Florida Basic Estate Planning Tips, Wills, Powers of Attorney

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 is the 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 and 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 survivorship.” 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 designed 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 call (954) 489-9500.

Is Mr. Sherman a Florida probate, Florida estate lawyer near me?

 

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Same Sex Marriages Require Protection of Homestead Rights

Even though a home may be titled in the sole name of one spouse, the Florida Constitution protects the interest of the spouse who is not on the title to remain living in the home.  This may be a new concept to those lawfully wedded couples of the same sex.  I was recently retained to obtain a divorce for a couple of the same sex.  My client was selling her home, and her estranged spouse was required to provide an affidavit that the property was not her “homestead;” that she resided elsewhere.  The same client was purchasing a new home and obtaining a purchase money mortgage.  Her estranged spouse is going to have to sign on the new mortgage, even though she is not going to be living in the new home and will not be named on the title.  The reason for both is the spousal right of Homestead protected in Article X, Section 4 of the Florida Constitution.  Florida Statutes, Section 732.401 gives rights to remain in the home after the death of the title holder for the lifetime of the surviving spouse, therefore, the right must be recognized and properly extinguished by an appropriate legal document.

 

Based upon over forty years of experience as a real estate attorney in Fort Lauderdale, here are my suggestions regarding purchases, sales, and refinancing homes by same sex spouses:

  • Use a lawyer!
  • Be aware that your spouse will have a legal interest in any home in which they live with you, even though they are not named on the title.
  • Be aware that your spouse will have a legal interest in any home in which they live with you, even though you owned the home before you got married.
  • Consider what will happen to the home if one of the spouses dies or wants to sell.

 

Have your attorney prepare pre-nuptial or post-nuptial agreement between the spouses addressing the issues mentioned above and any other special matters. If you have questions or concerns about real estate and same sex spousal rights in the Fort Lauderdale, Broward County, Florida area,  call Kim Douglas Sherman, Esquire, at (954) 489-9500.  Please look at our qualifications set forth on our website.

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What Ever Happened to the Hand-shake Agreement?

By: Kim Douglas Sherman, Esquire.

Some of us remember a time when people gave their “word”, shook hands, and did what they promised to do. Unfortunately, that is not now and not here in South Florida. So, let’s talk about contracts–written contracts. They are good to have.

 

This is what is recommended for a good enforceable written contract. First, you should
identify the exchange of something of value. For example, you promise to pay a certain sum and the other person promises to do something in exchange. Second, the agreement must contain all of the essential and important terms. What terms are “essential” will vary depending upon the nature of the contract. Third, both parties should sign the document. Simple, it works. How about some bells and whistles?

If time is important to your agreement, you should specify when it is to be performed and what happens if there is delay. You would not want to pay for hurricane shutters in January and not have them installed before the hurricane season. I like to ask the salesman to tell me when I can expect my job to be done. Then, I ask what is the absolute latest that the job will be done, and I insist that we put that “latest” date into the contract with some appropriate provision for failure to meet that “essential” term. If you follow this tact, you will certainly get the “feel” of whether you will be getting what you expect.

 

Written agreements are not just for goods or services, they are very important to
relationships. For example, two good friends want to have a company formed for their new business venture. Just having trust in each other will not answer the issues raised if one dies or becomes unable to work in the business or if one wants to sell their share. Those are the kind of “essential” terms to be addressed in a good partnership agreement. The best working partnerships are founded upon a solid agreement.

Your rights to enforce your agreement should also be part of the contract. Consider
putting in a right to receive interest for sums not paid on time. Put in a provision that the
prevailing party should recover their attorney’s fees and court costs. Holding back money and not paying before you receive your goods or services is one of the mightiest ways to get performance by the other party. Of course, there is no substitute for doing your homework. Take the time to make a reasonable investigation of the person or company with whom you intend to contract.

We have only touched the surface on legal matters relating to contracts. If the deal is
important to you, it is important enough to have your lawyer take a look…
before you sign!

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Accidents Happen to People Like You!

By: Kim Douglas Sherman, Esquire

The insurance companies have done a very good job convincing the public that lawyers are to blame for higher insurance premiums. It is not the legal community that is the cause of crashes, falls, and professional malpractice — it is carelessness. Let us start with the practical fact that people make mistakes, and their mistakes cause damage and injury to themselves or others. As a litigation attorney for over thirty years, I have learned that a great many conflicts can be resolved without attorneys. Sometimes it is as simple as just saying “sorry,” acknowledging the damage, and paying for the damage caused. When the damages are just too great, that is when you need to have adequate insurance. You should carry enough insurance to protect your assets in the event you cause the damage. What people in South Florida often ignore, is that so many people have no insurance to pay for their mistakes, and those same people have insufficient assets from which victims of their mistakes can be paid. This is really the main point of this article.

