Warning: Do Not Draft Your Own Power of Attorney

So you decided it was important to have an estate plan. However, you decided to find forms online and fill in the blanks yourself.  One of the forms you filled in was a Power of Attorney. You wanted to make sure that when you were no longer able to make financial decisions for yourself (incapacitated), that you named a trusted person to make those decisions on your behalf.

            What happens if you become incapacitated and your family needs to take your Power of Attorney to the bank to gain access to your accounts and they are denied? Why would a bank deny a Power of Attorney?

Two reasons why banks sometimes reject a Power of Attorney (POA):

(1) It is not 'durable': If a Power of Attorney is not a 'durable' POA then it is only valid while the principal (the person who signed the document and is appointing someone else- their 'agent' to act on their behalf) is of sound mind.

‘Durable’ means the POA continues to be effective after the incapacitation of the principal.

BEWARE: People who find a POA form online do not realize the significance of it needing to be a 'durable' power of attorney. They tend to draft a POA that is not durable and end up with a useless document.

“Think twice about saving money by drafting your own estate planning documents. A short term saving can often turn into a greater expense in the long run.”

(2) It has not been activated: The POA may be 'springing'. This simply means that it only becomes effective upon the incapacitation of the principal. Typically it will require a physician to examine the principal and determine they are no longer capable of managing their affairs due to mental incapacity. If that is the case, the bank will want to see the physician's letter before accepting the POA.

BEWARE: As of October 1, 2011, in Florida  'springing' powers will only be effective for a POA drafted before October 1, 2011. If someone drafts his or her own POA online with a springing power it will be deemed ineffective.

How To Handle Power of Attorney Problems with Banks

Even with a properly prepared POA, you might run into problems with trying to get banks and other financial institutions to recognize the form's validity. Banks are sometimes nervous to allow access to a customer's accounts for fear of a lawsuit if they allow access to the wrong person or even the right person under the wrong circumstances.

Think twice about saving money by drafting your own estate planning documents. A short term saving can often turn into a greater expense in the long run.

If you live in Miami-Dade, Broward, or Palm Beach counties contact an experienced estate-planning attorney at The Hershey Law Firm, in Fort Lauderdale, Florida, at (954) 303-9468 to discuss your estate planning needs. You can’t predict the future, but you can plan for it.

Estate Planning for Retirement: Pay on Death Accounts

Your estate consists of both probate and non-probate assets. When you prepare a will you include probate assets to be distributed to named beneficiaries. If you have non-probate assets, regardless of whom you name as a beneficiary in the will, they will go directly to the pay on death “POD” beneficiary directly in the document.

Probate Assets:

Personal items, jewelry, art, antiques

Individual assets (property titled solely in your name)

Non-Probate Assets (Pay on Death):

• Life Insurance
• Retirement Accounts (401(k)s and IRAs),
• Annuities
• Bank Accounts (some)
• Jointly owned assets “tenancy by the entirety” “ with rights of survivorship”

A pay on death (POD) account names your beneficiary. As the name suggests, when you (the primary account holder) passes away the assets that are left in the account become the property of the named beneficiary.

“If you have non-probate assets, regardless of whom you name as a beneficiary in the will, they will go directly to the pay on death “POD” beneficiary directly in the document.”

There are some positives that come along with these accounts. These assets are outside of the probate process and there is a direct transfer to the named beneficiary.  You also retain control over the funds throughout your life and have the right to change beneficiaries or even close the account if you want to. Flexibility is certainly a good thing when it comes to your hard earned assets.

However, pay on death accounts are not a comprehensive estate planning solution. These assets are still a part of your estate for estate tax purposes so they do nothing to provide tax efficiency. There are no incapacity provisions, and you may not be able to give varying percentages of the resources left in the account to multiple respective beneficiaries.

If you live in Miami-Dade, Broward, or Palm Beach counties it is time to start preparing your estate-planning portfolio. Make sure both you and your family are taken care of in the future. You can’t predict the future, but you can plan for it.

Contact an experienced estate-planning attorney at The Hershey Law Firm, in Fort Lauderdale, Florida, at (954) 303-9468 to discuss your estate planning needs.

A Will Was Drafted, But We Can’t Find It!

