Estate Planning Elder Law Guide


Estate Planning :. Planning for death to get the assets you want, when you want, how you want, with the least amount of taxes and legal fees potential

Elder Law: Planning for disability to get the people you want to handle your issues and to protect your assets from being depleted for long-term care.

Introduction to Estate Planning and Elder Law

Exercise estate planning and elder law is one of the most enjoyable and rewarding professional work as a lawyer can do. Imagine driving range where customers respected knowledge and treat you with kindness and courtesy. Pay them in a timely and tell their friends how much they have enjoyed working with you and your company. At the same time, you are rarely faced pressure period, much less opponents lawyer on the other side of a few to try the best you. In most cases, you are working in the capacity of consultants in law (trusted advisor) rather than the attorney (agent).

We spend our days meeting with clients, discuss their lives and their families and address their fears and concerns. With our knowledge, education, experience and imagination, craft solutions, sometimes elegant ones, to the age old problem lies assets from one generation to another as quickly and painlessly as possible. At the same time we also try to protect these assets from being reduced because of the tax, legal and nursing home costs to the extent permitted by law.

The end result of this process is a client who feel safe and secure in the knowledge that if death or disability, they have all their bases covered. Having reached the peace of mind that their future is well organized and in good hands, they can get on with the business enjoying life. For a lawyer, happy and satisfied customers have been added to work and other potentially life-long and mutually rewarding relationship started. Let’s look at the methods and techniques that we use to achieve this enviable situation.

major issues facing customers today Senior

One of the ways we help customers to set up a comprehensive plan so they can avoid court to death or disability. Trusts are used in place wants for older people where they do not need the courts to resolve the estate. Trusts also avoid foreign genetic documents still need to be property owned in another country, known as supplementary question. This saves family in the settlement of the estate as well as the high cost of litigation. In addition, in revocable living trusts, unlike wills, take effect during the lifetime of the grantor, the customer may decide which subjects to take over if their disability. Plan time maintaining control of the family or a trusted adviser and avoid situations that may not be in the best interest of the client. For example, if a disability where no plan has been put in place, the application to the court may be required to have a guardian appointed for the disabled person. This may not be the customer would prefer. In such cases, the assets may not be transferred to protect them from being destroyed down for nursing home costs without court permission, which may or may not provide.

Another area where we assist customers in saving estate taxes, both state and federal, for a couple using two trust technology. Assets divided as evenly as possible between their trusted partner. But the surviving spouse has the use and enjoyment of the trust of the deceased spouse, the assets of the trust estate passes to the surviving spouse and go directly named beneficiaries when the second spouse dies. Tens to hundreds of thousands of dollars, or more, the potential estate taxes may be saved by the size of the estate. Furthermore revocable living trust avoid two prob magnates that would occur were customers using wills, the estate of the couple must be solved by the death of each spouse to save estate taxes. We also help to protect the assets from being depleted because of nursing home costs. Irrevocable Medicaid trust may be established, subject to a five-year look-back period to protect customer and other assets from having to be spent down because of the high cost of nursing home care. We use Medicaid asset transfers and rules to protect assets if customers need nursing home care but do not advance planning. By using Medicaid qualifying annuity, notes and housing and care contracts, significant assets can be protected despite the five-year look-back, even when the client can be in a nursing doorstep.

Five Steps to Estate Planning for the elderly

1. Understanding the family dynamics

first step in elder law, trusts and estates matters is to understand the family dynamics of the client. If there are children, which is usually the case, we need to determine whether or not they are married. Is it the first or second marriage? Do they have any children from a previous marriage or to their spouses? What kind of work they do, and where they live? Do they get along with each other and with the parent customer? We are looking to determine which family members get along with others and what the reasons may be. This goes a long way to help us decide who should make medical decisions and who should handle the legal and financial. Should it be one of them and not more than one? How should the estate be divided? Does the customer himself in a second marriage? The children, if any, are his, her or them? Sometimes all three cases may occur in the same now. This additional survey on family needs, possibly hurting, conflicts and misunderstandings multiply. In addition, great care must be taken to develop a plan for the management, control and distribution assets, which will not only be fair to children from a previous marriage but will be seen to be fair as well. Sometimes, the help of a professional counselor acting as trustee can be invaluable in helping to keep the peace among family members. Finally, this step will also flesh out whether there are any dependents with special needs and the family and property would be best suited to provide such children.

