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Choose executor

Choosing the Right Executor

7 Tips for Choosing the Right Executor

What traits make for a good executor, and who by default is unable to serve?

Choosing the Right Executor.  It’s an important question: Who can be trusted to take care of your estate when you’re gone?

When you pass away and your will is accepted for probate, your executor “steps into your shoes,” meaning he or she can perform all the legal tasks you used to do. This includes selling your property, paying creditors, bringing lawsuits, reviewing medical records and distributing your assets to others. Clearly, acting as an executor is an important job, so who should you choose to handle your final personal affairs? What traits make for a good executor, and who by default is unable to serve.

1. Pick Responsible Parties Only

The most important quality your executor must have is responsibility. You don’t have to be an attorney, accountant or a financial planner to be an executor. You just have to be responsible enough to hire the right people to help you, address estate matters quickly, effectively communicate with beneficiaries and make hard decisions when necessary. Remember that an executor gets paid a commission for doing his work, so you should expect him to pursue his responsibilities as he would for any other job.

If you do not have any responsible friends or family members, you can name an attorney, accountant, bank or trust company as executor. However, these parties usually charge additional fees for their own services (such as an accountant charging separately to prepare tax returns for your estate) or demand higher payments than a friend or family member (banks and trust companies often refuse to serve unless they make near-usurious commissions).

2. Consider People in Good Financial Standing

Your choice of executor needs to have suitable personal finances of his own. People with many creditors and liens against them, individuals with no credit history and those who have declared bankruptcy are not good choices, since they often can’t get bonded.

3. Name at Least One Younger Successor

It is not unusual to only draft one will during your lifetime, and since wills do not expire your estate may be probated using a will that is more than 40 years old. Of course, many things can change during that time. While you only need to name one executor to make your will valid, you should try to name at least one additional younger, healthy successor executor who is likely to outlive you in case you only draft one will during your lifetime and your first choice of executor dies before you, or chooses not to serve.

This can either be done by explicitly naming the person (“If my husband is unable to serve, I appoint my friend Liza Cortez”) or by creating a mechanism in your will (“Any children of mine who are at least 30 years old at the time of my death shall serve as Successor Co-Executors”).

4. Don’t Worry: Location Usually Does Not Matter

An executor does not need to live close to you. Yes, he or she may prefer to make an in-person visit to your house to ensure your personal property is distributed and to meet with your estate’s attorney, but many of an executor’s tasks can even be done without ever coming to your town. If your estate requires a service, such as disposing of the furniture in your apartment, it is likely your executor can hire a company to do it for her, and pay a responsible party to be present while that service is provided.

5. No Drama, Please

Some people may have beloved friends or family members who are the estate’s only beneficiaries, but they do not get along. This is often the case where two siblings don’t like each other, or when one child took care of her parent the last several years of her life and is receiving the same bequest as her brother, who didn’t even call his parent during that time. If only one of the parties is named as executor she may use the position to exact revenge on the other individual by causing delays, adding hardship or just being mean. In this situation, you have two choices: Either name both parties to serve together to force them to work with each other (thereby avoiding an unequal playing field), or name neither of them (and minimizing court disputes). The latter approach is often better.

6. Don’t Name Disqualified Individuals

One of an executor’s primary purposes is to sign checks. Courts tend to not approve executors they have trouble getting jurisdiction over, as well as people who have a criminal past. Therefore, non-U.S. citizens living outside of the U.S. usually cannot act as sole executors, and former felons are almost always disqualified from being appointed.

Remember that minors cannot serve as executors, and if you do name a person who is currently not a minor it is usually best to only allow him to serve if he has attained a certain age, since many 18-year-olds may not be ready to handle executor tasks.

7. Think About Someone Patient and Emotionally Grounded

Most important, you want an executor who can handle doing hard work without hesitation, maintain emotional balance and apply tough love to beneficiaries. At some level probate has not changed much in the last 600 years, meaning a system that was originally designed to transfer land and livestock now distributes stock portfolios, patents and corporate business interests. Mistakes can easily be made, clerks may disagree on their approach to authenticate documents or court procedures, and middlemen will get confused.

Do not be fooled: Probate work is hard for executors, bureaucrats and hired professionals. Even simple probates can be long and frustrating processes, from fulfilling seemingly arbitrary court requirements, to getting access to apartment keys and renting dumpsters. An executor must be ready to invest her time, not expect immediate perfection and remind beneficiaries to be patient.

Read more related articles at:

Phillip Seymour Hoffman

Philip Seymour Hoffman’s $12 Million Estate Planning Mistake

Philip Seymour Hoffman’s $12 Million Estate Planning Mistake

A few moves could have saved the loved ones of actor Philip Seymour Hoffman a lot of money. Even if you don’t have a $35 million estate, like Hoffman’s, there are some things you could learn from it.

Philip Seymour Hoffman’s $12 Million Estate Planning Mistake. Philip Seymour Hoffman was one of my favorite actors. He starred in Charlie Wilson’s WarHunger GamesPirate Radio and many more major movies. His roles covered a wide range, from a priest in Doubt to a coach of the Oakland A’s in Moneyball, which evidenced his unique ability as an actor.

Philip was a talented actor … but not a good estate planner. He died in 2014 and was survived by his girlfriend, Mimi, and their three children, ages 10, 7 and 5. He did not want “trust fund kids” so he used a will prepared by his CPA to leave his $35 million estate to his girlfriend. She was to provide for their children.

Philip also stipulated that funds were to be used for his kids to visit major metropolitan areas for the express purpose of providing his children with access to the arts. This is an example of an incentive provision or trust to help motivate his kids to become the adults that Philip wanted them to become.

Additional costs for a “living probate” or guardianship for each of the three children may also be required. In California, this typically would require a court appearance and fees every two years until they each turn 18. Fees can be substantial and will vary based widely upon the circumstances and needs of the minor child and the value, type and number of assets involved. They would receive any share of assets to be distributed to them at that time. Not a good age to receive significant wealth. Complete access to funds may result in his kids becoming the trust fund kids Philip hoped to avoid.

An average probate in California without litigation or other issues takes between nine months and 1.5 years. Philip’s probate will almost certainly take longer due to the size and complexity. After the probate is completed, Philip’s estate will be at risk after distribution to Mimi if she is sued, challenged by her creditors or even in a later divorce if she remarries. That legacy may also be reduced by a second estate tax on her death.

A similar approach could have been used for each of his children to protect them as well from claims against Philip’s legacy throughout their entire lives. He also could have incorporated provisions or bonuses to pass on some of his personal values. For example, Philip wanted his kids to live near or at least visit New York, Chicago or San Francisco at least two times a year to gain an appreciation for the arts and cultural opportunities. He could also have incorporated financial incentives to help motivate his children as they grew up. He could have established specific ages for distributors (staged distributions) so that funds are received when the children are financially mature and able to make wise decisions. For example, one-third at age 25, one-third at 30 and one-third at 35.

We all evolve over our lives as to our ideas of what we “want” as opposed to what we “need.” When I was younger, there was so much that I needed. Now, I find that, while there are many things I want, there is very little that I truly need. A financially mature person is better able to make those decisions.

