Category Archives: Attorney Advice

Eight Estate Planning Documents Everyone Should Have (and keep updated!)

Estate Plan Documents

An Estate Plan contains many documents, some that people are unaware of and need. Here is an overview of eight documents you may need to prepare for yourself and your family with the help of an attorney.

  1. LAST WILL AND TESTAMENT

A legal document used to distribute property to beneficiaries, specify last wishes, name guardians for minors and identify who is responsible for managing the estate and implementing your requests. Every adult needs one. If you don’t specify who will take care of your children and who gets your possessions, the state in which you reside will do it for you and it may not always be what you would’ve wanted.

  1. DURABLE POWER OF ATTORNEY

A Durable Power of Attorney gives someone you trust authority to handle your financial and legal matters if you’re unable to do so yourself. Of course, the person selected needs to be someone whom you trust will represent your best interests. Review my blog post here on how to choose the correct Power of Attorney (link to old blog post)

  1. HEALTH CARE SURROGATE DESIGNATION

You assign a healthcare proxy or surrogate to make medical decisions for you when you are incapable of doing so but there is an expectation of survival. This person will need relevant health information so be sure it includes a HIPAA provision that gives your physician(s) permission to disclose your medical information.

  1. LIVING WILL AND MEDICAL DIRECTIVES

A living will let you specify what types of medical treatment you want to sustain your life if you’re terminally ill or are in a vegetative state. Medical directives apply if you become incapacitated and are unable to communicate your wishes for treatment.  The difference between the Health Care Surrogate and the Living Will and Right of Privacy Declaration is that the Health Care Surrogate is written for times of poor health to allow full access to healthcare providers and information; when you are unable to make your own decisions, yet the thought is that there will be survival with quality of life. The Living Will is essentially the document that says when YOU would like to say “turn it off if there is no hope”. 

  1. REVOCABLE OR LIVING TRUST

In many states, a living trust can be used to distribute property more privately than a will –Florida is one of those states. It also helps avoid a costly and stressful probate court process allowing a more seamless administration of your Estate.  There are many circumstances that dictate a Trust being appropriate and many times that I advise they are unnecessary.  That said, I strongly recommend folks consider a Trust in the following circumstances:  When you have real property in more than one state, children or young adults that stand to inherit a substantial sum, or concerns about your mental capacity declining.

  1. BENEFICIARY FORMS

For insurance policies, retirement accounts, and some other assets, the beneficiary form prevails over the will. Whom you name in these documents will receive the assets, so make sure they are reviewed and updated every few years if needed, and your Attorney includes them in your plan.

  1. LETTERS OF INSTRUCTION

A way to share any wishes not covered by a will, such as preferences on your funeral, how to care for your pets or whether you want to donate your organs.

  1. LIST OF CONTACTS

A detailed list of people to contact in certain circumstances, including family, friends and the professionals who oversee your legal, financial, insurance and health matters.

Also, advise your family where these documents are and keep them in a safe place. If you live in the Daytona Beach, Florida area and have more questions regarding Estate Planning, call me for a free consultation.

 

How Do I Talk to My Parents About Estate Planning?

estate planning

The Estate Planning conversation can be difficult.

Conversations about planning for a senior’s later years seem difficult because often they are delayed until a medical crisis forces the family’s hand. Here are two suggestions on how to make this conversation a productive one for all parties involved. 

Schedule a Time to Hold the Conversation

Let them know ahead of time that you want to discuss something important. The first conversation should take place at your parents’ home, or another place where they feel comfortable. Make an “agenda” on the issues you want to discuss during this meeting to stay on track if things get emotional.

Avoid Making Your Parents Defensive

If your parents are more hesitant, start with the least emotional topics to establish comfort. Always open the conversation with “I” statements, instead of “you” statements. Saying something like, “You can’t manage your finances anymore,” would only get your parents’ hackles up. –instead, say “I want us to be prepared in case there’s an emergency so that I can be helpful.”  If you make sure your conversation is coming from a helpful place, the discussion will be a positive one.