 

Florida applies “comparative negligence” in determining how much someone may recover in an accident claim. It is really a logical concept. For example, if someone trips over an uneven walkway, you could say that the person who tripped might be fifty percent responsible for not watching their feet, while the owner of the property is responsible for the other fifty percent of fault. Using that example, if the injuries suffered equal $10,000, the person who was hurt would be entitled to $5,000. For motor vehicle accidents, Florida adds the concept of “No Fault.” In simple terms, even if a person is one hundred percent at fault, they cannot be sued for the victim’s pain and suffering, unless the damage caused is permanent injury, scarring, or disfigurement. The state requires every driver to insure themselves for at least $10,000 of their own damages; that is called PIP, or personal injury protection. The “penalty” for not carrying the PIP is the loss of the “permanent injury” requirement from being sued; you are subject to what we used to call “nuisance claims.” If a driver causes a crash with injuries and does not have liability insurance, the state will suspend the driving privilege until insurance is obtained and the damages have been paid. It is clear that in Florida, there are too many uninsured drivers, who just don’t care.

 

You should have enough insurance to cover any damage that other people may cause to you. Make sure to buy uninsured/under-insured motorist coverage. Elect medical payment coverage to supplement you deductibles. Seriously think about how much money you might need if someone damages you. In Florida, it is not “if” you will be in an accident, but “when.”

 

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Help Yourself by Taking a Broad Family View

By: Kim Douglas Sherman, Esq.

Article for Dads Divorce

I am a dad, and I am an attorney practicing family law in Florida for over thirty years. In those years I have seen some colossal battles over children. Most of the time, when emotions are running high, one of the parents decides that the best way to inflict pain on their soon-to-be exspouse is through the children. That decision is one of the WORST that a divorcing parent can make. This article contains some effective strategies, and couple of reasons to avoid the urge to use the kids as a weapon.

 

Sure, you have heard of “what goes around comes around.” I tell my clients that it is truer than you can imagine. It is not just that the mother will have a chance at some time later to take her shot back—but in the many years following the divorce, while the children grow into adulthood, then parenthood– their mother will have many chances to get even. Children want to love their parents and respect them. It seems that as the children grow, they figure out what really motivates their parents’ actions, and then they take the hostility personally.

 

Family court judges are used to seeing through parental manipulations. They pay attention to clear changes of parenting patterns. If the father did not spend lots of time with the children during the marriage, the court questions the motivation behind a change during the divorce process. It should never be too late to become active in your child’s life, but I suggest that you only request the time and contact with which you can and will abide. If you ask for forty percent of the overnights, but you end up using a sitter or not taking the children, the judge will see that your actions speak louder than your words.

 

I am not saying to be docile about your fatherly rights. Florida is a progressive state that takes the position that both parents are equal in the eyes of the law–until the Court is shown otherwise. Dads hurt their own cause and their continuing long-term relationship with their children by failing to take a broad family view. Simply put, that means making decisions motivated by what is in the best interests of the children.

 

If your lawyer or your “gut” is pushing you to fight, first try to get a long term prospective. Slow down on the quick emotional responses and look for some help. There are many qualified family psychologists and specialists in child-sharing issues. Consider going to a certified mediator, trained to work through family issues.

 

If you think that your spouse has the willingness to give a best effort at out of court resolutions, try finding lawyers who are trained Collaborative Lawyers. With Collaborative Lawyers, you get a team approach to problem solving, with your professionals committed to achieve resolutions that every member of the family can live with and work with for the long term. How about this for a progressive approach: you sit down with your spouse and your lawyers right off the bat. Together, as a team, you identify the points of agreement and those in conflict. You hire on additional professionals to assist the progress towards an amicable divorce.

 

If an accountant, an appraiser, an expert in child issues, or an expert in mental health issues is needed, the team makes those arrangements.

Hiring one neutral expert instead of each party hiring an expert biased towards their own view often saves money. The concept recognizes that, if the matter were to go to court, the judge would end up finding a more neutral middle ground. The trained collaborative lawyers recognize that divorce and the splitting of one household into two is usually a new and foreign concept to the parents. By bringing in a trained mental health professional with an independent point of view and with experience in child-sharing issues, the parents can have valuable help in crafting a fair, workable parenting plan.

 

Recently, I had a dispute that was easily resolved through the collaborative process. After splitting up, but prior to filing for the divorce, the dad had made an arrangement with the mom to split their child’s overnights roughly forty percent for the father and sixty percent for the mother.

