Category Archives: Estate Planning

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.

Strangest Estate Planning Requests

Estate Plan

Creating a Will allows us to control the nature of our property as well as fulfill some last wishes. But what if those wishes are very strange?

You would not be the first! A surprising unusual estate planning request comes from William Shakespeare. Shakespeare all but excluded his wife, Anne Hathaway, from his Will instead leaving the bulk of his sizeable estate to his eldest daughter, Susanna. To his wife, he left his “second-best bed”. This request was separate from the Will, tacked on as if it were just an afterthought. At this time leaving someone a good quality bed was not unusual but some scholars do think this could have been meant as an insult.

Magician Harry Houdini’s last wishes included a request for his wife to hold a mini séance every year on the anniversary of his death. They even agreed upon a phrase he would communicate –the message would be “Rosabelle believe”, a secret code which they agreed to use that he would say as confirmation that it was him really speaking. Rosabelle was their favorite song. His wife, however, quit the séances a decade after his death —must’ve tired of waiting for Rosabelle.

Husband of the year for sure if you know me — Comedian Jack Benny left a provision in his Will instructing a local florist to deliver a red rose to his wife every day for the rest of her life.

Strange or purposeful? Do you remember when businesswoman Leona Helmsley left her dog “Trouble” 12 million to inherit? A judge later reportedly reduced the inheritance to 2 million. That is still a lot of dog bones!

These were fun examples but remember…unusual provisions in Wills could confuse your family members if you are not careful. If you are seeking guidance in writing a Last Will and Testament or you’re looking to set up a Trust for your family, please make sure you consult an experienced Estate Planning attorney so they can explain the entire process in detail.

What is a Living Will?

Living Will

In the event you become both mentally and physically incapacitated and can no longer make end-of-life choices yourself, a properly drafted Living Will (also called an Advance Directive) states your wishes and a plan of action regarding medical treatment and life-sustaining measures.

A Living Will is a document which states whether or not you want to be put on life support if you become are both mentally and physically incapacitated, and terminally ill, in an end-stage condition or in a persistent vegetative state and your attending physician says there is no reasonable expectation of recovery. In addition, it addresses other important issues such as tube feeding, artificial hydration, and pain medication.

A Living Will is only effective if you are not able to communicate your wishes on your own.

The key is to put your wishes in writing, so others will know what they are, and make sure that your physician(s) and family have a copy of the document or know where to get a copy of it immediately. Without direction from you with these legal documents, your family members and health care professionals can easily become uncertain about treatment decisions. When family members disagree about what course to follow, the consequences are sometimes rifts that are never resolved.

Having a Living Will (and a power of attorney) in place you can direct what kind of extraordinary measures you do or not want while also naming someone to make sure your wishes are carried out. Your Living Will may be one of the most important Estate Planning documents you ever make. Giving your loved ones clear written direction about your final wishes can spare them not only additional grief but puts you in control of making sure you get the kind of care you want.

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.

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.

Your Digital Afterlife

digital assets

As we stress pretty often, Estate Planning is a part of adulting that everyone should take some time to address. While we are most familiar with the ins and outs of what this basic process looks like — deciding who and what and when should happen to your assets but have you ever thought about the importance of how your digital life lives on?

In 2019, many of our life’s moments are not preserved physically as our parents and grandparents were. With social media outlets like Facebook, Instagram, and various photo archives –you may want to designate someone to be responsible for them or at the very least have access to them, in the same way, you would your other important documents.

Below are some thoughts about how to get started on getting your digital estate in order and specific information about how your Facebook account should be set up and handled.

Take Digital Inventory

Your first step is to decide which digital assets you want your heirs to be able to access, including your social media accounts and email. Make out a list of your accounts, and if you decide to include your usernames and passwords, then be sure to store them in a secure location and make sure that the information is always current if it changed. An estate-planning attorney can help you update your will to reflect your intentions for your digital estate.

Designate a Facebook Legacy Contact

Facebook now gives you an opportunity to choose a legacy contact, someone that can manage your social media account if you should pass away. The legacy contact can write a pinned post for your profile as a farewell message or as a way to let your friends know the details of a memorial service. A legacy contact is someone you choose to look after your account if it’s memorialized.

Like your physical affairs, a little preparation ahead of time can make managing your digital assets a lot easier for your heirs.

As a Millennial, should I start planning now?

It shouldn’t come as a surprise that estate planning isn’t a high priority for the typical adult in their 20’s or 30’s. One reason is that they usually have not accumulated the assets that people 10 or 20 years older may have. Also, because milestones, like getting married and having children, are coming a little later than past generations.

It is an incorrect assumption that only if you’re a wealthy person, you should be having conversations about estate planning at an early age. As someone younger (the Millennial generation is described as someone born 1981-1996), you may feel that some of those things aren’t even in your wheelhouse yet. Also as a Millennial, you may feel your life is just beginning, and the ending of it is too far off even to consider.

Unfortunately, we never know when our time will be up; having an estate plan in place will allow you to enjoy your life knowing your family and your assets will be taken care of.

This does not mean to say that a Millennial lacks the incentive to make thoughtful decisions about the future. Education is also vital whether we are parents or professionals. It is our responsibility to motivate this generation to plan ahead so that they may have an understanding of what they value.

It is a mistake to think that estate planning is only for older generations. Preparing essential documents like a power of attorney, will, and trust can help provide your loved ones with a clear direction if something happens to you. If you want help understanding how these issues affect you, speak with a local estate planning attorney.

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.

Estate PlanningWills, Trusts & Probate AvoidanceProbate & Trust Administration