In 2012, at the age of 77, my mother passed away unexpectedly. We had just helped her move from St. George to South Jordan, Utah, where she could be closer to her children and grandchildren. Being that her mother had lived a relatively healthy life for nearly 102 years, we thought Mom would be around for a while longer. ‘Twas not to be.
None of us has an expiration date stamped on our label but that day is inevitable. Though the timing of Mom’s death was a saddening surprise for us, some important preparations, fortunately, had been made. There were a will and a trust. An executor and a trustee had been named. The new home was transferred by quitclaim to, and other assets put in the trust. Assets could be managed and distributed to the beneficiaries, money could be accessed, expenses paid, and, most helpful of all from my perspective, probate avoided.
As a trustee, I had authority to, among other things, contract with a realtor and sell the home, receive all income in respect of the decedent, and retain a CPA to file the final income tax return. All the companies and people I dealt with as trustee were very kind and considerate, but everyone expected to be paid any amounts due, including and particularly the IRS.
Recent events witnessed and reported reinforce the need to prepare. At a minimum, you ought to have a will, especially if you have young children. Through a will you appoint a guardian to care for your kids if you are gone. Choosing one is, of course, a very consequential decision. You should consider parties who love your kids and are willing and able to do the task. When nominating a guardian, it is not required to have only one person. Co-guardianships are commonly drafted. Also, the guardian does not necessarily have to or want to manage the money you leave behind. It is a matter of personal preference but structuring your estate so that the trustee manages the money, and the guardian manages the kids can be advantageous for everyone involved.
If you own a home, at a minimum you should have a living trust. Then the home does NOT have to go through the probate process upon your death. Probate is not always time-consuming and expensive, but it will be longer and more expensive than setting up a living trust now and putting your home in it (and it is all private)! Like I was able to do for my mother’s estate when you pass away the trustee can continue managing the home while determining how and when to sell the property. You can preserve more of the home’s value by eliminating the need for a “fire sale.” I kept the house in the trust for a few months until Spring approached and then sold for a very reasonable price.
I am grateful to my mother for a thousand things, one of which is that she had her attorney-son draft a will and trust for her (at a terrific “friends and family” discount!) I estimate we saved at least $5,000 in court costs, attorney’s fees, and other related expenses, and probably four- or five-months' time, by having a living trust.
So, ask yourself a few simple questions. Have you done what you can to lessen the pain and problems that will come for your family upon your passing? Will property flow how you want it to and to the people you want it to? Will your personal affairs remain private? Will your loved ones know your wishes? Will your minor or special- needs kids to have someone to care for them?
Are you ready?
What Are Elder Law and Special Needs Planning?Elder law and special needs planning involve preparing for expected and unexpected life circumstances, including the possibility of becoming incapacitated as well as protecting and providing for future needs of loved ones with disabilities.At its core, Elder Law focuses on the unique needs of older persons and practice areas that address issues of concern for aging adults, adults with disabilities/incapacity, their families and caregivers. Unlike traditional estate planning, Elder Law begins by assisting you with issues associated with a long and healthy life, rather than simply planning for death. It mixes legal and practical issues such as being able to continue residing in your home if you had a chronic condition, having someone help in managing your finances, and not becoming a victim of financial abuse in the process. Elder law endeavors to help you solve the problem of not knowing what you dont know.Special Needs Law focuses on solving legal problems for individuals with special needs and their caregivers. Although there is no uniform definition of special needs, the phrase describes individuals with a wide variety of physical or mental conditions who require assistance with personal care needs, activities of daily living, paying bills, managing finances, etc., who may be vulnerable to and need protection from exploitation or abuse, and who may need access to public benefits or any number of other types of assistance. If you currently provide care for a child or loved one with special needs (such as mental or physical disabilities), you must have contemplated what may happen to him or her when you are no longer able to serve as the caregiver. Frequently, parents and grandparents are concerned about how their children and grandchildren will be cared for after the parents or grandparents deaths and want to plan in advance to protect their special needs loved one. Elder Law and Special Needs Planning encompass many different fields of law, including, for example: Disability planning, durable powers of attorney, living trusts, advance directives, other tools to delegate management and decision-making to another in case of incompetency or incapacity Estate planning, including the management of finances and assets during life and disposition on death using trusts, wills, and other instruments Special/Supplemental Needs Trusts Conservatorships and guardianships Long-term care planning and placements Trust and probate/estate administration Elder abuse and financial exploitation Medicaid planning Retirement and Social Security planningWhen each day seems to present a new challenge, thinking about the future can be overwhelming. A plan can help break things down into achievable pieces. No matter what age or stage, it is getting started that counts.This article is for informational purposes only and is not intended to be legal advice.This article was submitted by Ashley Day, Esq., A Day Law, LLC. Reach her at 251-277-3377.
