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.

We Are Husband And Wife Joined In Holy Matrimony As One (Sort Of )

Couples are under the impression that when they get married, they are joining together as husband and wife creating a unity. This is sort of true, but legally, it’s not the case.

What if you wanted to access your spouse’s IRA accounts? You would need to gain permission from your spouse, which is simple enough if your spouse is competent and able to give verbal or written permission.

What happens if your spouse is incapacitated and unable to properly give their permission? Martial rights do not give you the legal right to handle your spouse’s financial affairs. Simply stated, you cannot show up and say “I am his wife”. That does not give you the permission necessary to handle your spouse’s financial affairs.

What does give you that permission though, is a durable power of attorney, which is effective as soon as it’s signed. This legal document will give your spouse (or whom ever you choose to designate) the authority to handle your financial affairs and many other specific matters.

“Martial rights do not give you the legal right to handle your spouse’s financial affairs. ”

In Florida, whether you are married or single, it is important to prepare a Durable Power of Attorney to give someone else the authority to handle your affairs if you are no longer capable. Please keep in mind, that this document needs to be prepared before you are unable to make your own decisions. Otherwise, a guardianship (legal process) would have to be opened in order to allow someone else to make decisions for you.

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.

Being A Trustee Is Not Just A Good Deed, You Receive “Reasonable” Compensation

You are named the trustee of a family member’s trust in South Florida. Your first reaction is, why me? Your second reaction is,: how much work is involved?

Many people choose to be their own trustee and continue to manage their affairs for as long as they are able. A successor trustee is named to step in and manage the trust when the trustee is no longer able to continue (usually due to incapacity or death).

The trustee has a very important role, to safeguard assets for others; for the grantor (if living) and for the beneficiaries, who will receive them after the grantor dies. The trustee essentially “manages” the estate.

“In Florida, trustee compensation is determined by the terms of the Trust, then by what is reasonable under the circumstances. ”

A trustee will be compensated for their services.  Trustees are not entitled to compensation simply by virtue of their appointment as trustee, but they must provide a service and/or benefit that are supported by adequate proof.

In Florida, trustee compensation is determined by the terms of the Trust, then by what is reasonable under the circumstances.  If the terms of the Trust do not specify the trustee’s compensation, the amount will depend on the type of trust administration which will be required.

The probate court may allow more or less compensation if:

(1) Duties of the trustee are substantially different from those contemplated in the trust.

(2) Compensation specified in trust would be unreasonably high or low.

(3) If trustee has rendered services in connection with the administration of the Trust, the trustee shall also be allowed reasonable compensation for other services rendered in addition to reasonable compensation as trustee.

It is an important to decision to decide who will be named a trustee for your trust. Speak with an experienced estate-planning attorney in South Florida to help advise you.  Contact The Hershey Law Firm, (954) 303-9468, located in Fort Lauderdale, Florida for your estate planning needs.

Who Needs to Know About Your Living Will?

“What happens in Vegas, stays in Vegas.” Some things are better left unknown for those who were not involved.  That saying does not ring true for estate planning. In Florida, if you have decided to prepare for your passing and plan to have a living will drafted, who should know?

A living will is pointless if no one knows that it exists. You should be proud of yourself for not procrastinating and properly planning. However, if the appropriate parties are unaware of the existence of the living will, it’s just as good as never being drafted at all.

In order for loved ones and physicians to know your decisions concerning medical treatments in South Florida you will need to follow these 5 steps to create an effective living will.

“A living will is pointless if no one knows that it exists. ”

(1)Appoint a health care agent: Appoint someone as your healthcare agent with a durable power of attorney known as a Designation of Health Care Surrogate.  Your agent will have the legal authority to make health care decisions for you if you are no longer able to speak for yourself.

(2) Attach a signed HIPAA release form: You must provide your health care provider with a signed HIPAA release form so that he can discuss your medical information with your agent. It is suggested to provide a release form to all of your physicians and insurance carrier.

(3) Draft Instructions for health care:  Write instructions for your future health care outlining your wishes about life sustaining medical treatment in the event you can no longer speak for yourself. Your agent will be dictated to implement your written instructions.

(4) Revise: Written instructions must be absolutely clear to be enforceable.  Your written instructions must clearly answer the question about life-sustaining care.

