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Ask Heidi: Who Needs to Hire an Elder Care 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 move can mean the difference between a good result and a bad one. Aside from this, the two reasons listed below should be enough to convince you or your family member to go out and find and hire a qualified elder law attorney to assist with elder law matters:

1. You need a personal representative. You must know State Law to correctly set up a personal representative in the State in which you reside.

2. You are filling out a Medicaid application. These documents are challenging. It’s a good investment to hire an Elder Care Lawyer 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 Care Legal services, give me a call for a free consultation.

Ask Heidi: Where Should I keep my Estate Planning documents for safekeeping?

Answer: After you’ve created a Will, the next decision is where to store the Will so that your Personal Representative can easily find it when needed. A physical copy of a

Keep your Estate Documents in a safe place

Will should be stored in a safe and accessible place and the Personal Representative should know exactly where it is kept. I suggest to my clients they can keep their original Estate Planning documents in a safe deposit box or a fireproof safe in their home. As a final safeguard, I provide all my clients with electronic copies of their Estate Planning and suggest they share them with the Personal Representative. As original documents become less important accessibility remains a paramount concern, and so, no matter where you keep your documents, the most important thing is you tell your Personal Representative where they are located.

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

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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. 

 

Four Questions to Ask Yourself Regarding Your Estate Plan

Estate Plan

Questions to ask yourself to prepare for your meeting with your attorney

You do not have to have a ton of assets to need an Estate Plan. You do need an attorney specializing in this area of law to properly put together any type of plan. An Estate Plan is more than big assets. It is the plan that comes into play when you can no longer convey your wishes on various issues. After you pick an attorney to help put together your documents, ask yourself these four questions. Bring the answers to the meeting so the attorney can get an idea of the type of Estate Plan needed to fit your needs.

1. What are your Assets? Make a list of everything you own. Your home or apartment contents, car, and various other items can be addressed in an Estate Plan. Cars. Jewelry. Furniture. Family photos. Not all assets have a monetary value. Sentimental assets have been known cause just as many problems [if not MORE] as large sums of cash. This list will help your attorney put together a plan to fit your needs.

2. Who Gets What? Now that you have your list – who to do you want to have these assets? Name a person you want to carry out your wishes when it comes to distributing these assets. These are the big decisions that no one can make for you.

3. What are you Healthcare Wishes? Accidents happen and they do not give warnings. That’s why they are called accidents. This is especially important in the case of an illness that robs you of your ability to make decisions. Choose a trusted friend or family member to assign as the healthcare power of attorney. Then talk to this individual to make sure they are willing to accept this responsibility and will follow your wishes.

4. What Type of Funeral? This is a morbid thought and no one likes to think about a day when someone will be planning their funeral. Write what you would like, if you want a funeral and make it part of your Estate Plan. Listing out your wishes will make this easier for love ones during a difficult time.

These questions are just a start. Your attorney will probably have more questions to make sure all the potential issues are addressed in your plan. Follow up on your attorney’s advice. Sign the documents, change the asset titles if necessary and let your family know where your documents can be located. Your family will appreciate having these documents and it will help them deal with their grief.

ASK HEIDI:  How do you help someone with Alzheimer’s Disease or dementia get their affairs in order?

estate planningShort Answer: A complication of diseases such as Alzheimer’s Disease is that the person may lack or gradually lose the ability to think clearly. This change affects his or her ability to participate meaningfully in decision making and makes early planning even more important. In my practice, I advise putting together advanced directive documents in place as soon as possible if you find yourself in this type of situation.

Why it’s Important:  Advanced directive documents such as a Living Will and Healthcare Power of Attorney are written instructions letting others know the type of care you want if you are seriously ill or dying. A Living Will record your end-of-life care wishes in case you are no longer able to speak or make decisions for yourself. You might want to talk with your doctor or other healthcare provider before preparing a Living Will. This will help you have a better understanding of what types of decisions might need to be made. Make sure your doctor and family have seen your Living Will and understand your instructions. Because a Living Will cannot give guidance for every possible situation, you probably want to name someone to make care decisions for you if you are unable to do so for yourself. You might choose a family member, friend, lawyer, or someone in your religious community. Of course, you should make sure the person you have named (and alternates) understand your views about end-of-life care and are willing to make those decisions on your behalf. You can do this either in the advance directives or through a Durable Power of Attorney for health care that names a healthcare proxy, who is also called a representative, surrogate, agent, or attorney-in-fact. 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.

