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 Blog topics may or may not be updated and entries may be out-of-date at the time you view them.

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.

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

Problems With Probate

What is Probate?

Probate is the legal process that wraps up a person’s legal and financial affairs after their death.  During the probate process, property is identified and given a value.  Outstanding debts and taxes are paid.  It can be a complex process filled with very specific legal requirements.

If a person dies with a valid Will, the probate court must ensure that the person’s assets are distributed according to their wishes.

If a person dies without a Will, the probate court sees that the person’s assets are distributed according to the laws of the State.

Probate Process

Probate can take a long time – form months to more than a year.

Probate can be expensive. The attorney fees are usually calculated on the value of the estate, but legal costs can rise if there is real estate to be sold, the will is contested, or for a variety of other reasons.

Probate is public.  The Will, Inventory, and other documents are filed in a public court.  Many of these documents can be viewed by the public.

Avoiding Probate

  • Assets can be structured so they may not have to go through probate in order to be distributed to your beneficiaries. Here are some of the ways:
  • Jointly held property
  • Death benefits from life insurance
  • Retirement accounts with a named beneficiary
  • Assets with a payable on death designation
  • Property held in Trust

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.

 

AGING SOLO?  BUILD A TEAM!

Many of my senior clients live alone – some never married, some are widowed or divorced, and many of my clients never had children or their children are deceased or estranged.  With no family member to rely on, they need someone trustworthy to pay bills and make critical decisions if they become ill.

Here are a few suggestions:

  • Think creatively when selecting someone who can manage your affairs. It might be a cousin or niece or nephew, or maybe a trusted financial or legal advisor.
  • Try to select a health care agent who lives nearby or who can easily travel to you if you are ill. If not family, perhaps a close friend or clergy would be willing to help.
  • Simplify your financial life by consolidating your assets. This makes management easier for you or anyone who takes over.
  • Consult with an attorney about a Living Trust and Durable Power of Attorney. If you do not have a family member or close friend to serve as trustee or agent, talk to your attorney about a financial institution or other professional.  You can name co-trustees, say, a financial institution and a relative or friend, and require them to act together.

What’s most important is – have a plan.  Failure to plan is planning to fail.

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.

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

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.

 

More About the Dangers of “Do It Yourself” (DIY) Estate Plans

I once had a widowed client who used an online do-it-yourself will that failed to mention what would happen if his only son predeceased him. Well, that is what happened.  And, because this son did not have any children, I advised my client that if he didn’t update his will, his assets would then pass to his “heirs” at law.  In his case, this meant a niece and nephew.  He had no relationship at all with these folks.

We updated the will and my client named a close friend and made some charitable bequests. That is the reason to have an attorney assist you with this process. We know the questions to ask, and we know what to do with the answers.

Also, without a lawyer advising you, you might not understand the terms in your documents.  This can be dangerous.  For example, a Durable Power of Attorney essentially gives someone else (the “agent”) the power to take care of your finances if you become incapacitated.  Without understanding all the terms in the document, you could inadvertently give someone more power than you want to when creating a durable power of attorney.  If that person isn’t trustworthy, he or she could steal from you. It happens all the time.

Another problem with DYI documents is that if the document isn’t executed properly—in Florida, you need 2 witnesses and a notary to your signature in a Durable Power of Attorney—then the document will not even be valid.

A lawyer with expertise in estate planning can end up saving you and your family lots of money.  It is very sad when families call me after a loved one has become incapacitated or dies and there are mistakes in the documents.  By then, it’s too late.

If you need advice on preparing such documents, call the Law Office of Debra G. Simms today at 386.256.4882

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 Dangers of “Do It Yourself” (DYI) Estate Planning

Whenever I speak about estate planning at a seminar or before a civic group, I am asked this question:  Why can’t I just use the forms I can find online?

My answer:  You can.  But, remember, you get what you pay for.   You CAN do it yourself – but it’s really not a very good idea.  DYI estate planning breeds mistakes because when it comes to legal issues, one size never fits all.

My experience with reviewing DYI documents is that people tend to make mistakes when they fill out their own forms online.  Answering one question incorrectly or overlooking something such as appointing a guardian for children can lead to major problems down the road.

One of my prospective clients asked me to prepare a deed putting her home in her trust.  When I reviewed her trust, I saw that it was prepared according to community property and California law.  This lady lived in Florida and had never lived in California.  She sheepishly told me she found the trust on a celebrity money manager’s website.

Another client had a very well drafted trust he found online, but he had never funded the trust because he never received legal advice to do so.  Had he died before consulting with me, all of his assets would have gone through probate, even though his intent in doing a trust was to avoid probate.

Most people use online forms to save money.  I get that.  I like saving money, too.  At the Law Office of Debra G. Simms, we charge a flat fee for estate planning.  It is far more costly to fix mistakes than to do it right the first time.

If you need advice on preparing such documents, call the Law Office of Debra G. Simms today at 386.256.4882

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.

 

Getting Your Affairs in Order

Making healthcare decisions for yourself or someone who is no longer able to do so can be overwhelming.  That is why I recommend that my clients make decisions and arrangements while they can participate in legal and financial planning.

I have created a checklist to ensure that your healthcare and financial arrangements are in place before a serious illness or a healthcare crisis.

