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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.

 

 

Guardianship

How to Get Guardianship of an Elderly Parent

How to Get Guardianship of an Elderly Parent

Marlo Sollitto Updated 

When an older adult loses the ability to think clearly, it also affects their ability to make informed and meaningful decisions. This may occur due to the onset of Alzheimer’s disease or other related dementias, stroke, brain injury, mental illness or other serious health issues. If the person you are caring for is unable to make rational, clear-headed decisions about their health care, finances or other aspects of life, seeking legal guardianship may be necessary to ensure their safety and quality of life.

What Is Guardianship for Elderly Individuals?

Guardianship is an option in cases where an older adult has not appointed a power of attorney for health care or finances and is incapacitated due to advancing age, illness or disability. Even if an individual has named a power of attorney (POA), guardianship may still be necessary if their POA is not durable, meaning it ends upon their incapacitation. Courts most commonly see family caregivers seeking guardianship for adults with dementia who did not make proper legal preparations for the future.

Read: Durable vs. Springing Power of Attorney: What’s the Difference?

It is important to understand that differences in terminology exist between states. In some states, guardianship gives a person control over where the ward (the incapacitated individual) lives, what health care they receive and how their day-to-day needs are met. Conservatorship, on the other hand, gives a person the ability to handle a ward’s financial decisions, such as paying bills, managing investments and budgeting. Sometimes these terms may be used interchangeably.

To act as someone’s legal guardian or conservator, the individual petitioning for guardianship must go to court to have the ward declared incompetent based on expert findings. If the ward is ruled incompetent and the petitioner is a suitable candidate to serve as a guardian, then the court transfers the responsibility for managing finances, living arrangements, medical decisions or any combination of these tasks to the petitioner.

This process often takes a good deal of time and money. If family members disagree about the need for guardianship or who should act as a guardian, the process can be especially painful, prolonged and costly.

What Is a Court-Appointed Guardian?

A guardian (or conservator) is a person who has court-ordered authority to handle an incapacitated person’s affairs. Guardians have a fiduciary duty to act in the best interests of the person they are appointed to serve. Sadly, it strips the ward of many rights, but it might be the only way to gain the legal authority to make crucial decisions on their behalf.

Who Can Be a Legal Guardian?

At a hearing, the court decides if the person seeking guardianship is well suited for this role. A petitioner’s criminal background, credit history and potential conflicts of interest are typically factored into this decision.

In cases where more than one person is seeking responsibility for a ward’s needs, the court will determine who is best qualified for the position. Sometimes one person is appointed to handle the ward’s personal and medical decisions (often referred to as guardianship of the person), and another is granted responsibility for managing the ward’s financial matters (guardianship of the property). The ward’s preferences and any legal documents that were prepared prior to their incapacitation (e.g., non-durable POA, will or advance directive) are factored into this decision when possible.

Many states give preference to the ward’s spouse, adult children or other family members, since they are often most familiar with the person’s unique needs and abilities. If a relative or friend is not willing or qualified to serve in this role, then a professional guardian or public guardian may be appointed.


When Is a Guardian Appointed?

A guardian or conservator can only be appointed if a court hears evidence that the person lacks mental capacity in some or all areas of their life and determines they can no longer make informed decisions for themselves. Allegedly incapacitated people have the right to an attorney and the right to object to the appointment of their guardian or conservator.

In rare cases, emergency guardianship may be granted right away if an elder’s health and/or finances are in jeopardy. However, guardianship is a very serious intervention and should only be considered a last resort.

What Does a Guardian Do?

Whenever possible, the guardian or conservator must seek the input of the ward and must only act in areas authorized by the court. Guardians can be given limited or broad authority, depending on what a court rules is needed after a thorough investigation. Sometimes the court delegates responsibilities to several parties. For example, a bank trustee might serve as a corporate guardian to oversee financial decisions while a family member handles personal decisions like living arrangements. Generally, the court requires reports and financial accounting at regular intervals or whenever important decisions are made. Prior court approval is even required for some larger decisions.

 

Do Guardians Receive Compensation?

All court-appointed guardians are entitled to reasonable compensation for their services. When a so-called family guardian (a spouse, family member or friend) is appointed, they typically do not charge the ward for their services. In cases where a private guardian is appointed, these individuals are paid directly from the ward’s estate if they can afford it. In most cases, the compensation amount must be approved by the court, and the guardian must carefully account for all their services, the time these tasks require and any associated out-of-pocket costs. Public guardians are appointed to wards who do not have friends or family to fill the role or the resources to hire a professional guardian. They are funded by public money, such as government funds and charitable contributions.

Obtaining Legal Guardianship

To learn more about the legal process of seeking guardianship or conservatorship in your state, it’s best to consult a lawyer.

Read more related articles at:

5 Ways To Know You Need A Guardianship For Mom (Or Dad)

Guardianship

Also, read one of our previous Blogs at:

What Should I Know about Guardianship?

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

 

 

Baby Boomers

The Aging of America: Will the Baby Boom Be Ready for Retirement?

The Aging of America: Will the Baby Boom Be Ready for Retirement?

This article is part of a broader study of saving funded by the National Institute on Aging and TIAA-CREF.

The baby boom generation—the roughly 76 million people born between 1946 and 1964—has been reshaping American society for  decades. From jamming the nation’s schools in the 1950s and 1960s, to crowding labor markets and housing markets in the 1970s and 1980s, to affecting consumption patterns almost continuously, boomers have altered economic patterns and institutions at each stage of their lives. Now that the leading edge of the generation has turned 50, the impending collision between the boomers and the nation’s retirement system is naturally catching the eye of policymakers and the boomers themselves.

Retirement income security in the United States has traditionally been based on the so-called three-legged stool: Social Security, private pensions, and other personal saving. Since World War II the system has served the elderly well: the poverty rate among elderly households fell from 35 percent in 1959 to 11 percent in 1995.

But the future is uncertain. Partly because of the demographic bulge created by the baby boomers, Social Security faces a long-term imbalance. The solution, even if it involves privatization, must in some way cut benefits or raise taxes. The private pension system has changed dramatically in ways that give workers increased discretion over participation, contribution, and investment decisions and easier access to pension funds before retirement—thus raising questions about how well future pensions can help finance retirement. Personal saving, also problematic, has remained anemic for over a decade. Net personal saving other than pensions has virtually disappeared.

These developments would be enough to raise concern about retirement preparations under the best of circumstances. But the prospect of a huge generation edging unprepared toward retirement raises worrisome questions about the living standards of the baby boomers in retirement, the concomitant pressure on government policies, and the stability of the nation’s retirement system.

 

Are the baby boomers making adequate preparations for retirement? In part, the answer depends on what is meant by “adequate.” One definition is to have enough resources to maintain preretirement living standards in retirement. A rule of thumb often used by financial planners is that retirees should be able to meet this goal by replacing 60-80 percent of preretirement income. Retired households can maintain their preretirement standard of living with less income because they have more leisure time, fewer household members, and lower expenses. Taxes are lower because retirees escape payroll taxes and the income tax is progressive. And mortgages have, for the most part, been paid off. On the other hand, older households may face higher and more uncertain medical expenses, even though they are covered by Medicare.

From a public policy perspective, assuring that retirees maintain 100 percent of preretirement living standards may be overly ambitious. But should policymakers aim to ensure that they maintain 90 percent of their living standards? Or that they stay out of poverty? Or use some other criterion? Retirement planning takes time, and these issues need to be addressed sooner rather than later.

