4 Reasons a Will Can Be Contested – This Week’s Article on ElderCareMatters.com

4 Reasons a Will Can Be Contested

Written By:
4 Reasons a Will Can Be Contested
Don L. Rosenberg, Attorney and Counselor
The Center for Elder Law
Troy, Michigan
An ElderCare Matters Partner

There are four primary reasons that a will can be contested. Knowing the reasons that a will can be contested can be helpful for reducing the chances of a dispute among your heirs, whether you are putting together your own will and or want to know if yours should be reviewed by a Michigan probate attorney.

And, of course, these will become very important if you ever find yourself in the unfortunate position of needing to know your legal rights when it comes to a will challenge.

Reason #1: The Testator Did Not Have Testamentary Capacity To Sign a Will

In Michigan, there are four components to testamentary capacity (or what Michigan law calls a “sufficient mental capacity”): (1) understanding that he or she is providing for the disposition of his or her property after death, (2) knowing the nature and extent of his or her property, (3) knowing the natural objects of his or her bounty (i.e., family members), and (4) understanding in a reasonable manner the general nature and effect of the act of signing the will.

While this legal test for testamentary capacity may sound complicated, experienced Michigan probate litigation attorneys can help make sense of it, and whether it can be met in your case. This depends on many different factors. For example, the witnesses to the will signing can be crucial – especially the estate planning attorney who prepared the will. In a will contest, their testimony can be the critical aspect of determining whether the person signing the will was in the right frame of mind and body to do so. Having an experienced estate planning attorney stand behind the will is often a determining factor in will contest cases in Michigan.

Reason #2: The Testator Was Subject To Undue Influence

The essence of this claim is that an individual was coerced, compelled, or otherwise forced into signing a will. Undue influence from any party is usually very difficult to prove, because there rarely is direct evidence of the influence. But it can also be very hard for the party defending the will against an undue influence claim, because of what Michigan law calls, “the presumption of undue influence” that applies in many cases.

Smart estate planning attorneys will take extra precautions in the right cases. For instance, we sometimes recommend making a videotape of the conversation relating to the will drafting and signing, to demonstrate that the person is executing the will of his or her own free choice. Having an independent attorney involved in the drafting process is also critical. In fact, even many attorneys in Michigan don’t properly handle will signings, which can make undue influence cases even murkier.

Reason #3: The Will Didn’t Follow The Formalities Of Michigan Law

This reason does not occur as often as undue influence or mental incapacity, but it still can be important in the right case. Traditionally, Michigan had very specific and clearly codified rules regarding what is needed for a valid will. For the most part, these require that witnesses be present and sign the will too, and that the will be dated and signed, with certain language that attested to the validity of the document. When a will was handwritten in the signer’s own handwriting, the rules could be relaxed, however, and proving a valid will was easier.

With some recent law changes, however, Michigan law now allows greater leniency to the rules regarding will formalities. If the person arguing in favor of the wills validity can show, by clear and convincing evidence, that the document was intended to be a will, it can still be accepted in probate court as a valid will, even without meeting the test of formalities. This sometimes leads to more complicated will contests in probate court, because family members often disagree if a certain writing was intended to be a will or not.

Reason #4: The Will Was Created Or Signed Due To Fraud

If the Testator was tricked into signing a will, family members can dispute the document’s validity down the road. For example, if the Testator believed that he or she was signing another legal document like a power of attorney, then the will could be considered procured by fraud.

While cases in Michigan based on fraud often go hand-in-hand with undue influence claims, there can be important differences. This is especially true when the person signing has problems with eyesight, such as macular degeneration. Testimony of witnesses can be especially vital in a will contest case where there are allegations of fraud.

If you need help with your family’s Elder Law issues, you can find thousands of Elder Law Attorneys from across America on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for Families.

You can also find Elder Law Attorneys who are members of the national ElderCare Matters Alliance on FindElderLawAttorneys.net - one of the 10 Elder Care / Senior Care Directories that are sponsored exclusively by the national ElderCare Matters Alliance. These Elder Care / Senior Care Directories list thousands of Elder Care / Senior Care Professionals and companies from across America who can help you plan for and deal with your family’s issues of aging.

In our Directories, you will also find Answers and Articles about a wide range of Elder Care Matters, information that is provided by our ElderCare Matters Partners – Professionals who are members of the national ElderCare Matters Alliance and have years of experience in helping families with Elder Care Matters.