If youre part of a blended family (meaning you are married with children from a prior marriage in the mix), youre no stranger to the extra considerations and planning it takes to keep your familys life running smoothly from which parent your children will be with for the holidays to figuring out the schedule for a much-needed family vacation. Youve also probably given some thought to what you want to happen to your assets and your family if something happens to you. But what you might not have realized is this: If you dont create a plan for your assets before you die, the law has its own plan for you that might not reflect your wishes for your assets, especially your retirement assets. And if youre in a blended family, this can have a significant financial impact on the ones you love and even create expensive, long-term conflict.This week, we explain how the law affects retirement distributions for married couples, and why you need to be extra careful with your retirement planning if youre in a blended family to ensure your retirement account assets go to the right people in the right amounts after youre gone.Be Aware of How ERISA Affects 401K DistributionsIf youve remarried, you and your new spouse have probably talked about updating the beneficiary designations on your retirement accounts to reflect your blended family arrangement. (If you havent talked about it, you need to talk about it ASAP). Sometimes, people who are remarried decide to leave their retirement funds to their children from a prior marriage and leave other assets like their house and savings accounts to their current spouse. You may do this to avoid future conflict between your spouse and your children over your assets.But even if you want to leave your retirement for just your children, if youre married and your retirement account is a work-sponsored account, your children wont inherit the entire account even if you name them as the sole beneficiaries. Thats because the federal Employee Retirement Income Security Act (ERISA) governs most employer-sponsored pensions and retirement accounts. Under ERISA, if youre married at the time of your death, your spouse is automatically entitled to receive 50 percent of the value of your employer-sponsored plan even if your beneficiary designations say otherwise.The only time that your surviving spouse would not inherit half of your ERISA-governed retirement account is if your spouse signs an official Spousal Waiver saying they are affirmatively waiving their right to inherit 50 percent of the account, or if the account beneficiary is a Trust of which your spouse is a primary beneficiary. IRAs Have Different Rules Than 401KsIf you want your children to inherit more than 50 percent of your work-sponsored retirement benefits, and completing a Spousal Waiver isnt an option, consider rolling the account into a personal IRA instead.In contrast to 401(k)s and similar employer-sponsored plans, IRAs are controlled by state law instead of ERISA. That means that your spouse is not automatically entitled to any part of your IRA. When you roll a 401(k) into an IRA, you gain the flexibility to name anyone you choose as the designated beneficiary, with or without your spouses consent. On the other hand, if you want to ensure your spouse receives half of your retirement savings, make sure to include them as a 50 percent beneficiary or better yet, have your individual retirement account payout to a Trust instead. With a Trust, you can:Document exactly how much of your retirement you want each of your loved ones to receiveControl when they receive the funds outrightEasily update and change the terms of your Trust without having to remember to update your financial accounts.Beneficiary Designations Always Trump Your WillWhether you have an employer-sponsored 401K or an IRA you manage yourself, there is one critical rule that everyone needs to know: beneficiary designations trump your Will.A Will is an important estate planning tool, but most people dont know that beneficiary designations override whatever your Will says about a particular asset. For example, if your Will states that you want your retirement account to be passed on to your brother, but the beneficiary designation on the account says you want it to go to your sister, your sister will inherit the account, even though your Will says otherwise.Similarly, lets imagine that you get divorced and as part of your divorce decree your ex-spouse agrees that they will not have any right to your retirement fund. However, after the divorce, you forget to take their name off of the beneficiary designation for the account. If you die before updating the beneficiary designation, your former spouse will inherit your retirement account. If you forget to update your ERISA-controlled account and have remarried, your current spouse would receive half of the account and your former spouse would receive the other half. Thats why its so important to work with an estate planning attorney who can make sure your accounts are set up with the proper beneficiary designations and ensure that your assets are passed on according to your wishes.Work With An Attorney Who Makes Sure All Your Assets Will Be Passed On How You Want Them ToUnderstanding how the law affects different types of assets is essential to creating an estate plan. But theres more to it than just having a lawyer you need an attorney who takes the time to really understand your family and your assets so they can design a custom plan that achieves your goals for your assets and your legacy. Thats why we help our clients create an inventory of all of their assets to ensure that every asset they hold is accounted for and passed on to their loved ones exactly as they want it to.Contact Entrusted Legacy Law at 412-347-1731.