Advanced estate tax planning could have been utilized to minimize and even avoid the estate tax liability upon both Philip’s death and in the future when Mimi dies. Many unique opportunities are now available for tremendous tax savings with our historically low interest rates. This would significantly enhance the wealth retained by the family. These low interest rates will not last forever.

Advanced income tax planning is also available to minimize the income tax owed in the years to come. The maximum capital gains tax rate for California residents is 37.1% (California and federal tax combined). California has the third highest capital gains tax in the world, beaten only by Denmark at 42% and France at 40.5%. California residents pay some of the highest combined federal and state income tax rates in the nation. So, no matter where you live, planning is more important now than ever before.

Read more related articles at:

10 Common Estate Planning Mistakes to Avoid

10 Common Estate Planning Mistakes (and How to Avoid Them)

Also, read one of our previous Blogs at:

Common Estate Planning Mistakes to Avoid

Click here to check out our On Demand Video about Estate Planning.

Disinherit

Can I Disinherit Someone ?

Can I Disinherit Someone ?

Sometimes family members have good reason for disinheriting someone. For example, a parent may have already given substantial assets to a spouse, child or grandchild, and feel like they’ve given enough. To ensure their intentions are followed, they disinherit that person. If you feel you were unjustly disinherited, read more.

What is the definition of disinheritance?

Disinheritance refers to the manner in which a person who might otherwise have received a gift from a loved one’s estate is left nothing. A common example would be where a parent leaves a child out of their will and trust, for whatever reason, or no reason at all.

Why disinherit someone?

There are many well-intentioned reasons to disinherit somebody. Commonly, a parent may disinherit a child to whom they have previously given substantial gifts during their lifetime. Because the child already received so much, the parent may leave their estate to their other children to balance out what each child gets. The parent will legally disinherit the child in their will or trust. However, an individual can choose to legally disinherit anyone they like, including a child, parent, spouse, or family member.

What are grounds for disinheritance from a family trust or will?

As long as the person is of sound mind and body, with full mental capacity, they may choose to disinherit any beneficiary or heir for any reason, or no reason at all. An exception to this general rule exists in those states that have “forced inheritance” laws that prevent complete disinheritance of children and/or spouses. Of course any heir with an intestate succession right may pursue litigation to seek to recover what they feel is their rightful inheritance.

The most common reasons for disinheriting someone:

Previous Inheritance Distribution

If the parent has given the child their inheritance during their lifetime, it’s quite common for the parent to disinherit that child, simply to balance things out among others who may not have received similar gifts..

Divorce

Upon divorce, it’s common for ex-spouses to legally disinherit each other in their respective wills and trusts.

Lack of Relationship

If a child has no ongoing relationship with a parent, it’s common for the parent to disinherit the child in a will or trust. Of course, where a step-parent, child or caregiver interferes with that relationship, by isolating the parent, for example, undue influence and fraud claims might exist.

Conflict of Interest Over Lifestyle Choices

Sadly, it is all too common for parents to disinherit children simply because of a disagreement over the child’s lifestyle choices.

What are grounds for disinheriting parents?

The most common grounds for disinheriting parents are a Lack of Relationship or a Conflict of Interest, as described above.

If it’s a lack of relationship, we commonly see children disinheriting parents if the parent was absent during childhood, or if the parent was abusive when raising the child. In some cases, the parent and child simply drifted apart, and the child fears that the parent would misuse any inheritance they were to receive according to state probate code and intestacy law.

If it’s a conflict of interest, we see children disinheriting parents when they don’t see eye to eye about things, such as: How to raise their own children, lifestyle choices, religion, and other highly-charged emotional beliefs. In these cases, if the child is of sound mental capacity, they have every right to disinherit their parents in their will or trust.

Can parents contest or dispute their disinheritance if the child were to pass away? In many cases, yes. That’s why it’s important to work with an experienced estate planning attorney to limit the risk and manage the likelihood of success of future probate litigation.

What are grounds for disinheriting a child?

The most common reasons for disinheriting a child is a Previous Inheritance Distribution, Lack of Relationship, or Conflict of Interest for Lifestyle Choices, as described above.

If it’s an advanced inheritance distribution, the child has already received their inheritance during the parent’s lifetime. In these cases, the parent usually disinherits the child in order to equalize their estate between their children – e.g. to ensure everyone is treated fairly. For example, a parent may work with an estate planning attorney to create their estate plan. Part of that plan may be giving some or all of their children a portion of their inheritances during the parent’s lifetime. After doing so, the parent may partially or completely disinherit one or more of the children. Why? Because the parent acted to take care of the lifetime needs of one or more children but wants to make sure that all children are treated equally. All too often the child who received assets during the parent’s lifetime still will challenge their disinheritance. The only way to protect against this is to ensure your estate planning is air tight and everyone understands the reasons why you are partially or completely disinheriting someone.

If it’s a lack of relationship, the parent may feel there is no relationship with the child, and therefore the parent may feel the child does not deserve an inheritance. Whether the parent abandoned the child, or the child avoids the parent, it is fully within the rights of a parent to disinherit a child. There is no natural “right” to inherit. However, if the child feels they were wrongly disinherited, they should consult with a probate litigation lawyer or trust litigation attorney.

If it’s a conflict of interest about life choices, the parent may simply not support the child’s lifestyle choices. Maybe the parent thinks the child is too immature to deserve their inheritance, and will spend the funds inappropriately. Or there may be a fundamental disagreement over emotionally charged topics. In any case, it is within the parent’s right to legally disinherit the child. But again, if the child feels they deserve an inheritance, they should consult with a probate litigation lawyer or trust litigation attorney.

What are the legal rights of disinherited children?

A disinherited child has the legal right to receive a copy of the document that purports to disinherit him or her. A disinherited child also has the right to challenge the purported disinheritance for any of the reasons discussed previously. The key is to consult a probate litigation attorney or trust litigation attorney early to ensure key deadlines aren’t missed.

In many inheritance disputes, the child may claim the parent did not have the mental capacity to disinherit them. Or that the parent was the victim of undue influence or duress, which resulted in the child being disinherited. In any case, if the child feels they deserve an inheritance, they should seek council of a probate litigation lawyer or trust litigation attorney, as soon as possible.

What are grounds for disinheriting a spouse?

Disinheriting a spouse is legal in most common law states. However, the spouse has the right to dispute their disinheritance. In some states the spouse will need to engage counsel and file a contest. In other states, the spouse may need only file a Right of Election. In many cases, this is all that’s needed to establish their legal right to up to one-half of the estate’s community property — regardless if they were disinherited, or not.

Why can’t you disinherit your spouse in a will?

Firstly, you can disinherit a spouse in a will. If a spouse legally, contractually agrees to be disinherited they can and likely will be. However, if they refuse, then you have to pursue other options and negotiations. The laws vary from state to state, but in a community property state like California, your spouse will have a legal right to one-half of the estate assets acquired during the marriage, otherwise known as community property.

In common law states, an individual may choose to disinherit a spouse in their will. However, the surviving spouse may have a right to seek their rightful inheritance by filing a Right of Election. Generally, they will be legally entitled about one-third to one-half of the estate assets acquired during the marriage, depending on the state.

