Today’s Q&A on is about updating your Will and including a Self-Proving Affidavit

Question:  My wife and I are in our 70s and recently moved from Illinois to Florida to live out our remaining years in retirement.  It’s been more than 10 years since we last had our Wills updated.  Is it necessary for us to have our Wills re-done now that we have moved to Florida?  Also, what is a “Self-Proving Affidavit”, and should we make sure that our new Wills contain one of these?

Answer:   It would be best to have your wills redone now that you are Florida residents.  First off, the witnesses on your Illinois wills may not be around to verify your signatures should your wills be presented to a Florida court for probate.  Many years ago, I had to track down out-of-state witnesses to verify that the wills were properly signed and witnessed.  This could lead to a commissioner being appointed (usually someone from the probate court in Illinois) to take the sworn affidavit from one of the Illinois witnesses that the will is actually the will that you signed.  This adds additional time to the probate of your will and additional cost that would be better off to eliminate.  Second, there may be additional changes that you may wish or need to make to cover any change in circumstances (additional children, grandchildren, special needs, etc.) that didn’t exist at the time of drafting and signing your Illinois.  Third, the personal representative and alternates that you named in your Illinois will may not be able to serve in the state of Florida.  Florida permits any Florida resident to serve as your personal representative as well as certain non-residents because they are designated family members. 

Virtually all Florida wills have a Self-Proving Affidavit attached to them.  The Self-proving Affidavit is an additional page in which the will maker identifies the will as his own and the witnesses again identify the will as the document they saw you sign in their presence.  The signatures of the will maker and each of the witnesses is again notarized.  The self-proving affidavit makes it unnecessary for the witnesses to appear in court to verify the signature of the will maker and the court will accept the will on its face.

Ivan Michael Tucker, Esq.
Law Office of I. Michael Tucker, PLC
Altamonte Springs, Florida
An ElderCare Matters Partner

ElderCare Matters Partner answers question about Nursing Home Medicaid

Question:  “I desperately need some advice.  My wife is 79 years old and has progressively gotten so debilitative that I (82 years old) can no longer care for her at home.  We have lived in our paid off home for more than 30 years and we receive every month about $2,800 in total benefits, including our Social Security checks.  Other than the value of our home (which is about $125,000), we have a modest about of savings and no other assets to speak of.  How can I afford to place my wife in a nursing facility, which I understand may cost $5,000 – $6,000 per month?  What are my options?  Please help!”

Answer: It would appear that your circumstances are not as desperate as you may believe. Your wife should probably qualify for Medicaid assistance to pay her nursing home bills, and you should be protected by the spousal impoverishment rules.  Medicaid is a joint federal-state welfare program. One portion of the program pays for nursing home care, if eligibility requirements set forth in statute and regulations are met by the applicant. The program is governed by both federal and state law and regulations. Individual state eligibility rules may vary. Though the exact dollar amounts can vary from state to state, in general your assets and income are such that your wife should qualify for Medicaid to pay for her nursing home care.

Typically Medicaid will provide nursing home coverage in Medicare/Medicaid certified nursing homes if its strict financial eligibility requirements are met. A detailed and lengthy application process is used to determine those who qualify for the coverage.   To qualify, not only does the individual have to meet the financial qualifications at the time of the application, but cannot have improperly transferred assets or income away for less than fair market value during the look back period.  When an application is filed, the applicant caseworker will inquire about any gifts or transfers for less than fair market value made by the applicant, the applicant’s spouse or anyone acting on behalf of either of them within the preceding 60 months. These five years before application is known as the “lookback” period, gifts made before that period will not affect eligibility. Gifts made during the “lookback” period will result in a period of ineligibility, and that disqualifying period will not start to run until the applicant has already spent down all of his or her assets and applied for Medicaid.

While Medicaid is a “spend down” program, you don’t have to be destitute, or leave your spouse destitute, to qualify for Medicaid. Certain assets and transfers are exempt from a Medicaid spend down, and by effective planning, you can qualify for Medicaid and still keep, transfer, or gift certain assets.