 

 

The dad then heard from friend that he is “supposed” to get fifty percent. So the dad threw a fit and was prepared to spend money that neither parent had on a big fight in court. After some analysis, it was clear that the father would have had to hire a baby-sitter for most of the extra time he thought he wanted. The mother had a flexible job and was able to personally provide the care for the full sixty percent of time. In addition, the mother was historically very accommodating to every special request for time or coverage made by the father. In this circumstance, a judge applying the “best interest of the child” approach would NEVER mechanically impose fifty-fifty. When the parties and their team of advisors got together to address the dad’s concern, resolution, without resort to the court, kept the long term and broad family view preserved.

 

A key to the collaborative approach is that the parties and their attorneys sign a contract that prohibits the attorneys from being the court lawyers in the event that the divorce is not settled. The principle of the practice gives assurance to the parties that the lawyers will not be invested in creating unnecessary controversies. After more than 33 years of litigation, I appreciate a respectful, out-of-court resolution process. For more on Collaborative Law in Southeast Florida check out: www.collaborativefamilylawfl.com.

 

 

In other areas check out the International Academy of Collaborative Professionals: www.collaborativepractice.com. Mr. Sherman was born and raised in the Chicago area. He graduated from the University of Wisconsin in Madison, and he received his law degree from Northwestern University. Trained as a criminal prosecutor, when he left public service in 1977 to practice civil law, Mr. Sherman developed a reputation for aggressive court litigation. He has taught law and has had several legal articles published about practical law subjects for real people.

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New Family Law Concept Reduces Fear of Lawyers

By Kim Douglas Sherman, Esquire.

Collaborative law is a process that enables parties involved in family law disputes to attempt to resolve their differences in a non-adversarial manner– OUT OF COURT. Collaborative family lawyers and their clients enter into an agreement not to litigate. Efforts are focused on settling cases rather than preparing for trial. The result is reduced
stress and often reduced costs.

 

Parties work together to reach a settlement agreeable to both parties. Cooperation, sharing information, and creative problem solving are at the core of this process. This process is ideal for people who have the maturity to realize that there is a place for rational, sober decision making without hostility. It is not just the business-like decisions
that have to be made to divide the marital assets and liabilities, there are emotional issues that need to be resolved in a manner that meets the real needs of the divorcing parties and their children. The Collaborative process can recognize and address the problems of a spouse grieving over the failure of the marriage. When there are children, long after the dissolution of marriage is done, and the lawyers are out of the picture, the parties are often left to deal with each other for years to come. Using the Collaborative approach of cooperation, the parties set the foundation for a successful parenting plan and process.

 

The participants voluntarily disclose all relevant information and cooperate in order to problem solve together to resolve all issues. If an expert is necessary to assist in this process, the participants together choose a single, neutral expert whose job it is to render an unbiased opinion or give suggestions based the facts of the case. Often mental health professionals and financial experts are included in the process. Settlement is negotiated through conferences (including the parties, their attorneys, and experts), informal discussions, mediations, and other non-litigation alternatives. The Collaborative approach allows for immense creativity. Through the process, the parties can craft acceptable solutions for all involved. It is all accomplished as a private confidential process. Should the process prove unsuccessful and the parties cannot reach an agreement or either party thwarts the process, the lawyers must withdraw from the case. In this way, the parties can have confidence and comfort that the attorneys are not going to be part of the problem and not going to encourage disputes to increase attorney’s fees. The collaborative process was initiated in 1990 by Stu Webb, a family attorney practicing in Minneapolis, Minnesota. He was frustrated with the adversarial system and its destructive effects. There are now more than 100 Collaborative Professionals groups in the United States, Canada, and worldwide utilizing this new alternative dispute model.

For more information on collaborative law, use the Internet to search “collaborative law” or “collaborative family law,” or go to www.collaborativefamilylawfl.com, for information about the local association and its member lawyers in Broward and South Palm Beach County.

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Some Simple Estate Planning Tips

By: Kim Douglas Sherman, Esquire.

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. “Probate” 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 can. If you are married, everything that you own titled as “husband and 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 survivorship.” 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.

 

However, this article is being written by a lawyer, so you should expect something a little more complex. If you do not have a spouse (or your spouse is infirm), you really should have three important documents for dealing with your estate. Two of the documents are for use while you are still alive. First, have a Durable Power of Attorney prepared that designates who you trust to take care of you and your assets in the event that you are unable to do the job for yourself.

 

There is no reason to let the Court appoint someone or some entity unknown to you and that doesn’t know you either.