Congratulations! You decided not to procrastinate and your actually prepared your estate planning documents. You realized you have family members that will likely fight to the death to get that antique mirror hanging in your bedroom. You decided that it was important to draft a will to specifically state who will receive specific items from your estate when you pass away. Your first thought was, “What do I care? I am dead.”  But you know that your son holds grudges for years and you do not want a family riff to occur at the time of your passing.

“What happens if you pass away and nobody is able to find the will that you drafted? ”

What happens if you pass away and nobody is able to find the will that you drafted?  Florida law allows for the contents of a will or a codicil (amendment to an old will) to be proven even if the will cannot be found. 

Florida Statute §733.207 provides that the contents of a will that was lost or destroyed can be proven if either;

(1) two disinterested witnesses testify as to the contents of the will, or

(2) a correct copy of the will is provided and one disinterested witness testifies as to the contents of the will.

Florida courts have looked at various methods to fulfill these requirements. They had to decide whether a handwritten draft or a typewritten original qualifies as a correct copy. Neither qualifies. There must be a carbon copy of the original instrument.

If you go through the effort of drafting a will, make sure you keep it in a safe place, but also inform someone you trust as to its whereabouts. Last thing you want is to pass away with a will, but no one can find the original or a copy of it.

If you live in Miami-Dade, Broward, or Palm Beach counties it is time to start preparing your estate-planning portfolio. Take charge of your last wishes and make sure your loved ones receive from your estate when you are gone. You can't predict the future, but you can plan for it.

Contact an experienced estate-planning attorney at The Hershey Law Firm, in Fort Lauderdale, Florida, at (954) 303-9468 to discuss your estate planning needs.

Dealing with Alzheimer’s and Dementia: The Need for Pre-Planning

One of the hardest things to deal with is seeing your parents’ and spouse’s mental capabilities deteriorate due to Alzheimer’s and Dementia.

As a caregiver for your parent or spouse, how do you tell your parent or spouse that they aren’t allowed to drive anymore? Or that they can’t leave the house without you because you are afraid they might wander off? At what point do you realize that things have gotten so bad that you need to declare the person legally incompetent?

Often time caregivers are not sure whether or not their loved one is dealing with Alzheimer’s and Dementia and have a difficult time taking away freedoms that many of us take for granted, in order to keep that person safe. There are signs you should look for as the disease progresses.

“There are documents that can prevent the need for a formal guardianship to be opened as well as taking the financial burden off family members acting as caregivers.”

Signs and Symptoms of Alzheimer’s and Dementia

If your loved one has one or more of the symptoms listed below, it doesn’t necessarily mean that they have Alzheimer’s or Dementia. There are seven (7) stages, from no impairment during the first stage to very severe decline in the final one. If you notice they are suffering from a large number of symptoms over a long period of time and the problem appears to be getting worse, their chances of having the disease increases.

Memory Loss

·      Do they ask the same question over and over? (especially recent information)

·      In the advanced stage of the disease they may forget important events and dates in their life completely.

Inappropriate Behavior

·      Regular behavior may ignore social norms

·      (i.e. bathing regularly, wearing clothes when going outside, or speaking politely around others)

Time and Place Confusion

·      They may have trouble remembering where they are, how they got there, and what’s happening to them.

Difficulty in Following Directions and Solving Problems

·      Getting lost when traveling to familiar places

·      Have trouble keeping track of their bills each month

·      Have trouble remembering recipes that they used to use a lot.

What should you include in your estate-planning portfolio to help protect your loved ones before it is too late? There are documents that can prevent the need for a formal guardianship to be opened as well as taking the financial burden off family members acting as caregivers.

Long Term Care Insurance

This is care that you need if you can no longer perform everyday tasks (of daily living) by yourself due to chronic illness. 

Disability Insurance

Provides for periodic payments of benefits when a disabled insured is unable to  work.

Durable Power of Attorney

State who will be in charge of financial decisions on your behalf 

Healthcare Surrogate

State who will be in charge of healthcare decisions on your behalf.

If you live in Miami-Dade, Broward, or Palm Beach counties it is time to start preparing your estate-planning portfolio. Make sure both you and your family are taken care of in the future. You can’t predict the future, but you can plan for it.

