Elder Law

What Can a Strong Estate Planning Attorney Help Me Accomplish?

The Legal Reader’s recent article entitled “When Should I Start My Estate Planning?” explains that, as we settle down, we should start considering how we’ll provide for and protect those you love.

Talk to an experienced estate planning attorney—one with the knowledge and skill to help you design a workable, legally binding estate plan that will keep your assets safe as they accumulate, protect your spouse and children and consider the possibility that you may become incapacitated when you least expect it.

No matter what your age, the estate planning attorney you hire should have outstanding credentials and testimonials to his/her efficiency and personal concern.

This legal professional must be able to:

Listen, understand, and address your individual needs
Clarify your options
Draft, review, and file all necessary estate planning documents
Make certain your estate plan covers all contingencies; and
Is prepared to modify your documents as your life circumstances change.

When you see that the future is unpredictable, you realize that estate planning can help you make that future as secure as possible.

Estate planning can be as complicated as it is essential. Accordingly, regardless of our age, speak with a highly competent estate planning attorney as soon as possible.

As the COVID-19 pandemic has dramatically shown us, planning for the unexpected can never be addressed too soon.

Reference: Legal Reader (June 23, 2020) “When Should I Start My Estate Planning?”

Why You Need an Estate Plan, Especially Now

Estate planning is an all-encompassing term that refers to the entire process of gathering and organizing assets and making preparations for the what-if and the inevitable – if you ever become incapacitated and when you die, including caring for minor children and heirs. One of the areas most people often over look is putting protections into place, if you should become incapacitated, says an article that covers estate planning basics from caned titled “Estate planning 101: Your guide to wills, trusts and all your end-of-life documents.” Your estate plan involves writing a will, power of attorney and funeral arrangements. Here are some of the key steps:

Distributing assets. Your estate includes more than just real estate. It includes everything you own, including your car, jewelry, sentimental belongings and intangible assets, like investments and insurance. If you own a business, that is also part of your estate.

Preparing for family life without you. An estate plan sets out how you want to care for loved ones. A will can be used to name a guardian for minor children, and to name someone to be in charge of their finances. One person can have both roles, but it is generally advised to name one person for each role. If you fail to name a guardian, the court will select one for your children. A living trust is an even better option because it gives you and your family protections that you can’t get with just having a will.

Assign the tasks of handling the estate or your health, if you are incapacitated. An estate plan includes a medical power of attorney and a financial power of attorney, so decisions can be made on your behalf, if you are incapacitated. You’ll also name an executor. This is the person who will be in charge of following the directions you leave in your will and distributing assets. Depending on your estate, the person may also be in charge of selling your home, negotiating with creditors, or managing the sale of your business. It’s a big assignment and requires someone who is organized and trustworthy.

Work with an estate planning attorney. An estate planning lawyer will save you a lot of time, energy and effort in creating an estate plan. The attorney will also be able to help you manage estate, inheritance and gift taxes to minimize the impact of federal and state laws on your beneficiaries.

Document everything properly. Just stating your wishes won’t solve anything. You need an estate plan with all of the right documents, prepared in accordance with the laws of your state. An invalid will could create just as many problems as no will at all. You’ll need a last will and testament to appoint an executor, outline how you want assets to be distributed and see your will through the probate process.

If you want to avoid probate court, you may want your estate plan to include a trust. A “funded” revocable trust can be adjusted while you are living. When you die, the trust is managed by trustees of your trust. If properly drafted, a trust can also help you avoid guardianship in the event of unexpected incapacitation.

A living will is part of your Advanced Directive and details your healthcare preferences, in case you are not able to communicate or make decisions on your own. If you require life support, or life saving measures, the living will specifically outlines what you want to have done—or not done—rather than having children or relatives guess at your wishes.

Having an estate plan is not a set-it-and-forget-it plan. As you proceed through life, getting married, having children, divorcing, buying property, etc., the estate planning documents need to be revised, so they continue to reflect your wishes. Whenever there are big changes to the law, you may also need to revise the will or trust, so you don’t miss out on any planning opportunities.

Reference: c|net (June 8, 2020) “Estate planning 101: Your guide to wills, trusts and all your end-of-life documents”

Update Will at These 12 Times in Your Life

Estate planning lawyers hear it all the time—people meaning to update their will, but somehow never getting around to actually getting it done. The only group larger than the ones who mean to “someday,” are the ones who don’t think they ever need to update their documents, says the article “12 Different Times When You Should Update Your Will” from Kiplinger. The problems become abundantly clear when people die, and survivors learn that their will is so out-of-date that it creates a world of problems for a grieving family.