Below is a list of our 10 Elder Care / Senior Care Directories:

www.ElderCareMatters.com
www.ElderCareWebsites.com
www.FindElderLawAttorneys.net
www.FindEstatePlanningAttorneys.net
www.FindProbateAttorneys.net
www.FindVAAccreditedAttorneys.net
www.FindHomeCareProviders.net
www.FindDailyMoneyManagers.net
www.FindGeriatricCareManagers.net
www.FindSeniorLivingCommunities.net

Estate Planning Tips for the Non-Traditional Family

Estate Planning Tips for the Non-Traditional Family

Written By:
Estate Planning Tips for the Non-Traditional Family
Robert M. Slutsky, Esq.
Robert Slutsky Associates
Plymouth Meeting, Pennsylvania
An ElderCare Matters Partner

The percentage of married households in the United States fell from 55 percent in 1990 to 48 percent in 2010. About 40 percent of all marriages end in divorce. Three quarters of people who divorce remarry — accounting for a pretty large proportion of the 48 percent of American households that are married.

Nearly 1.5 million babies a year are born to unmarried women, more than a third of all births. This can complicate matters, especially when the father is not identified or, in the case of donated sperm, does not exist. It also can mean a greater need for planning when there is no identified back-up parent if something happens to the mother.

If you are in a relationship, but not married, have been married more than once, have children by more than one partner, or have beneficiaries who cannot manage funds for one reason or another, then it’s more important that you do estate planning. And you need more than legalzoom to accomplish your goals.

Give Your Partner The Ability to Help You: There are laws in place empowering spouses and governing the distribution of property in the event of death. The so-called “rules of intestacy” provide that property will pass to spouses and children, or to parents if someone dies without a spouse or children. There are no laws to protect unmarried partners or unadopted children. There have been many cases of parents pushing aside the same-sex partners of their children upon death or incapacity. Wills, trusts, durable powers of attorney and health care directives, pre-nuptial agreements, post nuptial agreements, property agreements, allow you to choose who should step in for you when needed and who should receive your property.

Consider All of the Stakeholders: All too often, despite the best of intentions and good will, when parents remarry the new family doesn’t bond. The children from prior marriages or relationships don’t become friends with one another or with the new spouse of their father or mother. Frequently, the death of one spouse means that all of the assets of both families end up with the surviving spouse and ultimately pass to his or her children and grandchildren. If that is not what the couple wants they have to articulate their desires and put a structure in place that is communicated to all of the important parties and then memorialized so that it can be carried out. Again, wills, trusts, durable powers of attorney, health care directives and written agreements permit the couple to choose the outcome they prefer rather than letting it fall to chance.

Consider Goals First then Pick the Tools: No planning can take place in a vacuum. And no one size fits all plan works. Anyone considering planning for themselves and for loved ones, whether in a traditional or non-traditional relationship, needs to start by setting goals. Is the goal leaving money for the surviving partner? Leaving an inheritance to children (his, hers, theirs)? Disabled children? Charitable giving? Most of us don’t have just one goal, but you should start by identifying them. Ultimately, the estate plan should reflect the couple’s goals and priorities. While this is true of anyone doing estate planning, it is more important the more family and non-family bonds you have because the plan will have to balance more interests.

For instance, in Pennsylvania, inheritance tax rates are different for different classes of beneficiaries. For instance, assets going to an unmarried partner are taxed at 15%. Assets going to a spouse are taxed at 0%. The rate for unadopted children is 15%. The rate for adopted children is 4.5%. However, a spouse has an obligation to pay for long term care, an unmarried companion does not.

An adopted disabled child can receive benefits based on your Social Security earnings record. An unadopted child may not.

Hash Out the Issues While Everyone Is Happy. With relationships as in business, try to come up with a bail out plan while you are still friends. The best time to come up with how a dissolution of a business will happen is when the business is new and the partners are still friends. The same goes with personal relationships. While most people entering a first marriage have no children and few assets, this is not the case with a second or third marriage. Before getting married again, the couple needs to talk about what they have in mind in terms of mutual financial support of one another and of their children from prior marriages and relationships. And they need to discuss what will happen if things do not work out. Then they need to put their intentions in writing so that there are no misunderstandings down the road. This saves money and stress. If memorialized in writing beforehand, it will also be legally enforceable. If circumstances change, the couple can always modify their agreement.

Consider Trusts: Standard wills can be blunt instruments. When you pass away, your property passes to the people you name. Trusts, either separately or within wills, permit more flexible planning. For instance, you may want to permit your new spouse to live in your home for as long as he wants, but for it to ultimately pass to your children and grandchildren. A trust permits you to plan for this scenario, giving your spouse rights, but someone else — the trustee — the power to manage the property and protect it for the next generation. Or a couple could pool all of their resources in a trust for their benefit during their lives, with the funds remaining after they have both passed away to be distributed equally to their respective children.

The bottom line is that our laws for distribution of property and rights in the event of incapacity are based on a family, marriage between one woman and one man with one or more children. That is far less common today. For those who don’t fit the one nuclear family mold, planning is more important because the law doesn’t protect you. Don’t put it off.

If you need help with Estate Planning or other Elder Care Matters, you can find thousands of Elder Care Professionals from across America on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for Families.