Where there is no community property right and no Right of Election, a spouse is free to disinherit their spouse in their trust or will.

Can I contest or dispute disinheritance?

In most states, a spouse who has not agreed to be disinherited can take legal action against a decedent who disinherited them in a will or trust. Also, disinherited children can take legal action, especially if they can show the decedent disinherited them due to undue influence, duress, or lack of mental capacity.

When do I need a probate litigation lawyer?

If you’re a child, spouse or anyone else who recently discovered you were disinherited in a will or trust, it’s important to act quickly to protect your rights. Conversely, if you are seeking to disinherit a spouse or child, you have several options to ensure you are doing it right: 1) An estate or probate Attorney 2) An estate planning Attorney, or 3) A divorce lawyer.

Do I need a probate litigation lawyer near me?

We recommend finding an experienced probate lawyer familiar with the county probate court in the county where the decedent lived. For example, if the decedent lives in Los Angeles, we recommend working with a probate litigation lawyer in Los Angeles. A Los Angeles probate litigation lawyer will generally be more familiar with the  Los Angeles superior court Probate Division, versus an out of state attorney.

Read more related articles at:

Four Ways to Disinherit Family Members

How To Disinherit A Family Member

Also, read one of our previous Blogs at:

Can I Disinherit Someone In My Will?

Click here to check out our On Demand Video about Estate Planning.

 

COVID 19

What Can Be Expected of the Delta Variant of COVID-19?

What Can Be Expected of the Delta Variant of COVID-19?

What can be expected of the delta variant of COVID-19?As the delta variant of COVID-19 continues to fill up hospital wards across Northeast Florida, several local health systems have told their staffs that coronavirus vaccines are no longer optional. Gov. Ron DeSantis said yesterday he’s not a fan of those policies, although it’s unclear at the moment if he plans to step in to try to stop them. In the meantime, those hospitals are beginning to report data on deaths, and the numbers are concerning.

119 deaths in 45 days: Baptist Health’s CEO told News4Jax yesterday that its facilities had reported 119 COVID-19 related deaths since June 21 — an average of more than two a day over the last six weeks. One of those was a 16-year-old who had not been vaccinated and had no underlying health issues. What experts are saying about the increase in child cases

To mask or not to mask? The Department of Education is expected to adopt a rule today allowing for public school students to obtain private school scholarships if their school requires masks. While the state’s stance is clear, parents and school districts continue to grapple with the question of whether to mask students as they eye the recent rise in cases among the young — with schools set to reopen as early as next week for some Northeast Florida districts, including Clay County, where parents sounded off about the district’s mask policy during a School Board meeting last night. What the parents want

3rd dose clinical trial: Researchers are testing booster shots for COVID-19 vaccines and studying whether people will need a third dose to boost the waning immunity of the vaccine, particularly as the delta variant rages. Clinical trials are underway in Jacksonville for a third COVID-19 vaccine dose. Who is involved

Read more related articles at:

Baptist Health to require COVID-19 vaccinations for staff

119 COVID patients have died in Baptist Health hospitals in last 45 days, CEO says

State Board of Education announces telephone conference free to public about COVID-19 today 8/6/2021

Also, read one of our previous Blogs at:

Some Veteran Caregivers Eligible for COVID-19 Vaccine through VA

Click here to check out our On Demand Video about Estate Planning.

 

IRS dirty dozen

IRS’ “Dirty Dozen”

IRS’ “Dirty Dozen”

By Jill Roamer, J.D., CIPP/US topicIcon Elder Law

Each year, the Internal Revenue Service (IRS) puts out their “dirty dozen” list. This is a list of scams that are prevalent that the IRS wants everyone to watch out for. Let’s see what’s going on in scammer-town this year.

The scams fall into four main categories: pandemic-related scams; scams relating to personal information; schemes focusing on certain victims; and scams that persuade taxpayers into taking crooked actions.

Pandemic Scams

Due to the pandemic, the government passed legislation that provided financial help to individuals and businesses. A scam can focus on stealing these payments. The IRS alerts taxpayers to watch out for mailbox theft of stimulus checks. The IRS reiterates that an IRS employee will not initiate contact via phone, email, or text asking for your social security number or other information in order to process stimulus checks.

Scammers have stolen identities and filed unemployment claims, the IRS says. These scammers have benefited from the bolstered unemployment benefits but the legitimate taxpayer is the one who may receive a Form 1099-G to report on their income tax return. If you received this form and you didn’t actually receive those unemployment benefits, you should contact the appropriate state agency for a corrected form.

Scams Related to Personal Information

Personal information (PI) is information that is used to identify you and thus could lead to a scammer impersonating you. PI includes your social security number, driver’s license number, banking information, passwords, and more.

The first scam related to PI that the IRS warns against is phishing. This involves the scammer sending you a communication that looks like it is from a legitimate source, like a government agency. You think you are dealing with the IRS but you are instead dealing with a ne’er-do-well. The scammer collects your PI and then is able to perpetrate fraud on your accounts. Or the scammer has a virus embedded in the communication that compromises the security of your computer or phone.

There are also scams related to social media. The scammer may open a social media account and pretend to be friend or family member in order to extract PI from you. Or the con artist could ask you for money due to an “emergency” or for a fake charity contribution.

Schemes Focusing on Certain Victims

With the pandemic, fraudsters have set up fake charities or disaster relief companies. Or they create bogus stories on social media about a fake family that has had it particularly rough due to COVID-19. These stories or charities pull at your heart strings. Before you give to a cause, do your research to make sure it is legitimate, and your funds will be used as you intend. Be wary of a charity asking for a donation via gift card or money wire.

Immigrants are the targets of some scammers. The con artist will impersonate a government employee and threaten deportation or jail if a sum is not paid. The IRS states that a legitimate IRS agent will not make these threats. Similarly, those with limited English-speaking capability are susceptible to phone scams. The Schedule LEP let’s a taxpayer request a change in their language preference so that they can more easily understand official IRS communications.

Scams that Persuade Taxpayers into Taking Crooked Actions

Scammers may offer big discounts for a “settlement” with the IRS, or say that they will file for certain relief programs, such as an Offer in Compromise. While relief programs do exist with the IRS and can prove very helpful for some taxpayers with IRS debt, you need to make sure you are dealing with a reputable company who will actually do legitimate work on your behalf. Look out for misleading advertising or deals that seem too good to be trust. It might be worth contacting the IRS yourself first to see what options you have. There are many resources on the IRS’ website, including a questionnaire to see if you qualify for an Offer in Compromise. And, of course, the IRS offers its forms online.

Conclusion

Scammers are out there waiting to prey on the vulnerable and unsuspecting. The IRS warns to look out for any scam that requests payment via gift cards. Also, be aware that in most circumstances, the IRS will first communicate with you via mail. If the first contact is a phone call, be cautious. And the IRS will almost never send out communications to you via email.

As an elder law attorney, you work with the target age group for many of these scams. It’s important to keep your clients informed. If someone contacts your clients purporting to be from the IRS, they should call the IRS at 800-829-1040 to see what the facts are before proceeding.