 

A second big question is how to measure how well baby boomers are preparing for retirement. Studies that focus only on personal saving put aside for retirement yield bleak conclusions. One found that in 1991 the median household headed by a 65-69 year old had financial assets of only $14,000. But expanding the measure to include Social Security, pensions, housing, and other wealth boosts median wealth to about $270,000.

A third issue—crucial but as yet little explored—is which baby boomers are not providing adequately for retirement and how big the gap is between what they have and what they should have. Some boomers are doing extremely well, others quite poorly. Summary averages for an entire generation may not be useful as descriptions of the problem or as          suggestions for policy.

The uncertain prospects for the baby boomers in retirement are particularly troubling because, as a society, we as yet understand little about the dynamics of retirement. Only one or two generations of Americans have had lengthy retirements, and the crucial retirement issues—health care, asset markets, Social Security, life span—keep changing rapidly, making long-term predictions even harder.

How Well Are the Boomers Doing?

Interpreting the Evidence

Only a few studies have examined how well the boomers are preparing for retirement. The Congressional Budget Office recently compared households aged 25-44 in 1989 (roughly the boomer cohort) with households the same age in 1962. Boomer households, it turned out, had more real income and a higher ratio of wealth to income than the earlier generation. Though this finding seems promising, in fact the CBO study implies that baby boomers are going to do well in retirement only if (i) the current generation of elderly is thought to be doing well, (ii) the retirement needs of the two generations are the same, (iii) the experience from middle age to retirement is the same for both, and (iv) boomers will be content to do as well in retirement as today’s retirees. None of these is certain. For example, although today’s elderly are generally thought to be doing well, some 18 percent were living below 125 percent of the poverty line in 1995. And the boomers’ longer life expectancy means that they will need greater wealth for retirement.

Whether the boomers and the previous generation will have similar experiences from middle age to retirement is an open—and still evolving—question. The earlier generation benefited from the growth of Social Security and housing values in the 1970s. But the boomers have gained from the dramatic rise in the stock market since the early 1980s, from smaller household size, which reduces living expenses, and from higher employment rates for women, which will raise their pension coverage. In addition, boomers are more likely to be in white-collar work and so should expect earnings to peak later in life and be able to work longer if they wish.

Finally, boomers may not be content with the living standard of today’s retirees. They may aim instead for retirement living standards more comparable to those of their own working years. For all these reasons, how to inter-pret CBO’s finding is unclear, even if the finding itself is unambiguous.

The most comprehensive study of these issues was undertaken by Stanford’s Douglas Bernheim in conjunction with Merrill Lynch. Bernheim developed an elaborate computer model that simulates households’ optimal saving and consumption choices over time, as a function of family size, earnings patterns, age, Social Security, pensions, and other factors. He then compared households’ actual saving with what the simulations indicated they should be saving. His primary finding, summarized in a “baby boomer retirement index,” is that boomers are saving only about a third of what they need to maintain preretirement living standards in retirement.

The index has attracted much attention but is not well understood. It does not measure the adequacy of saving by the ratio of total retirement resources (Social Security, pensions, and other assets) to total retirement needs (the wealth necessary on the eve of retirement to maintain preretirement living standards). Instead, it examines the ratio of “other assets” to the part of total needs not covered by Social Security and pensions.

As a result, the index reveals little about the overall adequacy of retirement preparations (see table 1). In case A, a hypothetical household needs to accumulate 100 units of wealth. It is on course to generate 61 in Social Security, 30 in pensions, and 3 in other assets. Total retirement resources are projected to be 94 percent of what is needed to maintain living standards. But according to the boomer index, the household is saving only 33 percent of what it needs.

 

Table 1. Two Ways to Measure Adequacy of Retirement Saving
Units of wealth
Case Social Security
(1)
Pension
(2)
Other assests
(3)
Needs
(4)
Total resources
index (%)
[(1)+(2)+(3)]/4
Boomer index (%)
(3)/[(4)(1)(2)]
A 61 30 3 100 94 33
B 0 0 33 100 33 33
C 20 20 20 100 60 33
D 61 0 33 100 94 85
E 61 0 33 100 78 45
F 61 30 3 95 99 75
G 61 30 3 93 101 150

 

Thus, a baby boomer index standing at one-third does not imply that, absent changes in saving behavior, boomers’ retirement living standards will be one-third their current living standard. It could mean that (as in case B), or it could mean retirement living standards will be 60 percent of current living standards (case C), or 94 percent (case A), or even over 99 percent (if Social Security and pensions were 99 and other saving were 0.33).

A second problem is that changes in the boomer index over time, or differences across groups, do not correspond to changes or differences in the adequacy of overall retirement saving. If, as in case D, the household in A rolls over its pension into an IRA, the boomer index soars, though total retirement resources are unchanged. If, as in case E, household A rolls over half of its pension into other assets and spends the rest on a vacation, the household has a higher boomer index, but less adequate total retirement preparation.

Finally, the boomer index can be extremely sensitive to estimates of retirement needs. In case F, retirement needs are 5 percent lower than in A, and the index rises from 33 percent to 75 percent. In case G, retirement needs are 7 percent lower than in A, and the index rises to 150 percent.

Bernheim points out that his model understates the retirement saving problem. The wealth measure, he notes, includes assets the household has earmarked for retirement as well as half of other (non-housing) wealth. The model also assumes no cuts in future Social Security benefits, no increases in Social Security taxes, and no increase in life span.

But in other ways the model overstates the problem. It assumes that any man not covered by a pension at the time of the survey, when respondents are 35-45 years old, will never be covered, though pension coverage rates tend to rise a good bit as a worker ages. The model also likely understates pension benefits since it uses benefit data from the 1970s. Because the pension system grew rapidly from the 1940s to the 1970s, workers retiring in the 1970s likely had fewer years in the pension system and hence lower benefits than the boomers will upon retiring.

The model excludes all housing wealth and inheritances—no small matter, since, by Bernheim’s calculation, including housing would raise the index to 70 percent, and a fair proportion of boomers is likely to receive substantial inheritances.

The model assumes that people will retire at age 65, though the normal Social Security retirement age will be 66 for most boomers, 67 for the youngest. The model also excludes all earnings after “retirement,” though about 18 percent of the income of the elderly today is from working. And with partial retirement on the increase, retired boomers may work even more regardless of the adequacy of saving.

Finally, the model makes no allowance for retirees’ lower work-related expenses or lower expenses for mortgages or other durable goods—such as furniture, appliances, and cars. Whether all these biases are larger or smaller than those in the opposite direction noted by Bernheim is unclear. Measuring and including these items is an important area for further research.

A New Perspective

Fundamental questions about retirement saving remain not only unanswered, but unasked. What proportion of households is saving adequately for retirement? What are the characteristics of those households? How has the proportion changed over time? Among those not saving enough, how big is the problem?

Table 2 begins to answer such questions by presenting my own estimates of the proportion of married households, with the husband working, who are “on track” toward accumulating enough wealth for retirement. The measure of “on track” is based on calculations in a study by Bernheim and John Karl Scholz, of the University of Wisconsin, that determines how much a household needs to have saved by a given age, given its earnings, prospective Social Security benefits, pension status, family size and other characteristics. (That study uses the Bernheim model described above, so the data suffer from all the biases already mentioned. Another bias here is that the sample includes only married couples where the husband works full time. Other married couples and singles are likely to be faring worse.)