This is especially true with a community spouse such as you.  There are special exemptions and rules in regard to resources which apply only to community spouses. In general, “resource” means cash or any other personal or real property that a person owns and has the right, authority or power to liquidate. Certain resources are considered exempt and do not affect one’s eligibility.  The idea behind the special rules for community spouses is the desire to allow the nursing home resident to receive the appropriate care while avoiding spousal impoverishment.

The Community Spouse Resource Allowance” (CSRA) is the amount of non-exempt resources the “institutionalized spouse” is permitted to transfer to the “community spouse” without affecting the resident spouse’s eligibility. The current CSRA in Illinois is $109,560.00. In addition to this amount the community spouse is also entitled to keep several other assets as exempt including the homestead property and an automobile.  In Illinois the net value of the homestead property cannot exceed $500,000.00, so in Illinois all of your assets as well as your home as you have described them would be protected.  In addition to the CSRA, the community spouse is entitled to a contribution of monthly income from the resident spouse to bring the community spouse’s monthly income up to what is known as the “Minimum Monthly Maintenance Needs Allowance”. The current MMMNA in Illinois is $2,739.00 per month.  Though your monthly income is slightly above this figure, your wife will be entitled to a monthly allowance of $30.00 while in the facility, and accordingly in Illinois you would not have to contribute any of your wife’s or your income to the monthly nursing home bill.

I strongly recommend that you consult with an Elder Law Attorney to make sure you meet all the eligibility requirements of your state. Generally the Elder Law Attorney as well as can direct you to the appropriate resources you will need to find an appropriate place for your wife as well as protect your interests.

James C. Siebert, Attorney at Law
The Law Office of James C. Siebert & Associates
An ElderCare Matters Partner

Today’s Q&A on is about inheriting an IRA

Question:  “My husband died earlier this year and had a large amount of money in his Individual Retirement Account (IRA). I understand from our Financial Advisor that I need to make some decisions about this IRA. Would you please share with me some of the decisions that need to be made when it applies to my inheriting his IRA, including the time frame for making these decisions and what the tax consequences of making certain decisions may be?”

Answer:  First, you did not indicate your husband’s age when he passed but we will infer he had been taking Required Minimum Distributions (“RMDs”) from his IRA account annually.  For a given IRA account holder, once RMDs are required, withdrawals must be taken each and every subsequent year.  A given year’s RMD is based on the account balance as of December 31 of the previous year.  Families sometimes forget that means a RMD is required for the year in which the death occurs, with the withdrawal made in the year following the year of death.  A RMD will need to be taken out of his IRA by December 31, 2013. 

Second, it is crucial that you obtain a copy of the beneficiary designation on file with the financial institution where the IRA account is held.  An IRA account holder can modify their beneficiary designation as often as they like while they are alive.  But once the account holder dies, the last submitted designation will govern what can happen with the account.  The ideal scenario from an estate planning perspective is for a beneficiary designation to include not only a primary beneficiary, but also one or more secondary beneficiaries.  Depending on the financial circumstances of you and other family members, and what sort of estate planning you and your husband may have engaged in, it might make for the primary beneficiary to “disclaim” the account, thereby letting the account pass to one of the secondary beneficiaries.  That is done via a formal legal document called a “disclaimer.”  A disclaimer can be thought of as a sort of legal no thank you, simply requesting that the financial institution treat the signing beneficiary as if they too are deceased, thereby permitting the account to pass to the next successive beneficiary.  While a well-drafted beneficiary designation may appear to the layman to be unnecessarily cumbersome, the intention to provide the IRA account holder’s family maximum flexibility. 

Please bear in mind the following:

1)      If a disclaimer is to be filed, it must be submitted to the account holding financial institution within nine (9) months of the date of death.  So, you will want to obtain copy of the designation as soon as possible in order to allow plenty of time for you to consult with your elder law attorney, your accountant, and/or other pertinent family members. 

