding of what type of care you can afford.

The Law Office of Debra G. Simms offers Elder Law services to help families prepare to care for their loved ones. Call us today at (386) 256-4882.

 

NEWS ALERT!

IRS TAX SCAMS!! DON’T TALK AND DON’T CLICK!!!

I am a member of a wonderful neighborhood internet community called NextDoor.com. I check it regularly for neighborhood news, garage sales, restaurant openings, and general good cheer.

Recently, I read an all too familiar post about a common scam – the IRS Impostor Scam.  This one targets all of us, not like others which tend to mostly target our senior citizens.  Here’s how it works:

You receive an aggressive phone call from someone impersonating an IRS agent.  He says you owe back taxes and demands immediate payment – usually by wire transfer or worse, they want your bank account number for an immediate debit.  If you don’t agree, they threaten fines, arrest, or driver’s license revocation.  If you still don’t agree, they say they will refer your case to their lawyers.  Sometimes the call comes in the guise of verifying tax return information; they say they are reviewing your return and need to verify a few details to process it.  The scammer tries to get you to give up personal information such as a Social Security Number or personal financial information.

There are also new reports of e-mail scams where you get an e-mail that appears to come from the IRS.  These senders are “phishing” for your private account information so they can use it to commit fraud or identity theft against you. They try to trick you to give up personal information.  Do not respond or click the links.  Doing so can connect you to a site that looks like an official IRS site, but in addition to asking for personal information can carry malware, which will infect your computer.

These IRS Impostor scams are NUMBER 1 in the top ten scams in order of the number of complaints made last year to the US Special Committee on Aging.  The list also includes Lottery and Sweepstakes Scams, Robocalls, Contest cons and Survey swindles, and Wifi Hackers.

Be vigilant and look out for your loved ones – the elderly are particularly vulnerable to these scams.

The Law Office of Debra G. Simms is ready to answer your questions about Elder Abuse and Exploitation. Call us today at (386) 256-4882.

As one year ends and the new one beckons, it is time for your annual estate planning check-up!

This is a good time to make sure your estate plan reflects the events in your life, those both within and beyond your control.

  1. Where there’s a Will, there’s a Way. A Will says how you want your assets distributed upon your death. But, don’t just put your will in the safe or drawer and then forget about it.  Review your Will and determine if any changes are needed because of changed family circumstances; for example, is the person you named to be your Personal Representative or guardian still the right one for the job?  Or, maybe one of your children has a problem handling money – should his or her money be held in trust rather than given outright?
  2. Consider a Living Trust. Like a Will, a living trust provides for the distribution of your assets when you die.  But, unlike a Will, a living trust can avoid the probate process – probate involves a Court and can be lengthy and expensive. Trusts are also more private as they are generally not required to be recorded upon death.
  3. Who has the Power? Who have you named in your Durable Power of Attorney and Health Care Directives?  Are they still the right people to handle your finances and make medical decisions if you cannot do so for yourself?
  4. Think about your end-of-life decisions. Do you have a current Living Will that provides guidance to loved ones concerning difficult end-of-life decisions? Does your Living Will discuss tube feeding, artificial hydration, and use of certain medications if you become terminally ill and can no longer speak for yourself?  Make sure your Living Will ensures that all your wishes are met.

 

The Law Office of Debra G. Simms offers free estate planning consultations. Consider bringing your documents to her for a New Year’s check-up! Don’t wait until it’s too late! Call for your free consultation~386.256.4882 or toll-free 877.447.4667.

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