You can also find Elder Law Attorneys on ElderLawAttorneys.us and Estate Planning Attorneys on EstatePlanningAttorneys.us – 2 additional websites sponsored exclusively by the national ElderCare Matters Alliance.

And you can find thousands of elder care / senior care answers to your elder care questions as well as elder care articles to help you plan for and deal with your elder care matters on the following websites:

ElderCareMatters.com/ElderCareAnswers
ElderCareMatters.com/ElderCareArticles

New York Medicaid – This Week’s Elder Care Article on ElderCareMatters.com

New York Medicaid – This Week’s Elder Care Article on ElderCareMatters.com

Written By:
New York Medicaid Attorney
Michael Ettinger, Esq.
Ettinger Law Firm
Albany, New York
An ElderCare Matters Partner

In the event that your loved one requires home care or institutionalized care in a New York nursing home facility, an application for New York Medicaid benefits may be required. Due to complex asset and transfer rules, a New York application should be made with the aid of an experienced New York Medicaid Attorney. Again, it is useful in this context for a confidential survey of the client’s assets, as well as any transfers of those assets, to be filled out prior to the initial consultation. This form of financial survey will be significantly different from the one used for estate planning purposes. As a combined federal and state program, Medicaid asset and transfer rules vary significantly from state to state.

There are two different kinds of Medicaid in the State of New York, Community Medicaid and Chronic Care Medicaid.

Community Medicaid

Community based Medicaid applications are for low income recipients and any elderly/disabled person who wishes to remain in the community, in the setting of their own home. This benefit requires three (3) months of financial documentation, current proof of income, along with “common documents” and the past year’s income tax filing, with 1099’s.

Once benefits have been applied for and a Medicaid “pick-up” date has been established, the applicant may keep some of their monthly income and the balance is required to be contributed to their care. The amounts you may retain are constantly changing and are naturally different for singles and couples. Consult with an elder law attorney for the going rates in your community at any given time. There are also a number of methods to keep additional income involving pooled trusts and Special Needs Trusts.

Resources, which are assets belonging to the applicant and/or community spouse, must be reported and an individual is allowed to keep only a modest amount. If there is a spouse at home, the resource allowance will be more.

Chronic Care Medicaid

Perhaps your loved one can no longer stay at home because they have become a danger to themselves or others. Maybe they need too much care or their caregiver is no longer able to manage their care. In such a case you may want to apply for chronic care benefits.

The Chronic Care application requires a look-back of sixty months. You must provide all financial statements of any open or closed accounts in this time period. Each county is different in the type of documentation you will need to present. Again, all “common documents” must be presented, three years of tax returns, proof of income, and the correct application.

The Department of Social Services will look for any gifts or transfers made in the look-back period (gifts to children, friends, grandchildren, church donations, charitable donations, etc.). Each gift will incur a penalty period determined by the state Medicaid Regional Rates chart published each year. Should you apply before the penalty period has expired you may be asked to provide additional documentation.

On all applications the county will begin an investigation. They will request an IRS report for the past three years, they will request a DMV report to see what vehicles are or were owned, they will request a financial institution report under the applicant’s and his/her spouse’s Social Security number and if something has not been reported the department may charge the applicant with fraud if they feel a deliberate attempt was made to hide assets.

In our experience, most individuals who attempt to file for Medicaid benefits, without the assistance of counsel, either complete the application incorrectly, do not provide the correct documentation or give unnecessary information which causes the county to investigate further. These types of errors may require an appeal, known as a Fair Hearing, to have the matter rectified.

An individual applying for chronic care benefits and who is in a nursing home is required to pay virtually all of their income towards their care. The community spouse, if there is one, is allowed to keep about three thousand dollars per month in income and, if they fall short, the institutionalized spouse is allowed to contribute some of their income to the community spouse before paying the nursing home.

If you need help with Medicaid Planning or other Elder Care Matters, you can find thousands of Elder Care Professionals from across America on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for Families.

You can also find Elder Law Attorneys on ElderLawAttorneys.us and Estate Planning Attorneys on EstatePlanningAttorneys.us – 2 additional websites sponsored exclusively by the national ElderCare Matters Alliance.

And you can find thousands of elder care / senior care answers to your elder care questions as well as elder care articles to help you plan for and deal with your elder care matters on the following websites:

ElderCareMatters.com/ElderCareAnswers
ElderCareMatters.com/ElderCareArticles

I Don’t Have Children – Who Will Care For Me? (Estate Planning for Childless Women)

I Don’t Have Children – Who Will Care For Me?
(Estate Planning for Childless Women)

Written By:
Henry C. Weatherby, Connecticut Elder Law Attorney
Henry C. Weatherby, Esq., CLU, ChFC, CEBS
Weatherby & Associates, PC
Bloomfield, Connecticut
An ElderCare Matters Partner

Over the years, many women decided that they didn’t want children. Their decision was made not necessarily because they were selfish; many were career-oriented and received fulfillment through their work. But as these women age they wonder who will care for them, especially when they watch their friends’ children help them through illness or life chores.