2. Reviewing Current Estate Planning Documents

The second step of the earlier act trust and estate matters is to review all previous estate planning documents the client may have, such as a will, trust, power of attorney, health care proxy and living will, to determine whether they are legally sufficient and reflect the current wishes of the client or whether they are outdated. Some basic questions elder law estate planning also discussed at this time, such as:

a. Is the client a US citizen? This will collide on the ability of the client to save estate taxes.

b. The customer is expecting to receive an inheritance? This knowledge helps to prepare a plan that will address not only the assets of the customer has now than what they may have in the future.

c. Does the client have a long-term care insurance? If so, elder law attorney would review the policy and determine whether it provides adequate evidence compared to other assets and income of the client, whether it takes inflation into account, and if it is upgradable. This will allow the analyst to determine whether other methods of protection of property may be required now or later.

d. Is the client needs budgets? Many customers who come into the office earlier law attorney have never had professional financial advice or are dissatisfied with their current advisor. They may need help understand the assets they have or plan and empower them to facilitate the administration. They may also be concerned with not having enough income to last for the rest of their lives. Elder law attorney will usually know the number of capable financial planners who have experience with the needs and preferences of older clients, including (1) a safe investment with protection of principal and (2) properties which tend to maximize revenue.

3. Inspection client assets

The third step is to get a complete list of client assets, including how they are called, their value, whether they are qualified investments, such as IRAs and 401 (k) s, “and if they have a Beneficiary nominations, these beneficiaries are. Armed with this information, guidance is in a position to determine whether the estate will be subject to estate taxes, both state and federal, and can begin to develop a strategy to reduce or eliminate the tax to the extent permitted by law. This will often lead to move assets between spouses and trust them, change the Beneficiary designation, and with determination, trying to decide which partner could pass first so the impact of the most tax savings. Ideally, the lawyer should have the customer fill out a confidential financial questionnaire before the initial consultation.

4. Development Estate Plan

The fourth step is to decide, with input from the client, which should make medical decisions for the customer if they are not, and who should be appointed to handle legal and financial matters through a proxy if the incapacity client. Next, we will consider what type of trust, if any, should be used, whether a simple desire would be sufficient, which should be the trustees (the trust) or the holders (the will) and the organization of the distribution should be. In order to prevent conflicts, trustees selected instead grantor should be the same persons named on the proxy. At this point, great care should also be taken to feelings heirs will not hurt. Good estate planning looks at estate client item heirs’ point of view as well as the client. For example, if there are three children, it may be desirable to be named as a trustee or liquidator, the three are usually too bulky and if the customer chooses only two, they’re going one out. If there are four or five children, want to see two members or holders selected. This way, the pressure drops on just who is to answer all the others. More importantly, others will feel much more comfortable two siblings are collectively looking after their interests.

If the distribution is to be uneven, it may need to be discussed with the relevant children ahead of time to prevent any ill will or even litigation after parents have died. By considering the relative ages of the children, where they live, and their relationships among each other and with their parents, the counselor will generally find a way to craft a plan that accommodates the needs and desires of all parties concerned. Some of the technologies we find useful in this regard are offering delayed distribution, such as twenty percent of the grantor’s death, half of the remaining five years, and the rest for ten years. These same ratios can also be used at a specified age, such as thirty, thirty-five, forty. Also, when leaving a percentage of the estate unless there is simply children equally, it is often useful to determine the value of the percentage of the current estate client. This will allow the client to see if the amount is truly what they want to bequeath. The proportion of donations to charities should be avoided so that the family can avoid having to explain to a charity for the spending rate estate.