There are some wills that do stand the test of time, but they are far and few between. Families undergo all kinds of changes, and those changes should be reflected in the will. Here are one dozen times in life when wills need to be reviewed:

Welcoming a child to the family. The focus is on naming a guardian and a trustee to oversee their finances. The will should be flexible to accommodate additional children in the future.

Divorce is a possibility. Don’t wait until the divorce is underway to make changes. Do it beforehand. If you die before the divorce is finalized, your spouse will have marital rights to your property. Once you file for divorce, in many states you are not permitted to change your will, until the divorce is finalized. Make no moves here, however, without the advice of your attorney.

Your divorce has been finalized. If you didn’t do it before, update your will now. Don’t neglect updating beneficiaries on life insurance and any other accounts that may have named your ex as a beneficiary.

When your child(ren) marry. You may be able to mitigate the lack of a prenuptial agreement, by creating trusts in your will, so anything you leave your child won’t be considered a marital asset, if his or her marriage goes south.

Your beneficiary has problems with drugs or money. Money left directly to a beneficiary is at risk of being attached by creditors or dissolving into a drug habit. Updating your will to includes trusts that allow a trustee to only distribute funds under optimal circumstances protects your beneficiary and their inheritance.

Named executor or beneficiary dies. Your old will may have a contingency plan for what should happen if a beneficiary or executor dies, but you should probably revisit the plan. If a named executor dies and you don’t update the will, then what happens if the second executor dies?

A young family member grows up. Most people name a parent as their executor, then a spouse or trusted sibling. Two or three decades go by. An adult child may now be ready to take on the task of handling your estate.

New laws go into effect. In recent months, there have been many big changes to the law that impact estate planning, from the SECURE Act to the CARES act. Ask your estate planning attorney every few years, if there have been new laws that are relevant to your estate plan.

An inheritance or a windfall. If you come into a significant amount of money, your tax liability changes. You’ll want to update your will, so you can do efficient tax planning as part of your estate plan.

Can’t find your will? If you can’t find the original will, then you need a new will. Your estate planning attorney will make sure that your new will has language that states revokes all prior wills.

Buying property in another country or moving to another country. Some countries have reciprocity with America. However, transferring property to an heir in one country may be delayed, if the will needs to be probated in another country. Ask your estate planning attorney, if you need wills for each country in which you own property.

Family and friends are enemies. Friends have no rights when it comes to your estate plan. Therefore, if families and friends are fighting, the family member will win. If you suspect that your family may push back to any bequests to friends, consider adding a “No Contest” clause to disinherit family members who try to elbow your friends out of the estate.

Reference: Kiplinger (May 26, 2020) “12 Different Times When You Should Update Your Will”

Elder Financial Abuse Fraud Occurs, When No One’s Watching

The case of Nice vs. U.S. is a dramatic example of what can happen when there are no professionals involved in an elderly person’s finances and one person has the power to make transactions without supervision. In the article “Tax case reveals possible intrafamily fraud” from Financial Planning, a trusted son allegedly decimated his mother’s IRA and left her estate with $500,000 tax bill.

Mrs. Nice and her husband had been married for more than 60 years. Before he died in 2002, her husband arranged to leave significant assets for his wife’s care. Their son Chip was named executor of the husband’s estate and moved in with his mother. In 2007, she was diagnosed with dementia. As her condition deteriorated, Chip allegedly began fraudulent activities. He gained access to her IRAs, causing distributions to be made from the IRAs and then allegedly taking the funds for his own use.

Chip also filed federal income tax returns for his mother, causing her to execute a fraudulent power of attorney. The federal tax returns treated the IRA distributions as taxable income to Mrs. Nice. She not only lost the money in her IRA but got hit with a whopping tax bill.

In 2014, Mrs. Nice’s daughter Julianne applied for and received a temporary injunction against Chip, removing him from her mother’s home and taking away control of her finances. Chip died in 2015. A court found that Mrs. Nice was not able to manage her own affairs and Mary Ellen was appointed as a guardian. Julianne filed amended tax returns on behalf of her mother, claiming a refund for tax years 2006-07 and 2009-13. The IRS accepted the claim for 2009 but denied the claims for 2006 and 2010-2013. The appeal for 2009 was accepted, but the IRS never responded to the claim for 2007. Julianne appealed the denials, but each appeal was denied.