Of course, having children doesn’t necessarily mean that they will care for you in later life. However, depending on the dynamics of the family through the years, they may be available from a distance, to help coordinate care and finances.

As more and more women decide that motherhood is not in the cards, the chances are much greater that as they grow older, more non-familial caregivers will be needed. In 2010, the “caregiver support ratio” was seven potential caregivers for each individual over the age of 80. This ratio will decline to four to one by 2030 and to three to one by 2050. AARP produced a report in August 2013 that stated 11.6 percent of women ages 80 to 84 were childless in 2010. That number will increase to 16 percent by 2030.

According to research done at the American College of Financial Services in Bryn Mawr, PA, 70 percent of long-term care is provided by adult children. Surprisingly, a 2012 study published by Fidelity Investments revealed that only 3 percent of parents were in agreement that their children would step up to provide care if needed. According to this study, having children does not necessarily equate to help for older parents.

The trend towards remaining childless means there will be fewer adult children, usually daughters or daughters-in-law, to provide care to relatives. These caregiving responsibilities are now being assumed by nieces, cousins, nephews etc. A recent trend does show that more men are involved in caregiving.

Having and raising children is expensive. A 2012 report released by the Department of Agriculture projected that it will cost a middle-income family about $241,080 to raise a child to the age of 17. That amount of money, saved for 35 years, would amount to $1.5 million with compounding interest. And that is the advantage for childless women. They are generally able to save enough money to hire caregivers or to take in a friend to help with care.

But there are other issues raised when women are childless. Where will they live in old age, especially if they are not well?

Many older women would rather remain in their homes; some live in apartments and those that do, are “aging in place.” In this instance, communal living is known as a NORC or, a “naturally occurring retirement community.” It is not unusual to find older childless women or couples who would prefer to live in a community.

Comprehensive estate planning for childless clients therefore will have to take an even closer look at long-term care considerations, and be individually tailored to each client’s needs and concerns.

If you need help with Estate Planning or other Elder Care Matters, you can find thousands of Elder Care Professionals from across America on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for Families.

You can also find Elder Law Attorneys on ElderLawAttorneys.us and Estate Planning Attorneys on EstatePlanningAttorneys.us – 2 additional websites sponsored exclusively by the national ElderCare Matters Alliance.

And you can find thousands of elder care / senior care answers to your elder care questions as well as elder care articles to help you plan for and deal with your elder care matters on the following websites:

ElderCareMatters.com/ElderCareAnswers
ElderCareMatters.com/ElderCareArticles

Asset Protection: Long Term Care Insurance

Asset Protection: Long Term Care Insurance

Written By:
Long Term Care Insurance
George P. Guertin, Esq.
Guertin and Guertin, LLC
North Haven, Connecticut
An ElderCare Matters Partner

The average life expectancy for a person born in 1915 was 54 years, this number increased to 70 years in 1967 and 78 years in 2006. Today people are living longer than they have in the past, the recent past. Good news, right? Not necessarily. As our average life expectancy increases so does the chance that you will need long term care. The Wall Street Journal has reported that a married couple turning 65 this year has a 70% chance of at least one person needing long term care.

There are primarily four different ways to protect yourself against long-term care issues. The first plan would be to never ever ever get sick or hurt, or old for that matter. This is the least advisable pan. The second plan is to have lots and lots of children and send some of them to medical school, some to nursing school, and others to occupational and physical therapy schools, and hope for the best. For a lot of folks this plan may not work either. The third plan would be to save enough money to pay for your long-term care. For some people this plan is “do-able.” For others, this may not be a realistic plan. The costs can be staggering and there is no way to predict what the future cost will be. The cost will vary depending on the care you need and the length of time that you need it. Currently, long-term care in Connecticut is approaching five figures per month. The only other alternative is Long-Term Care Insurance.

Long-term care is not solely for the elderly. The need for this type of care can come on unexpectedly. Long-term care insurance is a good way to plan for unexpected incapacity. Long-term care insurance can provide medical care and other services. These services can be provided in your home, in a nursing home, or in an assisted living facility. This type of insurance helps people remain financially independent while guarding against the rising cost of long-term care. That being said, it can be costly. While this is true, you should consider the fact that one month in a Connecticut nursing home, at the private pay rate, would probably cost more than the yearly premium for a long-term care insurance policy. We all pay our yearly fire insurance on our homes and we rarely use this insurance. Many people will need nursing home care over the course of their lives; but most do not plan for this reality. Statistics show that after the age of 65 you have nearly a 50% chance of requiring long-term care in a skilled nursing facility. In Connecticut it can cost nearly $100,000 for a year of long-term care at the private pay rate. Many homes have been sold, and many potential inheritances have been spent providing skilled nursing care. You should weigh the cost of carrying long-term care insurance against the possibility of needing this type of coverage.