 

Table 2. Proportion of Married Households Saving Adequately for Retirement
Percent
Proportion Saving Adequately When:
Year Net assets exclude housing equity Net assets include half of housing equity Net assets include all of housing equity
All householdsa
1983 44 66 76
1986 53 71 78
1989 43 63 72
1992 47 61 70
Baby boomer householdsb
1989 48 67 73
1992 48 63 71
Source: Author’s calculations from the Survey of Consumer Finances.
a Husband is aged 25-64 and works at least 20 hours per week.
b Husband was born between 1946 and 1964 and works at least 20 hours a week.

 

When housing equity is not counted, slightly less than half of all households—and about the same share of all boomers—were saving adequately in 1992. When half (all) of housing equity is counted, the adequacy rate climbs to 61 percent (70 percent).

Adequacy rates rise with education and income. Within the baby boom generation, adequacy rates generally decline somewhat with age. They are higher for boomers with pensions than for those without, either because pensions raise households’ overall wealth or because people more oriented toward saving and thinking about retirement are also more likely to have jobs with pensions.

High adequacy rates do not necessarily require high levels of saving. For example, suppose annual retirement needs are 75 percent of final earnings. According to the Social Security Administration, Social Security benefits replace about 46 percent of final earnings for the average worker earning $50,000 at retirement. (Note that in this example Social Security replaces 61 percent—46/75—of total retirement needs, as in case A in table 1. The percentage would be higher for workers with lower earnings.) With pensions typically replacing 25-30 percent of final earnings, a household with Social Security and a pension would not need much more saving to maintain adequate living standards, especially if the household can work for a time in retirement or expects to receive bequests.

As table 3 shows, the wealth shortfall among households that are not saving adequately (ignoring all housing equity) is relatively small for many. The median inadequate saver has a shortfall of $22,000, or about six months of earnings—a problem that could be solved either by postponing retirement for six months or by lowering retirement living standards a little. Even among 60-64 year-olds, the median inadequate saver could completely resolve his or her saving shortfall by working for two more years past age 65.

 

Table 3. Median Shortfall in Retirement Wealtha
Shortfall
Age In dollars In terms of annual earnings
25-29 2,960 0.12
30-34 3,400 0.10
35-39 13,180 0.37
40-44 26,940 0.73
45-49 33,500 0.82
50-54 65,100 1.25
55-59 51,800 1.47
60-64 75,470 2.17
All households 22,480 0.52
Baby boomer
households
13,480 0.38
Source: Author’s calculations based on the 1992 Survey of Consumer Finances.
a The sample is households not saving adequately for retirement when housing equity is not included.

 

Thus, the glass can be viewed as half full or half empty. When housing equity is ignored, the typical household seems to be barely saving adequately or just missing. When housing is included, over two-thirds of households appear to have more than the minimum needed, given their age and other factors. Roughly speaking, a third of the sample is doing well by any measure, a third is doing poorly by any measure, and the middle third is (or may be) just hanging in there. Both of the following statements are equally true. Up to two-thirds of the households are now saving at least as much as they should be. And two-thirds are “at risk” in that any deterioration in their situation could make it impossible for them to maintain their living standards in retirement.

In short, two key factors matter tremendously to any characterization of the problem: the heterogeneity of saving behavior across households and uncertainty concerning the right measures of wealth to use.

Areas of Uncertainty

The boomers’ prospects are also complicated by uncertainty in other areas: retirement patterns, life spans, home values, asset markets, health care costs, and the economy itself.

Average age at retirement, which fell through the 20th century for men, may start rising regardless of the adequacy of saving. Many of today’s jobs do not depend on “brawn” and can thus be done by older people. The normal Social Security retirement age will rise to 66 by 2009 and 67 by 2027 even if no further changes are made in Social Security.

Partial retirement may matter as well. Many retirees cut back on work gradually rather than abruptly. According to a study by economist Christopher Ruhm, only 36 percent of household heads retire immediately at the end of their career jobs. Nearly half remain in the labor force for at least ve years. Of workers eligible for a pension, 47 percent continue to work after leaving their career job. If people continue to work even after retirement, they will be better able to support living standards in retirement.

A related uncertainty involves life span. Expected remaining life spans of 65 year-olds have grown in the past two decades and are projected to grow further. Living longer means having to stretch a given amount of money over a longer period.

Uncertainty regarding home equity is twofold. First, how will housing prices evolve? Both demographic pressures and the reduction in tax rates in the 1980s may reduce the long-term value of housing. And, second, regardless of housing values, to what extent should housing be counted as part of household wealth? In recent decades, the elderly have been reluctant to cash in their housing equity. But baby boomers have been willing to extract housing equity and were major recipients of home equity lending booms in the 1980s and 1990s. It remains to be seen whether the boomers in retirement will act more like themselves in earlier years or like current retirees. In any case, a household with low financial assets that lives in a $300,000 house and refuses to dip into housing equity may not be considered a pressing social concern.

Asset markets too are uncertain. Equity values cannot continue to grow as rapidly as they did in 1996. And even if the boomers accumulate what seem to be sufficient retirement funds, they will, loosely speaking, all want to cash in those funds at roughly the same time. That could mean massive sell-offs of stocks and bonds that could depress asset prices. Conceivably asset prices could fall sharply, but since markets are forward looking, asset prices may instead be stagnant for a long period. Finally, the evolution of health care costs and of the economy as a whole could have a major impact on the adequacy of retirement preparations.

What’s in Store?

The retirement prospects for the baby boomers are uncertain. One issue is what policymakers and boomers themselves will accept as a reasonable goal for retirement living. More thought needs to be given as to how to assess living standards when, as a matter of biology, retirees face declining health. In addition, they typically have more leisure time and can literally substitute time for money. A second source of uncertainty is the boomers themselves. Whatever imponderables the economy as a whole may offer, baby boomers can improve their retirement prospects by saving more—that is, by reducing their current living standards.

What can government do? First, keep the fiscal house in order by reducing the long-term budget deficit in ways that do not reduce private saving. Second, the government could provide, or encourage others to provide, financial education to workers and households on how much they need to save. Third, the government should encourage people to use the many saving incentives already in place. Fourth, judicious Social Security and pension reform, especially pension reform that raises pension coverage, could help resolve these problems and raise private saving at the same time.

Read more related articles at: 

The pace of Boomer retirements has accelerated in the past year

Millions of baby boomers are getting caught in the country’s broken retirement system

Also, read one of our previous Blogs at:

What Is the VA’s Plan for Long-Term Care for Baby Boomers?

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

incapacity

Is My Parent At The Point Of Incapacity?

Is My Parent At The Point Of Incapacity?

Q: My 87 year old father lives alone. His house has become increasingly dirty, but he refuses to get help, even though I’m sure he needs it. I’m worried that he’s becoming incompetent, but he doesn’t want to go see the doctor. What can I do?

A: This situation does come up a fair bit with aging parents and relatives. I’m sorry to say there usually are no easy solutions. But there are definitely things you can and should do, and it’s better to act sooner rather than later.

Let’s review what you can do. I’ll also explain what I’ve learned about “incompetence” over the years, and how doctors usually play a role in the evaluation of such older adults.

Then, I’ll share some thoughts on how older people and families can plan ahead, to avoid facing this kind of dilemma. And then last but not least, I share a few thoughts on taking care of yourself as you go through this.

What’s probably going on with your father

The usual concern, for a person of this age, is that the person may have developed a dementia such as Alzheimer’s disease.

This is a pretty reasonable worry, since an estimated 30% of people aged 85+ have dementia. And of course, if your older parent seems to be doing worse than before, when it comes to activities that require mental organization (such as keeping a house reasonably clean), that further increases the chance that some kind of brain deterioration is causing problems.