By then, Mrs. Nice had died. Julianne brought a lawsuit against the IRS seeking a refund of $519,502 in federal income taxes plus interest and penalties. The suit contended that because of her brother’s alleged fraudulent acts, Mrs. Nice never received the IRA distributions. Her tax returns for 2011-2014 overstated her actual income, the suit maintained, and she was owed a refund for overpayment. The court did not agree, stating that Julianne failed to show that her mother did not receive the IRA funds and denied the claim.

There are a number of harsh lessons to be learned from this family’s unhappy saga.

When IRA funds are mishandled or misappropriated, it may be possible for the amounts taken to be rolled over to an IRA, if a lawsuit to recover the losses occurs in a timely manner. In 2004, the IRS issued 11 private-letter rulings that allow lawsuit settlements to be rolled over to IRAs. The IRS allowed the rollovers and gave owners 60 days from the receipt of settlement money to complete the rollover.

Leaving one family member in charge of family wealth with no oversight from anyone else—a trustee, an estate planning attorney, or a financial planner—is a recipe for elder financial abuse. Even if the funds had remained in the IRA, a fiduciary would have kept an eye on the funds and any distributions that seemed out of order.

One of the goals of an estate plan is to protect the family’s assets, even from members of their own family. An estate plan can be devised to arrange for the care of a loved one, at the same time it protects their financial interests.

Reference: Financial Planning (March 6, 2020) “Tax case reveals possible intrafamily fraud”

Your Children Wish You Had an Estate Plan

It is the adult children who are in charge of aging parents when they need long-term care. They are also the ones who settle estates when parents die. Even if they can’t always come out and tell you, the recent article, “Why your children wish you had an Elder Law Estate Plan” from the Times Herald-Record spells out exactly why an elder law estate plan is so important for your loved ones.

Avoid court proceedings while living. In a perfect world, everyone over age 18 will have an advance directive, including a power of attorney, a health care proxy, and a living will. These documents appoint others to make financial, legal, and medical decisions, in case of incapacity. Without them, the children will have to get involved with time-consuming, expensive guardianship proceedings, where a judge appoints a legal guardian to make these decisions. Your life is turned over to a court-appointed guardian, instead of your children or another person of your choosing.

Avoid court proceedings after you die. If you die and assets are in your name alone, then your estate will go through probate, a court proceeding that can be time consuming and costly. Not having any assets in trusts leaves your kids open to the possibility of wills being challenged, disputes among family members and litigation that can drag on for years.

Wills in probate court are public documents. Trusts are private documents. Do you really want a stranger to access your will and learn about your assets?

What Can I Do to Plan for Incapacity?

Smart advance planning can help preserve family assets, provide for your own well-being and eliminate the stress and publicity of a guardianship hearing, which might be needed if you do nothing.

A guardianship or conservatorship for an elderly individual is a legal relationship created when a judge appoints a person to care for an elderly person, who’s no longer able to care for herself.

The guardian has specific duties and responsibilities to the elderly person.

FEDweek’s recent article entitled “Guarding Against the Possibility of Your Incapacity” discusses several possible strategies.

Revocable (“living”) trust. Even after you transfer assets into the trust, you still have the ability to control those assets and collect any income they earn. If you no longer possess the ability to manage your own affairs, a co-trustee or successor trustee can assume management of trust assets on your behalf. A properly drafted Family Protection Trust will include language that will help prevent guardianship altogether.

Durable power of attorney. A power of attorney (POA) document names an individual to manage your assets that aren’t held in trust. Another option is to have your estate planning attorney draft powers of attorney for financial institutions that hold assets, like a pension or IRA. Note that many financial firms are reticent to recognize powers of attorney that are not on their own forms.

Joint accounts. You can also establish a joint checking account with a trusted child or other relative. With her name on the account, your daughter can then pay your bills, if necessary. However, note that the assets held in the joint account will pass to the co-owner (daughter) at your death, even if you name other heirs in your will.

There may also be health care expenses accompanying incompetency.

This would include your health insurance and also potentially disability insurance in the event your incapacity should happen when you are still be working, and long-term care insurance, to pay providers of custodial care, at home or in a specialized facility, such as a nursing home.

Reference: FEDweek (March 5, 2020) “Guarding Against the Possibility of Your Incapacity”

How Does Planning for a Special Needs Child Work?

Funding a Special Needs Trust is just the start of the planning process for families with a family member who has special needs. Strategically planning how to fund the trust, so the parents and child’s needs are met, is as important as the creation of the SNT, says the article “Funding Strategies for Special Needs Trusts” from Advisor Perspectives. Parents need to be mindful of the stability and security of their own financial planning, which is usually challenging.