Many people believe their private health insurance or Medicare will pay for their long-term care. Unfortunately, this is not usually the case. Private health insurance and Medicare (generally speaking) will only pay for skilled care, not custodial care, and there are limits to the coverage periods. For example, Medicare may pay for up to 100 days in a skilled care facility, but will only pay 100% of the cost for the first 20 days.

Lots of folks also think that Medicaid will pay for their long-term care. This is true (well, sort of). Medicaid will only pay for long-term care when a person has minimal assets. When we say minimal we mean it. The limits are not enough for a person to live on. Medicaid expects you to pay for your own care until your assets reach a certain level, then when you are nearly broke they will offer assistance. It is important to mention that if you are trying to place a person into a nursing home it is a good idea to have enough cash to pay for a few months of coverage privately. The reason for this is that nursing homes only have to provide a percentage of their beds for Medicaid patients. This means that you may have to find a room in a facility that is not your first choice, and potentially far away from your loved ones. However, if you have some money to spend there privately, you have a better shot of placement in a home of your choice, not just one that is willing to accept you.

If you cannot afford to privately pay for your own care, and most people cannot, then look into long-term care insurance. If you can afford to privately pay for long-term care you should still look into long-term care insurance because you can probably preserve a lot of your own assets by having it. We firmly believe that long-term care insurance is one of the best ways to protect assets, and at the same time provide you with peace of mind and quality care.

There are many types of policies offering many different benefits, different waiting periods, different inflation protection, and different costs. You should not take the purchase of a long-term care policy lightly. Do your homework. Make sure you know how long and how much the policy will pay, as well as what will trigger a payment from the policy. You should also know if the policy is indexed for inflation. Most importantly you should educate yourself on the level of care associated with the policy. Is custodial care covered? How about skilled nursing care? Is home healthcare provided? Check with several companies and agents and find the best policy for you, not the best policy for the agent to sell you. Understand the policy you are purchasing. Make sure you know what your policy covers and what it does not cover before you purchase it. Caveat Emptor!

If you need help with Asset Protection Planning, Long Term Care Insurance or other elder care / senior care matters, you can find thousands of Elder Care Professionals from across America on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for Families.

You can also find Elder Law Attorneys on ElderLawAttorneys.us and Estate Planning Attorneys on EstatePlanningAttorneys.us – 2 additional websites sponsored exclusively by the national ElderCare Matters Alliance.

Bummers for Boomers – This Week’s Estate Planning Article on ElderCareMatters.com

Bummers for Boomers

Written By:
Estate Planning Attorneys
Scott A. Makuakane, Esq., CFP
Est8Planning Counsel LLLC
Honolulu, Hawaii
An ElderCare Matters Partner

In his article “Estate Planning Mistakes Every Boomer Should Avoid,” author Casey Dowd enumerates some of the things that you really don’t want to do if you hope to have an estate plan that will work as you intend. Here are Dowd’s Big Five mistakes:

  1. Failing to plan for large expenses such as long term care. This may not seem like a big deal when you are relatively young and healthy, but fully 70% of us can expect to be completely incapacitated for some period of time before we die. Many of us will need care that cannot be provided in our homes in a cost-efficient way. Our options are (A) be fabulously wealthy, (B) plan ahead, or (C) fall at the mercy of governmental programs. (B) works best for most of us.
  2. Failing to update beneficiary designations on bank accounts, investment accounts, retirement accounts, and insurance policies. Having your will and revocable living trust agreement in place is not enough. It’s better than nothing, but better yet, actually transfer your assets (or funnel them by way of updated beneficiary designations) to your trust. And don’t forget that you need to update your will and trust from time to time. A lot of things change (your health, your family situation, your assets, the law, the list of people that you like and trust and would want to have making decisions on your behalf), and your estate plan needs to change in order to take those things into account. We recommend reviewing your estate plan at least annually, but making changes in the meantime as they become necessary.
  3. Failing to take steps to avoid family strife. Making your intentions clear is the first step. You can also build incentives (and disincentives) into your estate plan that can head off courtroom battles.
  4. Using a “do it yourself” computer program to design your estate plan. If you truly know what you are doing, these kinds of tools may work. If not, they are a crapshoot. Gamble with your family’s future if you like, but you will probably save your loved ones a good deal of time and money by not taking shortcuts.
  5. Putting your kids on title to your stuff during your lifetime. Not only might you be setting them up for capital gains taxes, you may be be putting your assets at risk. Once you give something away, it is gone. Not even your kids’ good intentions will spare you from the wrath of their creditors or ex-spouses.