But, we should never start by jumping to the conclusion that someone has developed dementia.

The main thing you wrote above is that you’re worried about a dirty house and a refusal to get help. This could be due to thinking problems. But it could also be due to pain and mobility problems, combined with a common reluctance to accept assistance.

Still, I have to admit that in many similar cases that I’ve encountered, the older person does have cognitive impairment. And we do often find it’s substantial enough and irreversible enough to qualify as dementia.

Now, even if he does have dementia, that doesn’t mean we can’t improve his thinking. I often find that by adjusting medications or the older person’s situation, we can optimize brain function and help the person manage better, despite the underlying dementia.

We also sometimes find that an older person is experiencing delirium from an illness or other health problem, which can make the thinking worse than usual.

So, getting him the right medical evaluation and optimization is key. You might even be able to get him to the doctor not by saying “You need to be checked for dementia,” but by saying “We need the doctor to help you feel your best and be your best, since that helps you keep living at home for as long as possible, which you’ve said is important to you.” (It’s key to frame your suggestions as ways to help your father achieve his health and life goals.

Of course, these are all things that can be found out after the older person has been medically evaluated, and by someone who knows how to assess cognitive symptoms correctly.

Part of your frustration is that your father doesn’t want to go see a doctor. So you’re stuck: worried that something’s wrong, worried that your father has become “incompetent,” and unsure as to how to move forward since your father is refusing to cooperate. Let’s talk about your options for doing something, despite your father’s reluctance.

How to get help in helping your father

Start by asking yourself whether you think your father really might have lost mental insight and abilities, as opposed to simply making choices that you disagree with. (See “8 Behaviors to Take Note of if You Think Someone is Getting Alzheimer’s“.)

If you think he really is cognitively impaired, then you probably should consider pushing things a little more, to get him the help he seems to need.

I would also encourage you to make a list of specific concerns and red flags. You can use the “Quick Start Guide to Checking Older Parents” or a similar checklist, to help you identify specific problems that need attention.

Once you’ve decided how worried you are about dementia, and listed the key problems to address, here are some resources that can help:

  • Your father’s regular doctor. This can be a good place to start, especially if it’s a doctor who has known your father for a while. Contrary to popular opinion, the HIPAA regulations (which govern the privacy of health information) do not preclude you, an adult child, from contacting your father’s doctor and relaying your observations and concerns. You can see if the doctor is willing to hear you out on the phone, and then do send in your concerns in writing, since those will usually be scanned into the chart. The doctor may be able to help you persuade your father to come in. On the other hand, if the doctor waves off your concerns saying there’s nothing to do, you’ll need to look elsewhere for help. And you’ll want to look for a doctor who is more up-to-date on the medical care of aging adults with cognitive impairment. For more on how the doctor should evaluate cognitive impairment, see here: Cognitive Impairment in Aging: 10 Common Causes & 10 Things the Doctor Should Check.
  • Adult Protective Services (APS). To find contact information for your local APS office, enter your father’s zip code in the locator at Eldercare.gov. APS caseworkers respond to reports of abuse or neglect of older adults, including “self-neglect.” Generally, the identity of the person reporting a concern to APS is kept confidential, so your father wouldn’t be told you reported him (although he may have his suspicions of course). APS offices tend to be overworked and underfunded, as is often the case for social services. But in principle, they will look into the situation, visit your father, review medical information from his doctor, assess his capacity to understand risks and give informed consent, and take action to ensure his safety if warranted. APS does sometimes initiate a court petition for legal guardianship of an older person.
  • Social worker experienced with older adults. To find a social worker to help you troubleshoot the situation, you can try calling your local Area Agency on Aging (see the Eldercare.gov locator again). Some primary care offices also offer social work services, especially if they are bigger or serve vulnerable populations. You can also try asking around at local senior centers. That said, in my experience, it’s rare for social workers to visit aging adults at home unless they are sent by a home health agency. So although it’s worth looking for one, if you want someone to go see your father at home — which you probably do — you may need to pay for a geriatric care manager or other “eldercare problem solver”.
  • Geriatric care manager or eldercare expert. These professionals usually have to be paid out-of-pocket, and they specialize in helping aging adults and families get through all kinds of late-life challenges. They usually have a background in social work, gerontology, nursing, and/or family therapy. I have worked with several of them and they are quite helpful to families. They can do things like coach adult children on how to more constructively discuss difficult topics, mediate family conversations, and help families find the right kind of help. To find a professional affiliated with the Aging Life Care Association (formerly the National Association of Professional Geriatric Care Managers), visit AgingLifeCare.org.

How to know if an older person is “incompetent”?

Now, you’re getting help because presumably, you want to help your father with his goals, which for most aging adults include maintaining independence, dignity, and quality of life.

But you also mentioned a worry that he is becoming “incompetent.” This is an important question to address, and families often ask me to weigh in on this. What I tell them is that as a doctor, it’s not for me to say whether the person is “competent.” Instead, my role is to help assess an older person’s capacity to make medical decisions, and also to identify underlying medical problems that might temporarily or permanently affect decision-making.

You should know that the term “incompetence” was historically used to refer to a legal determination. In other words, it’s up to courts, not doctors, to say whether someone is incompetent. This is governed by state law so different states have different criteria. But overall, if someone is found in court to be incompetent, they often will be assigned a guardian or conservator to manage decisions on their behalf.

To decide whether an older person is legally competent, the court will need to know about the person’s ability to manage certain major types of decisions. These might include:

  • Medical consent capacity
  • Sexual consent capacity
  • Financial capacity
  • Testametary capacity
  • Capacity to drive
  • Capacity to live independently

For more on incapacity, see this article: Incompetence & Losing Capacity: Answers to 7 FAQs.

The tricky thing about capacity is that it can certainly change depending on the day and situation. For instance, a person who is sick and delirious might temporarily lose all the above capacities. A bad depression could also affect capacity for some time. People with dementia or other forms of cognitive impairment are also prone to have their mental capacities fluctuate somewhat, depending on the day and whether their brains are functioning at their best.

So how do doctors and psychologists weigh in on capacity? The truth is that it’s pretty variable, and it’s also an area of law and clinical practice that is evolving.

For the best information on how clinicians should address issues related to capacity in older adults, I recommend this resource, which was created as a joint effort between the American Psychological Association and the American Bar Association: Assessment of Older Adults with Diminished Capacity: A Handbook for Psychologists.

Obviously, as it’s written for clinicians rather than for the public, it’s rather long and technical. (There are links to similar handbooks for lawyers and for judges here.) But if you really want to understand this topic, that’s the best info I’ve found.

But bear in mind that although the handbook above describes the best recommended practices, many clinicians may practice a little differently, often due to lack of time or training.

For instance, because medical problems often interfere with an older person’s mental capacities, doctors are routinely asked to weigh in. In principle, when asked about someone’s capacity, a doctor should first want to know “Capacity to do what, or decide what?” And then the doctor should write a statement specific to that question, providing documentation supporting his or her conclusions. The doctor should also ideally state whether any incapacity seems likely to be permanent or not.

But that’s not how things often work in the real world. In practice, I’ve often been asked just to say whether an older person “has capacity” with no additional specifications. I’ve also seen many doctors write vague statements saying “Mr. So-and-so has lost his mental capacities.”

How valid are such statements? I don’t really know, and suspect it depends on the jurisdiction and the purpose to which the doctor’s note is used. For instance, some people have trusts or other services that require a “doctor’s statement” in order to allow someone else to step in, and these may have different standards compared to the courts.

