For many clients, the revocable living trust can be used to avoid probate, provide lifetime management in the event of disability, and to save taxes. The trust is established during the client’s lifetime. The trust can be amended and revoked at any time. The client usually serves as the initial trustee and has complete control over the trust property.
Should the client become incapacitated and not able to handle trustee responsibilities, a successor trustee is named. Property held by the trust is distributed by the successor trustee upon the client’s death according to the terms of the trust agreement.
When someone dies, everything that he/she owns will go to someone else. How the assets are owned will affect the disposition of the assets at the person’s death. Only assets held in the individual’s name will pass to heir or beneficiaries. Joint assets and life insurance policies that have beneficiary designations will be distributed at death without regard to any provisions in a will or trust.
The individual may want to have specific assets or specific amounts of money be distributed as a gift. The specific gift must be described accurately to avoid confusion. Transfer of specific items can be done easily by listing the asset in the will or trust.
A minor is a person under the age of eighteen years. A guardian of a minor is an individual appointed by the court who has legal custody of the person or property or both of an individual under the age of eighteen. A guardian of a minor child has the powers and responsibilities of a parent regarding the child’s support, care, education and welfare. A guardian shall act at all times in the child’s best interest and exercise reasonable care, diligence and prudence.
Some guidelines when choosing a guardian for your minor child are:
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Do your children know this person and are they comfortable around him or her? The potential guardian may be suitable in terms of finances and experiences, but would your kids be OK living with that person?
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Is this person fit to raise a child? Sure, your kids may love this person now, and the person may seem great around kids at parties or family gatherings, but would he or she be able to handle raising them on their own?
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Would the person be able to handle the huge task of dealing with your children’s grief?
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Does your potential guardian share the same values as you? How closely aligned are they with your beliefs about things such as money, education, religion, discipline, love, etc.?
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Who lives close enough and is accessible to serve as your child’s short-term guardian? Choosing this person is critical in case your chosen guardian is temporarily unavailable or lives out of state at the time of your passing.
Avoiding fraud may sound simple, but most people forget the most common ways to avoid being defrauded:
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If it’s a deal that won’t last until tomorrow or next week, it probably isn’t a good deal anyway. Honest business people are willing to let people take their time and make a wise decision.
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If someone wants you to keep the deal a secret, it is almost a guaranteed con, no matter how good it seems. Talk it over with friends, family, and an attorney.
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All contracts should be in writing and all terms should be clearly spelled out. With very few exceptions, stipulations that are not included in the contract are not enforceable.
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Be sure to read all the print, including the back of any agreement. There are often terms that are included there that will affect your rights.
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Avoid conmen by asking for references and then check them out. Conmen don’t have good references. Sure, they may come up with excuses why they cannot or won’t give you a reference, but if they can’t, walk away.
If you fully check out all your resources, you will be able to avoid the bad guys almost every time.
Making sure that you have the right professional for the job at hand is the first and one of the most important tasks that you have in getting any job done right. When it comes to the legal profession, there’s no difference. Finding the right attorney may take some time, but in the end, it’s always better to have done your due diligence.
In order to pick the right attorney and save yourself time and money, you need to know all of your own issues. If you aren’t familiar with your own situation, it can be difficult to explain it to someone else. Likewise, there’s no point in engaging an attorney to perform tasks that are useless to you.
Know your own financial limitations and the financial benefits of engaging the services of a specific attorney. In other words, only buy what you need and what you can afford. If you only want a will that names your spouse as your sole beneficiary and there are no other needs, you probably don’t need an $1800 will package.
Factors to consider when choosing an attorney:
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Is the attorney a good listener? Does he/she seem to fully understand your case? Not all people are great listeners and someone that already has preconceived ideas as to what your case is all about will likely make mistakes. A good attorney listens to your circumstances and understands that it is different from any previous case.
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Any good attorney will ask questions about your case. Unless you are both a great lawyer and orator yourself, it is doubtful that you will fully explain your case in the detail and to the extent that no questions need to be asked. An attorney that asks pertinent questions is seeking to understand your circumstances and develop the proper mental picture.