 

The second document 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 be 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.

 

Third, is the good old-fashioned Last Will and Testament. In your will you get to say how what you want done with your remains and who should do it. You get to designate who you want to take care of your estate, not just the gathering and transferring the assets, but paying your last bills, going through your drawers, and cleaning out your refrigerator. Just don’t miss the opportunity to put in a provision that allows you to give specific items of personal property as may put on a “list”. If you have such a provision in your will, you can change your list with a stroke of your pen and not have to keep changing your will. Isn’t that convenient?

 

My final advice is to make your own plans for your funeral and internment. Those you
leave behind probably will have enough grief, they should not have to deal with those decisions. And, if your intent is to pass along more of your estate, funerals and burial plots are less money if pre-paid.

 

There is no reason to delay and every reason to take care of your important personal
business. Make the plan you want.

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Evidence, Understanding Its Importance to You

By Kim Douglas Sherman, Esquire.

The simplest definition for the word “evidence” found in the law dictionary is: “All the means by which any alleged matter of fact, the truth of which is submitted to investigation is established or disproved.”

As a lawyer who regularly goes to Court, evidence is my stock in trade. As you will learn from this article, your understanding the concept of “evidence” is important and useful. You are certainly familiar with the most popular kind of evidence called “testimony.” Testimony is someone speaking about what they actually know regarding the matter to be decided. If the person testifying does not have personal knowledge–they, themselves, did not see or hear what they want to testify about, then their testimony is called “hearsay.” Hearsay is generally not considered as evidence because, in our Court system, there is a right to cross-examine the person who actually was the witness to the event in issue. My evidence professor used the example of an ugly, toad-like witness, who saw everything and knows everything, but is so repulsive that you want to keep him in the basement. [They have basements in the mid-west.] Instead, you would like a handsome, well-spoken person to give the testimony. You would like to ask the goodlooking witness to go and ask the “toad”, “what did you see?” Then you would like the goodlooking witness to come back into the Court and testify as to what the toad witness said. Under our legal rules, that is called “hearsay.” You have to bring the toad to testify himself. There are exceptions, but then, that would take a much longer article to discuss.

 

Testimony given by a witness with actual knowledge is good evidence, however, people do not always remember or see things the same way. I am not suggesting that people lie in Court, but the way that they see or remember can be selective and biased. This brings me to my next point about evidence. If you can have the testimony of a disinterested person, someone who has nothing to gain or lose, that is the best kind of witness. If you think that you are going to need that kind of testimony, try to have the witness write down what they saw as soon as possible after the event in question. Such a writing, itself, may not be admitted as evidence, but it can help the witness remember exactly what they saw or heard long after the events have happened.

 

This is a technique we call “preserving” evidence. If you are going to need to present evidence, knowing about preserving evidence is important to you.

A picture is said to be worth a thousand words, and we all know that is true. When it
comes to preserving evidence, take the picture and take it before there is any change in the subject matter of the photo. Take a photo of the accident scene, the skid marks on the pavement, the crashed cars, the black and blue marks, and the wounds. Take the photo of the over-flowing sewage or the moldy, collapsed ceiling. You get the picture? If you do, then make sure that you keep the photo secure and preserved to use as your evidence.

 

Finally, preserve the actual thing that is in issue. If something broke and caused injury or damage, try not to discard it. Instead try to maintain and secure it in the same condition so you can present it to the Court and say, “this is it!” Along the same line, put your agreements into writing signed by the agreeing parties. That is called a “written contract” and it is the best evidence of the parties’ intentions. Understanding “evidence” will help you prove your case, and can even keep you out of Court.

 

For more information about Mr. Sherman, call 954-489-9500.

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Protecting Yourself From Identity Theft And Fraud

By: Kim Douglas Sherman, Esquire.

When your personal identification information, such as your name, social security number, birth date, credit card number, and driver’s license number, have been used without your consent or permission to open credit accounts, to open bank accounts, to obtain loans, or to obtain goods or services–you are a victim of identity theft. It can be a devastating experience; the commercials on television do not even touch the feeling of violation. If you are a victim of this crime, your entire financial world can be thrown into turmoil. This article is just a brief summary of how you can protect yourself and what you should do if you find yourself victimized.