How to plan ahead to avoid these problems

The very best approach, of course, is for an older person to have previously planned for this situation. By this, I don’t mean simply completing paperwork in order to designate a relative or friend as durable power of attorney for health, and also for finances.

However, such power of attorneys don’t quite address the situation that all aging adults should plan for: the possibility that they’ll be cognitively slipping and unable — or unwilling — to admit it and let others assist as needed.

I have only rarely seen older adults prepared for this, even though everyone has a fairly substantial chance of developing Alzheimer’s or another dementia provided they live long enough.  (Remember, about 30% of those aged 85+ are cognitively impaired, and it goes up to about 50% of those aged 90+.)

Being a doctor, rather than a lawyer, I’m not qualified to say what constitutes the best preparation. I will say that the better situations that I’ve encountered occurred when an older person had:

  • Created a trust,
  • Designated a trustee or fiduciary to take over when needed,
  • Specified what conditions would trigger trustee take-over, and
  • Specified what the care priorities should be in the event that the older person was unable to make decisions.

But again: I am not a lawyer and this is not legal advice. The expert advice consistently is to plan ahead, plan ahead, plan ahead.

To that I would add:

  1. Hope for the best
  2. Plan for the likely (eg eventual severe dementia if you’ve been diagnosed with mild dementia)
  3. Plan for the quite possible (a fall in which you break a hip, eventually developing dementia, etc)

Your father did not plan for this situation. However, as you help him work through the current situation, keep the above planning principles in mind! You’ll almost certainly have more to plan for, especially if he does end up diagnosed with dementia (which means you or someone else will need to make decisions at some point).

Don’t forget to take care of yourself!

As I said at the beginning, this kind of situation is hard to sort through.

It’s messy, and complicated, and stressful, and also tends to bring out whatever family tensions tend to come out when families face problems.

So. If you are worried about an aging father who lives at home alone and might be “incompetent,” you can’t just focus on helping your father. You’ll also have to start equipping yourself to handle what is likely to be a stressful and messy time for the next several months to years. Investing a little time — and possibly a little money — in this will pay off for your father, for you, and for those around you.

The basics of this include making sure you get enough sleep, regular exercise, nutritious food, activities that refresh the soul, and all the other things that are good for humans.

I would also recommend cultivating a mindfulness practice, if you don’t already have one. A variety of free resources are available online, and there are also apps such as Headspace and Calm. The key is to do at least 10 minutes every day. Or for more support, enroll in a mindfulness-based stress reduction course, such as this one.

Last but not least, you’ll need support from friends and family. It’s also usually helpful to get support from others facing similar challenges with aging parents; you can find these in-person and online.  (The most active caregiver forum I’ve found is at AgingCare.com.) You’ll connect with people in similar situations, who will provide helpful suggestions and will completely understand when you need to vent your frustrations.

Read more related articles at:

How We Diagnose Dementia: The Practical Basics to Know

How to Get Guardianship of an Elderly Parent

Also, read one of our previous Blogs at:

How to Plan for Incapacity

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

 

contesting a Will

What Are the Grounds for Contesting a Will?

What Are the Grounds for Contesting a Will?

Ignoring State Law, Lack of Capacity, Undue Influence, and Fraud

You can’t challenge or contest a will simply because you don’t like its terms. There are four legal reasons for a will contest in most states, and it can be very difficult to prove any one of them. That translates to a great deal of expense in many cases, from attorney’s and expert’s fees to court fees. But if one of these four reasons for a contest does exist, a last will and testament can be invalidated.

It’s not a matter of invalidating just one provision. The entire will is effectively thrown out, and the estate proceeds as though the decedent had never left a will at all.

 

The Will Wasn’t Signed in Accordance With Applicable State Laws

Each state has very specific laws governing how a last will and testament must be signed. For example, the will must be signed by the testator—the person who created and is leaving the will—in the presence and hearing of at least two witnesses in Florida. The testator and the witnesses must be in the same room at the same time, and each must sign the will while the others are watching.

It’s easy to assume that a will that’s executed in an estate lawyer’s office will be signed with the proper legal formalities, but this isn’t always the case. Failing to sign a will in accordance with applicable state laws is the first and foremost reason why a will is contested, and it’s also the most common reason why a will is found to be invalid.

The Testator Lacked Testamentary Capacity to Sign a Will

“Testamentary capacity” means that the testator understands the nature and value of her “bounty” or assets and that she understands the natural objects of that bounty—who should logically inherit her assets. She must understand the legal effect of signing a will.

State laws dictate the threshold that must be overcome to prove that a testator lacked testamentary capacity, and the bar isn’t usually set very high. For example, a person can show signs of dementia in some states yet still be considered to have the testamentary capacity to sign a will.2 She understands the necessary details, even if her memory and mind are slipping in other areas.

The testimony of the witnesses to the will signing becomes crucial in cases such as this. Absent a doctor’s visit or an adjudication of incapacity within days of the will signing, lack of testamentary capacity is very difficult to prove.

The Testator Was Unduly Influenced

People tend to become weaker both physically and mentally as they age, and this can make them more susceptible to the influence of others. The key to undue influence in the context of a will contest is this: Did the alleged influencer exert such extreme pressure and put the testator under such severe duress that it caused him to lose his free will and instead succumb to the will of the influencer?

Mere nagging, threats, and verbal abuse aren’t enough to establish undue influence. Proving it typically involves actions such as consulting with the testator’s attorney regarding the provisions of the will, paying for the will, and isolating the testator from his family and friends.

As with lack of testamentary capacity, undue influence is very difficult to prove.

The Will Was Procured by Fraud

A will procured by fraud is one that the testator is tricked into signing. For example, the testator might be presented with a document and told that it’s a deed or a power of attorney. She therefore signs it, but it turns out that the document is a will. The will is therefore procured by fraud.

This tends to go hand-in-hand with testamentary capacity because most people would review the document, at least to some extent, before signing. But fraud is nonetheless a separate ground for a contest.

The problem with proving that a will was procured by fraud is that the testator can’t be questioned about what he thought he was signing, and this is where state laws come into to play. The witnesses must be asked what they thought the testator was signing.

The will might be declared invalid if the testimony of the witnesses doesn’t add up, but more likely because it wasn’t signed properly, not necessarily because it was procured by fraud.

Read more related articles at:

Where There’s a Will …

Also, read one of our previous Blogs at:

Can I Prevent a Will Contest After I’m Gone?