Contact an experienced estate-planning attorney at The Hershey Law Firm, in Fort Lauderdale, Florida, at (954) 303-9468 to discuss your estate planning needs.

One Father Per Child

You married a woman who has a son from a previous marriage. You have raised him as if he was your own since he was 2 years old. You hang out all the time, you are his baseball coach, and you attend all his school functions. He pretty much thinks you are the coolest step-dad ever. You call him your ‘son’, but the reality of the situation is, he is not your son under Florida law.

“Even if you are completely involved in your step-son’s life, when it comes to being a legal heir and receiving inheritance, he can only receive from his biological father.”

When it comes to inheritance, you only have one father or one mother. Raising a child is not the same as ‘adopting’ a child.  Adoption is going to court and getting a judgment or decree of adoption and legally cutting the ties with one parent and giving it to a new parent.

Even if you are completely involved in your step-son’s life, when it comes to being a legal heir and receiving inheritance, he can only receive from his biological father.  If you want to make sure a step-son receives from your estate and they have not been legally adopted, specific language needs to be placed in your will or trust. If you do not prepare a will or trust, your step-son will receive ZERO from your estate.

If you live in Miami-Dade, Broward, or Palm Beach counties it is time to start preparing your estate-planning portfolio. Make sure your loved ones receive from your estate when you are gone. You can’t predict the future, but you can plan for it.

Contact an experienced estate-planning attorney at The Hershey Law Firm, in Fort Lauderdale, Florida, at (954) 303-9468 to discuss your estate planning needs.

Children Do Not Inherit Until Both Parents Pass Away

One day you are at the beach in Fort Lauderdale when you get a call from your mother saying that your father passed away. Most people would break down in tears and cry. However, you had a horrible relationship with your father your whole life.  Instead, you get a big grin on your face. Your dad had a lot of money and now you are ready to collect. After all, you were his son, even with the bad relationship there is no way your father would have disinherited you.

It hurts to say this, but you will receive nothing while your mother is still alive. If one parent has passed away while the other is still alive, the answer is simple: the money is first inherited by the spouse.

In Florida when married people create estate plans, they typically ask for the money to go to their surviving spouse. The purpose behind this is to make sure their spouse is taken care of.  If there are children under the age of 18, this allows the spouse to comfortably provide for the children. There are some circumstances that a child under 18 might receive money in the form of a trust. With that said, the spouse is often put in charge of the trust until the child reaches 18.

It is extremely rare for adult children to receive any kind of inheritance until both parents have passed away. The reason for this is not to make the children feel cheated, but it is to help ensure that the needs of the living parent are not a burden or concern for the adult children.

“If one parent has passed away while the other is still alive, the answer is simple: the money is first inherited by the spouse.”

If you live in Miami-Dade, Broward, or Palm Beach counties it is time to start preparing your estate-planning portfolio. Make sure your spouse and children are taken care of when you are gone. You can’t predict the future, but you can plan for it.

Contact an experienced estate-planning attorney at The Hershey Law Firm, in Fort Lauderdale, Florida, at (954) 303-9468 to discuss your estate planning needs.

Would You Prefer A Day Of Celebration Or A Day Of Mourning?

Ask yourself,  “Do I want people to celebrate my life or do I want people to mourn my passing? “ No one likes to think about his or her death, but it is necessary. As a South Florida estate-planning attorney, I know there are a lot of things to think about when preparing your final plans. You worry about your children, your assets, who will be the executor.  Planning your burial or cremation is just as important as everything else.

Maybe you want to have a party that includes all your closest friends and family where they will tell their favorite stories about you. The party will have all your favorite foods and your favorite music playing in the background.  If you don’t let everyone know your wishes, what might happen is the exact opposite;  a somber experience, where everyone is crying and dressed in black.

“Do I want people to celebrate my life or do I want people to mourn my passing? ”

Another question to ask yourself is,  do you wish to be buried or cremated? Do you prefer to scatter your ashes in your favorite location or be entombed in the most comfortable coffin that exists?

It is extremely important to put in writing what your final wishes are, so they are carried out.  It is also helpful for those left behind both financially and logistically to know your wishes.