Read more related articles at:

IRS wraps up its 2021 “Dirty Dozen” scams list with warning about promoted abusive arrangements

IRS urges caution with email, social media and phones as part of “Dirty Dozen” series

Also, read one of our previous Blogs at:

What are the Latest Senior Scams?

Click here to check out our On Demand Video about Estate Planning.

 

Incapacity Planning

How Can I Plan For Incapacity?

Legal Planning for Incapacity

How can I plan for incapacity? As you face aging and the need to make plans for your future, you face having to make legal decisions about many aspects of your lives. These legal decisions not only protect you from others doing things you might not like to you, they also protect family and loved ones by giving them guidance in the care that you would like to receive. After completing all the legal paperwork, the next step is to sit down and talk to family about the decisions you have made and why.

What Are the Legal Documents Everyone Should Have?

Advance Health Care Directive

  • Gives power to a person you designate to make health care decisions for you ONLY IF you can’t speak for yourself
  • Also called Living Will, Durable Power of Attorney for Healthcare
  • Each state has slightly different versions of the form, but a form from one state will be honored in another state
  • Hospitals and doctor’s offices have the forms
  • Everyone over 18 should have one
  • Must be completed while you are competent to know what you are signing, i.e. without dementia
  • Often used to decide on feeding tubes, ventilators, and other treatments at the end of life or when someone is unconscious
  • Only needs to be witnessed; does not need to be notarized

What happens if you don’t have an Advance Health Care Directive?

  • Doctors will do everything to treat your condition and keep you alive
  • Family will be asked what to do
  • If they don’t know what your wishes would be, there might be family conflict and guilt over making the wrong decision
  • Physician training, hospital, and nursing home policies often dictate the use of “heroic means” to sustain life. For example, “reviving” a very ill person after a stroke, and using a respirator for someone deemed medically “brain dead,” are standard procedures in many hospitals.

POLST

  • Stands for Physician’s Orders for Life Sustaining Treatment and replaces DNR—Do Not Resuscitate
  • Allows individuals with life-threatening illnesses to decide with their doctors what treatment they would or wouldn’t want. Since it is a physician’s order, it is not open to the will of others.
  • Is helpful if you do not want 911 Emergency Responders to perform CPR (Cardio-pulmonary resuscitation) and expands on other treatments you might or might not want

What happens if you don’t have a POLST?

  • If 911 is called, EMTs are required to do everything possible to resuscitate a person and keep him/her alive until they arrive at the hospital.

Will

Says how you want your estate (money and belongings) to be dispersed to family, friends, organizations, etc. after you die.

  • Also called Last Will and Testament
  • Each state has different laws about estates, but most states will honor an out-state will
  • Can be hand written or completed using on line forms, but necessary to be witnessed and/or notarized
  • If estate is complicated or over $100,000, it is best to have an attorney help you write the will or review what you wrote
  • Must be completed while you are competent to know what you are signing, i.e. without dementia
  • In a will, you appoint someone to be the executor or administrator who will pay your final bills and see that your wishes are carried out
  • Probate is the transferring of property when someone dies. The probate court oversees the executor to assure that the estate is divided as stated in the will.

What happens if you don’t have a will?

  • If you die without a will, the court will probate your estate, i.e., decide how your estate should be distributed.

Durable Power of Attorney for Finance

Allows someone to access your finances, including checking account, investments, and property, in order to pay your bills.

  • A Durable Power of Attorney is valid even if you are incapacitated.
  • Must be completed while you are competent to know what you are signing, i.e. without dementia.
  • Needs to be someone you trust, as this person has a lot of control over your finances. If you don’t have someone you trust, you should consult a professional.
  • Spouses might not have access to all of your funds unless everything, including investments, is held as joint property.

What happens if you don’t have a Power of Attorney for Finance?

  • If you don’t have a durable power of attorney for finance and you can’t manage your finances, a judge will have to appoint someone to do so. It may mean you will have to be conserved, e.g. someone appointed by the court will oversee your care and finances.

Final Arrangements

  • Decide whether you would like cremation or burial and let the family know. Also let loved ones know about your wishes regarding organ donation and other special arrangements.
  • Put your wishes in writing in a place family members can find them.
  • The more decisions you make beforehand, the fewer decisions family has to make during a difficult time when they are grieving.

What happens if you don’t make your wishes known about final arrangements?

  • Family can often be in conflict about what you would have wanted.
  • The law can determine who has the power to make the decision if it is unclear or there is conflict.

What Are the Other Things You Might Need?

Trusts

A trust creates a legal entity that holds your assets for you so that your estate does not have to go through probate when you die.

  • Also called a Living Trust
  • You name a trustee to oversee the trust both while you are alive, and to distribute the trust to beneficiaries when you die.
  • You may be the trustee of the trust while you are alive, in which case you name a successor trustee for the trust who will manage it after you die or become incapacitated.
  • A revocable trust allows you to control everything that happens in the trust while you are alive.
  • An irrevocable trust cannot be changed without the beneficiary’s consent.
  • There are many options for trusts for specific purposes, such as:
    • Special Needs Trusts: Puts money aside to help someone who is disabled
    • Charitable Trust: Money given to a charity
    • Bypass Trust: Irrevocable trust passes assets to the spouse and then the children at death of second parent, limiting estate taxes
    • Life Insurance Trust: Removes life insurance from estate and thus estate taxes
    • Generation Skipping Trust: Allows grandchildren to directly inherit without paying taxes

What happens if you don’t have a trust?

  • Depending on the value of your assets, your estate will go through probate, which can take several months and incur costs to the court.

Beneficiary Forms

Bank accounts, investments, insurance, and retirement plans can be designated as “payable on death” to a named beneficiary, which means the funds don’t have to go through probate.

  • Allows access to funds immediately, rather than waiting for probate to close

What happens if you don’t have fund “payable on death?”

  • Unless funds are in a trust, the estate must be probated through the court, which can take several months (when the funds might not be available) and incur costs to the court.

Where to Find My Important Papers

Have a central place to keep wills, trusts, powers of attorney, etc so that family members will know where to look for these documents.

What happens if you don’t have a central place?

  • Often, particularly in times of emergency and stress, we get confused and don’t know where something important might be. Having a place to go to will reduce the possibility of forms being misplaced or lost. The legal forms are necessary to assure that the care you or a loved one might want are carried out.

Conclusion

In a recent survey, 81% of the people said they think about these issues, however only 33% said they had completed the necessary forms. Although it is hard to talk about and think about, it is important to take care of these matters for your own sake and for the sake of your family.

Resources

Family Caregiver Alliance
National Center on Caregiving

(415) 434-3388 | (800) 445-8106
Website: www.caregiver.org
Email: [email protected]
FCA CareNav: https://fca.cacrc.org/login
Services by State: https://www.caregiver.org/connecting-caregivers/services-by-state/

Family Caregiver Alliance (FCA) seeks to improve the quality of life for caregivers through education, services, research and advocacy. Through its National Center on Caregiving, FCA offers information on current social, public policy and caregiving issues and provides assistance in the development of public and private programs for caregivers. For San Francisco Bay Area residents, FCA provides direct family support services for caregivers of those with Alzheimer’s disease, stroke, ALS, head injury, Parkinson’s disease, and other debilitating health conditions that strike adults.