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

 

elder abuse

ELDER ABUSE: WHEN A FAMILY MEMBER CAUSES HARM

ELDER ABUSE: WHEN A FAMILY MEMBER CAUSES HARM

“Every person, no matter how young or how old, deserves to be safe from
harm by those who live with them, care for them, or come in day-to-day
contact with them.” — American Psychological Association
For many older persons, family represents comfort and belonging, and
home is typically considered a safe environment. However, 25 years ago
this country finally recognized a national hidden problem called “elder
abuse and neglect.” The term elder abuse and neglect, or elder
mistreatment, usually implies that a family member is doing something
hurtful to an older relative – physically, emotionally, or financially. These
hurtful actions might occur only once, periodically, or frequently. They can
be done purposefully or accidentally and can result in mild, moderate, or
severe pain or suffering. They usually occur in the older person’s own
home. If this unacceptable behavior is happening to you, you are not alone
– these hurtful things are happening to over 1 million older Americans each
year. Help is available.
Who Is Likely To Be Hurt by a Family Member?
Anyone age 60 or older might be a victim of elder abuse. Victims are men
and women from all ethnic backgrounds and financial situations (rich,
middle class, and poor). They can be healthy or sick, with or without
memory problems. The person sitting next to you in the doctor’s office, on
the bus, or at a religious service could be an elder abuse victim. This
person could be you.
Who Hurts Older Relatives?
Any family member could be abusive or neglectful, but the most likely to act
this way are adult children. They are likely to live with the parent they are
abusing and to be financially and emotionally dependent on the parent,
making for a strained and difficult – and, at times, dangerous – relationship.
Other abusive family members may be spouses, adult grandchildren, or
other relatives, such as nieces, nephews, cousins, stepchildren or stepgrandchildren, or siblings. It is not unusual to still love the family member
who is being hurtful. This person could be you.
2
What Are Some Examples of Elder Abuse and Neglect?
Every situation is unique. Examples of types of mistreatment are:
1) Mrs. Rose’s 37-year-old son, Derek, who has a drug problem, pulled a fist full of his
mother’s hair out of her head during an argument when she refused to give him money.
• Physical Abuse is any behavior that results (or is likely to result) in
injuries to the body, such as bruises, cuts, or broken bones.
Examples include hitting, pushing, beating or forcibly restraining.
These behaviors also instill great fear in the person being hurt.
2) Mr. Koff’s 44 year-old-mentally ill daughter, Karen, threatened to rip the phone out of
the wall and nail his bedroom door shut while he sleeps if her father didn’t let her
boyfriend spend the night.
• Psychological/Emotional Abuse is any verbal or non-verbal
behavior that causes fear, mental anguish, or emotional pain.
Examples include name-calling, “the silent treatment,” insults, threats,
isolating the individual or treating him/her like a child, and controlling
behavior.
3) Mrs. Goffard’s 21-year-old granddaughter, Ivy, sold her grandmother’s jewelry
without permission and used the money to pay back a debt to her friend.
• Financial Abuse/Exploitation is any behavior that causes you harm
through the illegal or improper use of your funds, property, or assets.
Examples include coercing the change of a will, bank account, or
property transfer, using cash or credit cards without permission or
knowledge, or forging signatures on checks.
4) Mrs. Noonan’s 32-year-old stepson forced her to watch pornography with him and
exposed himself.
• Sexual Abuse is any behavior that hurts you sexually or includes
unwanted sexual content without your consent. Examples include
inappropriate touching, fondling, or kissing, rape, taking photographs
in sexually explicit ways, or exposing you to explicit sexual content
without your approval.
5) Mr. Simon is cared for by his overwhelmed 51-year-old daughter,Tasha, who often
yells at him. She blames her father for ruining her life and is frequently too busy or
“forgets” to give her father dinner.
• Neglect is when a caregiver fails to provide basic care needs,
resulting in bedsores, dehydration, poor hygiene, or poor nutritional
status. Examples include withholding food, water, clothing,
medication, or help with personal hygiene, or abandonment.
3
How Does an Older Person React When Abuse Happens?
Feeling guilty, anxious, confused, ashamed, or fearful is a very common
reaction to abuse or neglect. You may also become depressed because
you see yourself and/or your situation as hopeless and you may begin to
avoid others. Many older people do not speak up about what is going on in
their own home, which can lead to even more abuse. Sometimes they
suffer the pain in silence because of such mistaken beliefs as:
• “Family matters are private and should stay that way.” If you
believe this, then you are less likely to seek help. But without help,
chances are that the abuse and/or neglect will worsen.
• “I have no one to turn to who can help.” It is easy to believe that
nobody is available to help, especially since your relative may be
isolating you from others. But there are people who will care about
you and help you – perhaps a neighbor, friend, doctor, nurse, clergy
member – if you can find a way to let them know you are unhappy at
home.
• “The abuse is my fault.” The natural inclination is to blame oneself
for the abuse or neglect in order to feel more in control of a situation
that is out of your control. Also, part of the self-blame may come from
feeling guilty, often a common reaction to being mistreated. You may
believe that you did something wrong and therefore you somehow
caused the abuse. But no matter what happened in the past – even if
you made mistakes you deeply regret – it is never okay for someone
to hurt you.
• “The consequences of speaking up are worse than keeping
quiet.” You may be concerned that if you tell an outsider about your
situation, you will have to move from your home or, perhaps, live
alone. Or you may become confused about the appropriate action to
take because of the impact on your family if you report it to the
authorities. Speaking up does not automatically mean strangers will
control your life. It does increase the likelihood that you will find
someone who can help you problem-solve workable alternatives.
• “I’m so ashamed and embarrassed that my own family member
could be behaving in an abusive or neglectful way.” Older people
often are ashamed about the mistreatment they are experiencing, so
they avoid telling anyone about it. Feeling ashamed usually comes
from a fear that others will judge you or your family member harshly if
they knew what was happening, and believing their criticism would be
4
too difficult to tolerate. But there are many people who would want to
help you and who would not judge you or your relative(s). You just
need to ignore those people who do not understand and keep
speaking up until you find those who do.
• “I’m afraid if I break the “family secret,” the person hurting me
will get back at me in a way worse than what is happening now.”
Being afraid that the abuser will retaliate is a real concern. However,
doing nothing will rarely end an abusive situation; in fact, it usually
gets worse. When seeking help, be sure to discuss your very real
safety concerns so that a safety plan can be developed to fit your
particular circumstances.
How Do I Tell If I Am Being Abused or Neglected?
When in a difficult family situation, it can be hard to recognize the signs of
abuse or neglect. In general, if you’re feeling as if you have a secret “too
big” to talk about, feeling guarded or scared when someone asks about
your well-being, or feeling like you’re hiding something—you need to ask
yourself why you desperately don’t want others to know or see something
going on in your life.
Another sign might be your relative becomes angry with you if you talk to
others (especially about family problems). Be concerned if your relative
does not “allow” you to go out, have people over, talk freely with others in
person or on the phone, meet privately with your physician, or read your
own mail. Also, if you are doing things like hiding bruises or injuries, doctor
hopping or avoiding visits with family or friends, this could signify that
something is quite wrong.
If any of these things are going on for you, allow yourself to consider the
possibility of abuse or neglect, and seek help.
What Should I Do If A Family Member is Hurting Me?
Many communities have victim assistance programs that offer hotlines,
counseling, and support groups. Counselors can provide different kinds of
help, depending on what you want and need. They can provide emotional
support and practical advice, create a plan for safety, and link you to other
resources. Other community programs you might need, depending on your
situation, can include legal advice, telephone reassurance calls, safe
housing, court protection, money managers, and/or respite programs. If
you are being hurt by a family member:
• Remember that safety is a priority. Call 911 for help as soon as
you feel intimidated and before the situation at home becomes too
5
dangerous or unmanageable. Often people do not think their situation
constitutes an emergency until it is too late to get to the phone.
• Remind yourself over and over that you deserve to live in an
environment free of fear and pain. This may be hard to believe,
especially if a loved one has been putting you down. It is important to
counteract these messages by telling yourself repeatedly that you
have the right to live free from harm.
• Talk to someone. Perhaps start by talking with a trusted friend or a
family member not hurting you. Remember: If you choose to talk with
a professional (like a physician, nurse, social worker, mental health
worker, or the police), they may be required by state law to report
your situation to Adult Protective Services. (Laws differ from state-tostate.) If you are uncomfortable with this possibility, before you tell a
professional anything about your situation, ask, “If an older person
wants to tell you something private about a conflict in the family, will
you be able to keep the information confidential, or will you have to
tell someone else?” If the answer is “I will have to tell someone else”,
decide if you want to talk about your situation with that person.
Sometimes mistreated older people find the best place to start getting
help is with a hotline counselor because of the anonymity you will
have.
• Keep talking to people until you get the help you need. It is likely
that the abuse will not only continue, but also will get worse over time
if you do not involve others to help you. Sometimes the first person
you speak to will not know what to do or say. Try someone else, even
though this may not be easy to do.
• Do not focus on labels. It may be hard for you to hear a member of
your family labeled as an “abuser” or it may be upsetting to hear
someone call you a “victim”. This is understandable. The most
important thing, however, is to focus on getting help for your situation.
Worrying about the label can distract you from this goal.
• Accept help. Accept this help for yourself. However, you may want
to also find help for your family member. You can start to collect
names of resources that may be of help to your abusing relative.
Seek service information from the people helping you, as well as,
advice on how best to get this information to your relative.
6
Where to Get Help
National Resources
National Committee for the Prevention of Elder Abuse. A
comprehensive Web site for information about elder abuse, including how
to report abuse, what services are available to stop abuse, and how to find
those services in your community. Phone: 1-202-682-4140.
Web site: www.preventelderabuse.org
National Domestic Violence Hotline. Provides support counseling for
victims of domestic violence and referrals for support services. The hotline
operates 24 hours a day, 365 days a year. All calls are confidential.
Callers can also talk anonymously. Phone: 1-800-799-7233.
United States Administration on Aging (AOA). This Health & Human
Services Department supports a range of activities to raise awareness
about elder abuse. Phone: 1-202-619-0724. Web site: www.aoa.gov
The following programs are funded by the Administration on Aging:
• The Eldercare Locator. This resource connects older Americans
and their caregivers with sources of information on state and local
assistance services for older adults, including those concerned about
suspected elder abuse. Phone: 1-800-677-1116.
Web site: www.eldercare.gov
• National Center on Elder Abuse. This site answers all questions
about elder abuse – who to call if abuse is suspected, what to expect
when you report abuse, prevention methods, and what can be done
to stop elder abuse. Its website includes a state-by-state listing of
statewide toll-free telephone numbers to call to report elder abuse.
Phone: 1-202-898-2586. Web site: www.elderabusecenter.org
New York State Resources
Adult Protective Services (APS). State laws give state and local Adult
Protective Service (APS) agencies the responsibility to protect and provide
services to “vulnerable, incapacitated, or disabled adults.” You can call
APS to report your own situation and ask for help. Most Adult Protective
Service agencies are located in the phone book in the state government
section. In New York State, call 1-800-342-3009 to find the Adult Protective
Service office in your area.
7
New York City Resources
New York City Department for the Aging, Elderly Crime Victims
Resource Center. The Center’s primarily bilingual caseworkers provide
counseling services to abuse and neglect victims, as well as any other
needed help or information to victims. Calls are confidential. Callers can
also talk anonymously. Phone: 1-212-442-3103 or 1-212-442-1000.
Web site: www.nycagainstrape.org/resource_26.html
Safe Horizon’s Domestic Violence Support and Hotline. This non-profit
program provides a range of assistance to victims, such as: counseling,
support groups, information about legal rights, advocacy with the police and
the courts, assistance with emergency housing applications, transportation,
emergency cash, food, and referrals. The 24 hour, toll-free, all-language
Domestic Violence Hotline can help victims of domestic violence find
appropriate support and shelter services. All calls are confidential, and
callers can also talk anonymously.
Domestic Violence Hotline: 1-800-621-4673.
Web site: www.safehorizon.org
Weinberg Center at the Hebrew Home for the Aged at Riverdale.
Provides shelter and support to persons over the age of 65 experiencing
any type of abuse or neglect by a family member, friend, or caregiver
including self-neglect.
Phone: 1-800-567-3646. Web site: www.hebrewhome.org
Online Resources
Stop Abuse For Everyone (SAFE). This site suggests ways for abused
persons, including elder abuse victims, to find help, such as joining an
online support group. It also maintains a domestic violence resource list
that is user built and consumer rated. Web site: www.safe4all.org/help
CornellCARES. Weill Medical College of Cornell University, Division of
Geriatrics and Gerontology provides an easily accessible Web-based
directory of NYC mental health providers. Some specialize in elder abuse.
Web site: www.CornellCARES.com
This resource provides brief, general information about this health care topic. It does not
take the place of specific instructions you receive from your health care providers. For
answers to other questions consult your physician or other health care provider.
Copyright NewYork-Presbyterian Hospital 2006. All rights reserved.