If you live in Miami-Dade, Broward, or Palm Beach counties it is time to start discussing with loved ones their estate planning needs. You can’t predict the future, but you can plan for it.

Contact an experienced estate-planning attorney at The Hershey Law Firm, in Fort Lauderdale, Florida, at (954) 303-9468 to discuss your estate planning needs.

Protect Yourself Before You Wreck Yourself

To protect yourself from life threatening illnesses, you get vaccinated.  Failure to vaccinate is acting recklessly. You have a greater chance of catching an illness that you could spread to other unsuspecting individuals.

To protect your wealth and family you need an estate plan. With no estate planning, you are acting recklessly. You will allow the State to determine how to distribute your assets, determine who will take care of your minor children, and allow creditors direct access to your funds before money is distributed to your children.

Vaccinations save thousands of  lives.

Estate planning saves thousands of dollars and makes sure your family is taken care of for generations to come.

“With no estate planning, you are acting recklessly.”

Estate planning is not a ‘once and done’ activity. The world is constantly changing and there is a chance that the estate plan you previously drafted no longer works as intended. You will need a ‘booster shot’ every time life changes.

If you live in Miami-Dade, Broward, or Palm Beach counties it is time to start preparing your estate-planning portfolio. Make sure your family is taken care of when you are gone. You can’t predict the future, but you can plan for it.

Contact an experienced estate-planning attorney at The Hershey Law Firm, in Fort Lauderdale, Florida, at (954) 303-9468 to discuss your estate planning needs.

The Need to Include ‘Insurance’ in Your Estate Planning Portfolio

Do you want to make sure your loved ones are taken care of when you are gone? Do you want to make sure they can stay in their house and pay the mortgage? Do you want to make sure they can afford to pay utilities and food? If so, insurance is a good addition to your estate planning portfolio.

Your estate planning portfolio is not complete unless you consider the need for insurance.  We are not talking about health insurance or car insurance; we are talking about life insurance, disability insurance and long term care insurance. It is important to prepare your estate in case you become disabled during your working years, in case you need long-term healthcare as you age, or to make sure your family is taken care of when you are gone. Remember, you can’t predict the future, but you can plan for it.

Life Insurance

A life insurance policy is a contract with an insurance company. In exchange for premiums (payments), the insurance company provides a lump-sum payment known as a death benefit, to beneficiaries in the event of the insured’s death.

Term Life Insurance:

• Least expensive payment
• Temporary insurance that provides coverage for a period of time.
• Make sure you have the ability to convert from a term to a whole life policy
• Provides insurance coverage without any investment build up.
• If you miss a payment, the policy will be canceled.
• This is a form of renting insurance. If you do not die during the term you get nothing out of the policy. (For example, when you rent an apartment, once your lease is up, you walk away and have nothing to show for it)

Whole Life Insurance

• Higher premiums
• If you miss a payment they can take a loan from your premiums and that can place you under water
• Made up of risk protection and an investment account.
• Risk portion represents term insurance
• Investment portion acts as a savings account in the policy (cash value)
• (This is like owning a house, but not being able to make any additions to the house) 

“It is important to prepare your estate in case you become disabled during your working years, in case you need long-term healthcare as you age, or to make sure your family is taken care of when you are gone.”

Disability Insurance

Disability insurance is a plan that provides for periodic payments of benefits when a disabled insured is unable to work. The rule of thumb with disability insurance is that you want to be able to protect 60-80% of your after tax income. Even if you receive disability insurance from your employer, you may want to purchase individual disability insurance to cover the amount they do not cover. 

Short term Disability: Replaces a portion of your income during the initial weeks of a disabling illness or accident

Long Term Disability:Replaces a portion of your income after those initial weeks, for an extended period of time. 

Long Term Care Insurance

Long-term care is care that you need if you can no longer perform everyday tasks (activities of daily living) by yourself due to chronic illness, injury or the aging process.  Long-term care is not only for the elderly. A large percentage of people receiving long-term care are under the age of 65.

Long-term care isn’t intended to cure you. It is chronic care that you might need for the rest of your life. This care can span years and be expensive depending on the type of care you need and location where the care is received. Long-term care insurance is one way of helping pay for these expenses.