In terms of brand trust, we are generally looking at several options for most customers. It is important to determine whether it should be one of confidence or two. In order to prevent or reduce estate taxes, it should be two trust for the spouse or the estate may later across the state and / or federal estate tax threshold. Should the trust be revocable or irrevocable? The latter is important to protect assets from nursing home costs covered by the five-year look-back period. Key features irrevocable Medicaid trust are neither grantor or grantor spouse can be the trustee and that these trusts are only income trusts. Most people choose one or more of the adult children to act as fund the irrevocable trust. Since the principal is not available to the grantor, the customer will not have to put all their assets in such trust. Assets that should be left out are the IRA’s, 401 (k) ‘s, 403 (b)’ s, etc. The principal of these qualified assets are generally exempt from Medicaid and should not be placed in a trust, which would create a taxable event require tax to be paid on all IRA. If formal client has a community partner, up to one hundred thousand dollars may also be exempt. Although the home is exempt if the community spouse is living there is generally a good idea to protect your home sooner than waiting until the first spouse has passed, the five-year look-back period. It should be noted that looking back means that from the time the assets are transferred to an irrevocable trust, it takes five years before they are exempt from, or spent must be spent down to the care of the sick person before they get for Medicaid benefits. What if the customer is not doing five years? Imagine that the customer will go into a nursing home four years after the trust has been established. In this case, the private pay nursing home for one year after, the family will be eligible for Medicaid only after the year five-year sentence expired.

Although Medicaid trust is named irrevocable, homes can still be sold or other assets of the trust business. Trust itself, through the actions of the trustees, may sell the house and buy a condominium in the name of confidence so that the property is still protected. Trust can sell one stock and buy another. For those customers who may wish to continue trading on their own, adult child role can sign a third party with a securities parents to continue trading account. Confidence continues to pay all of the income (ie, interest and dividends) to the parent grantor. As such, irrevocable trust payments should not affect the customer’s lifestyle when added to any pension, social security and IRA Distributions client continues to receive from outside the trust. It should also be noted that while no separate tax return is required for revocable trust, an irrevocable trust requires “informational again” that guides IRS income “passing through” to grantors and will be reported on individual returns.

If there is a disabled child, consideration will be given to creating additional needs trust, which pays in excess of what the child can get the benefits of government, especially social security income and Medicaid, so that the legacy will not judge them by this benefits.

Finally, the size of the estate has grown today to where middle class families are going significant gifts to their children (depending of course on how many children they have), the trend is towards establish trusts for children to keep the legacy of the blood line. Variously referred to as legacy trusts, heritage trusts, or should trust these trusts can contain additional features, such as to protect the inheritance from divorce, lawsuits, creditors and taxes on the estate of a child when they die. The main feature of all of these trust for the heirs, however, provide that when a baby dies, in most cases many years after the parent, hard-working family wealth will not go to the son-in-law or daughter-in-law may get married, but her grandchildren grantor is. On the other hand, if the customer wishes to pay the son-in-law or daughter-in-law, they may choose to provide that confidence or part of it, continue the “income only” trust adults their surviving spouse of the child for their lifetime, and only after the grandchildren grantor is.

5. Applying for Medicaid Benefits

If a customer needs home care or institutional care in a nursing facility, an application for Medicaid benefits may be necessary. Because of complex assets and transfer rules, the application shall be made with the help of an experienced elder law attorney. Again, it is useful in this context for confidential survey of client assets, as well as any transfer of assets, to fill out before the first consultation. This picture of the financial survey will be significantly different from that used in estate planning. As a combined federal and state program, Medicaid and property transfer rules vary significantly from state to state. Several methods, however, will be widely applicable. First, if an adult child takes a parent in the home to care for them in their later years, housing and care arrangements should be carried out so that the assets can be legally transferred from parent to child, before all nursing home care. The adult child will be required to report any payments received under the agreement earned income tax returns. Also, where the family home is usually the most important asset, consideration must be given to whether the home should be deeded adult children client while retaining a life estate in the parent or if irrevocable Medicaid trust should be used to protect property.

