ESTATE PLANNING • TRUSTS & WILLS • PROBATE
ESTATE PLANNING • TRUSTS & WILLS • PROBATE
Estate planning involves planning for incapacity as well as for death. At the core of most estate plans is a revocable living trust. Durable Powers of Attorney and Advance Health Care Directives prove invaluable in the event of your incapacity by providing others the authorization and means to make the necessary day-to-day decisions of life without having to resort to a costly and time-consuming conservatorship.
In the event of death, other documents are required to manage and ultimately to distribute the assets in your estate. These documents usually take one of two forms: 1) A revocable living trust or 2) a will. Both documents direct the distribution of your property according to your wishes, but the benefits of each must be considered in light of individual circumstances.
A Revocable Living Trust is a planning technique that offers benefits to virtually all Californians. It is particularly appropriate for individuals who are older or who have substantial assets. If you own a home in California, a living trust makes sense for you. In a very real sense, a Living Trust is a new being. It will hold your property while you are living, and it will continue in existence after your death. It offers numerous benefits through the avoidance of probate and allows for management of your property during life. Costs and delays in the administration of your estate will be dramatically reduced as the court can be completely bypassed. Additionally, a trust provides privacy to you and your family by avoiding disclosure to the public of your assets and their distribution. Moreover, a trust provides you the opportunity to minimize estate taxes.
A will provides for the distribution of your assets. While less costly then a trust, it is subject to the expense and delay of probate. It will be up to the court to carry out your wishes as stated in your will.
A power of attorney is a legal document that gives someone you choose the power to act in your place. In case you ever become mentally incapacitated, you'll need what are known as "durable" powers of attorney for medical care and finances. A durable power of attorney simply means that the document stays in effect if you become incapacitated and unable to handle matters on your own.
With a valid power of attorney, the trusted person you name will be legally permitted to take care of important matters for you -- for example, paying your bills, managing your investments, or directing your medical care -- if you are unable to do so yourself.
Advance Health Directives combine living wills and health care directive information. Advance Health Care Directives are documents that give instructions regarding treatment if the individual becomes terminally ill or is in a persistent vegetative state and is unable to communicate his or her own instructions. The AHCD also nominates the person or persons who should talk with the physician and make the health care decisions.
The AHCD states under what conditions life-sustaining treatment should be terminated. If an individual would like to avoid life-sustaining treatment when it would be hopeless, he or she needs to draw up an AHCD. Generally, an AHCD takes effect only upon a person’s incapacity. Also, an AHCD is not set in stone; an individual can always revoke it at a later date if he or she wishes to do so. The Five Wishes, a document that many hospice personnel favor, is an AHCD for California.
If you die without a trust to hold your assets, those assets must be distributed to the beneficiaries through a process known as probate. Probate involves petitioning the court for permission to exercise control over your assets, and ultimately distribute those assets to the beneficiaries. This process is a public proceeding and generally takes quite some time to complete.
The probate estate includes all property owned by the deceased person (the decedent) at the time of death. Certain kinds of property, such as property owned jointly by the deceased and another person, life insurance on the life of the deceased, and property held in trust, are not part of the probate estate and are not subject to the probate process. For example, jointly-owned bank accounts pass automatically to the surviving joint owners upon the death of one of the owners without going through probate. This non-probate property, however, is part of the decedent’s taxable estate.
Probate Law Costs: Besides time and energy, probate administration is very costly. The costs are set by California Law and include set attorney fees, court fees, and executor fees. If the decedent owned property in more than one state, a probate will be required for each state.
There are many reasons to inquire about asset preservation. The first reason is to understand how estate taxes effect your life. Is your estate subject to an estate tax? Do you own significant real estate in California? If so, it is very likely your estate will be taxed. In 2006, a single person can leave $2 million and there are no estate taxes. In 2009, that person will be able to leave $3.5 million to their children with no estate taxes. The law provides that there will be no estate tax in 2010 and it comes back in 2011. If Congress does not change the law before that date, a single person can leave only one million without his or her children paying Uncle Sam and the Governor a significant estate tax (55%).
What can a person do? To avoid this significant tax, you can transfer assets in many ways. You could create an irrevocable trust for your resident and transfer the house to your children. You and your children could invest in a family limited partnership. You could simply make a small percentage gift of real estate. This information is meant to provide you with ideas; to explore these ideas in full, please see an estate planning attorney.
An SNT is the ideal planning tool if you have a disabled child or other family member. It holds assets for a disabled person without disturbing eligibility for public benefits such as Medi-Cal and Supplemental Security Income (SSI). SNT assets are used to supplement public benefits. The trust pays for items and services that the public benefits system does not provide.
If an individual is unable to manage his or her affairs because of mental limitations, a conservatorship may be needed. It is typically avoided when a Living Trust, Advance Health Care Directive and Durable Power of Attorney are in effect and the family is not in a contest. In the case of a minor, a “guardianship” is established instead of a conservatorship. Conservatorships and guardianships are court proceedings in which a judge appoints a person to make financial and/or health care decisions for an incapacitated person. These can be costly and time-consuming; therefore, they should be considered a last resort. However, sometimes their use proves unavoidable.
There may be many people who are entitled to Veteran’s benefits who are unaware that they may be eligible. Some benefits require permanent and permanent disabilities, caused by their service, and other benefits do not have that requirement.
The veteran or the widow(er) of a veteran can receive Improved Pension benefits if:
Studies show that older Americans prefer to stay in their own homes if they possibly can. It is no surprise then, that most care of older persons is provided at home, whether by family or by hired help. While many consider in-home care preferable to institutional care, there are public benefits and legal considerations, some of which may be quite unexpected.