Read more related articles at: 

Incapacity Planning

Creating a Caregiving Plan When You Have No One to Take Care of You

Also, read one of our previous Blogs at:

What Can I Do to Plan for Incapacity?

Click here to check out our On Demand Video about Estate Planning.

Blended Families

Estate Planning for Blended Families

Remarried With Children? 5 Estate Planning Mistakes to Avoid

Couples on their second marriages need to plan carefully for each other and their kids

Estate Planning for Blended Families. A second marriage can be a balm for the heartache of losing a spouse, be it through death or divorce. Nevertheless, if there are children or other heirs involved, you should consider carefully what will happen with your money and possessions when you pass on.

You can never guarantee that everyone in the blended family will be happy with the arrangements you have made with a second marriage. But you can at least avoid some mistakes so that your immediate family doesn’t get shut out of an inheritance — or worse, that an ex-spouse gets an inheritance that you didn’t plan on giving.

Most people mean well: They want their spouse to inherit their possessions when they die, and their heirs to split what’s left when the spouse dies. And they want everyone, including their children and their spouse’s children, to be happy. No one wants a brawl to break out when the will is read. Here are five ways to prevent that.

Mistake #1: Not changing beneficiaries

“The most common mistake we see is that people never change their wills or their beneficiary designations,” says Mark Bass, a financial planner with Pennington, Bass & Associates in Lubbock, Texas. “You should see the look on their face — or their new spouse’s face — when you ask, ‘Did you know your first wife is still the beneficiary of your 401(k)?’”

One advantage of changing the name of the beneficiary is that the money will go directly to the intended person — often, the surviving spouse — without probate, which is the legal process of settling an estate. You should go through all of your financial accounts — checking, savings, retirement — to make sure that your spouse is designated the beneficiary if that’s your intention. Check life insurance beneficiaries, too, since these payouts also bypass probate. You can also designate your children as secondary beneficiaries, so they will receive the assets in the event you have both died.

“Basically, change everything with a beneficiary designation,” Bass says. In some instances, federal or state laws may require spousal consent if the primary beneficiary is anyone other than the current spouse.

While you’re poring over important documents, remember to update legal directives — such as a medical power of attorney — to make sure that, say, it’s your current spouse and not your ex who is charge of making medical decisions in case you’re incapacitated.

Mistake #2: Not changing your will

Although changing your beneficiary on financial documents will avoid leaving your 401(k) balance to your ex-spouse, your will determines much of who gets the rest of the assets you and your spouse accumulated during your lifetimes. You probably don’t want your ex-spouse to get your home, either.

Typically, people on their second marriage decide that the surviving spouse gets all the assets, and upon the death of the second spouse, the remaining assets will be divided evenly among all of the children. This assumes, of course, that in five or 20 years everyone will still be getting along — and that your spouse, upon your death, won’t write a new will that shuts out your side of the family.

You could also draw up a contract that would require your surviving spouse to maintain the will as it is. Although some estate lawyers use them, will contracts have their drawbacks. “They’re not valid in every state, and not every state will recognize them,” says Letha Sgritta McDowell of Hook Law Center in Virginia Beach, Virginia. “And the biggest problem we have is that sometimes contractual will provisions can be blurry and not as clear as everyone thought they were when they were first written.”

You should also figure out in advance who will get important family items— even if their value is largely sentimental. You may not want your spouse’s children to inherit your great-great grandfather’s Civil War sword or your mother’s coin collection. You can make those determinations in a codicil to your will or a letter of instruction to your executor, Bass says.


Mistake #3: Treating all heirs equally

Most spouses aren’t financial equals when they marry, and this is particularly true for second marriages. If your new spouse moves into your house, for example, you may want your children to get the proceeds when the house is sold, rather than your spouse or your spouse’s children. Similarly, if you brought more assets to the marriage, you may want more of the money to go to your heirs than your spouse’s heirs.

“There’s no rule that says all children have to be treated equally,” says Jason Smolen, a principal in the Vienna, Virginia, firm SmolenPlevy Attorneys and Counsellors at Law. “There are a number of reasons why parents don’t treat children equally — sometimes it’s an unfortunate situation where a child is disabled, either mentally or physically.” In those cases, you’ll have to discuss with your spouse how to ensure that child is cared for, perhaps through an ABLE (Achieving a Better Life Experience) account or a Trust.

Other times, Smolen says, the problem is conduct. A child may have a gambling problem, suffer from addiction or be a compulsive spender. Some parents may simply decide that after death children are responsible for their own actions, and if they lose their inheritance by betting on Seabiscuit in the fourth race at Pimlico, well, that’s the way things go.

Other parents may not be able to stand the thought of an inheritance being squandered. “Essentially, you want to regulate the flow of money to a child like that,” Smolen says. Doing so costs money: You’ll need to create a trust and appoint an executor to manage the assets. A so-called “spendthrift trust” is one solution. It doles out money at regular intervals to the beneficiary and deters creditors from getting the money in the trust.

Mistake #4: Waiting until you’re gone to give

If you’re planning to leave money to your children, you might consider giving it to them now, rather than in your will. You’ll get the pleasure of seeing them use that money while you’re still on the planet.

You can give up to $15,000 per person without having to pay the federal gift tax or deal with the IRS. (Recipients typically don’t pay tax on gifts.) It’s an enormous break.

If you and your spouse have four married children, you can give each child and their spouse $15,000, or $30,000 per lucky couple, without triggering federal gift taxes.

In addition, the giving limit is per giver: Your spouse may also give the same amount. If you and your spouse have four married children, you and your spouse can give $60,000 per couple, for a total gift of $240,000 per year for all eight people, without triggering the gift tax.

You won’t have to alert the IRS unless you exceed the $15,000 per person limit. If you do, you’ll have to file Form 709. But even then you probably won’t have to pay taxes on the gift because of the lifetime gift exclusion of $11.7 million per person (in 2021), or double that ($23.4 million) for married couples. If you exceed those limits, you’ll owe gift taxes on the amount above the lifetime limit.

Mistake #5: Skipping the lawyer

If your assets are few and your circumstances uncomplicated, you can probably get away with going online and drafting a do-it-yourself will. It’s a simple, inexpensive option — and it beats having no will at all.

But if you’re older and on your second marriage, odds are good your life is anything but uncomplicated. Ex- spouses, blended families, and comingled assets up the complexity quotient, as does a child with special needs or an aging parent. It may be wise to invest the time and money in getting a thorough estate plan drawn up by a professional.

While consulting an attorney comes at a cost, you’ll get the comfort of knowing that you, and not a probate judge, will decide who gets what when you’re gone. And you’ll also know that your ex won’t be spending your 401(k) money.

Read more related articles at:

6 Estate Planning Tips For Blended Families

Estate planning for blended families: 4 tips on getting it right

Also, read one of our previous Blogs here:

Blended Families Need More Thoughtful Estate Plans

Click here to check out our On Demand Video about Estate Planning.