Parents should keep careful records of their expenses for their child now and project those expenses into the future. Consider what expenses may not be covered by government programs. You should also evaluate the child’s overall health, medical conditions that may require special treatment and the possibility that government resources may not be available. This will provide a clear picture of the child’s needs and how much money will be needed for the SNT.

Ultimately, how much money can be put into the SNT, depends upon the parent’s ability to fund it.

In some cases, it may not be realistic to count on a remaining portion of the parent’s estate to fund the SNT. The parents may need the funds for their own retirement or long-term care. It is possible to fund the trust during the parent’s lifetime, but many SNTs are funded after the parents pass away. Most families care for their child with special needs while they are living. The trust is for when they are gone.

The asset mix to fund the SNT for most families is a combination of retirement assets, non-retirement assets and the family home. The parents need to understand the tax implications of the assets at the time of distribution. An estate planning attorney with experience in SNTs can help with this. The SECURE Act tax law changes no longer allow inherited IRAs to be stretched based on the child’s life expectancy, but a person with a disability may be able to stretch an inherited retirement asset.

Whole or permanent life insurance that insures the parents, allows the creation of an asset on a leveraged basis that provides tax-free death proceeds.

Since the person with a disability will typically have their assets in an SNT, a trust with the correct language—“see-through”—will be able to stretch the assets, which may be more tax efficient, depending on the individual’s income needs.

Revocable SNTs become irrevocable upon the death of both parents. Irrevocable trusts are tax-paying entities and are taxed at a higher rate. Investing assets must be managed very carefully in an irrevocable trust to achieve the maximum tax efficiency.

It takes a village to plan for the secure future of a person with a disability. An experienced elder law attorney will work closely with the parents, their financial advisor and their accountant.

Reference: Advisor Perspectives (April 29, 2020) “Funding Strategies for Special Needs Trusts”

The Symptoms of Early-Onset Alzheimer’s Disease

Considerable’s article entitled “7 surprising early signs of Alzheimer’s” provides us with some signs of early-onset Alzheimer’s disease.

Theft or other law-breaking. Any behavioral change as people age is of concern, but this can be a sign of Frontotemporal Dementia (FTD), another progressively damaging, age-related brain disorder. FTD usually hits adults aged 45-65. People’s executive function—their ability to make decisions—can be impacted by FTD, which may explain why they become unable to discern right from wrong.

Frequent falls. A study of 125 older adults asked them to record how frequently in an eight-month period that they fell or tripped. Researchers examined the brain scans of those who fell most frequently and saw a correlation between falls and the early onset of Alzheimer’s Disease.

Forgetting an object’s function. We all forget where we put the keys. However, if you can’t remember what a key is for, or where dirty dishes are supposed to go, then it may be the first signs of Alzheimer’s Disease or dementia.

Inappropriate diet. Prior to the onset of Alzheimer’s, patients typically to eat more (roughly 500 calories more a day) than their aging counterparts but they still tend to lose weight. Doctors think this is a metabolic change. Some elderly actually eat inanimate objects prior to their diagnosis, but researchers don’t know the reason. Because Alzheimer’s and dementia affect the brain’s memory, it may be because their brain receives hunger signals but is unable to discern how to react to them. Some patients eat paper or other inedible objects.

Inability to recognize sarcasm. If you fail to recognize sarcasm or take it very literally and seriously, it may be a sign of atrophy in your brain. A study at the University of California – San Francisco found that Alzheimer’s patients and those with Frontotemporal Disease were among those who couldn’t recognize sarcasm in face-to-face encounters. The brain’s posterior hippocampus is impacted, which is where short-term memory is stored and where a person sorts out such things, like sarcasm.

Depression. If someone has never suffered from clinical depression but develops it after age 50, it could be an early sign of Alzheimer’s. It doesn’t mean if you’re diagnosed with depression in older age that you will develop Alzheimer’s or other cognitive decline. However, you might, so get treatment sooner because some researchers believe that hormones released in the depressed brain may damage certain areas of it, leading to the development of Alzheimer’s or other dementia.

Unfocused Staring. Alzheimer’s Disease is a change in cognitive and executive functioning in the brain. This means that your ability to recall facts, memories and information is compromised, as well as the ability to make decisions. The brain becomes unfocused and staring in a detached way may be an early sign of so-called “tangles” in your brain.