2)      A key legal element to a disclaimer is that the disclaimant cannot take possession or otherwise control or benefit from the asset to be disclaimed.  In other words, if the financial institution sends you a check from the IRA account, do not cash the check before you consult with your advisors.

Third, as the surviving spouse of an IRA account holder, you get to choose one of two distinctly different ways in which the account will pass to you.  You can elect for the account to be treated as an “inherited” IRA, which largely means you will continue to take annual RMDs based on your life expectancy starting the year of death.  In contrast, you could instead elect to “roll over” the IRA.  When that is done, the tax rules essentially treat the account as if it was yours from the beginning. 

Why would you want to do that?  This allows you to defer taking any distributions until you reach 70 1/2.  Of course in some circumstances, you may want to simply liquidate the account.  Since the tax bill will be the largest when all the money is withdrawn from the IRA at once in a given year, it is unsurprising the IRS will readily allow you to do that!  In order to avoid taxed when rolling over his IRA into your own, the amount withdrawn from the initial account must be deposited into your own account within sixty (60) days of the withdrawal.  To avoid the possibility of immediate taxation we generally recommend an IRA to IRA transfer. 

Fourth, the ability to “stretch out” IRA distributions over a longer period of time is frequently advocated by tax planners, especially in scenarios when the surviving spouse and/or other heirs have sufficient assets outside the IRA.  However, whether or not IRA distributions can be stretched out over a long period of time, will depend in part whether the account has a “Designated Beneficiary.”  That is a term of art used in the tax code and a complete discussion of the topic is beyond the scope of a brief response to your question, but suffice it to say if some part of the IRA can potentially pass to a charity, a limited liability company, or a probate estate, the entire IRA will therefore not have a Designated Beneficiary.  

The presence of any one of these “problem” beneficiaries will mean the entire account must be withdrawn within five (5) years of the date of death of the original account holder.  Imposition of the 5 year rule will likely result in an increased income tax liability on the withdrawals.  However, if problematic beneficiaries can be removed by September 30 following the year of death, then the 5 year rule may be avoided.  The easiest way to do that is to completely withdraw and distribute the portion of the IRA that would go to a problem beneficiary, leaving the remainder to remain in the account for the beneficiaries who do not pose a problem.  Then, the IRA can then be considered to have a “Designated Beneficiary” and a stretch out of withdrawals is still possible. 

When the IRA beneficiary is to be a trust, much care and attention must be paid to drafting and administering the trust and the IRA.  If done properly, a trust as an IRA beneficiary may be split into separate trust shares for individual beneficiaries, in a manner where each respective individual trust beneficiary’s life expectancy will apply to RMDs.  If that is the case, separate IRA accounts for each respective trust beneficiary must be established by December 31 of the year following the year of death. 

In summary, planning for the appropriate distribution of IRAs so that you get the best income tax results and financial results for beneficiaries is a complex undertaking that in many cases is not properly addressed.

Henry C. Weatherby, Esq., CLU, ChFC, CEBS
Weatherby & Associates, PC
Bloomfield, Connecticut
An ElderCare Matters Partner

Today’s Q&A on concerns Trusts in Elder Care Planning

Question:  My husband and I (64 & 62 years old respectively) are currently in the process of planning for our elder care needs and it was suggested that we set up a Trust.  Why would this be necessary – i.e., what are the advantages of setting up this type of legal document?  We are financially secure and own our home, but we want to make sure that we plan appropriately for our future elder care needs so that our children don’t have to worry about paying for our elder care needs.

Answer:  Your question is a difficult one to answer as the topics covered are very complex.  In regard to the issue of a Trust, it is first important to know that there are many types of Trusts. Trusts are wonderful documents which provide many different benefits depending upon the type of Trust. It is important that you have an experienced Elder Law or Estate Planning Attorney review your current situation and your goals to properly advise you regarding Trust choices.  A Trust should not be something off the shelf, but drafted to address your particular circumstances and goals.  Among the types of Trusts which might apply to your circumstances are revocable trusts, various irrevocable trusts including income only trusts, and possible some sort of special needs trust.