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role of the executor

What Am I Taking On When I Agree To Be Someone’s Executor?

Should You Accept the Job of Executor of Someone’s Will?

February 11, 2020

If you’ve been asked to serve as the executor of someone’s will, you should feel honored. It shows the person has a lot of faith in your integrity, as well as in your ability and organizational skills to carry out his or her last wishes.

But just because you’ve been offered the role doesn’t mean you should automatically accept it. Agreeing to take this on is hardly the same as offering to drive your neighbor to a doctor’s appointment or watering their plants while they’re away.

Fulfilling your legal duty as an executor could take weeks, months or, yes, even years to unwind, depending on the complexity.

So, once the flattery of being asked to be an executor wears off, take some time to do a little research so you can make an informed decision as to whether you should accept this important assignment.

Here are some issues to consider:

What does an executor do?

The primary role of an executor also called a personal representative, is to settle the state of a person who has died. The executor must pay off all debts and taxes the deceased owed and then make sure that what remains ends up in the rightful hands of those designated in the will.

It seems straightforward, right? But it can get complicated if the will is no longer current, the assets of the deceased are hard to locate, or the will is contested.

Phone calls, visits to courthouses, unearthing financial statements and sending out registered letters are just some of the unglamorous tasks that executors can expect to perform. In essence, you could be sorting through decades of someone’s financial life and acting as the estate’s legal representative.

Being an executor is a lot easier, of course, if the deceased’s affairs are in good order and you know where to locate all the documents you need, such as bank accounts, titles, insurance policies and so forth. It can take significantly longer if you must chase these things down.

Though many people perform the role of an executor, even if they are not a lawyer or have no legal background, you might find that the estate you’re dealing with is so complicated that you might want to consult with a professional.

Along those lines, before agreeing to serve as an executor, perhaps you and the person asking you to take on the role could meet with an attorney who can point out potential pitfalls or other issues that may have not been properly addressed by the will or estate. A will written several years ago, for example, may no longer reflect the current intentions of the person asking you to be the executor. An outdated will that shows conflicts could be more easily contested.

It starts with the will

A will is like a road map for executors, and knowing what it contains can aid you greatly with your work. Pore over it, page by page, with the person who wants you to take on the role. This proactive approach will help you understand the deceased’s intentions about a whole range of concerns, such as the desired distribution of financial assets or the care of their pets. Make sure you know where the will is kept and how you can access it quickly.

Ideally, the document has named the individual to serve as executor. Upon the decedent’s death, the executor must file a petition with the probate county where the decedent resided. The original will, along with a fee, must be submitted to the court with the petition. The court reviews the will to ensure its validity before granting its formal appointment.

However, if all the person’s assets are held in a trust or accounts have been jointly titled with another person, it might be possible to skip probate.

Distribute the inheritance

After debts and taxes are paid from the estate, the executor can begin the job of distributing assets to the people named as beneficiaries in the will. If the will calls for any real estate holdings to be sold, it’s the executor’s job to maintain the home and continue to make mortgage, utility and insurance payments until it’s sold off.