Avoid Probate

Estate Planning Secrets: How To Avoid Probate

Estate Planning Secrets: How To Avoid Probate

Russel Morgan

Estate Planning Secrets: How To Avoid Probate. Probate is known for being an unnecessarily complicated and lengthy procedure. Even when the estate being probated is fairly simple and straightforward, proceedings can go on for some time, depending on different factors. With larger estates or those riddled with legal issues, probate can take well over a year to complete. In addition, estates that are submitted to probate often end up losing a significant portion of their value through estate taxes, court and attorney fees, and other expenses.

If you wish to learn more about how to avoid having your estate caught up in the probate process, this post will cover estate planning methods that you can use to secure your assets. Be sure to discuss these with your estate planning attorney to determine what estate planning tools will work best for you.

One of the easiest ways to protect certain assets from being submitted to probate is by converting them to what are known as transfer- or payable-upon-death accounts. This is an effective option to use for estates that are primarily comprised of financial accounts.

A transfer-upon-death account works by appointing a beneficiary to be the designated recipient of the funds held within an account in the event of the account owner’s death. Most states permit beneficiaries to be listed for bank accounts as well as retirement accounts. A few states also allow transfer-upon-death arrangements to be made for vehicles or real estate property.

Joint Ownership

Joint ownership is another estate planning tool that can be implemented to bypass probate. As the name implies, joint ownership refers to the ownership of a property by two or more people as indicated by a proper title. Should one owner of a property pass away, the property will automatically go to the other owner.

In order for joint ownership to work in avoiding probate, it is extremely important to ensure that the property title includes both owners. This will secure the property, as its ownership transfers by default upon the death of either title holder. The most common forms of joint ownership include:

• Joint tenancy with right of survivorship

• Tenancy by the entirety

• Community property with right of survivorship

Revocable Living Trusts

A revocable living trust is a legal document that is created during your lifetime and determines how your property will be distributed upon your death. A revocable living trust includes the provision that you may modify or cancel its terms at any time. However, simply creating a trust will not suffice to protect your assets from probate.

The secret is that whatever assets of value you have need to be placed within the trust so that the trustee becomes the owner of those assets instead of you. In the event of your death, the trustee can then transfer the assets directly to any beneficiaries you have designated within the terms of the trust. Because these assets no longer form a part of your estate and are no longer under your ownership, they will not need to go through probate.

Gifts

Another method to avoid having to probate your finances and assets is through gifting. Giving some of your property and assets to a family member, loved one or organization means that those gifts are removed from your estate and subsequently do not have to be submitted to probate as they no longer belong to you.

Also, gifting assets of significant value lowers the cost of probate. Assets with high monetary value can raise probate expenses as well as overall estate taxes. Making a gift of these valuable assets can relieve some of these costs. It should be noted, however, that the annual gift tax exclusion amount is currently set at $15,000. This means that you can gift up to $15,000 a year per person without being required to file a gift tax return. Exceeding this amount would require filing a gift tax with the IRS.

Whether your estate is large or modest, these options are available to you and can help you avoid getting your estate stuck in probate. Avoiding probate isn’t as difficult as it may seem — it simply requires knowing a few estate planning secrets.

The information provided here is not legal advice and does not purport to be a substitute for advice of counsel on any specific matter. For legal advice, you should consult with an attorney concerning your specific situation.


Read more related articles at: 

How Probate Laws Work in Florida

Also, Read one of our previous Blogs at:

Why You Might Want to Avoid Probate and How to Do It

Click here to check out our On Demand Video about Estate Planning.

 

medicaid 5 year lookback

WHAT IS MEDICAID’S 5 YEAR LOOK BACK, AND HOW CAN IT AFFECT ME?

Understand Medicaid’s Look-Back Period; Penalties, Exceptions & State Variances
Last updated: January 07, 2021

Medicaid’s Look-Back Period Explained
When a senior is applying for long-term care Medicaid, whether that is for services in one’s home, an assisted living residence, or a nursing home, there is an asset (resource) limit. In order to be eligible for Medicaid, one cannot have assets greater than the limit. Medicaid’s look-back period is meant to prevent Medicaid applicants from giving away assets or selling them under fair market value in an attempt to meet Medicaid’s asset limit.

All asset transfers within the timeframe of the look-back period are reviewed, and if an applicant is found to have violated this rule, a penalty period (a period of Medicaid ineligibility) will be established. This is because had the assets not been gifted, sold under their fair market value, or transferred, they could have been used to pay for the elderly individual’s long-term care. If one gifts or transfers assets prior to this look-back period, there is no penalization.

The date of one’s Medicaid application is the date from which one’s look-back period begins. In 49 states and D.C, the look back period is 60 months. In California, the look back period is 30 months. New York will also be implementing a 30-month look-back period for their Community Medicaid program, which provides long-term home and community based services. (At the time of this writing, NY has a 60-month look-back for nursing home Medicaid, but no look-back for Community Medicaid). As an example of the look back period, if a Florida resident applies for Medicaid on Jan. 1, 2021, their look-back period extends back 60 months to Dec. 31, 2015. All financial transactions during that timeframe will be subject to review.

Examples of the type of transactions that could result in a penalty include money that was gifted to a granddaughter for her high school graduation, a house transferred to a nephew, collectors’ coins sold for half their value, or a vehicle donated to a local charity. Even payments made to a personal care assistant without a formal care agreement or assets that were gifted, transferred, or sold under fair market value by a non-applicant spouse can violate the look-back period and result in a period of Medicaid ineligibility.

Even after the “initial” look back period, if a Medicaid beneficiary comes into some money, say for example, via an inheritance, and gives all (or some) of the money away, he / she is in violation of the look back rule. Said another way, despite an initial determination that one has not violated the 60-month (or 30-month in CA and soon for NY Community Medicaid) look back period and is receiving long-term care Medicaid, he / she can violate this rule, and hence, be disqualified for Medicaid benefits.

The American Council on Aging now offers a free, quick and easy Medicaid eligibility test for seniors.

For Which Medicaid Programs is Look-Back Relevant
Medicaid offers a variety of programs and the look-back period does not necessarily apply to all of them. This article is focused on elderly care and Medicaid benefits for long-term care, and these programs consider the Medicaid look-back period. Therefore, if one is applying for nursing home Medicaid or for a Home and Community Based Services (HCBS) Medicaid Waiver, the state’s Medicaid governing agency will look into past asset transfers.

Medicaid programs such as those for pregnant mothers and newborn children do not have a look-back period.

 

How Look-Back Varies by State
While the federal government establishes basic parameters for the Medicaid program, each state is able to work within these parameters as they see fit. Therefore, all 50 states do not have the same rules when it comes to their Medicaid programs nor do they have the same rules for their look-back period. As of 2021, every state, but California, has a Medicaid Look-Back Period of 60 months (5 years). California has a much more lenient look-back period of 30 months (2.5 years), and New York will be phasing in a 30-month look back for their Community Medicaid beginning April 1, 2021.

The “penalty divisor”, which is used to calculate the penalty for someone found in violation of the look-back period, also varies by state. The penalty divisor is tied to the average cost of nursing home care in a specific state. For instance, a state may use a daily average penalty divisor or a monthly average penalty divisor. Penalty divisors by state can be found here.