If your parents are willing, consulting with an Estate Planning Attorney is something I always recommend.   If you are located in the Daytona Beach area, call my office for a free consultation.

How to find a Personal Representative outside of your family

There are three characteristics I believe you should look for when choosing the Personal Representative of your estate: someone who can carry out the needed tasks is willing to serve in this role and is familiar with your unique situation.

How do you find a Personal Representative if you don’t know anyone who meets these three criteria? In other words, where can you turn to find a Personal Representative if there are no immediate candidates within your family or your close friends?

While the majority of folks find an individual in their family to serve as Personal Representative, however, if there are no immediately obvious people who you think would be a good fit, think outside of the box. Do you have any grandchildren who could do it? If your close circle of friends is older, do any of them have kids that would be able to carry out the tasks of Personal Representative?

People are typically more than willing to help out if they’re approached. Be open to reaching out to folks that have a good head on their shoulders and you are comfortable sharing your wishes with, even if they’re not a member of your immediate family. If you are still not able to find an individual to handle the task of being Personal Representative of your Estate, there are other options.

Alternatives to Working with an Individual

If finding an individual that you trust and that is willing to serve as Personal Representative for you isn’t possible, then you can look at hiring a third party to serve as the Personal Representative of your estate. For example, an experienced estate planning attorney or a local bank or trust company can be tasked to handle the duties of being your Personal Representative.

Ultimately, whether you’re able to find an individual or you opt to work with a third party to serve as your Personal Representative, it’s important to review the details of your plan and outline where your important financial documents and information are located. That will make settling your affairs a more manageable task and, ultimately, help ease the workload that you entrust to your Personal Representative.

If you are seeking help to get your Estate Plan together and live in the Daytona Beach, Florida area, call me to schedule a free consultation.

Four Things that Cause Sibling Feuds Regarding Estate Planning

 

Caring for an ill parent or settling their estate once they have passed is an emotional time in a family and can start a feud or add to an already existing one if specific preventative measures are not taken. When parents divide their assets to their children, they don’t expect such fights to occur, but they do. Not all disagreements can be prevented, but with careful planning, following the advice of an Estate Planning Attorney, parents can try to avoid these issues.

Here are four things that commonly cause fights and advice on how to prevent them from happening.

  1. No Healthcare Directive and Power of Attorney

When a parent gets sick, it can be stressful, especially if they need to be hospitalized for an extended period. This can become more challenging if their situation becomes critical and they are unable to voice their healthcare or financial wishes. If a parent does not have a Healthcare Directive or Power of Attorney, their loved ones are forced to make the decisions for themselves. This can cause conflict between siblings if they are unable to agree on a resolution. In some circumstances, siblings have taken each other to court to fight for ‘their side’. This can cause a rift in their relationship, costly court fees, and lost time that instead should be spent by their parent’s side.

To avoid this conflict, parents should have their Healthcare Directive and Power of Attorney prepared:

  • A Healthcare Directive specifies your wishes for medical treatments and allows you to appoint someone to carry out your wishes if there is ever a time when you are no longer able to communicate or provide consent
  • A Power of Attorney allows you to appoint someone to look after your financial affairs, such as your property, while you are incapacitated
  1. No Will

If both parents pass away without a Will, a family can be thrown into chaos. This can cause fights between siblings if they want the same thing or can’t agree on how to equally divide the items.

Parents should create a Will and specify who gets what. They can identify items and give them as gifts to their children. Creating a Will not only ensures your loved ones are looked after, but it decreases the chance of siblings fighting over material possessions.

  1. Lack of Communication

In some cases, having a Will is not enough to stop feuds from occurring. A lot of times, parents don’t discuss their Will with their children (as it can be uncomfortable talking about money or their mortality). However, this lack of communication can cause more problems between siblings because it is too late to hear their parents’ reasoning.

