Living Trust - Simms Law Firm

Like a Will, a living trust provides for distributions of an asset to named beneficiaries. Unlike a Will, however, a living trust avoids the probate process- which can be lengthy and expensive- and a trust is shielded from public inspection. For this reason, a living trust is often used to complement a Will, with select assets being transferred to the trust.

If you already have a living trust, remember that changes in your circumstances may dictate revisions to your trust. Typically, after reviewing this document, you may decide on a reallocation of assets. The trust may also be affected by a sale or purchase of property. In addition, you may want to change the named Trustee. Make sure you are comfortable with the current terms.

And don’t wait until it’s too late. If you later suffer from a disability that affects your thinking, such as a stroke or dementia, it will be too late to make these changes.

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 Blog topics may or may not be updated and entries may be out-of-date at the time you view them.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

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.

The content of your will and other estate planning documents is very important. If you choose to write your will yourself, your family could face a number of obstacles after you are gone. As your will passes through probate court, its content could be challenged by anyone who feels they were wronged. An estate planning attorney can help you avoid such dilemmas by ensuring that all wording is clear and that your intentions are understood.

Your will can also be challenged if it was not signed according the requirements of your state’s statutes. Having a wrongly signed will is the same having no will at all.

An experienced attorney can also help avoid having to probate your will, resulting in cost and time savings for your family.

An estate planning attorney also has knowledge of financial issues that may affect your estate. Drafting a will is not just about who will end up with your money and your house. An attorney will look at all aspects of your finances, such as any retirement accounts you may have and will also consider your debts. There might be other details to consider such as who will care for your pet when you pass.

A properly drafted estate plan can give you peace of mind. It is important to remember that having a will is important no matter the size of your estate. Each estate is different, and an attorney can help you find an estate plan that best meets your needs.

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

“Problem” Heirs

Do you have a child or heir with credit problems or a drug or alcohol problem? Or maybe your child is having marital problems and you do not want their spouse to end up with your money! None of us want our life’s earnings to be squandered, and an inheritance could end up making matters worse.

You might not want to disinherit your child entirely because of his or her personal problems. Here is a solution to allow you to control your child’s inheritance and insure that it won’t be squandered or misused.

Create a Trust! A Trust can pass wealth to an heir while controlling how, when, and why your heir can access the funds. One of the advantages of a Trust is flexibility. Here are some of the ways you can accomplish your goals:

Appoint a Trustee who can resist the pleas of a desperate beneficiary. Do you have a close relative who can do this? If not, appoint a professional Trustee, such as the trust company of your bank.

Specify the specific circumstances under which the funds will be paid out. Or, you can give the Trustee complete discretion over disbursement decisions. For example:

If you heir has drug or alcohol problem, require drug testing before the funds are paid. Or give your heir incentive to change by structuring lump-sum disbursements after prescribed periods of time – perhaps require five years of sobriety.

Create an incentive for work by disbursing funds that are tied to wages or earnings.

Direct that payments must be made directly to third-party providers such as a landlord, mortgage company or utility company.

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

Many people ask me why they have heard that they should avoid probate.

Here is how the probate process works:

Probate is a legal process that wraps up a person’s legal and financial affairs after their death. During this court process, property is identified and inventoried. Also, during this process, outstanding debts and taxes are identified and paid.

Probate is a complex process filled with very specific legal requirements. Property cannot be distributed to beneficiaries until all these requirements are met.

The most common misunderstanding is that probate is not required if there is a Will. When a person dies with property in his or her sole name (no co-owner or beneficiary designation) there must be a probate – will or no will.

Probate can take a long time. I have handled probates that were open from 6 months to 3 years!

Probates are expensive. Legal fees and costs can depend on the size of the estate or the time it takes to complete the process. Even small estates can take a long time, depending on the circumstances.

Probate is a public process. Every document filed with the court is a matter of public record. Others can see how much the deceased left behind and how much each beneficiary received.

If you have concerns about the probate process, contact our office to learn how you can structure your assets to avoid this probate process.

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

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 the second parent)
Wills
Trusts
Nomination of a 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.

ESTATE PLANNING PITFALL

A revocable living trust compliments a will and enables your beneficiaries to inherit your wealth upon your death with no need for probate. But, the trust must be properly funded if it is to do any good. You must transfer your assets into your trust while you are alive. This means changing legal ownership of your assets from your name to that of the trust.

Bank accounts, stocks, real estate, and even business interests are the type of assets that should be transferred to a trust. Real estate requires a new deed for the transfer. It is usually recommended to avoid transferring IRA’s and 401(k) plans to a revocable trust. This can trigger unwanted tax consequences.

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

These deeds are also call “enhanced life estate” deeds. With a standard life estate deed, you could name a beneficiary to inherit your property while you keep ownership of it for your lifetime, but with significant restrictions. You wouldn’t have the right to sell or mortgage the property and you might also be liable to the beneficiary you named if you greatly decreased the value of the property – for example, let a house fall into serious disrepair.

By contrast, an enhanced life estate deed (the Lady Bird deed) lets you:

Avoid probate of the property
Keep the right to use and profit from the property for your lifetime
Keep the right to sell the property at any time
Avoid making a gift that might be subject to tax
Avoid jeopardizing your eligibility for Medicaid

If you have a mortgage on your property, it is advisable to seek the lender’s approval before signing a Lady Bird Deed. Some mortgage loans have provisions that enable a lender to call a loan due when you execute certain kinds of deeds.

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

An old saying goes that there are only two things that certain in life – death and taxes. While neither of these things is anyone’s favorite subject, they both point towards the importance of Estate Planning.

When we talk about Estate Planning, we automatically think about Wills, Trusts, and other types of legal documents. However, your estate planning documents will do little good if your family or trusted friends do not know where to find them.

Once you have put the finishing touches on your written estate plan, I recommend setting aside some time to talk about it with your family. Tell them where your documents are kept and explain your wishes clearly. While this might be an uncomfortable conversation, it can save your family from additional stress and confusion down the road.

If you need advice on estate planning, call the Law Office of Debra G. Simms today at 386.256.4882

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