To begin with, family members shoulder most of the burden of caring for the elderly at home. Being the primary caretaker for someone who requires assistance with activities of daily living, such as walking, eating and toileting, can be a consuming and sometimes exhausting task. One important consideration when one family member has the sole responsibility of caring for a parent or other older relative is the question of equity with other family members. For example, is the family member being fairly compensated for her work? If the older person is living with a child, does the elder help pay for the house? If the care is taking place in the elder’s home, does the child have an ownership interest in the house?
For parents with only one child, such arrangements may not be so complicated, but if the parent has more than one child, it can be difficult to know what’s fair. An arrangement that seems equitable today may not seem that way after a child has devoted, say, five years to the care of the parent. And if a plan is set up that is fair for five years of care, what happens if the parent suddenly moves into a nursing home during the first year? With no planning for such eventualities, the care of an older person can foster resentment and guilt among family members. Fortunately, most elder law attorneys are skilled in helping families devise creative solutions to such problems.
At the same time, state and federal government officials are slowly recognizing that home care can be more cost-effective than institutional care. This means that, depending on the state, financial or other assistance may be available for those who choose to remain in their homes despite declining capabilities.Having a big sale, on-site celebrity, or other event? Be sure to announce it so everybody knows and gets excited about it.
SSI is the basic federal safety net program for the elderly, blind and disabled, providing them with a minimum guaranteed income. Effective January 1, 2006, the maximum federal SSI benefit is $603 a month for an individual and $904 a month for a couple (the amounts go up every January 1). These amounts are supplemented in most states.
The idea of the SSI program is to provide a floor income level. If you are receiving income from another source, your SSI benefit will be cut dollar for dollar. In addition, the SSA deems food and shelter you receive from another source to be “in kind” income. As a result, actual payment amounts vary depending on your income, living arrangements, and other factors.To be eligible for SSI:
If you can afford the premiums and you are insurable, the best solution to the prospect of significant long-term care costs is long-term care insurance. Most long-term care insurance policies today pay for home care and assisted living as well as for nursing home care. We help you find solutions for a good policy and being able to afford it.
Long-term care insurance is a contract between an insurance company and a policyholder to pay for certain types of coverage under certain conditions. In general, long-term care policies are sold by insurance agents to policyholders, although group policies are becoming increasingly available from large employers, membership organizations like AARP, and health maintenance organizations.
Medicaid (called “Medi-Cal” in California ) is a joint federal-state program that provides health insurance coverage to low-income children, seniors and people with disabilities. In addition, it covers care in a nursing home for those who qualify. In the absence of any other public program covering long-term care, Medicaid has become the default nursing home insurance of the middle class. As for home care, Medicaid offers very little except in New York State, which provides home care to all Medicaid recipients who need it. Recognizing that home care costs far less than nursing home care, a few other states—notably Hawaii, Oregon and Wisconsin–are pioneering efforts to provide Medicaid-covered services to those who remain in their homes.
Depending on the state, nursing home residents do not have to sell their homes in order to qualify for Medicaid. In some states, the home will not be considered a countable asset for Medicaid eligibility purposes as long as the nursing home resident intends to return home; in other states, the nursing home resident must prove a likelihood of returning home. In all states, the house may be kept if the Medicaid applicant’s spouse or another dependent relative lives there.
One of the greatest fears of older Americans is that they may end up in a nursing home. This not only means a great loss of personal autonomy, but also a tremendous financial price. Depending on location and level of care, nursing homes cost between $35,000 and $150,000 a year.
Most people end up paying for nursing home care out of their savings until they run out. Then they can qualify for Medicaid to pick up the cost. The advantages of paying privately are that you are more likely to gain entrance to a better quality facility and it eliminates or postpones dealing with your state’s welfare bureaucracy–an often demeaning and time-consuming process. The disadvantage is that it’s expensive.
Medi-Cal, California’s form of the federal Medicaid program, is available to persons who are disabled or 65 years of age or older who qualify for its benefits. Medi-Cal can pay for all or part of the cost of nursing home care. It can pay for other health services as well.
Careful planning however, whether in advance or in response to an unanticipated need for care, is required to ensure that your well-being is safeguarded and your assets are protected, whether for your spouse or for your children. Without such planning, an entire estate can be lost. Special steps must be taken to protect the residence. Veterans may also seek benefits from the Veterans Administration.
Social Security was enacted in 1935 to provide some relief to America’s destitute older citizens during the economic cataclysm known as the Great Depression. A direct descendant of that more limited effort, today’s Social Security program is in fact a group of related programs, each with its own eligibility and payment rules: retirement, disability, survivors and dependents benefits.
For most retired workers and their dependents, however, Social Security retirement benefits alone are not enough for them to maintain the standard of living they had before retirement. Although Social Security benefits are protected against inflation by annual Cost of Living Adjustments, the average retirement benefit for retirees is only about $1,002 a month, and the survivors of workers receive an average of only $967 a month (2006 figures). For 2006, the maximum monthly Social Security retirement benefit for a worker retiring at the full retirement age of 65 years and six months is $2,053..
The relationship between a grandparent and a grandchild can be one of great joy and important for both grandparent and youngster. But sometimes an event such as a parent’s death, divorce or estrangement can tear families apart and alter or sever relationships. After such events, the child’s parents or guardian may block any further contact with grandparents, who may take legal steps to maintain contact with the children they love.
As such situations became increasingly common, in the 1970s state legislatures began enacting “grandparent visitation” statutes to protect the visitation rights of grandparents and other caretakers. Today, all 50 states have some type of grandparent visitation law. These statutes allow grandparents to ask a court to give them the legal right to maintain their relationships with their children’s children.
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