The policies reimburse policyholders a daily amount (up to a pre-selected limit) for services to assist them with activities of daily living such as bathing, dressing, or eating

You can use your daily benefits at the following places:

• Home
• Adult Service Centers
• Hospice Care
• Respite Care
• Assisted Living facilities
• Alzheimer’s special care facilities
• Nursing homes

South Florida is the land of retirement. You want to be able to enjoy your retirement. If you live in Miami-Dade, Broward, or Palm Beach counties it is time to start preparing your estate planning portfolio. Make sure both you and your family are taken care of in the future. You can’t predict the future, but you can plan for it.

Contact an experienced estate-planning attorney at The Hershey Law Firm, in Fort Lauderdale, Florida, at (954) 303-9468 to discuss your estate planning needs.

Who Cares About My Bills When I Am Gone?-----CREDITORS DO!

Like most South Floridians, you probably go crazy during the holidays and for birthdays and charge everything to your credit card. You dine at fancy restaurants. You take out loans to purchase luxury cars and buy big houses in Miami, Fort Lauderdale, or Boca Raton.

You live the life and then one-day life ends. You have outstanding bills and those surviving you worry about who will be responsible for your spending habits.

“If you are co-signer on your spouse’s credit card or mother’s credit card. You are required to pay back anything they owe when they die.”

I get asked the question all the time: “Do I have to pay off my dead relative’s debts?”

Most of the time, the answer is no. When someone dies, their estate is responsible for paying off the debts. That means that debt collectors can go after bank accounts, or assets that the deceased person owned individually.

The next question often asked is, “ What if the estate does not have enough money to pay the debts?”  Then the collector is out of luck because they cannot go after other people to collect. The debt will go “unpaid”.

Like most legal matters, there are exceptions to the rule that do allow collectors to collect from others.

CIRCUMSTANCES YOU MAY BE RESPONSIBLE FOR THE DEBT OF OTHERS

Joint Accounts: Co-Signer on loan, credit card, mortgage, medical bills

(Not responsible if just an authorized user)

Ex: If you are co-signer on your spouse’s credit card or mother’s credit card. You are required to pay back anything they owe when they die.

Stole assets from the estate of the deceased

Ex: You are in charge of handling the decedents estate and you failed to pay or prevent debtors from collecting by illegally using the assets.

** Pay back debt with your own money

Debt collectors are very creative and persuasive. Even if you are not responsible for the debt, they may use terms such as ‘moral responsibility’ and use guilt to make family members feel they have to pay debts.

BEWARE: Creditors always come before heirs. That is why it is extremely important to protect your assets and start estate planning today!

If you live in Miami-Dade, Broward, or Palm Beach counties it is time to start discussing with loved ones their estate planning needs. You can’t predict the future, but you can plan for it.

Contact an experienced estate-planning attorney at The Hershey Law Firm, in Fort Lauderdale, Florida, at (954) 303-9468 to discuss your estate planning needs

You Don’t Have to Be A Millionaire to Be Able To Leave Something For Your Children After You Die

Regardless of how much wealth you have, having some type of estate plan and financial power of attorney are the financial building blocks to make sure your assets go where you want them to go.

Between life insurance, wills and other financial tools, many parents of average income can also take steps to make sure their children will be okay financially after they’re gone.

Prepare a Will

The will states your final wishes regarding who will or will not receive from your estate, name guardians for your minor children, state directions regarding organ donation and burial.

Your estate consists of everything you own. This includes but is not limited to: home, investments, and family heirlooms.

The will will be used to name an executor, or the person responsible for paying final bills and dividing up the estate.

The downside to a will is that it has to go through probate, a court process that is both lengthy and costly. Creditors will be paid out prior to those beneficiaries named in the will.

Create a Trust

The trust will allow a parent to control from the grave. The assets will be owned by the trust, which will be controlled by the person who created it until they die or become incapacitated (the parents). Once the person dies, the trust would be handed to a successor trustee who can control the trust and use the funds to pay bills and later to divide the assets among family members.

A trust does not have to go through probate. The assets will be distributed based on the document and will not have to go through court proceedings. It is more expensive to form than a will, but there are many advantages.

Leave children your retirement accounts

Easiest way to ensure that your children will receive your retirement savings is to name them as the beneficiaries to your accounts such as 401(k), traditional IRA and Roth IRA.