(5) Notify your attending physician: Once your living will is drafted, it’s your responsibility to notify your physician that you have one. It is also important to discuss your health care desires with your physician. He or she is likely to honor requests that have been communicated to him or her directly.

Take charge of your last living decisions and plan ahead! An experienced South Florida estate-planning attorney will help ensure that the actual instructions for your wishes are stated accurately. For more information on successful Florida estate planning, please contact The Hershey Law Firm PA at (954) 303-9468 to schedule your free consultation.

Changing Roles of Parents and Children- Planning for Incapacity of Parents

As a child, you see your parents as superheroes. They are the most amazing people you will ever meet. They take care of you when you are sick, pack your lunch (sometimes not the best meal), or act as your personal chauffer from one after school activity to the next.

In a blink of an eye, you are an adult, acting as a superhero for your own children. You begin to realize that your parents, who did everything for you, now require your help. They might forget to pay their bills or may make decisions where you ask yourself, “Why in the world did they agree to that?” Roles have been reversed and you are now parenting your parents. 

When a parent is unable to make his or her own decisions (even if they aren’t deemed incapacitated), a power of attorney is necessary.

In Florida, a power of attorney is used by Florida estate planning attorneys to help their clients plan for incapacity. A power of attorney allows you to name the person who can act on your behalf so that the court does not have to.  The person who signs the power of attorney is the “principal”. The person authorized to act on behalf of the principal is known as the “agent”. Without proper planning, if actions need to be taken by a person who has lost mental capacity, there is a court procedure called a “guardianship”.  Guardianship proceedings require an attorney to represent you in court. In Florida, a guardianship can be financially costly and emotionally draining.

Preparing a power of attorney in Florida will allow you to name the person who can act on your behalf so that the court does not have to make that decision.  A power of attorney can save you thousands of dollars by avoiding guardianship proceedings.

“When a parent is unable to make his or her own decisions (even if they aren’t deemed incapacitated), a power of attorney is necessary.”

There are a number of power of attorney options available in Florida.

General Power of Attorney:  Given for all purposes and not limited in scope. The agent under a general power of attorney can take any act that the principal could take.

Specific Power of Attorney:  Granted for a specific purpose. For example, the principal might authorize the agent to buy/sell real estate.

Durable Power of Attorney:  Contains specific language stating that the agent’s ability to act on behalf of the principal is not affected by the principal’s subsequent incapacity.

Health Care Power of Attorney (Health Care Surrogate):  Allows someone to make end-of-life or other medical decisions on behalf of the principal.

Well planned estate planning includes a power of attorney. If you live in Miami-Dade, Broward, or Palm Beach counties and have elder parents, you may want to discuss preparing a power of attorney. 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.

Women Don’t Understand the Need and Importance of Estate Planning

Women today are not only in charge of running the household, but a majority of them are highly educated with masters and doctorate degrees. Some own their own businesses and others manage and oversee businesses of others. However, women still fall victim to thinking their husbands will take care of financial and estate planning needs for the household. Usually, that’s not the case.

Potential concerns for a Fort Lauderdale, Florida married woman in her late 30’s:

Rachel, a married woman has 1 young child from her first marriage and 2 young children from her second marriage. She owns 50% of a local South Florida business recently appraised for several million dollars. Rachel is concerned about disputes with her business partner. To top it all, she is in the process of a divorce with her second husband.

At this time, Rachel has no will or trust in place. She is a woman, getting divorced, with children different marriages, a multi-million dollar business, an estate possibly  subject to estate taxation, and problems with a business partner. The urgency and need to consult with an estate planning/asset protection attorney is huge. She needs to start planning now to avoid losing all that she has worked for!

Consequences for Rachel not having a will or trust in place:

Under Florida law of intestacy (meaning no estate planning in place), Rachel’s ownership interest in the business would be divided as follows: ½ to her ex- husband and ½ divided equally among her 3 children. All other assets (besides business ownership) would be divided the same way.

Without a will or trust, the assets her minor children would inherit will be subject to court supervised guardianship. This includes additional expenses that would not be applied if proper estate planning were in place. There will be fees for the guardian, attorney for the guardian, and the court will have to approve all expenditures. Worst of all, all assets inherited by each child will be turned over to the child at age 18 to do with whatever they please. 