Parents should communicate with their children about their Will so they are aware of the contents and can have an open discussion.

  1. Wrong Personal Representative/Executor

A Personal Representative/Executor will distribute the assets Personal Representative/Executor. Since the Personal Representative/Executor has the power to make decisions, it can create some tension between siblings. Arguments can arise because they may feel jealous that their sibling is the Personal Representative/Executor or that their sibling is abusing their power and not carrying out their responsibilities.

Often parents can select a third party as their Personal Representative/Executor. This can help alleviate tension between siblings as the Personal Representative/Executor is impartial and has no personal interest in the estate.

Every situation is different and sometimes feuds and disagreement cannot be avoided even with careful planning and the best intentions. As always, I recommend a lawyer in the state in which you reside prepare these papers, so there are no legal issues when the time comes for them to be implemented. If you live in the Daytona Beach, Florida area, call my office for a free consultation.

 

Estate Planning Pitfalls

Estate Planning Pitfalls Part 2

 

Last month I started what I consider one of my most important posts –a series regarding the

Estate Planning Pitfalls

There are numerous pitfalls of which you need to be aware regarding your Estate Plan.

most common pitfalls I see in Estate Planning.

Part two of my multi-part blog series discusses the pitfall of failing to keep a current/updated Will. This is probably one of the easiest pitfalls to avoid and the most common blunder I see by other people’s clients.  I tell my clients to come see me to review everything EVERY three years whether they think they need it or not —to encourage this practice I personally do not charge for these “check-ins” but even if your attorney charges you, go –it’s money well spent.   

Case Study:  Estate Planning Pitfall #2– Failing to Maintain an Updated Will

I was hired by a young man whose father had recently passed after a lengthy battle with illness, he had two half-siblings

There are numerous pitfalls of which you need to be aware regarding your Estate Plan.

out of state, the decedent had some property here, some property out of state, an ex-girlfriend living in his home.  All a recipe for a convoluted case at best case.  This will be compounded because although Father had resided in Florida for quite some time his antiquated Will was drafted in another state nearly a decade before his death.

To add insult to injury, because the Will was self-prepared on a form purchased at an office supply store it provided for very specific bequests to each of his 3 children and a close friend.  It did not provide for his residuary Estate —what could be called the “everything else” clause.  And a decade later all but one of the properties left to his beneficiaries was long gone and his “everything else” is everything and now left to chance.  The Will also provided for a Personal Representative who lived 2000 miles away and who likely will not want to be in charge of the circus that is about to commence with a bunch of heirs who don’t have a relationship and no clear instructions.

This case hasn’t ended yet but it’s going to be a long haul and could have been very easily avoided if he had just updated his Will prior to passing.

And so, even with a seemingly simple estate—say, you “just” own a bank account and a house—it’s crucial to keep an updated will or a living trust or otherwise Probate Proof yourself.   These scenarios can be avoided with the advice of an Estate Planning Attorney –so have your Estate Planning reviewed every three years or when life changes happen [beneficiaries pass away, children are born, divorce occurs, assets are sold, to name a few] and failing to do so can have unintended consequences.

Estate Planning Pitfalls

There are numerous pitfalls of which you need to be aware regarding your Estate Plan.

You’ve worked way too hard to leave your estate plan to chance. Stop procrastinating and protect your family and loved ones and your hard-earned legacy today. However, when doing so, there are numerous pitfalls of which you should be aware.

A simple Google search can reveal some harrowing examples of those pitfalls. This is part one of a multi-part series of what can happen when Estate Planning goes wrong:

Pitfall Possibility #1: Picking An Inappropriate Personal Representative

Are there any long-standing feuds in your family? Does your anticipated Personal Representative live near you? Who will handle your final affairs in an appropriate and fair manner?