The first question in the analysis would be to determine your primary goal. A revocable trust can avoid probate, be used to reduce or eliminate estate taxes, and to allow your children to assist you during your lifetime when you become incapacitated. As we age, and the likelihood of incapacity increases, a properly drafted Trust can make sure that you and your husband’s needs are provided, whether by your family or third party professionals. A trust such as this allows you and your husband to remain fully in control while you are capable, yet provides for a smooth transition when incapacity occurs.

If your primary concern is asset preservation and payment of elder care needs, it is possible that in addition to the revocable trust you might want to consider an additional irrevocable trust. An irrevocable income only trust can be used to put assets outside the reach of creditors while allowing you to maintain your tax benefits, the use of the property as well as any income generated from the Trust principal. If being done for asset preservation or potential qualification for Medicaid, it is essential that a detailed analysis of your finances be done to make sure that funds exist to provide for your care outside of the irrevocable trust should you become incapacitated earlier than expected.

An Elder Law Attorney will review these options and others with you to develop an overall plan best suited for your circumstances.  The plan will undoubtedly include certain items such as durable powers of attorney, and may include others such as suggesting partnership long term care insurance.  A trust or trusts offer you many options to achieve your stated goals provided that you work closely with your Elder Law attorney and have the documents drafted to meet you and your husband’s current and future needs and goals.

An excellent resource to find help with your family’s elder care matters is ElderCareMatters.comAmerica’s National Directory of Elder Care / Senior Care Resources for Families

James C. Siebert, Attorney at Law
The Law Office of James C. Siebert & Associates
Arlington Heights, Illinois
An ElderCare Matters Partner

Today’s Q&A on concerns Government Benefits

Question:  “My 31 year old son is disabled and has lived with his 89 year old grandmother for about 10 years.  He does not hold a job and receives Social Security Disability, Medicare and Medicaid.  Now that his grandmother is ill and not expected to live much longer, I am concerned that he will have no place to live.  Is there any way that his grandmother can transfer title of her house to him upon her death and not affect his existing government benefits?

Answer:  The answer to your question is not that simple.  The short answer is that a person who is receiving means tested governmental assistance such as Social Security Supplemental Income (SSI) and/or Medicaid can own a home and if someone on behalf of the special needs person is paying any of the mortgage payments or any payments of money that can be considered support and maintenance such as payments for shelter and/or food then their benefits can be reduced.  The following is a list or countable and non-countable resources as well as a description of in-kind income support and maintenance (ISM) as well some basic rules for Special Needs Trusts. 

SSI Rules

Social Security will categorize any distribution you make to or for the beneficiary as some form of income, subject to its “income rules”.  Then, if the income buys some kind of asset (or becomes an asset itself such as money in a bank account), the asset will be subject to separate “resource rules”.

SSI Rules: Assets

(1)      Countable Resources

Generally, a “countable resource” is any asset considered by SSI rules to determine eligibility (therefore a resource is sometimes called a “countable asset”).  It could be tangible, like a second car, or it could be intangible, like a savings account.  An SSI recipient and beneficiary is allowed to have only $2,000.00 or less in “resources”.  If resources exceed $2,000.00 during any whole calendar month (even by a few cents), the beneficiary’s public benefits may be terminated.

Income that is received during the month is considered “income” throughout the calendar month of receipt, even if it is deposited in a bank account.  If, at the end of the month, it is still in the account, it becomes a “resource” in the next month and is then subject to “resource” rules. 