With proper planning, assets for minors can be placed in a trust and you can direct (from the grave), how and when the child will receive their assets. For example, you may want to give ¼ of the assets to the child when they enter college, give another ¼ to the child when they graduate, then give the remaining ½ when they turn 25 or 30 years of age. You hope that at that time they will be responsible with their inheritance.

With respect to Rachel, her children and ex-husband would become partners in the business. The court appointed guardian would become a new partner in the business with respect to her minor children’s interest.

“Without a will or trust, the assets her minor children would inherit will be subject to court supervised guardianship.”

Rachel currently has a life insurance policy. Life insurance is an extremely useful tool in estate planning to help properly provide for your children’s needs you’re your death. Rachel would have to make sure that it was payable upon her to death to her children and not to her ex-husband. If the beneficiary information is not updated and changed, an ex-spouse can receive a nice chunk of change upon your passing.  Pretty sure no one would want that to happen!

Furthermore, Rachel has no planning in place in case she was unable to make financial or medical decisions for herself.  If she were to get into an accident, and was unable to make an emergency medical decision, and she had a health care surrogate drafted, that person could act on her behalf for medical decisions. If,by chance, she falls into a vegetative state and does not wish for her life to be prolonged, she would need to prepare a living will that clearly outlines her final wishes.

Rachel’s action plan to prepare her estate accordingly:

(1) Review all of her beneficiary designations and change them to someone other then her ex-husband.

(2) Prepare a will that will identify who she wants to care for her minor children

(3) Look over her life insurance policy and meet with a representative to see if she has enough coverage to care for her children.

(4) Prepare a trust so her assets can avoid probate.

(5) Prepare a living will, healthcare surrogate, durable power of attorney

(6) Make sure she has a buy-sell agreement with her business partner

(7) Make sure she has a business continuity plan to provide for continuation of the business in the event of her death or disability

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

Homeowners Association and Condominium Association Foreclosures in South Florida

If only we could be kids for life. Get paid a weekly allowance for completing a list of chores and then spend every penny at the mall on items we probably don’t need. Sadly, many grown-ups in South Florida do the exact same thing; however, they get their “weekly allowance” for going to work. They are no longer purchasing baseball cards, action figures, or anything at Toys R Us. They are now purchasing vehicles they can’t afford, big screen TVs, handbags and shoes. What hasn’t sunk in is that as an adult, family and household expenses (mortgage, HOA, healthcare, daycare, food) should be the #1 priority, and then all toys and vacations should be purchased next.  Although most would agree, many South Floridians live credit card rich. Sounds great, but what happens when reality sinks in and you decided to buy that big screen television to watch the Superbowl as opposed to paying your HOA dues? Beware; your house can be foreclosed on!

“The association has the right to foreclose regardless of whether you are current or not on your mortgage payments”

If you live in a house, townhouse or condominium that is part of a common interest community in Florida, you are responsible for paying dues and assessments to the homeowners association (HOA) or condominium association (COA). If you do not pay, the HOA or COA will get a lien on your property and foreclose. You might think, “Well I paid my mortgage payment, so nothing will happen to my property.” Wrong. The association has the right to foreclose regardless of whether you are current or not on your mortgage payments.

If you are in the Fort Lauderdale, Miami, or West Palm Beach area and are facing an HOA or COA foreclosure and/or want to offer a settlement to the HOA or COA to become current, contact The Hershey Law Firm, P.A. at (954) 303-9468. We can help protect you from any potential consequences of an HOA or COA foreclosure. 

Pay It Forward

Estate Planning benefits those that survive you, not you. Make sure you plan to help those that deserve to receive from you.

Estate planning is the ultimate “pay it forward” technique one human being can do for another. You can work your whole life and become extremely successful. You want to be able to share the fruits of your labor with those closest to you. Give to those that supported you through out your journey.

You want to make sure your spouse is taken care of when you are no longer here to do it in person. You want to make sure your children can achieve their goals and become successful members of society as well. 

“Estate planning +asset protection is a way to safely house your assets and make sure they grow over time and not have them taken away by creditors or the government.”

A parent leads by example. If you teach your children the joys of helping others, you are able to keep your family assets growing even after your passing for generations to come.  People often say, ‘the rich get richer’. That can be achieved with proper planning.   

