Estate planning attorneys are often asked by their clients to prepare Wills that pass along their money with strings attached.  I call this “dead hand control”.

A common example is making an inheritance contingent upon the beneficiary being married to a person of a particular religion.  Another one is requiring that the beneficiary be drug-free for a period of time.

Is this legal?  In general, courts tend to allow people to pass along their money with strings attached, provided that those strings do not foster behavior that is illegal or against public policy. In an Illinois case a few years ago, a man-made his grandchildren’s inheritance contingent on their marrying Jewish spouses. The Will was upheld by the Illinois Supreme Court.

Clients who want this are doing what they think is best for the beneficiary.  But clients also need to understand that putting conditions on their bequests can cause their family pain.

Consider this Florida case: Grandma died leaving a sizable estate to her 3 granddaughters.  The money was divided equally, but they would only get their inheritance if they were married to a person of Grandma’s religion.  Two of the sisters were, but one was not -she was happily married to someone of a different religion and had 2 children.  She would not inherit.  All three of the sisters were shocked and angry.  The Executor of the estate explained that its hands were tied and their only recourse was an uphill battle in the courts.

Conditional bequests, related to religion or anything else, should always be thoroughly discussed with your estate planning lawyer.

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 Blog topics may or may not be updated and entries may be out-of-date at the time you view them.

 5 Tips for Securing Your Assets, Healthcare and Legacy

It’s your life and your legacy:  Make sure you have an updated estate plan.  And don’t wait until it’s too late!

Create or Update Your Estate Plan: avoid unnecessary taxes, family arguments, and creditors

  • Wills allow you to transfer property to your selected beneficiaries, permits a parent to name a guardian, can help protect beneficiaries against creditors, and reduces the burden on family
  • Revocable Trusts allow you to distribute your assets at death and can allow you to avoid probate. 
  • Irrevocable Trusts can help you qualify for financial assistance if you need long-term care and can provide for strong creditor protection for you and your beneficiaries.
  • Special Needs Trusts allows you to leave assets to a disabled heir without risking the loss of Social Security, Medicaid benefits, or food assistance.

Create Your Durable Power of Attorney and Medical Directives.

  • A Durable Power of Attorney authorizes your named agent to act in your place for financial and legal decisions if you are incapacitated.
  • An Advance Medical Directive allows you to name someone to make health care decisions for you if you are incapacitated.
  • A Living Will allows you to express your desires about life-prolonging procedures if you are at the end of life with no hope of recovery.

Review and Update your Beneficiary Designations on your Life Insurance and Retirement Plans.

Consider New Laws.  Do the new tax laws affect your estate?

Review Social Security and Retirement Benefits.  What is your full retirement age?  Should you delay your benefits to increase your monthly benefits?

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.

The best place to keep 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.

 Another place to keep your original estate planning documents is with the attorney who drafted them.  However, I have decided not to retain original documents because of concern over theft, fire, flood, storms, or other loss of the document.  It would also be prohibitively expensive to store hundreds or thousands of original documents.  Also, what would happen if I were to die or my law firm was to cease operations?

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.

Most importantly, make sure your designated representative knows where they are!

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.

Do You Have a Will?

A Will is the primary legal document for determining how your assets will be distributed and what would happen to your minor children on your death.  But you can’t just place your Will in a fire safe box and forget about it:  Review and update it regularly to reflect changes in your personal circumstances as well as other events. 

For instance, you might add to or subtract from the list of beneficiaries, possibly because of births of children and grandchildren and marriages or divorces of family members.  Or, you might want to replace the Personal Representative (Executor) you initially named in the Will.  Also, your Will may need to be amended if and when significant tax reforms are passed.

And remember, don’t wait until it’s too last.  You will no longer be able to change your Will if you are suffering from a disability that affects your thinking, such as a stroke or dementia.

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.

Why Seniors Should Not Share a Joint Bank Account with an Adult Child

Case Study:  85 year old Mom comes to see me because she received a notice from her bank that her entire savings account is frozen.  There is a court judgment against her by VISA credit card.  Mom does not have a Visa account.  Grown-up son does.  Mom put grown-up son on her bank account so he could “take care of her” if she got sick.  What Mom didn’t know is that she made HER money now her son’s money, too.  What Mom also did not know is that son did not pay his Visa credit card.