Interview Loved Ones and Not Just for Estate Planning

In my practice, I preach about talking to your loved ones about their end of life paperwork and Estate PLanning PeopleEstate Planning. What I didn’t consider, until I ran across a Facebook post by Brendon Burchard, is what WE lose when a person that has shaped our lives passes away. You may regret not knowing certain things about them as an individual when they are no longer here to ask. Everyone’s life is full of interesting antidotes, experiences, and lessons. If conversations are not held while they are alive, we lose the chance to gather this priceless information. Brendon Burchard held this interview with his father, recorded it and shared it on Facebook. I think this is a fantastic idea for everyone to do with a love one, parent or parent figure. Hold this interview, record it and see this person as a teenager, young child and learn what was important to them. This information will bring you comfort when they are gone and you are grieving their passing.

INTERVIEW SOMEONE YOU LOVE ABOUT LIFE

Questions from Brendon Burchard

1. What comes to mind when you think about growing up in [hometown]?
2. What did you love to do as a kid, before high school?
3. What did you love to do in high school?
4. What do remember most about your teenage years?
5. What do you remember most about your mom?
6. What was most important to her?
7. What do you remember most about your dad?
8. What was most important to him?
9. If grandma and grandpa had a message to you and their grandchildren, what do you think it is?
10. How did you meet [spouse] and know (s)he was the one?
11. How did you choose your career and what was your favorite part about it?
12. What made you successful at work?
13. What did you believe about yourself that helped you become successful and deal with hard times?
14. What times in your life truly “tested your mettle,” and what did you learn about yourself by dealing (or not dealing) with them?
15. What three events most shaped your life?
16. What do you remember about when each of us was born?
17. Were you ever scared to be a parent?
18. What three words would you say represented your approach to parenting and why?
19. When you think about [sibling] how would you describe him?
20. What message do you have for [sibling] that you want him to always keep in mind?
[Do the last two questions above for each sibling in your family]
21. When you think about [spouse], how would you describe her/him?
22. What message do you have for [spouse] that you want her/him to always keep in mind?
23. What three words would you say best describe who you tried to be in life and how you want to be remembered?
24. When they think about their careers, what do you want your children to focus on?
25. What have you learned about other people in life? (trustworthy, kind or not and mean)?
26. What do you think the world needs more of right now?
27. What do you believe people want the most in life?
28. What were the three best decisions you’ve ever made?
29. What are you most proud of in life?
30. What were five of the most positive moments of your life?
31. What message would you like to share with your family?
32. What are you most thankful for?

A Love One Has Passed – Now What?

A love one has passed and now the probate process starts. But where to begin?  First let’s keyboard_legal_malletdefine what “Probate” is per the Florida Bar website: 

“Probate is a court-supervised process for identifying and gathering the assets of a deceased person (decedent), paying the decedent’s debts and distributing the decedent’s assets to his or her beneficiaries. In general, the decedent’s assets are used first to pay the cost of the probate proceeding, then are used to pay the decedent’s outstanding debts, and the remainder is distributed to the decedent’s beneficiaries. The Florida Probate Code is found in Chapters 731 through 735 of the Florida Statutes, and the rules governing Florida probate proceedings are found in the Florida Probate Rules, Part I and Part II (Rules 5.010-5.530).”

For the purposes of this blog post, we are going to assume a Will is in place and you live in the state of Florida.  It is important to note that EVERY State probate process is different.

Hiring of an Attorney.  Florida law requires you hire an attorney to file a Probate action, it makes sense to consult early on because your case may not require a formal Probate action.  In any event, an attorney can help calm your nerves and outline what steps you should take.    

Opening a Case.  If a Probate is appropriate, your Attorney will draft and file a Petition to open the case.  A Circuit Court judge presides over probate proceedings. The judge will rule on the validity of the decedent’s will, if there is one.  If the decedent had a Will that nominated a Personal Representative, the judge will also decide whether the person or institution nominated is qualified to serve in that position. If the nominated personal representative meets the statutory qualifications, the judge will issue “Letters of Administration,” also referred to simply as “letters.” These “letters” are important evidence of the personal representative’s authority to administer the decedent’s probate estate.

 The Personal Representative has a legal duty to administer the probate estate pursuant to Florida law. Initially, the personal representative must:

  • Identify, gather, value and safeguard the decedent’s probate assets.
  • Publish a “Notice to Creditors” in a local newspaper in order to give notice to potential claimants to file claims in the manner required by law.
  • Serve a “Notice of Administration” to provide information about the probate estate administration and notice of the procedures required to be followed by those having any objection to the administration of the decedent’s probate estate.
  • Conduct a diligent search to locate “known or reasonably ascertainable” creditors, and notify these creditors of the time by which their claims must be filed.
  • Employ professionals to assist in the administration of the probate estate; for example, attorneys, certified public accountants, appraisers, and investment advisers.