In order to protect your assets, not only is estate planning necessary, you must diversify your assets as well. You will want to build a portfolio that will allow your assets to grow throughout your lifetime and continue after your passing.  It is highly recommended to try to make it as tax efficient as possible.

Estate planning +asset protection is a way to safely house your assets and make sure they grow over time and not have them taken away by creditors or the government.

You should seek the advice of an experienced estate planning attorney in Fort Lauderdale, Florida to help you properly plan for the future through creative estate planning and asset protection techniques. Contact the Hershey Law Firm, P.A. in Fort Lauderdale Florida at (954) 303-9468 to schedule your free consultation.

Money Just Hanging Around in Bank Accounts of the Deceased.

It’s a quiet Sunday morning. You wake up slowly without the help of an alarm clock. Your coffee is brewing and the smell of pumpkin spice is spreading throughout the house. You prepare your breakfast plate (eggs, waffles, parfait). You take your first sip of coffee and the taste of cloves, nutmeg, and cinnamon begin to calm your nerves. You begin to read the newspaper when all of a sudden your phone rings. The voice on the other end is speaking, but you don’t understand what they’re saying. You ask them to repeat themselves slowly, you are able to understand the words. Words you never thought you would hear. “I am sorry Rachel, but your father has passed away”. The coffee that just calmed your nerves is now flavorless. You were an only child and now both your parents have passed away. The thought of being alone has consumed you.

You prepare the funeral arrangements and try and trick yourself into thinking this isn’t happening. You think to yourself, my dad has no assets. He lived in a house that I owned and he had nothing. So instead of seeking the advice of a probate attorney after the funeral, you prepare yourself for a life alone without your father. 

“The probate process is necessary to pass ownership of the decedent’s probate assets to the decedent’s beneficiaries”

Four years go by and you meet with the family financial advisor. Your advisor says, “Did you know that your father had a checking account with $20,000?” You had no idea. You go to the bank the next day to get the money out of the account. Unfortunately the bank advises you, that you have no access to your father’s account. What do you do now?

Time to seek the guidance of an experienced probate attorney in Fort Lauderdale, Florida. 

Probate administration only applies to probate assets. In Florida, if an estate is valued under $75,000 or the decedent died over 2 years ago, the probate process is referred to as “Summary Administration”. If the deceased passed way without a will, it is  considered an “intestate summary administration” proceeding.   

The probate process is necessary to pass ownership of the decedent's probate assets to the decedent's beneficiaries. The Summary Administration process is much quicker then “Formal Administration”. It can be completed as soon as one week or up to a few months. “Formal Administration” can take up to 6 months or longer. 

In our scenario, Rachel will be able to file a Summary Administration because her father’s estate is valued under $75,000 and he passed away over 2 years ago. The fact that Rachel’s father passed away 4 years ago, creditor claims have been barred.  With the help of an experienced probate attorney in Fort Lauderdale, Florida, Rachel will be able to gain access to the funds in her father’s bank account. 

If you have a family member that has passed away and you have not sought the advice of a probate attorney, you may be a beneficiary to assets that are just sitting dormant.  Contact The Hershey Law Firm, P.A. in Fort Lauderdale, Florida at (954) 303-9468 to schedule your free consultation.

How does a loan modification affect my credit score?

Most people who attempt a loan modification are homeowners who are already delinquent on their payments. One missed mortgage payment will have a negative affect on your credit score. Whether or not a loan modification will affect your credit score depends on the kind of program you are being offered and how the lender reports the account.

Loan modifications, particularly those endorsed by the US Government, such as Home Affordable Modification Program (HAMP), may have no impact at all. These programs include loan-reporting requirements that result in the mortgage continuing to be reported as current and paid in full, if the requirements of the program are met by the homeowner.

“If the account is reported as anything other than “paid on time” and “in full” it will have a negative impact on your credit score.”

Other “loan modifications” could hurt your credit score because they are actually debt settlements. Three pieces of information associated with the loan modification affect your score:

(1)   Credit inquiry

(2)   Change to the loan balance

(3)   Changes to the term of the loan

If the account is reported as anything other than “paid on time” and "in full" it will have a negative impact on your credit score. If it is reported as a “new” loan, your score could still be affected by the inquiry, balance, and terms of the loan- along with the additional impact of a new “open date”. A new or recent open date typically indicates that it is new credit obligation, and as a result, can impact the score more than if the terms of the existing loan are simply changed.