(2)      Excluded Resources

A person who is receiving SSI (called beneficiary) is allowed to have certain exempt assets, which are excluded from the $2,000.00 limit.  These exempt assets are not counted in determining eligibility, and the beneficiary’s ownership of them will not jeopardize his or her SSI benefits.  A person or Trust should not give the beneficiary the money to purchase exempt assets himself or herself – payments of money are always considered countable income.  The following assets are exempt:

  • A home, including adjacent land, if the beneficiary lives in it or intends to return to it;
  • Household goods (furniture, furnishings, household equipment, household supplies), and personal effects (toiletries, items of personal care and education, clothing and jewelry — however, giving the beneficiary food or clothing is “in-kind support”, as explained below) — all limited to a total value of $2,000.00;
  • One automobile (or other vehicle) limited in value unless needed for specific or regular medical treatments, modified to handicapped use, or especially needed for essential daily activities (please consult us on the current allowable value);
  • A burial plot, or other burial space, worth any amount; and
  • Life insurance with a cash surrender value, if its face value is less than $1,500.00, and all term life insurance or
  • An irrevocable funeral contract with a value of up to $2,000.00 or
  • A burial fund, worth up to $1,500.00.

All the assets above are specifically exempted by law.  You might note that a number of common and useful items are not specifically mentioned as exempt in the SSI regulations, but are not counted because they are included among “personal effects” or are considered services.  These include:

  • Recreational equipment, games and crafts
  • Books and magazines
  • Telephone, answering machine
  • Television, radio and cable service
  • Musical instruments and stereo
  • Travel and education
  • Recreation and entertainment
  • Some home maintenance, such as gardening

SSI Rules:     Income

(4)     “In-kind support and maintenance(ISM)

If the beneficiary receives food, clothing or shelter as a result of payments by the Trustee or by  a person  to the beneficiary or on behalf of the beneficiary will have income in the form of “in-kind support and maintenance” (ISM).  ISM causes a reduction in the beneficiary’s SSI payments.

However, in many cases, the Trustee has authority to make decisions which are in the best interest of the beneficiary.  That may require examining carefully how the rules regarding “in-kind support and maintenance” will be applied.  Problems can arrive when “in-kind income” consists of food or shelter.  The beneficiary’s SSI benefits will be reduced or eliminated if he or she receives ISM.

The theory behind the reduction or elimination is that SSI benefits are specifically intended to pay for a person’s food, clothing, and shelter, so if that person receives those things from another source, then less SSI benefits are needed.  As a result, if you pay the beneficiary’s grocery bill, rent, provide meals (for example, in a restaurant), or buy a coat for the beneficiary, you are providing ISM to the beneficiary.  In theory, you are then also reducing his or her need for SSI benefits.

There are sometimes some very fine distinctions between allowable “in-kind income” and countable ISM.  For example, you can pay for some travel arrangements but not others (for example, charged airline tickets, but not a hotel room, because that is shelter).  You can pay for some entertainment expenses, but not others (for example, a movie ticket but not a restaurant meal, as it is food).

Note also that you can pay for certain medications and alternative health treatments if they are not covered by Medicaid or other benefit programs.  If the beneficiary purchases a home, ISM can arise each month when the trust pays the beneficiary’s mortgage payment, property taxes, insurance or utilities (gas, water, electricity, garbage collection).  ISM can also arise if the trust purchases a home in which the beneficiary resides.

If you do give ISM to the beneficiary, his or her SSI benefits will be reduced, but not on a dollar-for-dollar basis, like with cash.  There are two different formulas that Social Security uses to reduce the SSI benefits for a person who receives ISM.  Which formula is used depends on the household and living arrangements of the SSI recipient.  Determining which rule and how it applies can be complicated and quite detailed, like income or estate tax planning.  If you have questions or concerns about the impact on your beneficiary of ISM payments, please ask us for assistance.  We are available to help you on such issues.