Although the work with a life estate will be cheaper to the customer, in most cases, offers significant disadvantages when compared with confidence. First, if the home is sold for the death of a Medicaid recipient, farm life force home will be required to pay for their care. If the house is rented, the tenant pays for nursing home where they belong to the life tenant. Finally, the customer loses a large part of the exclusion of capital gains on the sale of their primary residence that they will only be entitled to a proportional share based on the value of the life estate to the home as a whole. All the above can lead to situations where the family feel they have to keep vacant homes for years. However, the right drawn irrevocable Medicaid trust preserves all the exclusion of capital gains on primary residence and the home can be sold with confidence without the obligation to pay some of the principal to the care of the customer, considering we have passed the look back period. It should be noted here that both the life estate and irrevocable Medicaid trust will preserve stepped up basis in property end is only sold after the death of a parent who was the owner or grantor. The death of a parent, the basis for calculating the tax on capital gains is taken from the parent pay, plus any improvements, it was worth the day the parent’s death. This effectively eliminates the payment of capital gains taxes on the sale of appreciated assets such as home, after the parent dies. Both revocable and irrevocable trusts also preserve all the tax deductions that the customer may have in their homes, such as exceptions and older veteran.

Finally, even with the client when a nursing home, significant assets can be saved with advanced technologies that are beyond the scope of this guide. Please contact the senior law attorney for more information if you or a family in this situation.

Major Mistakes in estate planning and elder law

1. Failure to address all of the issues.

A comprehensive review of the status of the client should address planning for disability and death, including minimize or eliminate estate taxes and legal fees and procedures. A plan should be in place to protect assets from nursing home costs. As chess players, expected should look ahead two or three moves in order to determine what may happen in the future. For example, lawyers will often put the majority of assets in the name of the woman or her confidence in the face of her husband with significant IRA assets in his account. However, as the man is often older and have a shorter life expectancy, this can lead to IRA assets turnover wife, all the assets of the couple ending up in the estate of his wife, and no estate tax savings made. Another example would be where the children of the client in another marriage and have children (grandchildren client) from a previous marriage. Unless planning is done inheritance trusts for the children of the client, a situation may occur one day where the child client predecease other spouse, all assets go to the second spouses, and grandchildren of the client, from the son or the first marriage of a daughter, denied any benefit from the estate of the grantor is.

2. Failure to regularly review the Estate Plan

At least, estate plan each customer should be reviewed every three years to determine whether changes in the private client, such as health, property, or family (births, deaths, marriages, divorces, etc.) affect the plan. It is unrealistic to expect the program established today to be effective ten, twenty, thirty or more years in the future. Over time, customers want to go back to their trustees or plan of distribution. They may wish to add a heritage trust for his children. They could, after a few years, want to change from the revocable trust irrevocable trust because they were unable or unwilling to get long-term care insurance. The lawyer will benefit from additional legal work required, and the customer will benefit from having better plan for their current needs at any time.


Despite knowledge, sincerity and even the charm of some of the finest experts in the country, customers sometimes do not act on the recommendations. As experienced lawyers, we do not take it personally when customers choose to ignore our advice, or perhaps choose another plan. We know that people do not always do what they need to. They do what they want, and even then only when they want. Recently Ninety-three year old client told us she “would think about it” as far as planning her issues. Experience tells us that this client is not ready to plan at the moment, despite her old age, and we respect that choice. On the other hand, we recently had a client come to see us eleven years after first consulting their stating that they were now ready to proceed. We prepared estate plan.

Perhaps the best approach to estate planning and elder law practice to follow four SW. Some will, some will not, so what, pray someone. We continue, help those who will allow themselves to be helped by us and continue to turn towards those services our company are appreciated, admired, and sometimes even considered heroic.


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