These are all questions to spend some time thinking about when determining the best person or persons to act on your behalf after your death. Read on to review an example of what can happen if these things aren’t considered properly:

“When you’re dealing with families, things can get complicated—quick. We see so many cases come through with unresolved feuds between siblings. It’s one of the most common causes of litigation over an estate.

I handled one case where a client’s sister had been named the executor of their father’s estate, despite the fact that she lived in a different state than both her father and brother, whom she’d been fighting with for years.

Ideally, in a case like that, the parents would have named an objective, independent personal representative—like another family member or a trusted friend—as their estate’s executor, instead of one of the kids.

But that didn’t happen here.

After the father passed away, our client started to take care of a few things around the house, not realizing he didn’t have the legal right to do so. Once his sister arrived, there were accusations about items being removed—and a long legal battle ensued.

Ultimately, even though the estate was to be divided evenly, our client’s sister had all of the decision-making power to decide how that happened, so long as the monetary value was equal. There is no way to challenge her decisions in court, and we’re still waiting to see whether or not the siblings can put their feelings aside and divide the estate fairly.

To avoid contentious situations like this, we counsel clients to consider the complicated dynamics between the family members named in a will. If there’s even a possibility of an estate causing fights or damaging relationships, we encourage them to look for an independent personal representative who can settle things fairly.”

                                                    —Tom Gisriel, attorney at Pessin Katz Law, Baltimore, Md.

Mr. Gisriel finishes his story with some valuable advice: Consider complicated dynamics between family members and think about an independent Personal Representative if those dynamics will damage relationships –a neutral family friend? Your Attorney?

Follow the blog, so you do not miss the next chapters of Estate Planning Pitfalls.

Avoid these headaches by putting your Estate Plan in motion today by meeting with an Estate Planning Attorney where you reside.

Heidi S. Webb provides competent, experienced and trusted Estate Planning and Probate Estate Administration services to clients in the Daytona Beach, Florida area. Call today to schedule your free legal consultation.

Original Article with “case studies” located at https://www.learnvest.com/knowledge-center/estate-planning-mistakes

Ask Heidi: Who Needs to Hire an Elder Law Attorney?

When considering if you or a family member needs to hire an elder law attorney, believe this – elder law issues are complex and one wrong word or even a misplaced comma can mean the difference between a good result and a bad one. 

There are many times that one should seek professional  representation [or guidance] and here are a couple examples:

1. You need a Power of Attorney.  The obvious choice may not always be the best choice, making this as a guided decision with your attorney can save you and your family headache and possibly, heartache.

2. You are filling out a Medicaid application. These documents are challenging. It’s a good investment to hire an Elder Law Lawyer who specializes in Medicaid to make sure these documents are filled out correctly the first time.

If you reside in the Daytona Beach, Florida area and are in the market for Elder Law Legal services, give me a call for a free consultation.

How to Choose a Good Nursing Home

Knowing what to look for when choosing a good nursing home for your loved one is essential. Here in Florida, some nursing homes in Miami got into some serious trouble after Irma hit because there were not compliant with State regulations. That raised the question, “How do you choose the best nursing home for your loved one?” Facilities have different levels of care they provide, but for purposes of this post, I am going to concentrate on 24-hour care.

First, let’s give a definition of Nursing Home Services: A nursing home provides 24-hour nursing and personal care to residents. Nursing care is provided by licensed practical nurses (LPNs) and registered nurses (RNs). Personal attention is given by certified nursing assistants (CNAs) and can include help with bathing, dressing, eating, walking, and physical transfer (like moving from a bed to a chair). (Source here)

Next, create a list of the homes near you that provide this services. I have put together a basic list to help answer to help with this dilemma. Keep in mind, this is just a start, and sometimes your gut reaction to an institution is the best reference.

1. Check State Licenses. In the State of Florida, you can go to this website to check on the license on any homes on your list. Once you put in the name, you can see what type facility they are licensed to have. Depending on the needs of your loved one, not every institution may be authorized to meet these requirements. This site will also provide information on the staff and their licenses.