Don L. Rosenberg, Attorney and Counselor
The Center for Elder Law
Troy, Michigan
An ElderCare Matters Partner

Today’s Q&A on is about the Role of Long Term Care Ombudsmen

Question:  3 months ago my sisters and I reluctantly placed our mother (who is 81 years old) in a local nursing home.  Now she is about 30 pounds thinner, doesn’t speak, smells terribly and has bed sores.  We believe that this is the result of poor care provided by the nursing home.  Is there anyone we can contact to “check out” this nursing home and to help us resolve these quality of care issues?  Several of our friends have suggested that we contact the State Long Term Care Ombudsman’s office.  We are not sure what the role of the Ombudsman’s office is.  Can you please educate us on this elder care agency?

Answer:  The Long Term Care Ombudsman program is administered by the Administration on Aging (AoA), and each state (plus the District of Columbia, Puerto Rico and Guam) has a Long Term Care Ombudsman program. 

Long Term Care Ombudsmen are advocates for the residents of long term care facilities, including nursing homes, board and care homes and assisted living facilities.  They are trained to help residents (and the families of residents) resolve problems that they may be experiencing with long term care facilities.

Long Term Care Ombudsmen can help families address the following long term care concerns:

  • Violation of  the resident’s rights or dignity
  • Physical, verbal or mental abuse
  • Poor quality of care
  • Inappropriate use of restaints

You can contact your state’s Long Term Care Ombudsman program by visiting, or if you would prefer you can contact one of the professional members of the national ElderCare Matters Alliance at, who can help you with these types of elder care matters.

Hope this helps.

Phillip G. Sanders, MBA, MSHA, CPA
Founder of the national ElderCare Matters Alliance – America’s National Directory of Elder Care / Senior Care Resources for Families


Certified Care Manager answers family’s question on

Question:  Will my parents’ long term care insurance policies pay for day care for my father.  Mom is the primary caregiver and needs this “time off” from dad in order not to become totally exhausted.  Please advise.

Answer:  Without seeing your parent’s specific policy, it is impossible to know what is or is not covered.   Some policies only offer payment for specific services such as a non-medical caregiver in the home, a Geriatric Care Manager or the monthly cost for a facility.  In addition, many companies sell riders to the basic policy to cover additional types of services beyond what the basic policy covers.  Some of the newer policies pay a flat amount of money each month and allow the insured to determine how the money is spent.  I recommend you review your parent’s insurance policy to determine the specific benefits allowed to them under their policy.  It may also be helpful to talk with the insurance company directly to ensure you are taking full advantage of the benefits they are entitled to receive.

You can locate elder care professionals near you who can help you with these types of elder care matters by searching – America’s National Directory of Elder Care / Senior Care Resources for Families.

Heather Frenette, RN, MSN, CMC
Certified Care Manager
Desert Care Management
Premium Member of the national ElderCare Matters Alliance, Arizona chapter

The role of Executor, as provided by Attorney James Siebert

Question:  “My mother died about 3 weeks ago, and I am the Executor of her estate. How should I proceed in fulfilling my role as Executor of her estate?”

Answer:  First, my condolences on your Mother’s death.   Since you know that you are the Executor, you should locate the original Last Will, and get a general idea in regard to the amounts of her assets and liabilities. At that point you need to meet with an experienced Probate Attorney in the area your Mother resided to determine the next step.  First, you need to understand that Probate and state administration rules are State specific, and accordingly vary from State to State. Since I practice law only in Illinois, the explanations contained herein apply to Illinois cases, but other States have similar procedures. The Probate Attorney you retain should be able to analyze your Mother’s assets and liabilities to determine whether it is necessary or advisable to probate her Estate or whether the matter can be handled by your jurisdiction’s version of a small estates affidavit.

In Illinois, if your Mother’s assets are less than $100,000.00 and do not include real property, then you would be able to avoid probate while still paying her creditors and then distributing the balance pursuant to the terms of her Last Will.  If all of your Mother’s assets were held in joint accounts with other individuals, were held in Trust or in accounts with transfer on death provisions, you might not need to probate the estate or complete a small estates affidavit.  In that situation you still need to meet with the Probate Attorney, so he can advise you whether those assets are subject to claims of your Mother’s creditors.

