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Florida Basic Estate Planning Article Nov. 2017

Florida Basic Estate Planning Tips, Wills, Powers of Attorney,
HIPAA compliant medical information releases, and Living Wills
by Fort Lauderdale Probate Estate Attorney, Kim Douglas Sherman

Summary of this article: The author, probate estate attorney, Kim Douglas Sherman, explains probate in Florida. He tells how to avoid probate, how to avoid probate disputes and family feuds. He outlines how to make a flexible will to facilitate giving items of personal property and to anticipate changes in asset values.The article also covers probate fees and the time it takes for probate cases. Mr. Sherman discusses important documents: health care information releases, powers of attorney for healthcare, durable powers of attorney, and living wills. Also covered isthe importance of these estate documents for young adults, and how to plan for your pet’s care after your death. Reading this article will give guidance for choosing an appropriate probate and estate lawyer in Florida

“Probate” explains Estate Lawyer, Kim Douglas Sherman is the court process that transfers property out of deceased person’s ownership. Probate takes some time and some money, so you would like to avoid probate. If you are married, everything that you own titled as “husband ad wife” will pass automatically to the surviving spouse. For those assets, there is no need for a probate proceeding. And for the rest of your assets? Think about putting your real estate into joint ownership “with a right of survivor ship.” For your financial accounts think about making the accounts “payable on death” to your intended heirs. These are easy, simple solutions that take very little effort on your part.

Probate lawyer, Kim Douglas Sherman, from Fort Lauderdale, Florida has been writing Last Wills for over forty years. How many times have you thought, “I should make a will?” Then there is the old quip about “nothing is so certain as death and taxes.” There are some simple things that you should know and do about planning your estate. They are not expensive or hard to do, either. Mr. Sherman notes that most people look at their Last Will and Testament as dealing with their anticipated estate in the big picture. The Will answers the questions about who is going to get the house, the car, and the remaining financial accounts? In Mr. Sherman’s years of general law practice, he has learned that of equal or greater importance to his clients making their Will is the little, but important, things. They are concerned about the family heirlooms, jewelry, artwork, knickknacks, collectibles, and pets.

Will-writing attorney, Kim Douglas Sherman refers to a useful Florida statute. Florida Statutes, section 732.515 allows a person to make a list of the items of personal property and the person, persons, or entities that they want to get those items. All you have to do is refer to the statute and the “list” in the Will and sign the list. The beauty of this provision is that you can change the list as many times as you want, and you do not have to make a new Will. The items must be described with reasonable certainty. The list provision in your Will can accommodate your giving some or all of those important items to your intended beneficiaries while you are still alive. The provision allows you the flexibility to sell or otherwise dispose of items if you choose to do that while you are alive. As you give things away, you just cross them off of your “list.” Keep your “list” together with your Will. It could not be easier, and yet the “list” has all of the enforceability that a Court can grant to your Last Will and Testament. If there is no list found, then it will be assumed that you did not make a list or that you destroyed the list.

In the Fort Lauderdale area, Probate Lawyer, Kim Douglas Sherman, Esquire prepares wills for his clients. If you do not have a Will, you really should have your attorney prepare one for you. A Will makes sure that all interested parties know how you want your estate to go. It is not expensive to make a Will, and having a Will saves your beneficiaries both time and money. The most successful action to combat disputes over an estate is to make a valid, self-proving Last Will. In Florida, the will should be in writing, signed by the person making the will and signed by two witnesses, who are not beneficiaries named in the will. The signing should be done by the person making the will and the witnesses all at the same time with all seeing each other sign. The person making the will should clearly state to the witnesses that the document is their Last Will. To make the will “self-proving,” there should be an affidavit attached where the person making the will and the witnesses take an oath in front of a notary public, that the person making the will stated it was their will and that that person and the witnesses all signed in each other’s presence. A self-proving will can be admitted into the probate proceedings without having to bring in the actual witnesses into court. It is inexpensive and effective, you just need to make the time and use the services of an attorney like Mr. Sherman.

Estate Attorney Sherman clears up the confusion over the term “executor.” In Florida we used to call the personal representative the executor. The term executor is still used in many states. For Florida, the meaning of the terms “executor” and “personal representative” are the same. The personal representative of an estate has the same powers and duties as an “executor.”

You can avoid family feuds, according the Probate Lawyer Sherman, if you anticipate potential issues. Often people choose their oldest child to be the personal representative, also called an “executor”, of the Estate, but singling out one child can sometimes cause jealousy amongst the children. Sometimes people make all of their children co-personal representatives, thereby requiring them to act in concert. When you consider making these choices, you might also want to consider having a trusted independent person as your personal representative. If you want to make things easier on the beneficiaries after you are gone, make a list of the specific personal items that you want to go to specific people. As discussed earlier in this article on wills, consider inserting a “list” provision into your will. Having a list can avoid an ugly aftermath between beneficiaries over so-called family heirlooms. It is also advisable to ask your family and friends what specific items are important to them and provide that they are named to receive them.

Probate litigator Sherman advises that you should anticipate changes in your estate’s value during your lifetime when making specific monetary requests. If you use up your assets or they diminish while you are alive, it might have a material effect on how much is available to be distributed after your death. For instance, if at the time you make your will, you want a certain sum of money to go to your church, your friends, or relatives–what happens if there is not enough money in the estate in order to satisfy your wishes. You can avoid the problem, which often causes probate litigation, by having your will say that you want “the lesser of that sum or a specific percentage of your estate.” You can base the percentage on what your desired sum is in relation to the value of your assets at the time you make your will.

