Category Archives: Attorney Advice

What happens in Florida if I die without an Estate Plan?

die without an estate plan

 

Quick answer, State law will dictate how your assets are distributed.   Assets that fall under the purview of the Probate Court without direct beneficiary designations will need to be probated and they will be distributed pursuant to the laws of intestacy.  This means that Florida law dictates who will inherit your probated assets without any other factual consideration and no concern for what your wishes may have been. This scenario can be particularly devastating when the people named under Florida law are not the people you want inheriting your estate.

Think of your Estate Plan as your instruction manual for the probate court —if you don’t have one, then Florida Statute becomes the instruction manual for your probate assets.

Ask Heidi : What are the Steps for Probate Once a Loved One Passes?

Steps for Probate

When a loved one passes away, the circumstances are emotional and stressful for anyone. The last thing on your mind is the practical and legal steps that must take place during this time. I tell everyone that you should take a breath, take care of putting your loved one to rest, grieve, spend time with family and THEN contact an attorney —there are very few circumstances where dealing with the legal aspects can’t wait a week or so.  Sometimes a quick phone call with your attorney can give you the peace of mind you need to not rush out to a meeting with an attorney when you really aren’t up for dealing with business yet. 

Meet with a probate attorney. 

The Personal Representative named in the Will should choose the attorney —often the attorney who did the Estate Planning is still practicing and is a good first step if that isn’t possible ask for a referral from your friends —the “yellow pages” isn’t always the best stop.  If you cannot get a referral then get online and read those reviews! It’s important that you find an attorney who can evaluate your circumstances and give you a game plan that you understand. You must feel comfortable with your attorney. The advice of competent counsel can save a lot of frustration and running down dead ends.

Initiate Probate.

If you are advised that a Probate is needed it must be initiated before anyone can begin selling, transferring, or using estate property.  It will not happen spontaneously someone must initiate the probate process. It is my advice that you hire an attorney —there is no Probate circumstance that I personally would ever recommend someone do without an attorney.  While an attorney is not required for a Summary Probate in Florida it is a process that will go much more efficiently if you are represented by counsel. In Florida, an attorney MUST represent the Estate if a Formal Probate is needed.  An experienced attorney can evaluate your case during your initial consultation and tell you which type of Probate if any, your circumstances dictate.

Take Inventory and Pay Debts

The probate process starts with a Petition and then publication to alert creditors of the action, followed by an inventory of all assets (real estate, bank accounts, investment accounts, etc.), which will need to be filed with the probate court and then ultimately payment of the Estate’s obligations.

Resolve Conflicts

At any point in the probate process, conflicts or legal challenges might arise. These will necessarily extend the amount of time it takes to settle the estate and will usually result in more estate expenses. Again, a qualified probate attorney can help you navigate this stressful piece of the process. 

Distribute Assets

Once all conflicts are resolved, estate debts are paid, it’s time to begin distributing assets. If there’s no Will, state intestacy laws will determine who the inheritors are.

Close the Estate

Finally, after everything is distributed your attorney can Petition the court to close the estate. Once approved, the Personal Representative will be discharged and the Estate will be closed.

 

Red Flags to Look for When Hiring an Estate Planning Attorney

Estate Planning is not black and white or an easy area of law to navigate by yourself without legal counsel. Estate Planning is an area of the law that can have everlasting (and devastating) effects on you and your loved one’s future. As with any legal matter, it is essential to remember to choose a lawyer that specializes in the field that you need assistance. As you would not ask your electrician to fix your broken toilet, selecting a specific attorney in their area of expertise is incredibly important.

Here are some other red flags and things to avoid when you are hiring an estate planning attorney:

Non-Licensed Attorneys

It may seem obvious that when you are making an estate plan, it is essential to seek proper legal advice. Only a licensed attorney can legally give you advice on how to best protect your assets from taxes, probate, and the costs of long-term care. The results of the unauthorized practice of law can be disastrous.

One-Size-Fits-All Planning

There are many general practitioners or legal document websites that can provide you with a basic and non-customized Last Will & Testament for a minimal cost. Be aware that these documents are usually entirely composed of general language and fail to address any individual or state law issues. You are putting yourself in the position to plug in your name and general information and hope for the best. Every family and situation is unique and each estate plan must be customized to account for the differences. Attorneys who truly focus on estate planning can provide an adequately customized plan which specifically addresses your needs and goals based on where you are in life.  

Big Picture Attorney

An extra bonus is an attorney who also does some Probate and/or Trust Administration —now there’s an attorney who actually sees how their [and others] Estate Plans play out.  MOST of the Formal Probates I do are the result of a flawed Estate Plan generated by either a website, a DIYer or what I refer to as a “Will Mill” —a practice that doesn’t give any thought to their client’s individual circumstances or what the practical result of putting a client’s request into their Will will be.

