There are different benefits of using a will and a trust for estate planning purposes. Each state has specific laws and regulations governing these legal documents. You can have both a will and a trust; however, the information in each should compliment the other. As a standalone, it is not accurate to say one is better than the other. The better choice for you, or a blend of both documents, depends on your assets and life circumstances. Begin by assessing your situation, goals, and needs, and understanding what wills and trusts do to guide your decision making. Then, along with an attorney, you will be able to identify the solution that best suits and protects your family.
At its most basic level, a will allows you to appoint an executor for your estate, name guardians for your children and pets, designate where your assets go, and specify final wishes and arrangements. A will is only enacted upon your death. It has some limitations regarding the distribution of assets, and wills are also subject to a probate process (which occurs in court and is overseen by a judge) and, as such, are part of public records.
It was the holidays, and Mabel always got a lot of joy out of generosity, but Mabel’s children were concerned that Mabel would need long-term nursing-home care in the near future. Her children had heard that people in Mabel’s circumstances should not give gifts because the risk of losing her Medicaid Eligibility.
The concern is real. For Medicaid to cover the huge expense of nursing-home care, Mabel would have to show that she owned nothing more than around $2,000. And she must also show that she had not given away money or assets over the prior five years (2.5 years in California). That Medicaid rule – the “look-back period” or the “transfer penalty” – would charge Mabel dearly for her generosity. Depending on the size and number of the gifts, the penalty could be substantial.
A trust was created by your friend Rose and she has appointed you as the trustee. You want to help, but you’re concerned about all that responsibility. You would be managing Rose’s property for her and for others whom she names as beneficiaries. You might be paying her bills and taxes, overseeing bank accounts, making investments, collecting rent or unpaid debts, getting insurance if needed, and doing whatever else the trust directs you to do. People named as trustees are considered in law as “fiduciaries.” “Fiduciary” stems from the Latin for “trust.” To merit that trust, you must act in Rose’s best interests, to the highest ethical standards of good faith and honesty.
It is a lot of responsibility, but the government is here to help. The Consumer Financial Protection Board (CFPB) has issued a guide: “Managing Someone Else’s Money: Help for Trustees Under a Revocable Trust.” Download your free guide here.
Having family present in the life of a senior citizen can have numerous benefits on their mental and physical health. Family creates a consistent social network and connection that directly impacts the senior's overall quality of life. Prioritizing family relationships provides continuity as a senior experiences changes in their social network. Friends may change, become ill and unavailable, or even pass away, but family is multi-generational and, as such, has an enduring presence for an aging family member. The stability of family relations, even with the ups and downs of disputes, is a familiar source of social and emotional grounding, as well as practical help. A study by the United Health Group reports more than half of older Americans will cite faith or spirituality, and a loving family as the top reasons they have a positive outlook. That positive outlook brings tremendous benefits to a senior’s health and well being.
Whether you are the heir of the probate estate or the Personal Representative, knowing the lawyer’s role is one of the first steps you should take at the beginning of the probate process.
One of the biggest sources of conflict in probating the estate is understanding the role of the lawyer hired by the Personal Representative of a probate estate. Many Personal Representatives do not understand the probate process and leave the tasks up to the lawyer. The heirs of the estate may hear only from the lawyer or may hear the Personal Representative say, “This is what the lawyer says we have to do.” This often raises the question, does the lawyer owe a fiduciary duty to the heirs of the estate since the Personal Representative owes a fiduciary duty to the heirs?
The answer to that question depends on the state in which the estate is being probated. To be clear, this question is specifically about whether a lawyer owes the heirs of a probate estate a fiduciary duty, and not whether a lawyer owes a fiduciary duty in other contexts, such as to the beneficiaries of a trust when hired by a trustee, or a ward when hired by a guardian or conservator. The answer varies depending on each different circumstance.
As much as you want to and as hard as you try, you might not be able to take care of your ill spouse at home anymore. At this emotionally difficult time, the last thing you need is the stress of not knowing where to find the money to pay for the steep costs of institutional care.