Estate planning is serious business, and you are better off doing it right. Usually, that will mean working with professionals who will charge for their services. Shop around until you find advisors who know what they are doing, will help you devise a workable plan, and are worth their fees.

If you need help with Estate Planning or other elder care / senior care legal matters, you can find thousands of Elder Care Professionals from across America on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for Families.

You can also find Elder Law Attorneys on ElderLawAttorneys.us and Estate Planning Attorneys on EstatePlanningAttorneys.us – 2 additional websites sponsored exclusively by the national ElderCare Matters Alliance.

Your Last Will and Testament: This Week’s Elder Care / Senior Care Article on ElderCareMatters.com

 

Your Last Will and Testament

Written By:
Last Will and Testament
George P. Guertin, Esq.
Guertin and guertin, LLC
North Haven, Connecticut
An ElderCare Matters Partner

When most folks think of estate planning they think of making a Will. A Will or a Last Will and Testament is a commonly used instrument in estate planning, and is often regarded as the “core” document of any estate plan. Briefly stated a Will is a legal declaration of a person’s wishes as to the final disposition of his/her property. Wills are completely revocable during a person’s lifetime (barring incapacity), and only become irrevocable and operative upon the death of the maker of the Will. A Last Will and Testament is more than just a set of instructions that control the final disposition of your assets. Wills can help you to protect your assets, provide instructions for the care of minor children, name Guardians for minor children, and name a person (an Executor) who will carry out your wishes.

Wills can perform simple tasks like the outright distribution of your assets to your designated beneficiaries, or more complex functions, such as creating Testamentary Trusts at your death or moving your assets (or pouring them over) into a previously established Trust (commonly referred to as a Pour Over Will). Wills facilitate the distribution of your assets to family members, friends, charities and others. Wills can provide detailed instructions for the Executor on how to manage the decedent’s property, as well as other powers. As the maker of a Will you can decide how much detail and post mortem control is dictated in your Will. You are in charge. You can give your antique lamp to your Uncle Lou, make unequal distributions to your nieces and nephews, or make a large cash gift to the local animal shelter. It is really up to you.

It is not recommended that you use a do-it–yourself Will kit or an internet Will. Great caution should be used with these instruments. These instruments often fall short of planning for your individual situation. A qualified estate planning attorney is far better suited to develop a plan that accomplishes your specific estate planning goals, while taking into consideration the relevant federal and state laws, and tax regulations.

People often think they can save money through the use of an internet or fill-in-the-blanks type Will. If you are concerned with the cost of estate planning, you can save time and money if you meet with your estate planner fully prepared. Come to the meeting organized, with a good sense of what you would like to see happen after your passing. Have a clear picture of your assets, and good ideas on how those assets are to be disposed of, as well as other concerns like the appointment of Guardians, Executors and Trustees. If you have existing Wills or other estate planning documents, including divorce decrees and prenuptial agreements, you should also bring those to your first meeting with your estate planning attorney.

There are some folks who believe they can just write out their own Will by hand. Connecticut residents are cautioned against the use of “Holographic Wills.” A Holographic Will is a Will that is completely handwritten by the testator and signed and dated by him/her, with or without a witness. This approach simply does not work in Connecticut. Even though these writings certainly indicate your intent, your property will still pass via the State of Connecticut Intestate Succession Laws.

A Will that is validly executed in one state, is valid in any state. In order for a Will to be valid it must have been executed by a person who had the “testamentary capacity” to execute the instrument. Under most circumstances the maker of the Will must be 18 years-old and have the mental capacity to execute the Will. Someone has mental capacity if they understand the nature and extent of their property. They must also understand “the natural objects of their bounty,” meaning their children if they have any. Finally, to have the mental capacity, the maker of a Will must also understand the practical effect of executing their Will.

When designing your estate plan our mantra is “Plan for the worst, and hope for the best.” These tricky waters should not be navigated by amateurs, and one should always seek competent counsel. The more your attorney knows about your particular situation the better they can plan for you and your family. Some folks are embarrassed to discuss their family problems. Remember, what you tell your attorney is strictly confidential. Your attorney has sworn to protect that information and only use it for your benefit. The truth is, almost every family has issues, and that is normal. Your attorney is there to help you, not judge you.

If you need help with this Elder Care Matter, or with other elder care / senior care legal matters, you can find thousands of Elder Care Professionals from across America on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for Families.

You can also find Elder Law Attorneys on ElderLawAttorneys.us and Estate Planning Attorneys on EstatePlanningAttorneys.us – 2 additional websites sponsored exclusively by the national ElderCare Matters Alliance.