Carefully selecting the right attorney for the job has a monetary and potentially poignant impact down the road. Take the time to research your options and be sure to consult with a professional who is experienced and proficient in the field of Estate Planning. 

 

 

 

 

Things to Consider In Order To Include Charitable Giving Into Your Estate Plan

Sometimes we are not often able to donate to important charitable causes as much during our lives as we might like to. Leaving a gift as part of your Estate Plan is a great way to support the important work your favorite non-profit organization will continue to do in your memory and your gift no matter what the amount will be most graciously accepted.

Now that you have decided to make this meaningful impact, the first step is deciding which cause or set of causes will benefit from your donation. If you have a history of volunteer work or charitable giving, this may be an easy decision. But regardless of your charitable history, think about certain factors that will help narrow your focus of giving: For example, what issues in your community concern you? What concerns you about future generations? How would you like to be remembered?

As with any portion of estate planning, it is important to do your research and ask questions so your intentions are clear. It is also highly recommended to fully investigate the reputation of the charity you wish to make your contribution to. Ensure that the charity you wish to donate to uses their assets wisely and that your donation is actually applied to charitable purposes instead of administration costs.

If you are inclined to make a charitable donation in your Estate Plan, it is always smart to discuss your intentions with an Estate Planning Attorney to ensure your wishes are fully thought-out, appropriately documented, that your plan does not cause a Probate where there might not have been one [there are many ways to avoid this issue], and to ensure that the gift is mutually beneficial from a tax perspective.

It Take A Village: Hiring For Your Small Business

small business

When you start a small business, it seems lofty to think that one day you will need to hire people to help you run it.  Here is a couple of ways to see if hiring someone or using a freelance for their services makes sense for your business:

You don’t know how to do it.

This is obvious, but if there are business skills you don’t feel comfortable with executing…it would be harmful to wing it. If money is an issue, do your research (YouTube is your friend) so you can make an educated decision on if this is something you can handle on your own or need to farm out.

You just simply do not want to do or have zero time to do it.

One of the best pieces of business advice ever given was this: Think of things you simply do not want to do that are essential to make your business or home life run smoothly and find ways to have someone or something do them for you.

A great example is to consider hiring someone (even once a month) to come to clean your house. You are now an entrepreneur that has poured blood, sweat, and tears into your business. This is now a day in and day out process which no longer entails a time clock or a nine to five mentality. The last thing you want to do on a Saturday morning is to drag out the vacuum.

Using Shipt and a bookkeeper also comes to mind. Basically, digging deep into thinking about the tasks you dislike and wish someone could take them off your hands so you can focus on building your business lies in this category.  The adage —Work Smarter not Harder comes to mind.  Embrace it and learn to delegate.

Adding people to your village will help you and your business succeed and will warrant the investment!

 

 

The Benefit of Using An Attorney Instead of An Internet Service For Your Will

internet service

“Do I really need an attorney? Can I write my own will? ”

My quick answer is yes  —you can write your own will or use a free internet service to write your own Will.

In this age, you can watch a video on YouTube or read a DIY blog post and have the capability to Google just about anything. There’s seemingly limitless information at your finger-tips and it is easy to feel like you can sidestep the professionals for a cheaper solution.  The “catch” is some of that information is correct and some inaccurate but it is hard to discern which is which and even which is applicable to your circumstance.

The more important question is really SHOULD you write your own will?

Then my quick answer becomes NO. 

Even though some legal documents are free —they really are not one size fits all.  Laws vary from state to state and very small nuances can change what you should do.  Legal advice, guidance, professional knowledge, and peace of mind are why you pay an attorney.  A software system is only as good as its design. This software does not explain your options nor the implications/effects of those decisions.  A good estate planning attorney should be a trusted advisor can guide you, answer your questions, and help you to make informed and empowered decisions that are best for your family. 

That’s what we call money well spent.

Ask Heidi: “I am not rich..Do I need a Last Will and Testament?”

 

Do I need a Last Will and Testimant

This question gets a resounding YES.  No matter what your financial status is, having a Will is necessary to give YOU the control of what happens to your family and your “stuff” in the event of your death and gives your appointee(s) a smooth process in order to effectuate your wishes.

If you have children having a Will is not only necessary but should be a priority. Declaring a Guardian for your children under the age of 18, or special needs adults under your care are very important.  If you fail to do so, and both parents pass without a written intent there could be issues with the relatives (or friends) you assumed would gain custody, they may not —there also could be placement delays.  Having a Will could not only save thousands of dollars in court fees, but it will also streamline the process and reduce heartache all around so your children are placed with the relative that you would have wanted them to be placed with –expeditiously. The flip side is perhaps there’s a relative you don’t want raising your kids –nominating a Guardian in a Will can avoid that occurrence.