  • START DISCUSSIONS EARLY with your family and friends.
  • CREATE DOCUMENTS that communicate healthcare, financial management, and end of life wishes and instructions. Get the legal advice needed to do so.
  • REVIEW PLANS REGULARLY, and update your documents as your circumstances change.
  • ORGANIZE YOUR PAPERS IN ONE PLACE. Make sure a trusted family member or friend knows the location.
  • MAKE COPIES OF healthcare directives for all the physicians you regularly see.
  • REDUCE ANXIETY for yourself and your loved ones by making funeral and burial arrangements ahead.

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

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.

 

I have a will. Why do I need anything else?

Having only a will may not be the best plan for you and your family.  A will does not avoid probate when you die.  A will must be filed and admitted to probate before it can be enforced.

What is Probate?

Probate is the legal process through which the court sees that, when you die, your debts are paid and your assets are distributed according to your will.  If you don’t have a valid will, your assets are distributed according to state law.  These laws are known as the intestacy laws.  Through the intestacy laws, your assets will be distributed to your spouse, descendants, or next of kin.  This might not be your plan!

What’s so bad about Probate?

It can be expensive.  Legal fees and other costs, such as filing and publication fees, must be paid before your assets can be fully distributed to your heirs.  If you own property in other states, your heirs could face multiple probates, each one according to the laws in that state.

It takes time, usually at least 6 months or more.  This is because nothing can be distributed or sold without court or personal representative approval until the creditor notice period has elapsed.  In Florida, the creditor period is 3 month from the first date of publication.

There are privacy issues.  Probate is a public process, any “interested party” can see what you owned and who you owed at the time of your death.

What is a Living Trust?

A living trust is a legal document that, just like a will, contains your instructions for what you want to happen to your assets when you die.  But, unlike a will, a living trust avoids probate at death.  When you set up a living trust, you also transfer assets from your name to your trustee.  Legally, you no longer own your assets, everything belongs to your trust, so there is nothing for the courts to control when you die!  This simple estate planning tool keeps your heirs out of the courts.  And Living Trusts are private arrangements; they are not part of the public record.

Do you lose control of your assets that are in your Living Trust?

Absolutely not!  You keep full control of your assets. As the trustee of your trust, you can do anything you could do before- buy, sell, reinvest, and you even file the same tax returns.  Nothing changes except the way the assets are titled.

Doesn’t joint ownership avoid probate?

No, it usually just postpones probate.  When the first owner dies, full ownership does transfer to the survivor without probate, but when the survivor dies, or both die at the same time, the asset must be probated before it can go the heirs.  There are other problems with joint ownership, for example, the creditors or ex-spouse of the co-owner could be entitled to these funds.  With real estate, if you own it jointly with another, remember that all owners must sign to sell or refinance.  If a co-owner is unwilling or becomes incapacitated, the court will become your new co-owner.

Why would a court become involved with you or your property if you become incapacitated?

If you cannot take care of your own personal, legal, or financial affairs due to a physical or mental incapacity, only a court appointee, in Florida, called a guardian, can do so.  Guardianships are a public process and can be expensive, embarrassing, time-consuming and difficult to end if you recover.  It does not replace probate at death, so your heirs may have to go through the probate court again.

How can you avoid a Guardianship if you do become ill?

A Durable Power of Attorney can prevent a guardianship.  A Durable Power of Attorney lets you name some you trust to manage your financial and legal affairs if you are unable to do so.  These are very powerful documents – it is like giving someone a “blank check” to do whatever he or she wants with your assets- so it should be well thought out, and the person you name should be someone you completely trust.  You can also have a Pre-need Guardianship Designation, which allows you to name your own guardian if that is ever necessary.

A Living Trust is another technique to avoid court intervention if you become incapacitated.  As mentioned, when you set up a living trust, you transfer your assets to the trustee of the trust.  Legally speaking, you no longer own the assets, your trust does.  Your successor trustee will have the legal authority to manage your assets according to your instructions in your trust and will not need court approval.

Isn’t a Living Trust expensive?

It does cost more to have a trust than just a will.  But you can pay for it now, or you can pay the courts and attorneys to do it later.

 

For more information on how you can avoid probate and guardianship with a living trust, contact our office for a free consultation.

(386) 256-4882

 

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.

 

As an Elder Law Attorney, families often come to see me when a loved one is sick and time is limited.  Handling a death in the family is always difficult, but handling the legal details is the last thing you will want to do in a time of mourning.  The death of a loved one is not only terribly painful, but the aftermath can be complicated, expensive, and a lot of work.

Here are some tips to help you minimize the stress:

Discuss and arrange funeral arrangements ahead of time.  Discuss burial and cremation.  Cemetery plots are sometimes already purchased, especially when the other spouse has died; if not, try to discuss your loved ones’ preferences and do as much as possible in advance.

Funerals are expensive.  Hopefully, your loved one has made pre-paid funeral arrangements, but if not, discuss the details.  Since life insurance proceeds and inheritances may take a while to receive, discuss how the funeral will be paid.  Did your loved one put some money aside that is easily accessible?  Remember, you won’t be able to use their credit card after they are gone.

The sooner you discuss the details, the better.  Talking about death is easier when it feels farther away.

Legal documents should be located.  If anything is needed to pass on property and assets after death, do it now.  As long as your loved one has mental capacity, Wills, Trusts, and Medical Directives can be prepared or updated.  Try to take steps to avoid probate.  Probate is the last thing you want to deal with after your loved one dies.  Probate is not only stressful but time-consuming and expensive.  Seek out legal counsel before it’s too late.

Questions? The Law Office of Debra Simms is here to help. Call us today 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:
629 N. Dixie HWY
New Smyrna Beach, FL 32168
Local: 386.256.4882
Toll Free: 877.447.4667

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