These symptoms may be signs of Alzheimer’s Disease, or they may be the signs of other underlying issues. See your doctor if you have any of these signs. This may be a sign of something else but talk to your doctor to be safe.

Reference: Considerable (December 8, 2020) “7 surprising early signs of Alzheimer’s”

How Can I Fund A Special Needs Trust?

TapInto’s recent article entitled “Ways to Fund Special Needs Trusts” says that when sitting down to plan a special needs trust, one of the most urgent questions is, “When it comes to funding the trust, what are my options?”

There are four main ways to build up a third-party special needs trust. One way is to contribute personal assets, which in many cases come from immediate or extended family members. Another possible way to fund a special needs trust, is with permanent life insurance. In addition, the proceeds from a settlement or lawsuit can also make up the foundation of the trust assets. Finally, an inheritance can provide the financial bulwark to start and fund the special needs trust.

Families choosing the personal asset route may put a few thousand dollars of cash or other assets into the trust to start, with the intention that the initial investment will be augmented by later contributions from grandparents, siblings, or other relatives. Those subsequent contributions can be willed to the trust, or the trust may be named as a beneficiary of a retirement or investment account. It is vital that families use the services of an elder law or special trusts lawyer. Special needs trusts are very complicated, and if set up incorrectly, it can mean the loss of government program benefits.

If a special needs trust is started with life insurance, the trustor will name the trust as the beneficiary of the policy. When the trustor passes away, the policy’s death benefit is left, tax free, to the trust. When a lump-sum settlement or inheritance is invested within the trust, this can allow for the possibility of growth and compounding. With a worthy trustee in place, there is less chance of mismanagement, and the money may come out of the trust to support the beneficiary in a wise manner that doesn’t risk threatening government benefits.

In addition, a special needs trust can be funded with tangible, non-cash assets, such as real estate, securities, art or antiques. These assets (and others like them) can be left to the trustee of the special needs trust through a revocable living trust or will. Note that the objective of the trust is to provide the trust beneficiary with non-disqualifying cash and assets owned by the trust. As a result, these tangible assets will have to be sold or liquidated to meet that goal.

As mentioned above, you need to take care in the creation and administration of a special needs trust, which will entail the use of an experienced attorney who practices in this area and a trustee well-versed in the rules and regulations governing public assistance. Consequently, the resulting trust will be a product of close collaboration.

Reference: TapInto (February 2, 2020) “Ways to Fund Special Needs Trusts”

Is Long-Term Care Insurance Really a Good Idea?

Forbes’ recent article entitled “Is Long-Term Care Insurance Right For You?” says that a big drawback for many, is the fact that LTCI is expensive. However, think about the costs of long-term care. For example, the current median annual cost for assisted living is $43,539, and for a private room in a nursing home, it’s more than $92,000.

Another issue is that there’s no way to accurately determine if in fact you’ll even need long-term care. Much of it depends on your own health and family history. However, planning for the possibility is key.

Remember that Medicare and other types of health insurance don’t cover most of the cost of long-term care—what are known as “activities of daily living,” like bathing, dressing, eating, using the bathroom and moving. Medicare will only pay for medically necessary skilled nursing and home care, such as giving shots and changing dressings and not assisted-living costs, like bathing and eating. Supplemental insurance policies generally don’t pay for this type of care.

Those with a low net worth might qualify for long-term care provided under Medicaid.

Shop around, because policies and prices are different. Check the policy terms and be sure you understand:

The things that are covered, such as skilled nursing, custodial care, and assisted living
If Alzheimer’s disease is covered as it’s a leading reason for needing long-term care
If there are any limitations on pre-existing conditions.
The maximum payouts
If the payments are adjusted for inflation
The lag time until benefits begin
How long benefits will last
If there’s a waiver of premium benefit, which suspends premiums when you are collecting long-term care benefits
If there’s a non-forfeiture benefit, which offers limited coverage even if you cancel the policy
If the current premiums are guaranteed in future years, or if there are limits on future increases
How many times rates have increased in the past 10 years
If you purchase a group policy through an employer, see if it is portable (if you can take it with you if you change jobs).

Typically, when you are between 50 to 65 is the most cost-effective time to buy LTCI, if you’re in good health. The younger you buy, the lower the cost. However, you will be paying premiums longer. Premiums usually increase as you get older and less healthy. There’s a possibility that you’ll be denied coverage, if your health becomes poor. Therefore, while it’s not inexpensive, buying LTCI sooner rather than later may be the best move.

Reference: Forbes (April 17, 2020) “Is Long-Term Care Insurance Right For You?”