As soon as you become aware that you are a victim of identity theft, the Broward County Sheriff’s Office recommends that you immediately contact the company or financial institution’s fraud department where your information was used to alert them of the fraud and have the account close or canceled. Immediately file a police report where the fraudulent activity occurred; the Broward Sheriff Office will assist you to determine the proper place for making the report. The Federal Trade Commission [ (877) 438-4338] investigates interstate and internet fraud. You can download a copy of an identity theft affidavit from the FTC’s website at: www.consumer.gov/idtheft to assist you in notifying merchants, financial institutions and them credit bureaus. Contact the three major credit reporting companies [Equifax (800) 525-6285; Experian (888) 397-3742; TransUnion (800) 680-7289] to report the identity theft and have them confirm that a Fraud Alert is placed on your personal credit file. The Fraud Alert will help prevent any future acts of fraud involving your personal identification where a credit check would be conducted with the three major credit bureaus.

 

The best practice is to protect yourself. Here are some recommendations that are easy and effective. Always promptly review your monthly banking, brokerage, and credit card statements for accuracy–and report any questionable matters immediately. Watch your credit by getting the free annual reports that each of the three major credit agencies will provide to you upon your request. Report any errors you find in the reports immediately and in writing. Keep your guard up, and do not be casual about disclosing your private information. Never disclose your Social Security number, birth date, or mother’s maiden name unless you initiated the transaction and unless you know that you are dealing with a reputable merchant or website.

 

Guard your card! Try not to bring any identification of credit cards which are not necessary. When you give out your credit card in a restaurant or business, keep the card in sight to prevent the fraudulent use of handheld readers–a practice called “skimming.” Use firewalls on your home computer as a deterrent to hackers. Use a shredder at home before throwing away papers, like bank statements and credit card bills, that have your personal information on them. Just avoid using strange Automated Teller Machines [ATMs], cell phones, and wireless or public computers for conducting your personal business. The thieves have the means to listen in to such communications.

 

The “con” in the word “conman” refers to confidence. Be alert and use good common sense in whom you trust and how you conduct your personal business.

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Neighborly Nuisances–Part One, the Plants

By Kim Douglas Sherman, Esquire.

A nice neighbor is a nice thing to have, but a bad neighbor is a nightmare. Sometimes it is just the little things that are annoying. The next-door neighbors are probably good people who really have no intention to annoy you…or… you wonder, “do they?” Perhaps they have a dog that barks incessantly or maybe it is a parrot cackling to itself night and day. In this series of articles we are talking about the neighbors’ animals, trees, yard, garbage, and noises that get under your skin.

 

In my law practice over the years, the most frequent complaint that I hear about is the neighbors’ trees over hanging the property line. Those branches can be a nuisance for a variety of reasons: they block the sun; they intrude on the ability to use the property; they drop leaves or fruits or berries [which may attract flies, cockroaches, and vermin]; and they are knocking over your fence. Along with the intruding branches problem we often hear about the tree’s roots invading and pushing up the pavement or cracking into the sewage lines or house foundation.

 

You cannot cut down the annoying neighbors’ tree, but you are privileged, at your own expense, to trim back any encroaching branches, tree roots, or other vegetation which have grown onto your property. If, by some chance, the trees are Australian Pine, Norfolk Island Pine, Melaleuca, Brazilian Pepper, or Florida Holly, Section 86-1 of the Lighthouse Point City Code requires that the tree must be removed if they were planted after 1979.

 

Unkempt yards certainly can be annoying, not to mention an eyesore in an otherwise lovely Lighthouse Point neighborhood. Section 30-31 of the City’s Code compels owners or occupants to keep their lots reasonably clean of all refuse, trash, and debris. If you complain to the City, it must send the offending owner or occupant a notice to clean-up or be charged by the City for the cost. If the lot is not cleaned within fourteen days of the notice, Section 30-34 provides that: “the city shall cause it to be cleaned and the costs thereof shall be assessed against the lot as a special assessment.”

 

Section 86-30 provides minimum standards for maintaining property: the grass shall not
exceed eight inches high, adequate irrigation must be provided, and the lot to be “reasonably free of weeds, disease, dead plants and other conditions evidencing inadequate care and maintenance.” The trees, shrubs, hedges and groundcover must not be allowed to become overgrown. In the case of hedges, that height is five feet above the normal ground level from the front setback line to the front lot line and six feet high to the rear lot line. On waterfront lots, the height is limited to three feet from the rear setback line. Corner lots cannot have a hedge or wall within twenty-five feet of the corner. In all cases no wall, fence, tree, or hedge may obstruct motorists’ safe use of the roadway.

 

Ask your neighbor nicely to do the right thing, but, if that doesn’t work cut the offending intrusion off your property and call the city to report the other violations.

 

In our next articles on Neighborly Nuisances we will take up the subjects of offending noise, animals, flooding, and property use. Stay tuned, there will be something to annoy everyone.

 

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