5 Things You Need to Know About Health Care Documents

5 Things You Need to Know About
Health Care Documents

Written By:
Elder Care / Senior Care Articles about Health Care Documents
William E. Hesch, Esq., CPA, PFS
William E. Hesch Law Firm, LLC
Cincinnati, Ohio
An ElderCare Matters Partner

The Supreme Court has maintained that a competent person always has the constitutional right to accept or refuse medical treatment. However, when you are unable to speak for yourself, who do you want to speak for you? And what kind of limitations do you want to place on their authority? Here are five important things you need to keep in mind about advance health care directives:

  1. Know What Documents Do What. By executing a Health Care Power of Attorney, you appoint someone to make health care decisions for you if you are physically or mentally incompetent. A Living Will, on the other hand, is a directive from you to your doctors letting them know whether you would like to receive artificially supplied life-sustaining treatment. Since these documents originate at the state level, there are inevitably statutory variations among states that can affect how and even if your wishes are implemented. In Ohio, there are separate documents for a Health Care Power of Attorney and a Living Will. In Kentucky, however, there is a single document called “Living Will Directive and Health Care Surrogate Designation.” While you appoint someone to make decisions for you, that person may or may not be authorized to make medical treatment directions or authorizations about food and water.
  2. Choose Your Health Care Decision Makers Carefully. Before executing any health care document, discuss your wishes with your designee to ensure that they understand your wishes and that they have no ethical objections to your decision. You will want to ensure that your designee will act as you have directed and not according to their own ethical opinions.
  3. Give Copies of Any Documents to Your Primary Care Physician. Always give a copy of your documents to your primary care physician to be placed in your permanent medical record. Not only does this ensure the availability of the document, but also it allows you to discuss the practical consequences of the documents with your doctor so you can make a full and informed decision.
  4. Update it Frequently. Like all legal documents, you should ensure that they are kept up to speed with the circumstances of your life. The older a document is, the more likely it is to be challenged as not reflective of your current wishes. A recent document, on the other hand, can be clear and convincing evidence of your wishes. I recommend that everyone execute their desired advance health care directives every few years.
  5. Cross Your T’s and Dot Your I’s. Although most states have developed forms for their health care directives, you should always consult with an attorney to make sure the document complies with wishes. If you have any specific religious beliefs on blood transfusions, organ transplants, or other medical treatments, you should consult with a clergyman and make your beliefs evident in your documents. Also, be wary of forms given to you at the hospital as some hospitals have modified the forms prescribed by statute. You should also remember that if a hospital refuses to honor your advance health directive, you are allowed to be transported to another facility where your wishes will be respected.

If you need help with Estate Planning or other elder care / senior care legal matters, you can find thousands of Elder Care Professionals from across America on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for Families.

You can also find Elder Law Attorneys on ElderLawAttorneys.us and Estate Planning Attorneys on EstatePlanningAttorneys.us – 2 additional websites sponsored exclusively by the national ElderCare Matters Alliance.

The Rules of Estate Administration

The Rules of Estate Administration

Written By:
Estate Administration
Marie A. Corliss, Esq.
Corliss Law Group
Cortlandt Manor, New York
An ElderCare Matters Partner

Probate is the process by which a deceased person’s property, known as the “estate,” is passed to his or her heirs and legatees (people named in the will). The entire process, supervised by the probate court, usually takes about a year. However, substantial distributions from the estate can be made in the interim.

The emotional trauma brought on by the death of a close family member often is accompanied by bewilderment about the financial and legal steps the survivors must take. The spouse who passed away may have handled all of the couple’s finances. Or perhaps a child must begin taking care of probating an estate about which he or she knows little. And this task may come on top of commitments to family and work that can’t be set aside. Finally, the estate itself may be in disarray or scattered among many accounts, which is not unusual with a generation that saw banks collapse during the Depression.

Here we set out the steps the surviving family members should take. These responsibilities ultimately fall on whoever was appointed executor or personal representative in the deceased family member’s will. Matters can be a bit more complicated in the absence of a will, because it may not be clear who has the responsibility of carrying out these steps.

First, secure the tangible property. This means anything you can touch, such as silverware, dishes, furniture, or artwork. You will need to determine accurate values of each piece of property, which may require appraisals, and then distribute the property as the deceased directed. If property is passed around to family members before you have the opportunity to take an inventory, this will become a difficult, if not impossible, task. Of course, this does not apply to gifts the deceased may have made during life, which will not be part of his or her estate.

Second, take your time. You do not need to take any other steps immediately. While bills do need to be paid, they can wait a month or two without adverse repercussions. It’s more important that you and your family have time to grieve. Financial matters can wait. (One exception: Social Security should be notified within a month of death. If checks are issued following death, you could be in for a battle).

When you’re ready, but not a day sooner, meet with an attorney to review the steps necessary to administer the deceased’s estate. Bring as much information as possible about finances, taxes and debts. Don’t worry about putting the papers in order first; the lawyer will have experience in organizing and understanding confusing financial statements.