2. Visit the Facility. Call and make an appointment to meet with the administrator. Have a list of questions ready and make sure you are satisfied with the answers. Get a tour of the facility to see if it meets your expectations. Also, interview some staff to get a feel for the type of people that will be taking care of your loved one. Here is an excellent list of questions.

3. Unplanned Visits. Once you have chosen a facility show up unannounced to see if this facility provides everything it promised in your questioning. If you feel something is wrong, go to the administrator so that can address your issue.

As with any significant life decision, there are many ways to choose the best nursing home. This list is just a start, but I hope it can help educate you on this difficult decision.

Estate Plan Documents

Even the Famous Make Estate Planning Mistakes

It is a common misconception that having money means you hire the best advisors and have your life completely in order, but this is not always the case. With all the millions some celebrities have, you’d think they would be able to afford proper Estate Planning advice. But too often after celebrities die, we learn that they made some simple blunders that trigger years of court battles or cost their heirs millions of dollars., Here are some examples of some famous mistakes.

Prince Rogers Nelson

Mistake: Not having a Will. The April 2016 death of entertainer Prince wasn’t just shocking because he was only 57 years old. Many people were surprised the “Purple Rain” singer had no Will. Now a Minnesota judge is deciding how to distribute Prince’s estimated $300 million Estate among six siblings. Other potential heirs have surfaced, too, including a federal inmate claiming to be Prince’s son.

Whitney Houston

Mistake: Not updating the Will. Songstress Whitney Houston had a Will when she drowned in February 2012, but it was quite outdated. Drawn up a month before the 1993 birth of Houston’s only child, daughter Bobbi Kristina Brown, the Will was never revised — not even as the singer’s fortune climbed to $20 million. Bobbi Kristina was 18 when her mother died, and under the Will’s terms was to receive 10 percent of the estate — $2 million — when she turned 21 and the rest later.

James Gandolfini
Mistake: Not finishing planning. Sopranos actor James Gandolfini was reportedly worth $70 million when he died in June 2013 of a heart attack in Rome. His Will provided for his widow, daughter, and two sisters (his son from his first marriage was provided for in other ways). But Gandolfini didn’t use proper tax planning. The result: The Estate ended up paying federal and state estate taxes at a hefty rate of 55 percent.

 

Marlon Brando
Mistake: Making oral promises. Actor Marlon Brando had an estate plan for his $100 million fortune when he died in July 2004. The problem was, his written plan excluded certain oral promises he allegedly made to his long-term housekeeper, Angela Borlaza. She filed two lawsuits claiming she was illegally kicked out of Brando’s California home. The former maid said the house was a gift to her from Brando. The actor, though, never completed the paperwork to transfer the deed to give Borlaza legal ownership.

 

 

 

 

Heath Ledger
Mistake: Inadvertently omitting a child. After actor Heath Ledger died in January 2008, reports surfaced that he had failed to update an old Will created before his daughter was born. As a result, Ledger’s entire $20 million Estate went to his parents and three sisters.

 

 


Florence Griffith Joyner
Mistake: Keeping a Will’s location secret. Olympic gold medalist Florence Griffith Joyner had a Will when she died in September 1998. The problem: No one knew where “Flo Jo” kept it. It threw her relatives into an Estate Planning battle because they couldn’t find her original Will. And without the Will, it took four long years to close her probate estate.

ASK HEIDI: Do I need to change my will and beneficiary designations after I divorce if I want my ex-spouse to still inherit as if we were married?

 Short Answer:  Yes, divorce does void beneficiary designations as well as will provisions.

Divorce Changes Your Will

Ask Heidi

Why it’s Important:  If you want your ex-spouse to still to inherit in your estate as it was written when you were married, this needs to be addressed again after your divorce.  If you do not update the Estate documents, your estate will be deemed intestate even though you have a will.  The state will distribute your assets and family that you may not have a relationship with will end up with assets you fully intended to go to a former spouse.