Beware seniors:  you might think that by putting your child’s name on a bank account (or home) you are saving a trip to the lawyer’s office.  Why do you need a power of attorney or will if your child is already on the account?

As you can see by the illustration above, adding a child to a bank account may expose the parent’s hard earned money to that child’s creditors.

Another reason not to take this short cut, if the child is married, and then gets divorced, YOUR money is his money and is subject to division in the divorce.

Need another reason?  For even the best intentioned child, the temptations of money may be too great.  Maybe they have an alcohol or drug issue?  Maybe they need to pay off debts.  The child may feel that there is no true harm by taking some money “early”.

Think again, Mom.  Keep your money safe. 

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.

Yes, there can be.

Many of my new clients tell me that they do not need certain estate planning documents because their adult child (or other trusted person) is a joint owner on their bank accounts.  They believe that this will avoid the need for probate and will allow the other person to have access to the accounts if they become incapacitated.

Doing this is usually not worth the risk.

Risk #1:  The joint holder will have complete access to your money because once they become a joint holder, it is their money too.  The joint holder can also have your name removed from the account. This is done by someone you believed you could trust; however, most cases of elder financial exploitation are perpetrated by family members and trusted friends.

Risk #2:  You could lose Medicaid eligibility for long term nursing care; when you put someone else’s name on your accounts, you are legally making a gift to them.  This could cause you to be ineligible for Medicaid for up to 5 years from the date of the gift.

Risk #3: There are circumstances beyond the joint holder’s control which could put your property at risk.  A judgment against the joint holder (think car accident) could result in the loss of your assets. 

Risk #4: Putting someone else’s name on your primary residence is never worth the risk.  In Florida, your homestead has constitutional protection against any creditor. But, if the joint holder does not live in the home, it is not their homestead.  The creditors of the joint holder can reach this asset which could result in the loss of your home.

Risk #5: Adverse Tax Consequences. Gifting property to a beneficiary during your lifetime (and this is what putting someone else’s name on your asset means) creates certain tax consequences which are much less favorable than allowing your beneficiary to inherit the property. 

My advice is that you not put property in joint names with persons other than your spouse.  The avoidance of probate is not worth risking the loss of your assets. Consider other options to avoid probate such as a revocable trust or ladybird deed.  Handle incapacity issues with a Durable Power of Attorney.

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.

CAN TECHNOLOGY KEEP YOU SAFE FROM ELDER ABUSE AND EXPLOITATION?

Elders lose millions of dollars per year according the latest statistics from the National Adult Protective Services Association. Ninety percent of the abusers are family members or trusted others.  Sadly, it is also reported that only 1 in 44 cases of financial abuse are reported to the authorities.  And 1 in 10 cases are so devastating that the elder victim must turn to Medicaid because their savings are deleted.

To help vulnerable adults, several companies are now offering concierge bill pay services, and some companies also monitor bank and investment accounts and credit cards.  These companies establish a baseline from the elder’s historical spending and saving behavior so they can then identify erratic activity, like unusual withdrawals, missing deposits, and changes in spending patterns.

Elder Law attorneys can also assist victims by bringing lawsuits for civil theft on a vulnerable adult.  Florida law allows the elder victim to recover triple damages in these types of suits.

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.


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.

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.

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.

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.

Essential Legal Documents for Unmarried Same-Sex Couples

Because unmarried same-sex couples are legal “strangers”, it is essential to have certain legal documents to protect each person’s interests and rights:

  • Domestic partnership agreement
  • Advance Medical Directive
  • Living Will
  • Durable Power of Attorney for finances
  • Co-parenting agreement (if no adoption by second parent)
  • Wills
  • Trusts
  • Nomination of guardian for adult and minor child
  • HIPPA (Privacy Law) authorization
  • Authorization for disposition of remains and funeral arrangements

These documents create the core of planning for unmarried same-sex couples. 

Additionally, there might be estate or gift tax issues facing unmarried couples who cannot avail themselves to favorable tax treatment for married couples.

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

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:
629 N. Dixie HWY
New Smyrna Beach, FL 32168
Local: 386.256.4882
Toll Free: 877.447.4667