Some states may not implement the look-back period for community / in-home care. One such example is New York, which only uses the look-back period for nursing home care. However, as mentioned above, a 30-month look-back period will be phased in for home and community based services. In addition, some states might allow applicants an exception for small gifts. Pennsylvania is one such state and allows Medicaid applicants to gift as much as $500 / month without violating Medicaid’s look-back period.

The Medicaid look-back period is complicated, especially since the rules that govern it vary by state. Therefore, it is best to contact a professional Medicaid planner to learn more about the Medicaid look-back period in the state in which one resides.

 

Unintentional Violations of Look-Back Rules
IRS Gift Tax Exemption – The IRS allows an annual estate and gift tax exemption. This means, as of 2021, an individual in the U.S. can gift up to $15,000 per recipient without paying taxes on the gift(s). However, one may not realize this federal tax exemption does not extend to Medicaid’s rules. Said another way, if one gifts $10,000 to a daughter or son, this gift is not exempt from Medicaid’s look-back period. As mentioned above, even a cash gift to a family member for graduation can be in violation of the look-back rule. It’s also important to note, the rules that govern gifting vary by state, further complicating this possible violation. More.

Lack of Documentation – Another way one may unknowingly violate Medicaid’s look-back rule is by not having sales documentation for assets sold during the look-back period. While the assets may have been sold for fair market value, if documentation is not available to provide proof, it may be determined one has violated the look-back period. This is particularly relevant for assets, such as automobiles, motorcycles, and boats, that have to be registered with a government authority.

Irrevocable Trusts (also called Medicaid Qualifying Trusts) – One might assume that these type of trusts are exempt from Medicaid’s look-back period, but this is not always true. The term, Medicaid Qualifying Trust, can create confusion, as the name suggests it is used to qualify for Medicaid. Unfortunately, if the trust is created during the look-back period, it is considered a gift, and therefore, is in violation of the look-back period. In simple terms, a Medicaid Qualifying Trust is a legal arrangement where assets are transferred from an individual, called the grantor, to a third party, called the trustee. The trustee becomes the owner of the assets and holds them for the named beneficiary. A variety of assets can be transferred via a trust and may include a Certificate of Deposit (CD), stocks, property, cash, and annuities. The term, irrevocable, means that the grantor cannot amend or cancel the trust.

Paying a Family Member to Provide Care – while it is acceptable under Medicaid rules to pay family members for providing care, doing so without proper legal documentation and caregiver agreements is a very common cause of Medicaid penalties. More information is provided below on how to do this without breaking Medicaid’s rules.

 

Look-Back Rule Exceptions & Loopholes
There are several exceptions and loopholes to Medicaid’s look-back rule. For instance, certain transfers can be made without violating Medicaid’s look-back period in order to protect an applicant’s family from having too little from which to live. These exceptions allow asset transfers without fear of penalty. To ensure they are done correctly and to avoid penalization, it is highly recommended one consult with a Medicaid planning professional prior to making any asset transfers.

Joint Assets of a Married Couple
For Medicaid eligibility purposes, all assets of a married couple, which are considered jointly owned, are calculated, and a portion is allocated to the non-applicant (community) spouse in order to prevent spousal impoverishment. This is called the Community Spouse Resource Allowance (CSRA), and as of 2021, may be as high as $130,380. The federal government sets this figure, and states may elect to use a lower figure. For example, South Carolina has a maximum CSRA of $66,480.

Each state is either a 50% or 100% state. For 50% states, a community spouse can keep half of the couple’s joint assets, up to $130,380, or in the case of South Carolina, up to $66,480. For example, a couple has assets equal to $300,000 in a state that has a maximum CSRA of $130,380. In a 50% state, this means that $150,000 in assets belongs to the applicant spouse and $150,000 in assets belongs to the non-applicant spouse. The non-applicant spouse can keep up to $130,380 of those assets. (The non-applicant spouse is generally only able to retain $2,000 of those assets). In a 100% state, a community spouse can retain 100% of the couple’s assets, up to the allowable $130,380, or again, in South Carolina, up to $66,480. Therefore, if a couple has $120,000 in assets in a state that has a maximum CSRA of $130,380, the non-applicant spouse is entitled to all $120,000 in assets. (To see CSRA and applicant asset limits by state, click here).

When there are excess assets, they must be “spent down” in order to meet Medicaid’s asset limit for qualification. It is not unusual that they be spent on the cost of long term care, whether that be nursing home care or in-home care, until the spouse in need of long-term care meets the asset limit. Other ways in which excess assets can be “spent down” are discussed further below in this article.

Asset Transfers to Minor Children
Transfers for the benefit of one’s child(ren,) given the child(ren) are under 21 years old, are disabled, or are legally blind. In addition to the transfer of assets, this includes the establishment of trusts.

Asset Transfer of a Home
One can transfer a home to a sibling. The sibling to which the home is being transferred must have ownership in it and must have lived in it for at least one year prior to the Medicaid applicant relocating to a nursing home. A home can also be transferred to an adult child who has served as a caregiver for their parent(s). This is called the caregiver child exemption. In order to be eligible for this exemption, the adult child must have been the primary caregiver of their aging parent(s), preventing the parent(s) from having to relocate to a nursing home or assisted living, and lived in the home with their parent(s) for at least two years prior to the parent(s) entering a nursing home.

 

What to Do When You’ve Violated Medicaid’s Look-Back Rules?
If one is in the unfortunate position of having violated Medicaid’s look-back period, there are ways in which one can still gain Medicaid eligibility. Usually the best course of action is to work with a professional Medicaid planner, as this is a precarious situation, and if not handled correctly, will result in a penalization period.

Free initial consultations with Medicaid planning professionals are available. Get started here.
Asset Recuperation
If one has gifted assets or transferred them for under fair market value and is able to recuperate the assets, the penalization period will be reconsidered. Therefore, if there has been any violation of the look-back period, it is extremely important to try to recover all assets. In some states, all assets transferred must be recuperated or the penalization period will remain the same. Other states might allow for partial recuperation of assets and adjust the penalty period accordingly.

Undue Hardship Waiver
If one has tried to recover assets they have gifted or transferred, but were not able to do so, they can apply for an undue hardship waiver. The Medicaid applicant must prove recuperation of assets failed, and if not granted Medicaid benefits, they will face significant hardship. This means they won’t be able to provide food, clothing, or shelter for themselves. It is very hard to be granted an undue hardship waiver unless it is very clear that the individual will suffer significant hardship without it.

 

Spend Down Assets Without Violating the Look-Back Period
There are ways for one to spend down excess assets without violating Medicaid’s look-back period, and hence, avoid penalization. (Calculate your total spend down amount here.) While the following strategies are all ways in which one can do so, the look-back period is extremely complicated. Therefore, it is highly recommended one contact a professional Medicaid planner prior to using one of the following strategies. Read more.