Many people believe that having a Will is all they need, and they dont need an estate plan. Over the years we have worked with many families who only had a Will, and no provisions for needing care in a nursing home. As a result, the healthy spouses financial security was neglected and the family went broke.Many of my clients who want to protect assets from long term care costs, own their houses in an asset protection trust. These are the top 6 reasons why our clients decide to use this trustWhile Your Parents Or Grandparents Didnt Have An Asset Protection Trust, They Didnt Often Need Long Term Care. They likely had family members nearby caring for them.Statistically speaking, your odds of needing long term care are increasing. Estimates point to two out of three people who will need long term care in nursing homes in their 80s. Nursing homes currently cost $15,000 a month, and they will cost even more 20 years from now. Asset protection is important, to avoid losing everything to long term care costs.Estate Planning Is Not Just About Answering The Question Of Who Gets Your Stuff When You Pass Away. Its also about planning for what happens if you get really sick. Weve all been paying into this government system with the promise that when we turn 65, we will have healthcare. Unfortunately Medicare doesnt pay for the single biggest health care expense that seniors face, which is custodial long term care in a nursing home.If your health issue is acute, such as a heart attack, or you need surgery, or have cancer, and require acute care in hospital, Medicare will cover the costs of treatment. Whether my spouse and I are financially secure in our retirement years, depends on the healthcare issue either of us will have. This is often beyond our control, but what we can do is to prepare for all eventualities, by protecting our house with a trust. Medicaid Is The Only Government Payment Source For Long Term Care, But The Rules Are Broken. If youre a single person going to a nursing home, youre allowed to own up to $8,000 of assets, a house and car. A couple with $100,000 in a retirement account, must spend that money on care in the nursing home. Once the money is gone you can apply for Medicaid benefits. However, your monthly income is used to pay for care, and you are only allowed to keep $45 a month for all your personal needs. We have a situation where seniors are going broke before they get Medicaid benefits. Theyre allowed to own a house but if they have no money, they cannot pay property taxes, utility bills or maintenance costs.Assuming your child is a power of attorney, they may sell your house to avoid paying the taxes and bills. However, this means you will now have cash which will result in you losing your Medicaid benefits. Not only do you lose your house, but you will need to spend the money on care. When you are broke, you are eligible for Medicaid benefits again. It is not obvious in the Medicaid rules that you will lose the house. The problem is that it becomes financially impossible to keep the house. Putting your house in a trust will protect it from being lost to Nursing home costs.If The House Is Left To Your Child In Your Will, By Paying The Taxes And Keeping The House, Does Not Guarantee That They Wont Lose The House. When somebody who passes away was on Medicaid, the executor is forced to sell the house. The proceeds are used to pay the state for the care the senior received in the nursing home. This is known as the Estate Recovery Program, and the claim in Pennsylvania is limited to someones probate estate. This means that if the assets go through the Will, it will be a probate case, and the state will have a claim against the house.If your house is in the asset protection trust when you pass away, the state cant get your house while its in the trust. Your kids will inherit the house if you go to a nursing home, or you pass away.Your Kids Will Receive Their Inheritance Faster If Your House In An Asset Protection Trust.We dont have to wait 12 months to make the distribution of the inheritance to the children. The distribution process usually happens after four to five months. This is because we dont have to pay creditors. Usually, in probate cases, creditors can make a claim a year after the person has passed away. Once the creditors are paid, distributions are made to the heirs.When Your House Is In An Asset Protection Trust, The Only Thing You Would Have To Give Up Is Having Access To The Home Equity. However, if you have money in the bank, you wont need home equity. Giving up access to the equity, means the nursing home cant access it either. You have protected your house, so you wont lose it. If you or your spouse need long term care, the healthy spouse can still live at home.There are opportunities to protect yourself, and thats what we teach you at our Three Secrets Workshop. If you want to protect your assets, and you want the best plan for your family, we can help you! After attending our Three Secrets Workshop, most of our clients have participated in our Blueprint Workshop. As a result, many of our clients chose to work with us and put their houses into a trust.Register to attend one of our upcoming free workshops. Our workshops are offered various dates/times and locations throughout the Greater Pittsburgh Area, call 724-564-6615 to learn of upcoming Workshops and to register. We will teach you about the estate planning tools you can use to do some good planning.