If the personal representative mismanages the decedent’s probate estate, the personal representative may be liable to the beneficiaries for any harm they may suffer. This is another reason an attorney should be hired to help navigate the waters of Florida probate laws.

This list is a general break down of the INITIAL steps in Probate and every situation is unique.  If you live locally and have probate questions, call, and schedule an appointment so I can answer the questions particular to your estate situation.

The End of the Year is the Perfect Time to Update Your Asset Inventory

When someone passes away, finding all the accounts, insurance policies, and necessary information to close an entire estate can be a monumental search. When I do an Estate Package for a client I put together a binder. This binder contains all the documents of the Estate Plan for convenience, safe keeping, and future review. Yearly review of your Estate Plan and Asset Inventory is a responsible habit to start and the end of the year is a great time year to implement this practice. Many people create an inventory when they go through the process of initially planning their estate and never touch it again. One easy way to annually update your inventory is to collect the statements you get in the mail at the end of the year for tax purposes. Place them all in a folder as they come in the mail and cross reference this against your inventory. That way you are getting a jump on your taxes AND updating your binder with the most current information on your assets. 
Also, there are significant life events that can trigger changes to the asset inventory. Examples of these are:

Divorce.

If you have gotten a divorce since the drafting of the estate plan and asset inventory, they will need to be changes. In addition, if an heir has gotten divorced this may change how you your assets will be distributed.

Marriage.

If you have gotten married, there may be additional assets that need to be added to your inventory. The information needs to be gathered and put on this list in your estate binder.

Sold or Purchased New Assets.

Did you cash in an insurance policy or purchase a new piece of land? These changes need to be added to your asset inventory to bring it current.
An asset inventory will only provide a clear “road map” for your heirs after you are gone if it is reviewed regularly. An experienced estate planning attorney can help you create an inventory of your assets and make a plan for asset preservation and distribution. If you are in the Daytona Beach, Florida area, call me for a free consultation regarding your Estate Planning needs.

estate-planning

ASK HEIDI: Why is giving back so important to you during Christmas?

xmas-treeShort Answer: Many people are not as lucky to have what I have in life. Giving back is my way to pay it forward in the hopes that my actions will make a difference to someone. It also helps my children to appreciate their station in life. Countless children start out life with everything going against them and many become a statistic, it’s everyone’s responsibility to offer others a hand up.

Why it’s Important: I was adopted and had a great life with all my needs [& most of my wants] met. Giving back is how I pay homage to my beginnings. The Children’s Home Society of Florida is one of my favorite charities to support during Christmas, because it combines giving back to where I came from [CHS of NJ] while paying it forward in my community. Their back story can be found on their website here.

I was an infant when I was adopted. I was lucky. Lots of children in the system are not as lucky. Any of us could have been a Children’s Home Society child. The Angel tree is my way to giving back to a charity close to my heart and maybe, just maybe, the gifts collected for these children will make a difference for the children that receive them. It may give hope to a child in the system that thinks the world is a terrible place. I believe there IS still a lot of good in people and what better way to show that than to give folks a way to make a difference in the lives of some that may not know that it still exists. Yes Virginia, there is a Santa Claus.

“Must Have” Documents in Your Estate Plan

Creating an Estate Plan can be confusing and time consuming if you try to do it on your own. estate-planning-3Working with a trusted attorney who understands the law in the state you reside in will drastically cut down on stress and ensure you provide for your beneficiaries. Having the necessary documents in your plan, above and beyond your Will or Trust, will help your family to have your wishes followed during a difficult time. In my practice, I have a few documents that I do in every Estate Plan I draft for my clients regardless of the complexity of their Estate.

Power of Attorney
A written authorization for someone to act on your behalf in private, business or lgeal affairs is a Power of Attorney.  The most common Power of Attorney documents are:

  • Health Care Surrogate Designation – medical and health care decision making ability, as well as access to records, insurance, and providers.
  • Durable Power of Attorney – financial management, in times of sickness and/or health

Living Will

A written document or statement in which you detail your wishes regarding medial treatment and life-sustaining efforts in case your become incapacitated and cannot longer express informed consent is a a Living Will, or Advance Directive.  This doesn’t have to do with your assets, but it’s important to have for the sake of your loved ones. It can help them know what you want to happen during an extremely difficult time. The difference between the Health Care Surrogate and the Living Will is that the Health Care Surrogate is written for times of poor health, 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 “turn it off if there is no hope”.

Having these basic Estate Planning documents in place and reviewing them regularly will help ensure that your affairs and care are easily managed when you are unable to manage them yourself.