Fort Lauderdale Estate Attorney Sherman warns that unless you make your own pre-paid funeral plans or specify otherwise in your will, in Florida only your next of kin has the right to make funeral and disposition of remains. If you are aware of this Florida law, and are concerned that your “significant other” should have some rights in this regard, make sure to empower that person by making that provision a part of your will. Choosing the wrong person can cause resentment and disputes. Avoid having potentially huge charges against your estate for funeral and burial arrangements by making the plans yourself in advance of the need.

Avoid disputes causing probate litigation over the care of pets. In your Will, if you have a pet you should consider naming the person who should care for your cherished pet after you have gone, and provide that person with the funds to continue the care. Make sure to ask in advance if that person is willing to take on the responsibilities.

>Mr. Sherman writes that the cost of probate in Florida is guided by statutes. There are laws which set forth the fees of the personal representative and the fees of the attorney for the personal representative. Florida Statutes, section 733.517 provides that a personal representative’s compensation, called a “commission,” is presumed a reasonable fee if it is 3% of the first million dollars of value of the estate administered, 2.5% of the next four million, 2% from five million to ten million, and 1.5% over ten million. These fees are for “ordinary services.” There is a provision in the statute to increase or to decrease the compensation at the request of any interested party based upon the facts and circumstances of the particular estate.

The attorney fees for the personal representative’s lawyer are controlled by Florida Statute, section 733.6171. It closely follows the compensation provided for the personal representative. A minimum reasonable fee is $1500 on the first $40,000 of assets under administration, $750 more up to $70,000, another $750 up to $100,000, and then 3% up to one million, 2.5% on the next two million, 2% on the next two million, 1.5% from five to ten million, and 1% over ten million. There are more attorney’s fees payable for extraordinary service, and just as with the personal representative’s fees, there is a statutory provision for increase or decrease depending upon the facts and circumstances of the estate.

People often want to know how much time does it take to complete a probate case in Florida. Probate Litigation Attorney, Kim Sherman, refers to the Florida Supreme Court and Administrative Rule, 2.085: “Judges and lawyers have a professional obligation to conclude litigation as soon as it is reasonably and justly possible to do so.” For probate cases, part D of the administrative rule provides the following time standards:
Uncontested, with no federal tax return-- 12 months from issuance of letters to administration to final discharge.
Uncontested with federal tax return—12 months from the tax return due date to final discharge.
Contested—24 months from filing to final discharge.

Estate Lawyer Kim Douglas Sherman recommends a Durable Power of Attorney as a useful estate planning document to be used while you are alive. Ifyou do not have a spouse (or your spouse is infirm), in addition to a last will, you really should have four important documents for dealing with your estate, for use while you are still alive. First, have a Durable Power of Attorney. There is no reason to let the Court appoint someone or some entity unknown to you and that doesn’t know you either. A Durable Power of Attorney is an important legal document. By signing the Durable Power of Attorney, you are authorizing another person to act for you, the Principal, without any court supervision or approval. Each person you appoint to serve as your Agent should be someone you trust completely. The Durable Power of Attorney is a very powerful document described to give the designated person or persons (your “Agent”) the ability to manage your financial affairs. The Powers of Attorney will be effective the moment you sign the form, and they will continue to exist while you are alive, even if you no longer have the capacity to manage your property.You have the right to revoke or terminate the Durable Power of Attorney at any time, so long as you are competent.When effective, the Durable Power of Attorney will give your Agent the right to deal with property that you now have or might acquire in the future.

Second, have a HIPAA compliant Release. Unless you have given such a release , the Health Insurance Portability and Accountability Act of 1996 [HIPAA], prohibits disclosure of your medical information, even to those who you would want to be informed , such as parents, adult children, and significant others. FL estate attorney, Kim Sherman, says that with a properly signed form release, you authorize any doctor, physician, medical specialist, psychiatrist, chiropractor, health-care professional, dentist, optometrist, health plan, hospital, hospice, clinic, laboratory, pharmacy or pharmacy benefit manager, medical facility, pathologist, or other provider of medical or mental health care, as well as any insurance company and the Medical Information Bureau, Inc., or other health-care clearinghouse that has paid for or is seeking payment from you for such services (referred to herein as a “covered entity”), to give, disclose and release to the person(s) you designate, without restriction, all of your individually identifiable health information and medical records regarding any past, present or future medical or mental health condition, including all information relating to the diagnosis and treatment of HIV/AIDS, sexually transmitted diseases, mental illness, and drug or alcohol abuse. Additionally, the person(s) you designate shall have the ability to ask questions and discuss my protected medical information with the person or entity who has possession of the protected medical information even if you are fully competent to ask questions and discuss this matter at the time.

Third, have a Durable Power of Attorney for Healthcare. Mr. Sherman makes the point that this document will give the person or persons designated the power to make healthcare decisions when you are unable to communicate for yourself. Unlike the Durable Power of Attorney, the Healthcare Power of Attorney is not a grant of broad authority over many matters, instead it is limited and conditional. It is important to empower someone to give medical directions, when you cannot. The Power of Attorney for Healthcare is especially important for unmarried persons, old or young.

The fourth document recommended by Mr. Sherman is a Living Will. It directs how you want yourself to be treated if you are near death. Not only does the living will allow you to die with dignity, in the form currently being used here in Florida, you get to express your desire to have experimental methods used, to donate your still usable body parts, to donate your body to medical research, and to decline having your body subjected to autopsy. Most important, your living will allows you to empower the person or persons your chose to be able to direct the medical providers to pull the plug and give up the ghost.

Attorney Sherman advises that young adults need estate planning as well. For the young adults that you care about, encourage them to have a Healthcare Power of Attorney and a HIPAA compliant release, authorizing their parents to be informed and to assist.

To contact and learn more about Fort Lauderdale, Florida Estate Attorney, Kim Douglas Sherman, visit his website: or call (954) 489-9500.

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