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Is this an attorney that you can and want to work with? All things considered, personality plays an important role in any relationship and it is important that both of you are on the same side. If you don’t like or trust the attorney, you may be better off going somewhere else. You will both be better off and your case will be better served.
Anytime that you place a loved one in the care of others, there is always room for disagreement. Some disagreements are not much more than a difference in opinion or a misunderstanding, others are relatively severe and cause for demanding immediate action and turning to authorities for resolution. No matter how sensitive and caring the staff of a nursing home, nursing home staff and the senior or the senior’s family can develop a misunderstanding or a disagreement.
When significant problems arise, it’s often best to involve a geriatric care manager (GCM). A GCM will act as independent expert who can evaluate the conditions and disagreements in light of state and Federal laws, industry norms, and the specific needs of the senior. The GCM can also often act as a mediator to talk to the administrator of the facility in terms that they understand, with less emotion because they are not personally involved. Administrators know that the opinion of a GCM is important as an independent person, should the case ever have to be resolved in court. In short, nursing home administrators often attempt to work with a GCM when they would not with an irate family member.
A national Medicaid estate recovery program has been in effect for many years. Just recently, Michigan became the last state to adopt an estate recovery law. The law seeks to recover from the probate estate of those individuals that have received Medicaid benefits. Certain probate estate property is exempt. This includes property to which a hardship waiver applies, that portion of the property that is the primary income-producing asset of the survivors, and only a portion of the Medicaid recipient’s homestead.
To learn more about estate recovery, contact a competent elder law attorney.
You find yourself single again – perhaps through a divorce or the death of your spouse. This is a difficult time emotionally. You may be weary of court proceedings and legal matters – however, you must give attention to estate planning matters.
Your single status affects:
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Your real estate. You now own your property alone. There are inheritance issues which much be addressed – you no longer have the protection of joint with the right of survivorship.
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Your will. If you have an existing Will, it needs to be changed. This is especially true if you are divorced. You will now need to specify new primary beneficiaries of your estate and name new personal representatives. If you never had a Will, it is particularly important to establish one now – there is no joint ownership now. Who will be your heirs?
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Your trust . As with your Will, you must change your trust after a divorce to reflect your single status and specify beneficiaries and successor trustee(s). If you are recently widowed, you need to sit down examine what the status of all provisions in the trust are, which need to be changed, which can be changed.
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Guardianship designations. You should designate your preference for guardian and conservator for your children if you are incapacitated or die.
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Your Powers of Attorney. You will need to designate new agents under your Durable Power of Attorney (for legal affairs) and under your Designation of Patient Advocate (Durable Power for Health Care.
It is important for you to sit down with an Estate Planning Attorney and address these important issues which affect you today and tomorrow. You owe it to yourself to find out what impact becoming “suddenly single” has had on your estate planning matters and how you can plan for the future.
A good way to reduce a parent’s countable assets when trying to qualify for Medicaid nursing home benefits is by having the child charge the parent for caregiving services provided. A child or other family member is permitted to contract with the parent to provide personal care to the parent. Such payments will help to deplete the parent’s countable assets without causing the imposition of a penalty. The payments must be considered reasonable and in line with the going rate for similar services provided by outside companies in the same area. The following guidelines should be followed for personal care contracts:
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Prepare a written contract prior to the delivery of the personal care services.
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Detail what types of services are included.
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Both parties to the contract should sign in front of witnesses and a notary
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A doctor’s note should be obtained indicating that the parent needs the services being provided in the contract.
It is best to contact an Elder Law attorney for assistance when considering a personal care contract.
Long-term care costs are not covered by private health insurance or any of the Medicare plans. Under traditional Medicare Part A, a three-night hospital stay triggers up to 100 days of skilled care in a nursing home. The majority of long-term care costs are either paid privately by the resident and the resident’s family, long-term care insurance, or paid by Medicaid.
Eligibility for Medicaid is determined based on strict income and asset rules. However, typically a single person can only have a maximum of $2,000 in countable assets plus certain excluded assets such as the individual’s personal residence, one car, personal effects and a pre-paid funeral contract. There are various planning techniques that may allow an individual to protect more assets. However, the Medicaid rules frequently change. Therefore, it is wise to seek the advice of an experienced elder law attorney when considering any type of asset preservation planning.