Before entering a “loan modification” in Fort Lauderdale or Miami, be sure to have an experienced South Florida loan modification attorney carefully review the terms of the modification and understand how your payment history will be reported.

 For more information on how to protect yourself from the consequences of a loan        modification,  contact The Hershey Law Firm, P.A. at (954) 303-9468.

My Dog is Smarter Than Your Honor Student

You can not challenge the fact that families regard their 4-legged furry companion as a family member. There are “doggy spas” for dogs to relax and doggy day cares that pick up and drop of your dog in the morning and evening. After all, you want your dog to socialize during the day and not be sitting at home alone while you work.

If you live in Miami or Fort Lauderdale, it is safe to assume that you would want to take care of your animals when you pass away.  With the help of an estate planning attorney in South Florida you can do just that by preparing a Pet Trust.  Attorney Staci Hershey at The Hershey Law Firm, can help you with that. 

Under Florida Law Statute 736.0408 a Pet Trust is created to allow you to decide who will take care of your pet when you are no longer able to do so. The trustee will monitor the caretaker to ensure he or she provides the proper care. The caretaker will handle the day-to-day needs of your pet.

The trust should be funded with sufficient assets or property to care for your pet for its expected lifetime. You should take into consideration any medical conditions. Funds can be used for travel, food, vet care, insurance, toys, treats, pet sitting, recreational activities.

Under Florida law a pet is considered personal property and as such your pet must go through Florida probate just like a house or other personal assets.

Since probate is a long process it is important to create a document which provides for the care and needs of your pets. Most people prepare pet trusts for their dogs and cats but also for animals that may live 30 to 50 years after you pass away (turtles, birds). The trust is only allowed for named animals that exist at the time the Settlor is alive to be taken care of. Once the animals pass away, any remaining funds are distributed.

Joan Rivers once said, “Doggies are better companions than a husband because they didn’t leave the seat up!”

“Under Florida law a pet is considered personal property and as such your pet must go through Florida probate just like a house or other personal assets.”

If you wish to care for your pets and want to discuss the possibility of setting up a Pet Trust, call an experienced South Florida estate planning attorney.

Contact The Hershey Law Firm at (954) 303-9468 to schedule a free consultation to discuss your estate planning needs and concerns. 

First Is the Worst, Second Is the Best, Third is the One With…? Lien Priority in Foreclosure Actions

You are at the department store getting ready to walk into the checkout lane, when a pair of shiny sunglasses lined up near the checkout line catch your eye.  You spend the next 45 seconds debating whether you need a 3rd pair of sunglasses that you will eventually lose. You decide you don’t need them, look up, and see a line 5 people deep waiting to check out.  When you got there, there was no line. Although you were first, you will have to go to the back of the line. In this case, “first come, first served” does not apply.  

“Typically, the matter of priority comes up in foreclosure actions because if a senior lien holder forecloses, it wipes out any junior liens.”

The concept of “first come, first served” is very important when it comes to lien priority.  A lien is a claim on residential or commercial property for certain legal obligations of the owner. These obligations can vary, from unpaid charges for maintenance and improvements, to outstanding balances on mortgage loans and taxes.  A valid lien must be satisfied either by full payment of the obligation or by satisfaction when the property is sold.

Generally, lien priority is determined by the recording date of the lien. The general rule is first in time, first in priority. Some liens, such as property tax liens, have automatic superiority over essentially all prior liens. Typically, the matter of priority comes up in foreclosure actions because if a senior lien holder forecloses, it wipes out any junior liens. However, if a junior lien holder forecloses, its foreclosure is subject to the senior lien.

If you fail to make your homeowner’s association (HOA) payments, the HOA has the right to file a lien against the property. The HOA (lien) foreclosure will wipe out any liens recorded after it was recorded in the public records (possibly a second mortgage). All liens recorded prior to the HOA lien will survive.  Keep in mind the first mortgage will not be extinguished from an HOA foreclosure.

If you have stopped paying your HOA dues and are facing an HOA foreclosure in Miami-Dade, Broward, or Palm Beach County contact The Hershey Law Firm, P.A. at (954) 303-9468 to help protect you from any potential consequences.