If none of the above exceptions are applicable, then your Mother’s estate will probably have to go through the Probate process.  Probate is the legal process by which the court system distributes your property, pays your debts, and settles disputes after your death.  With the exception of real property, probate generally takes place in the county of the decedent’s residence, at the date of death. The probate process will be different depending upon which State you are located. Since I practice in Illinois

There are two types of probate estates: intestate estates, where the decedent died without a will; and testate estates, where the decedent had a will. These types of estates are handled similarly, but with some fundamental differences.

An intestate estate is opened for a person who dies without a will. In that case, State law controls and determines who is in charge of the estate, which creditors get paid, how much they get paid, in what order they get paid, which heirs receive the decedent’s assets, and in what proportions. A testate estate is one where the decedent died leaving a Last Will and Testament.  The person’s Will names the Executor, who is the person the court will appoint to collect the decedent’s assets, pay bills, resolve disputes, and ultimately pay out the assets to the individuals the decedent named in his or her Will.

If your Mother owned real property in more than one State, you will end up having multiple Probates. All of an individual’s assets are generally probated in the Estate of their primary residence, except for Real Property which must be probated in the State where it is located. This is referred to as ancillary probate.

In general, the person seeking to open the estate will file the appropriate petition with the Court in the county of the decedent’s legal residence, along with numerous other legal papers. The petition will be set for hearing before the appropriate court, at which time the Judge will review the documents, determine that the proper individual is bringing the petition, that any surety on any bond required is obtained, and that the decedent’s heirs are properly identified. If everything is in order, the Judge will order the estate open and issue letters of office to the individual bringing the petition.

In Illinois, notices must be sent to all heirs and legatees or, if not, the person bringing the petition must obtain their waiver and consent to probate and the appointment of the administrator or executor. In addition, notice of the opening of the estate must be given to the public so that decedent’s creditors may make their claims against the estate. The opening of the estate and the publishing of the notice begins the six month claims period, in which creditors must file their claims against the estate or be barred forever from asserting said claims.

The personal representative must do an inventory of the decedent’s assets, and keep track of records of all the transactions of the estate. A personal representative will prepare inventories, accountings and reports to present to the heirs, legatees and/or the court, depending upon the type of probate proceedings. A personal representative will also be responsible for filing the appropriate taxes for the estate.

After all claims are paid, all disputes resolved, and the inventory and the accounting are complete, the personal representative can distribute the estate. The estate will be distribute in conformity with the plan laid out in decedent’s will in testate proceedings, or as provided by State statute in intestate proceedings. The personal representative may be responsible for funding any testate trusts, including any trusts for the decedent’s children.

This is meant only as a general explanation of the process of handling someone’s estate after their death. There are many very complex variations which can occur in any Estate matter and therefore it is essential that you obtain State specific legal advice from an experienced Probate Attorney prior to taking any actions in regard to your Mother’s Estate. 

James C. Siebert, Attorney at Law
The Law Office of James C. Siebert & Associates
Arlington Heights, Illinois  60004
Member of the national ElderCare Matters Alliance, Illinois chapter


Today’s Q&A on is about Special Needs Trusts

Question:  “My wife and I (who are in our 60s) have been encouraged to set up a Special Needs Trust for our disabled adult child.  Could you please tell us why this would be necessary?  Also, could you please provide us with a little background information on this type of legal instrument?

Answer:  Among the many challenges facing parents of children with special needs is planning for the time when the parents will no longer be around to act as the primary caregivers. Advance planning by parents can make all the difference in the life of the child with special needs, as well as for siblings who may be left with caretaking responsibilities.