Make sure beneficiary forms are kept up to date, since those designations would trump whatever is in the will.

People inheriting traditional IRAs will also have to take minimum required distributions, based on their age and life expectancy. Like the original owner, they’ll owe taxes on the money when they take distributions.

Beneficiaries inheriting a Roth IRA, which is funded with after-tax dollars, do not have to pay taxes on the savings as long as the account has been open for at least five years.

Buy life Insurance 

The purpose of life insurance is to make sure people who rely on you financially will be protected.  Many parents don’t purchase the correct policy, causing the money to run out sooner than they expected.

When purchasing life insurance, couples should factor in mortgage payments, college costs, food and other expenses and estimate how much their children would need to cover those expenses until they reach adulthood.

Parents might want to save on taxes by placing the life insurance policy into an “irrevocable life insurance trust”. Proceeds of the insurance would go into the trust and not be counted as part of parents’ estate.

If the child is named as co-trustee after reaching a certain age, the money will be protected from creditors and will not have to be shared with a spouse if the beneficiary gets divorced

529 Account

A 529 account, allows money to grow tax-free until it is used to pay for qualifying college expenses. Parents or grandparents can contribute up to $14,000 a year per child (or $28,000 a year for a couple) before having to pay gift taxes.

There is an exception that allows people to front-load up to five years worth on contributions for the next five years. The children may not have much left after paying for college expenses, but if they do, they can choose to pass on funds to pay for higher education costs for their own children.

If you live in Miami-Dade, Broward, or Palm Beach counties it is time to start preparing your estate-planning portfolio. Make sure your children are taken care of when you are gone. You can’t predict the future, but you can plan for it.

Contact an experienced estate-planning attorney at The Hershey Law Firm, in Fort Lauderdale, Florida, at (954) 303-9468 to discuss your estate planning needs.

Pass the Turkey, Pass The Gravy, Pass the Durable Power of Attorney

It is that time of year again to sit down with your loved ones, over eat, and go around the table and say what you are thankful for. The reality of the situation is that you sit down to eat an overabundance of food with extended family members you sometimes wish were strangers. You hope you don’t come across as rude when you would rather pay attention to the football game on the television as opposed to listening their mundane stories. After all, if you really wanted to hear their stories throughout the year, you could have called them, texted or even sent a Facebook message.  

It is the start of the holiday season in South Florida and the last thing on your mind is planning your estate for when you pass away or preparing documents in case you become incapacitated. But in reality, this time of year makes you realize that if you do not properly plan your estate, family members that you are not too fond of might fight over your estate (and win). Is that really something you want to happen when you pass away?  I think not!

Start thinking about who you would like to make medical and financial decisions for you in case you are unable to make those decisions for yourself. Remember, if you are married, your spouse is not legally given the right to make medical and financial decisions for you.  That right must be placed in writing. Also, if you have “children” in college, you will need their written permission to make decisions for them. “Because I said so”, is no longer a valid answer as a parent once your child reaches the age of eighteen! 

“But in reality, this time of year makes you realize that if you do not properly plan your estate, family members that you are not too fond of might fight over your estate (and win)”

It is the perfect time for South Florida residents to think about building (or updating) their estate-planning portfolio:

Will: State your final wishes regarding who will receive or who will not receive from your estate, name guardians for your minor children, state directions regarding organ donation and burial

 Revocable Trust(living trust): In depth document that will state your final wishes. You are able to place stipulations and retain control of your assets during your lifetime. 

Supplemental Documents 

Durable Power of Attorney: Name someone to manage your financial affairs either immediately or in the future should you become unable to do so yourself. 

Living Will: Document that will state how and if you want to prolong your life if you fall into a vegetative state.

 Healthcare Surrogate: Name someone to act on your behalf if you become unable to make medical decisions for yourself.

If you live in Miami-Dade, Broward, or Palm Beach counties it is time to start discussing with loved ones their estate planning needs. You can’t predict the future, but you can plan for it.

Contact an experienced estate-planning attorney at The Hershey Law Firm, in Fort Lauderdale, Florida, at (954) 303-9468 to discuss your estate planning needs.