The rules of administering estates differ from state to state. In general, they include the following steps:

1. Filing the will and petition at the probate court in order to be appointed executor or personal representative. In the absence of a will, heirs must petition the court to be appointed “administrator” of the estate.

2. Marshaling, or collecting, the assets. This means that you have to find out everything the deceased owned. You need to file a list, known as an “inventory,” with the probate court. It’s generally best to consolidate all the estate funds to the extent possible. Bills and bequests should be paid from a single checking account, either one you establish or one set up by your attorney, so that you can keep track of all expenditures.

3. Paying bills and taxes. If an estate tax return is needed—generally if the estate exceeds $1 million in value—it must be filed within nine months of the date of death. If you miss this deadline and the estate is taxable, severe penalties and interest may apply. If you do not have all the information available in time, you can file for an extension and pay your best estimate of the tax due.

4. Filing tax returns. You must also file a final income tax return for the decedent and, if the estate holds any assets and earns interest or dividends, an income tax return for the estate. If the estate does earn income during the administration process, it will have to obtain its own tax identification number in order to keep track of such earnings.

5. Distributing property to the heirs and legatees. Generally, executors do not pay out all of the estate assets until the period runs out for creditors to make claims, which can be as long as a year after the date of death. But once the executor understands the estate and the likely claims, he or she can distribute most of the assets, retaining a reserve for unanticipated claims and the costs of closing out the estate.

6. Filing a final account. The executor must file an account with the probate court listing any income to the estate since the date of death and all expenses and estate distributions. Once the court approves this final account, the executor can distribute whatever is left in the closing reserve, and finish his or her work.

Some of these steps can be eliminated by avoiding probate through joint ownership or trusts. But whoever is left in charge still has to pay all debts, file tax returns, and distribute the property to the rightful heirs. You can make it easier for your heirs by keeping good records of your assets and liabilities. This will shorten the process and reduce the legal bill.

If you need help with Estate Administration or other elder care / senior care legal matters, you can find thousands of Elder Care Professionals from across America on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for Families.

You can also find Elder Law Attorneys on ElderLawAttorneys.us and Estate Planning Attorneys on EstatePlanningAttorneys.us – 2 additional websites sponsored exclusively by the national ElderCare Matters Alliance.

Make sure your Loved Ones know where your Estate Planning Documents are located – This week’s Elder Care Article on ElderCareMatters.com

Make sure your Loved Ones know where your
Estate Planning Documents are located

Written By:
Estate Planning Attorney
James J. Ruggiero, Jr., Esq.
Ruggiero Law Offices, LLC
Paoli, Pennsylvania
An ElderCare Matters Partner

For most people, finally establishing an estate plan is a big step that they have undertaken after years of delay. A second step is making decisions regarding the executor, trustees, beneficiaries, funeral costs and debt, and a third step is actually completing the will. There is, however, a fourth step that is often skipped: placing the original will and other critical documents in a place where it can be found when it is needed.

As far as wills are concerned, this step is more important than you might think, for two reasons:

  1. If your will can’t be found upon your death then, legally, you will have passed away intestate, i.e. without a will.
  2. If your loved ones can only locate a photocopy of your will, chances are the photocopy will be ruled invalid by the courts. This is because the courts assume that, if an original will can’t be located, the willmaker destroyed it with the intention of revoking it.

Options for Storing the Original Copy of Your Will

Because an original will is usually needed by the probate court, it makes sense to store it in a strategic location. Common locations recommended by estate planning attorneys include:

  • A fireproof safe or lock box
  • Stored at the local probate court, if such service is provided.
  • A safety deposit box in a bank

There are advantages to each choice. For many, a fireproof safe is simplest: it’s in the home, doesn’t need to leave the house and can be altered and replaced with maximum convenience. The probate court makes sense because it is the place where the last will and testament may end up when you pass away. A safety deposit box also makes sense, especially if you already have one for which you’re paying. Just make sure that your executor can access it.

By making sure that your original will is safe and can be found when needed, you don’t just ensure that it can be used when the allocation of your assets and debt occurs. You also ensure that disputes, confusion and disappointment don’t occur years after your death; while uncommon, in some cases, by the time the will has been discovered, the assets of the decedent have long been distributed according to intestacy laws and not the decedent’s will. Intestacy laws are essentially the “default will” that the state establishes for individuals who do not have their own estate plan.

You’ve taken the trouble to protect your assets and loved ones by creating an estate plan. Don’t leave its discovery to chance. Ensure that your executor or trustee can easily and reliably find it when it comes time to put it into effect.

If you need help with this or other elder care / senior care legal matters, you can find thousands of Elder Care Professionals from across America on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for Families.

You can also find Elder Law Attorneys on ElderLawAttorneys.us and Estate Planning Attorneys on EstatePlanningAttorneys.us – 2 additional websites sponsored exclusively by the national ElderCare Matters Alliance.


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