Life Care Agreements
Life care agreements, also called caregiver agreements or elder care agreements, are a great way for seniors who require a caregiver to spend down extra assets without violating Medicaid’s look-back period. In simple terms, caregiver agreements, which generally last for the duration of the care recipient’s life, are legal contracts between a caregiver, often a relative or close friend, and an elderly individual who requires care. Often life care agreements remain in effect even after the senior care recipient moves into a nursing home, as the caregiver can serve an advocate role for the senior. The contract needs to include the date care services are to begin, the type of care that will be provided, such as personal care assistance, light housecleaning, and preparation of meals, the frequency / hours the care will be provided, and the rate of pay. The pay rate must be reasonable for the area in which one lives. (If not, one may be in violation of the look-back period.) Life care agreements should make it very clear that payments to a caregiver are not simply gifts. That said, it’s best to also have supportive documentation, such as a log of executed caregiving duties, the days and number of hours worked, and written invoices for payment.

Medicaid Exempt Annuities
Medicaid exempt annuities, sometimes called Medicaid compliant annuities, are another way one can spend down assets without violating Medicaid’s look-back period. Annuities convert a lump sum of cash into a monthly income stream for the Medicaid applicant or their spouse, effectively lowering one’s countable assets for Medicaid eligibility. Annuity payments can be for the duration of the recipient’s life or for a set period of time. It’s important to note, each state has its own rules for Medicaid annuities, and not all annuities may be Medicaid compliant. In addition, if one purchases a deferred annuity, which means payments are delayed until a date in the future, this violates Medicaid’s look-back period. When considering an annuity, one must proceed with caution.

Paying Off Debt
Paying off debt, such as a mortgage or credit cards, is not in violation of Medicaid’s look-back period and effectively lowers one’s assets.

Home Modifications
One can also use assets in excess of Medicaid’s eligibility limit for home modifications and reparations without violating the look-back period. This includes replacing old plumbing systems, updating electrical panels, adding first floor bedrooms and / or bathrooms, installing wheelchair ramps, chair lifts, widening doorways to allow wheelchair access, and replacing carpet with more wheelchair friendly surfaces.

Irrevocable Funeral Trusts
Irrevocable funeral trusts, which pay for funeral and burial costs in advance, provide a way to spend down excess assets without violating Medicaid’s look back rule. The term, “irrevocable”, meaning the trust cannot be changed or terminated, is extremely important, as funeral trusts that are revocable violate the look back rule. More.

Determine Your Medicaid Eligibility

 

Read more related articles at:

Five year rule for Medicaid is often misunderstood

The Medicaid Look Back Period Explained

Also, read one of our previous Blogs here:

Protect Assets from Medicaid Recovery

 

Hiring an Elder Law Attorney

5 SMART TIPS FOR HIRING AN ELDER LAW ATTORNEY

5 SMART TIPS FOR HIRING AN ELDER LAW ATTORNEY

An elder law attorney helps seniors and families

Having the essential legal documents in place gives you the necessary legal rights to provide the best care for your older adult, now and at the end of life.

That’s why it’s so important to find an expert lawyer that you trust to draw up the right documents.

We explain what an elder law attorney does and how they help seniors and caregivers.

We also share two ways to find an elder law attorney in your area and 5 smart tips for hiring someone who’s reputable and experienced.

 

What does an elder law attorney do?

Elder law is a specialized legal area focused on older adults and their adult children.

This legal specialty focuses on specific needs, including:

 

2 ways an elder law attorney helps seniors and family caregivers

1. Plan for the future and protect assets
An elder law attorney has the expertise to make recommendations on how to plan for future care needs.

They often answer questions like:

  • How can I qualify for Medicaid so it will pay for nursing home care?
  • How do I protect mom’s house and assets, but still afford the care she needs?
  • How do I make sure my wife will have money left after all my care expenses are paid?
  • What to do if I need to become dad’s guardian or conservator?
  • After I pass away, will Medicaid try to get money from my estate for the medical bills they paid and cause problems for my spouse or kids?

These are complicated questions and the answers will be different for each person.

A reputable elder law attorney helps protect your senior’s legal and financial situation and helps you figure out how to pay for the care they’ll need.

The fees are well worth it if they can save your family thousands of dollars and avoid future legal headaches.

2. Ensure all the legal documents are correct for your state
Laws are different (and very specific) for each state, so it’s important that the documents are prepared correctly.

This is especially true for documents like a Power of Attorneyliving will (aka advance directive), and will.

A local elder law attorney can make sure that your older adult has completed all the important legal documents and that they’re compliant with state and local laws.

 

2 ways to find an elder law attorney

1. Get a referral from someone you know
Getting a referral from family or a friend is a great way to find a lawyer.

If they have a lawyer they’re happy with and would work with again, that’s a good sign.

It’s best to get a referral from someone whose legal needs were similar to yours. But even if you need an elder care lawyer and your cousin worked with an excellent civil attorney, that referral is still useful.

Also, good lawyers typically know other good lawyers and will probably be able to refer you to a colleague they respect.

Similarly, financial advisors, accountants, and fiduciaries (someone legally appointed to manage money) are professionals who often work with elder law attorneys.

If you know and trust one of these professionals, ask them for a referral.

2. Check the National Academy of of Elder Law Attorneys
The National Academy of of Elder Law Attorneys (NAELA) is the professional organization for attorneys who specialize in elder law and special needs planning.

Their website includes an attorney finder to help you find an elder law attorney in your area.

 

5 smart tips for hiring a good elder law attorney

After getting referrals, you’ll still need to choose an attorney.

Don’t make up your mind about hiring a lawyer until you’ve met them, discussed your older adult’s needs, and checked their credentials.

1. Meet for an initial consultation 
An in-person meeting helps you get a feel for how they work and if their style works for you.

If you summarize your needs in advance, many lawyers will be willing to meet for 15 to 30 minutes at no charge. If there is a fee for a consultation, find out how much it will be.

If you can, meet with a few lawyers and present the same situation to each. Then, you can compare their responses.

That helps you confirm that the overall approach is legitimate and prompts you to ask questions about any differences in advice.

2. Find out how much experience they’ve had with issues similar to yours
Experience comes with years in practice and with how many of those types of situations they’ve dealt with.

So, it’s a good idea to look for a lawyer with experience handling matters similar to your older adult’s.

For example, if they need a Power of Attorney, long term care planning, and estate planning, ask prospective attorneys to describe their experience with those matters.

3. Evaluate their customer service
Working with someone who is professional and responsive is important.

After speaking with a lawyer, ask yourself:

  • Are they polite and professional?
  • Do they return calls or emails in a timely manner?
  • Do they take time to explain things to make sure you have a good understanding?
  • Do they follow through with things they’ve said they’ll do?

4. Take plenty of notes
To help you remember what each lawyer said and how you felt about them, be sure to take notes during and after each meeting.

Later, review your notes to help you make the final decision.

5. Check their credentials
Before hiring any lawyer, check the State Bar Association website for your state.

Look up the attorney’s name or Bar number to make sure they’re actively licensed to practice law in your state. This will also show if they’ve ever been publicly disciplined.

Read more related articles at:

6 Things an Elder Law Attorney Can Do to Help Family Caregivers

Things to Consider if You Need an Elder Law Attorney

Also, rad one of our previous Blogs at:

How Do I Find a Great Elder Law Attorney?

Click here to check out our On Demand Video about Estate Planning.

 

 

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