Executor compensation

Many executors perform their duties without compensation, especially if they are one of the estate’s beneficiaries. But executors can get paid for their work, and this arrangement is more common if the executor is a person outside the family or if settling the estate requires significant expenses such as travel or filing court documents.

The executor’s fee is typically a small percentage of the estates value,  around 2 to 4 percent, though the amount varies by state. If the estate is unusually large, the percentage might be less. On the other hand, if there are extraordinary circumstances, such as overseeing the sale of the decedent’s real estate, litigation costs defending the estate, tax disputes, and so forth, the executor might be paid more.

Another option is for the person writing their will to limit the fees to a specific dollar amount. Or the person may specify the payment of reasonable fees based upon state law.

Typically, executors can expect to get paid once the estate is settled. If they incur out-of-pocket expenses, such as utilities, property taxes, insurance, storage fees, etc., before the estate is settled, they can usually reimburse themselves during the course of their estate administration. But again, compensation is a subject that should be clearly spelled out before accepting an executorship. Spending down any estate monies can be an area of great sensitivity, especially if heirs believe their inheritance was reduced because of your executorship.

Watch out for family strife

The period after the death of a loved one, especially if it’s unexpected, can be emotionally charged. Seemingly innocent decisions about who gets mom’s wedding band or dad’s gold watch can devolve into scorched-earth family battles.

The potential for such a powder keg may be reason enough to graciously turn down the assignment. If you’re an executor outside the family, whatever you do — even if it’s the right thing — may be viewed with suspicions by the family or other potential heirs. On the other hand, if you’re an heir, others might suspect you of taking more than your fair share of the estate given your access to it. Keep a paper trail of all the money you spend in settling the estate in case you’re questioned.

That said, if you have a good idea of what to expect and believe you can take the incoming heat (perhaps that’s exactly why you were selected for the role), then you should not be deterred by looming family squabbles or protests.

Please note, however, that executors have a legal responsibility to act as a fiduciary. If they don’t, they could be exposed to legal liability. If they are negligent in performing their duties, such as filing tax returns or allowing insurance policies to lapse, they could be held personally liable for the financial consequences. If you’re worried about letting things fall through the cracks, consider hiring a lawyer or accountant to help keep you abreast of all the tasks that could come your way.

Should you serve as an executor?

The decision to serve as an estate’s executor is a personal one. It depends on whether you believe you have the time, skillset and temperament to perform the duties well. Ask the person who invited you to take on this awesome responsibility to restate why he or she believes you are the best person to fill this role.

Having them clearly state their motivation for your selection can serve as reassurance that you are indeed the right person for the job and also help you fend off possible challenges or complaints by those unhappy with the decision.

If you are chosen to be an executor, consider it a great honor. But at the same time, keep in mind that it is also a great responsibility.

We hope this article has given you some help with things to think about. Of course, every situation is different. This information is intended to be general and educational in nature, and should not be construed as financial or legal advice.

Read more related articles at:

What Is Required of an Executor?

Step-by-Step Guide to Estate Administration for Personal Representatives in Florida

Also, read one of our previous Blogs at:

Things to Know About Being an Executor

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elder lady

Can Women Slow Mental Decline?

Can Women Slow Mental Decline?

New research shows that women who work during early adulthood and midlife have slower rates of memory decline later in life, than women who didn’t work outside the home.

Money Talk News’ recent article entitled “Here Is How Women Can Slow Mental Decline” reports that the National Institute on Aging aided the study financially. It was published in Neurology, the medical journal of the American Academy of Neurology.

More than 6,000 women ages 55 and older reported their employment, marriage and parenthood statuses between ages 16 and 50. The participants also did word recall memory assessments every two years over an average of 12 years.

The researchers evaluated rates of memory decline later in life, which is one measure linked with dementia. They found that women who worked — regardless of marriage and parenthood status — had a slower average rate of memory decline later in life.

Further, after age 60, the average rate of memory decline was 50% faster among women who didn’t work for pay after having children, compared with working mothers.

The study’s author Elizabeth Rose Mayeda of the UCLA School of Public Health said that even mothers who took a time off when their children were young and then returned to work had slower rates of memory decline later in life.

They also found that the exact timing of a woman’s time in the workforce wasn’t significant.

Mayeda explains in an American Academy of Neurology announcement:

“Rates of memory decline were similar for married working mothers including those who consistently worked, those who stayed home for a few years with children as well as those who stayed home many years before returning to the workforce, suggesting that the benefits of labor force participation may extend far into adulthood.”

Other demographic characteristics — including race, childhood socioeconomic status and level of education — didn’t explain the relationship between work history and memory decline.

Mayeda remarked that cognitive stimulation, social engagement and financial security could be possible explanations for why working for pay is associated with slower rates of memory loss.

Reference: Money Talk News (Feb. 2, 2021) “Here Is How Women Can Slow Mental Decline”

Read more related articles at:

In women, age-related cognitive decline may start sooner than we think

Protecting against cognitive decline

Also read one of our previous Blogs at:

Smart Women Protect Themselves with Estate Planning

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

 

protect trust

Act Quickly to Protect an Estate

Act Quickly to Protect an Estate

For most families, the process of estate administration or the probate of a will starts weeks after the death of a loved one.  However, before that time, there are certain steps that need to be taken immediately after death, according to a recent article “Protecting an estate requires swift action” from The Record-Courier. It is not always easy to keep a clear head and stay on top of these tasks but pushing them aside could lead to serious losses and possible liability.

The first step is to secure the deceased’s home, cars and personal property. The residence needs to be locked to prevent unauthorized access. It may be wise to bring in a locksmith, so that anyone who had been given keys in the past will not be able to go into the house. Cars should be parked inside garages and any personal property needs to be securely stored in the home. Nothing should be moved until the trust administration or probate has been completed. Access to the deceased’s digital assets and devices also need to be secured.

Mail needs to be collected and retrieved to prevent the risk of unauthorized removal of mail and identity theft. If there is no easy access to the mailbox, the post office needs to be notified, so mail can be forwarded to an authorized person’s address.

Estate planning documents need to be located and kept in a safe place. The person who has been named as the executor in the will needs to have those documents. If there are no estate planning documents or if they cannot be located, the family will need to work with an estate planning attorney. The estate may be subjected to a probate proceeding.

One of the responsibilities that most executors don’t know about, is that when a person dies, their will needs to be admitted to the court, regardless whether they had trusts. If the deceased left a will, the executor or the person who has possession of the will must deliver it to the court clerk. Failing to do so could result in large civil liability.

At least five and as many as ten original death certificates should be obtained. The executor will need them when closing accounts. As soon as possible, banks, financial institutions, credit card companies, pension plans, insurance companies and others need to be notified of the person’s passing. The Social Security Administration needs to be notified, so direct deposits are not sent to the person’s bank account. Depending on the timing of the death, these deposits may need to be returned. The same is true if the deceased was a veteran—the Veteran’s Affairs (VA) need to be notified. There may be funeral benefits or survivor benefits available.

It is necessary, even in a time of grief, to protect a loved one’s estate in a timely and thorough manner. Your estate planning attorney will be able to help through this process.

Reference: The Record-Courier (Oct. 17, 2020) “Protecting an estate requires swift action”

Read more related articles at:

Estate Planning Essentials: 8 Steps to Protect Your Family

Best Ways to Protect Your Estate and Inheritances from Taxes

Also, read one of our previous Blogs here:

Share Your Estate Plan Now to Protect Your Family When You Are Gone

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