A Special Needs Trust for your disabled child should be part of an overall plan for your child.  If the parent is the legal guardian for the disabled child, it is essential as part of the planning is to arrange for the orderly transfer of the guardianship to a successor.  A Special Needs Trust is a trust created for a chronically disabled beneficiary, which supplements government benefits like Medicaid.  Medicaid and other government benefit programs consider the resources and income of an individual for purposes of determining eligibility and the amount of such assistance. With a Special Needs Trust, however, someone may establish a trust for a disabled individual without jeopardizing that individual’s eligibility for government benefits. Special needs trusts allow a disabled beneficiary to receive inheritances, gifts, lawsuit settlements, or other funds and yet not lose his or her eligibility for certain government programs. Such trusts are drafted so that the funds will not be considered to belong to the beneficiary in determining eligibility for public benefits.

Often, special needs trusts are created by a parent or other family member for a child with special needs, even though the child may be an adult by the time the trust is created or funded. Such trusts are set up as a way for an individual to leave assets to a disabled relative. As their name implies, special needs trusts are designed not to provide basic support, but instead to pay for comforts and luxuries that could not be paid for by public assistance funds. These trusts typically pay for things like education, recreation, counseling, and medical attention beyond the simple necessities of life. However, the trustee can use trust funds for food, clothing, and shelter if the trustee decides doing so is in the beneficiary’s best interest despite a possible loss or reduction in public assistance. Special needs can include medical and dental expenses, annual independent check-ups, necessary or desirable equipment  training and education, insurance, transportation, and essential dietary needs. If the trust is sufficiently funded, the disabled person can also receive spending money, electronic equipment and appliances, computers, vacations, movies, payments for a companion, and other self-esteem and quality-of-life enhancing expenses.

It is important to plan to ensure that your child receives appropriate therapies and medical treatments.  It is essential to take the time necessary to find appropriate caregivers who will carry out your wishes and respect your child’s goals, dreams and life expectations.  At the same time, Predators are particularly attracted to vulnerable beneficiaries, such as the young and those with limited self-protective capacities. When you plan with trusts, you decide who has access to the information about your children’s inheritance. This protects your child and other family members, who may be serving as trustees, from predators.

It is important that special needs trusts not be unnecessarily inflexible and generic. Although an attorney with some knowledge of trusts can protect almost any trust from invalidating the child’s public benefits, an attorney without special needs experience may not customize the trust to the particular child’s needs, and the child may not receive the benefits that the parent provided when they were alive.

You can find professionals near you who are knowledgeable about Special Needs Trusts on – America’s National Directory of Elder Care / Senior Care Resources for Families.

James C. Siebert, Attorney at Law
The Law Office of James C. Siebert & Associates
Arlington Heights, Illinois  60004
Professional Member of the national ElderCare Matters Alliance, Illinois chapter

Today’s Q&A on is about deducting parent’s Elder Care expenses on the child’s tax returns

Question:  My mother is 87 years old and lives in an assisted living facility, which cost about $4,000 per month.  She has no assets to speak of and very little income, i.e. she has a small monthly Social Security check and a very small monthly pension.  I have been paying for her care in the assisted living facility.  Is there anyway that my husband and I can deduct what we pay for mom’s medical care in the assisted living facilty on our individual income tax returns?  Please provide your answer as soon as possible because we are about to file our 2012 individual income tax returns.

Answer:  Yes, a child can deduct medical expenses that they paid on behalf of their parent (even if the parent doesn’t qualify as one of their dependents, doesn’t live with them and has a gross income that exceeds $3,800 (for tax year 2012)) if the child provided over half of the parent’s total support during the tax year.  Assuming that the child paid more than 50% of their parent’s total support during this tax year, then the medical expenses paid on the parent’s behalf in excess of 7.5% of the child’s Adjusted Gross Income (AGI) are deductible on the child’s individual income tax returns as itemized deductions.

If you have additional questions about your family’s elder care matters, you can count on ( America’s National Directory of Elder Care / Senior Care Resources) to help you find some of America’s top elder care professionals near you who can help you plan for and deal with a total of 86 different elder care services, including Elder Law, Geriatric Care Management, Daily Money Management, Estate Planning, Senior Housing, Investment Planning, Tax Planning & Preparation, plus many other elder care services.

Phillip G. Sanders, MBA, MSHA, CPA
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