Advance planning is a must. As as soon as you can – ideally at least five years before serious health problems arise – take advantage of many elder attorneys’ willingness to talk with you for free, or for a modest initial-consultation charge.
Although it can be convenient to have your child named on your bank account to pay bills when you’re sick or away, adding a child’s name to a bank account may have unintended consequences for both you and the child.
Many financially stable seniors who are choosing to age in place, already have a “smart” home employing the sorts of technology that can prolong their independent living circumstances. Family caregivers are freer to move about their daily lives knowing they can check remotely on their loved one and that the loved one has a set of controls at their disposal to monitor their environment. Some of these seniors are also tracked directly by medical staff that can assess if any of the patient's medical vital signs are outside of a safe range. While corporate competition for senior market dollars has made many of these devices within reasonable price points, Medicare is attempting to catch up to the market demand for the use of these products and include them as refundable medical expenses. Private enterprise and public policy are not in synch.
Often times, spouses will bring children into a marriage from a prior marriage or union and then also have children together. This is generally referred to as a blended family. Blended families highlight the need for careful estate planning to make sure the needs of each spouse are met, as well as the needs of each parents' children.
When your son or daughter turns 18 (in most states), it might be hard to imagine that little child who once needed you for everything has now become – overnight – an adult. Now your child is free to vote, marry, apply for a credit card, make medical and financial decisions, sign contracts, and live independently. No wonder the law calls this coming of age “emancipation.”
But if your adult child is hurt in an accident and needs somebody to make critical medical decisions, you cannot be the one to do that without your child having named you as power of attorney, even if you’re still paying for your child’s health insurance. If that child is so injured that a guardian is needed, you would not automatically be that person. Court proceedings would be required and those are expensive and time-consuming. A health care power of attorney would avoid that headache and would give you the standing you need, in one efficient document.
As your parents' age, it is important that you have conversations with them about their changing life situation. Make sure it is clear to them the conversation comes from a place of love and concern, and that you want to find out what you need to know to make sure their wishes are honored, and their autonomy and quality of life is maintained.
The COVID-19 pandemic's heavy toll on older Americans highlights the need to strengthen the nation's safety net for people in need of long-term services and supports, according to an Oregon Health & Science University researcher in a new report published by Milbank Quarterly.
The report proposes a system of universal coverage to support the long-term care of all older Americans.
"This approach would protect against financial catastrophe and end the current system that is based on the need to be financially destitute in order to access coverage via Medicaid," the authors write. "Such an approach would benefit both individuals and families and would also create a far more stable and more generous funding stream to providers."
Link to article
Link to report
The coronavirus has left many both confused and anxious. While we can’t predict when something like COVID-19 might strike, we can take steps to prepare for an unexpected crisis to help reduce the stress on ourselves and family members.
"A growing body of research suggests that dance, notably the tango, can improve balance, strength and walking ability in people with neurological disorders, including Parkinson’s disease, Alzheimer’s and other forms of dementia, as well as multiple sclerosis and stroke.
“People who dance do better over the long term,” said Dr. Joy Antonelle de Marcaida, medical director of Hartford Hospital‘s Movement Disorders Center in Vernon."
Both wills and trusts have specific and quite different benefits for estate planning purposes. Each state has specific laws and regulations governing these legal documents. The best choice for you and your family depends on your assets and life circumstances. Begin by assessing your situation, goals, and needs, and understanding what wills and trusts do to guide your decision making. Then you will be able to identify the solution that best suits and protects your family.
Estate planning is important for people of all ages, but as we age, the need for planning becomes even more critical. Many people avoid estate planning because they do not want to think about the end of life, failing health, or disability. Others believe that an estate plan is only for rich people. However, an estate plan is helpful for the senior adult and their families regardless of overall wealth.
After over ten years practicing law in Northeast Ohio, my practice has recently relocated with me, my wife, our two dogs, and all of our belongings to sunny Florida.
The information on this website is for education purposes only and is not, nor is it intended to be, legal advice. An attorney consultation is necessary for you to receive advice regarding your particular situation.