As a practical matter, without a Will, your belongings may go to people who you don’t want to have them. One reason folks often give for not writing down their last wishes is that they “don’t have anything of value” to pass on when they die.  Usually, they are surprised with what assets they do have that need direction.  Most commonly –a checking account, retirement fund, vehicle or other belongings that can be passed on to friends and relatives.  Having a Will also gives you an opportunity to nominate a Personal Representative, someone that you trust that will handle settling your estate and/or undertake a number of important duties when you pass. 

I meet with people every day to discuss Wills and other Estate Planning documents, call to schedule if you want answers specific to your situation.

Heidi S. Webb, Attorney at Law serves clients in Daytona Beach, Ormond Beach, Port Orange, Melbourne and beyond with matters of Elder Law, Estate Planning, and Probate Law.   Contact her today to schedule a free consultation. Visit her page on Facebook, or see what her clients are saying to learn more about Heidi.

How Do You Provide For Your Pet After You Pass?

provide for your pets

We love our four-legged members of our family, but few of us consider who will take care of them and how they will be provided for after we die. Although you can’t leave money directly to a pet, there are several things you can do to make sure your pets stay well cared for when you can no longer take care of them. With proper planning and the right legal guidance, you can plan for all the loved ones in your life–including the four-legged ones!

A pet trust is an estate planning tool you can use to create a legal obligation to care for your pet. In the trust document, you name a person to care for your pet, you provide instructions for your pet’s care, and you leave money for that purpose. When you die, the person named as trustee will get the money and the pet. However (unlike a provision in a will or living trust), under a pet trust, the trustee will have to follow your instructions and use the money only for the care of your pet. Please make sure you have an honest conversation with this person and make sure that they will be happy to look after your pet.

There are several options for your pets, whether or not you have close family and friends who are willing to take them on should anything happen to you. But whichever option suits you best, you can only ensure it is carried out by making a clear and binding will and informing your loved ones of your wishes in advance.

Heidi S. Webb, Attorney at Law serves clients in Daytona Beach, Ormond Beach, Port Orange, Melbourne and beyond with matters of Elder Law, Estate Planning, and Probate Law.   Contact her today to schedule a free consultation. Visit her page on Facebook, or see what her clients are saying to learn more about Heidi.

Questions to Ask When Interviewing Estate Planning Attorneys

Questions to Ask When Interviewing Estate Planning Attorneys

Estate planning is not something that many people look forward because it’s associated with mortality, but it’s important to think of the next generation. If you want your assets passed down to them without efficiently and without incident, you’re going to need to make smart decisions. Fortunately, if you hire the right estate planning attorney, you can get valuable input and assistance in making those decisions. On the other hand, if you hire the wrong estate planning attorney, you could end up paying a lot more than necessary — your assets might not go where you intended or in the most efficient manner.  

These questions should help you find the right estate planning attorney:

  1. What is your experience in dealing with trusts and estates? The quality of this answer will depend on your requirements, but you definitely want to hire someone who has been in the business for a minimum of three years.
  2. Is your primary focus on estate planning? You’re looking for a “yes.”
  3. Do you practice Probate as well? A “yes” is a bonus as having an attorney that sees how their [and other’s] Estate Planning documents play out post mortem is worth its weight in gold.
  4. How long will it take you to complete my estate planning project? In most cases, there is no rush. The key is to avoid the probate process.
  5. Will you send estate planning documentation for me to review? Even if you’re working with the most experienced estate planning attorney in the world, you want to review documentation to make sure everything is set up as you intended. Your attorney may be highly skilled, but there’s always the possibility of miscommunication.
  6. Do you offer a formal updating and maintenance program? For a small fee, some estate planning attorneys will offer a semi-annual or annual review. This is important because there may be changes to laws and taxes, as well as to your life. In regards to the latter, adjustments to your estate might be necessary.
  7. Do you assist with Trust funding? In the event a Trust is your recommended course of action, having an attorney who will help make sure all your assets end up in the Trust is VERY important.  Unfunded Trusts are virtually worthless.

Every situation is different, but asking a potential estate planning attorney these 7 questions should provide you with a lot of information to help you decide whether he or she is the best option for you, which also would mean the best option for your loved ones.

Heidi S. Webb, Attorney at Law serves clients in Daytona Beach, Ormond Beach, Port Orange, Melbourne and beyond with matters of Elder Law, Estate Planning, and Probate Law.   Contact her today to schedule a free consultation. Visit her page on Facebook, or see what her clients are saying to learn more about Heidi.

ASK HEIDI:  Do I need to select a Power of Attorney for financial matters and another for health care, or can the same person do both? 

Short Answer:  While it’s two different documents/roles it can be the same person wearing both hats.

The document for handling financial matters is called a Durable Power of Attorney and the Health Care Surrogate Designation is for healthcare decisions when you are unable but there’s an expectation of survival. 

I usually approach it from the perspective that they are very different roles and often different loved ones might be better suited for one rather than the other.  I tell my client’s that they shouldn’t feel it HAS to be the same person but it absolutely can be.