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Elder Law: Planning for disability to get the persons you want to deal with your affairs and to safe your assets from being depleted for long-term care.
Introduction to Estate Planning and Elder Law
Practicing estate planning and elder law is one of the most enjoyable and expertly rewarding careers an attorney may choose. Imagine a institution area where your clients respect your knowledge and treat you with kindness and courtesy. They pay your fees in a timely fashion and tell their friends how much they have enjoyed working with you and your firm. At the same time, you are rarely facing the pressure of a deadline, much less an adversarial attorney on the other side of a matter trying to best you. In most instances, you are acting in the capacity of a counselor at law (trusted advisor) rather than an attorney at law (professional representative).
We spend our days meeting with clients, discussing their lives and their families and addressing their fears and concerns. Through our knowledge, training, perceive and imagination, we craft solutions, occasionally elegant ones, to the age old question of passing assets from one generation to someone else as swiftly and painlessly as possible. At the same time, we also seek to safe those assets from being depleted by taxes, legal fees and nursing home costs to the extent the law allows.
The end result of this process is a client who feels safe and procure in the knowledge that, in the event of death or disability, they have all their bases covered. Having achieved peace of mind that their hereafter is well planned and in good hands, they can get on with the firm of enjoying their lives. For the attorney, a happy and satisfied client has been added to the institution and someone else potentially lifelong and mutually rewarding association has begun. Let's look at the strategies and techniques we use to achieve this enviable state of affairs.
Major Issues Facing Senior Clients Today
One of the ways that we help clients is in setting up a thorough plan so they may avoid court proceedings upon death or in the event of disability. Trusts are used in place of wills for older persons since they do not require court proceedings to decide the estate. Trusts also avoid the foreign probate proceeding required for asset owned in someone else state, known as ancillary probate. This saves the family time in settling the estate as well as the high costs of legal proceedings. In addition, since revocable living trusts, unlike wills, take result during the grantor's lifetime, the client may stipulate which persons take over in the event of their disability. Planning ahead helps contend operate in the family or with trusted advisors and avoids a situation that may not be in the client's best interest. For example, in the event of a disability where no plan has been put in place, an application to the court may be required in order to have a legal guardian appointed for the disabled person. This may not be the man the client would have chosen. In such a case, assets may not be transferred to safe them from being spent down for nursing home costs without court permission, which may or may not be granted.
Another area in which we support the client is in saving estate taxes, both state and federal, for married couples by using the two-trust technique. Assets are divided as evenly as practicable in the middle of each of the spouse's trusts. While the surviving spouse has the use and enjoyment of the deceased spouse's trust, the assets of that trust bypass the estate of the surviving spouse and go directly to the named beneficiaries when the second spouse dies. Tens to hundreds of thousands of dollars, or more, in inherent estate taxes may be saved, depending on the size of the estate. Furthermore, the revocable living trust avoids the two probates that would occur were the clients to use wills, as the couple's estate must be settled after the death of each spouse in order to save estate taxes. We also help to safe assets from being depleted due to nursing home costs. Irrevocable Medicaid trusts may be established, subject to a five-year look-back period, to safe the client's home and other assets from having to be spent down due to the high cost of nursing home care. We use Medicaid asset and transfer rules to safe assets in the event a client requires nursing home care but has done no pre-planning. Through the use of Medicaid qualifying annuities, promissory notes, and housing and care agreements, considerable assets may be protected despite the five-year look-back, even when the client may be on the nursing home doorstep.
Five Steps to Estate Planning for Seniors
1. Insight the family Dynamics
The first step in an elder law trusts and estates matter is to gain an Insight of the client's family dynamics. If there are children, which is commonly the case, we need to decide whether or not they are married. Is it a first or second marriage? Do they have any children from a former marriage or do their spouses? What kind of work do they do, and where do they live? Do they get along with each other and with the parent clients? We are finding to decide which family members do not get along with which others and what the reasons may be. This goes a long way toward helping us decide who should make curative decisions and who should deal with legal and financial affairs. Should it be one of them or more than one? How should the estate be divided? Is the client himself in a second marriage? Which children, if any, are his, hers, or theirs? Sometimes all three instances may occur in the same couple. Here, supplementary exploration of the family functioning will be needed as the inherent for hurt feelings, conflicts of interest, and misunderstandings multiplies. In addition, great care must be taken to establish a plan for management, control, and distribution of the estate that will not only be fair to the children from a former marriage but will be seen to be fair as well. At times, the assistance of the pro counselor in acting as trustee may be invaluable in helping to keep the peace in the middle of family members. Finally, this step will also flesh out whether there are any dependents with extra needs and which family members and assets might be best noteworthy to supply for such children.
2. Reviewing Existing Estate Planning Documents
The second step in an elder law trusts and estates matter is to report any prior estate planning documents the client may have, such as a will, trust, power of attorney, condition care proxy and living will, to decide whether they are legally adequate and reflect the client's current wishes or whether they are outdated. Some basic elder law estate planning questions are also addressed at this time such as:
a. Is the client a Us citizen? This will impinge on the client's quality to save estate taxes.
b. Is the client expecting to receive an inheritance? This knowledge helps in making ready a plan that will address not only the assets that the client has now but what they may have in the future.
c. Does the client have long-term care insurance? If so, the elder law attorney will want to report the policy and decide whether it provides an adequate advantage inspecting the client's other assets and income, whether it takes inflation into account, and whether it is upgradable. This will allow the practitioner to decide whether other asset security strategies may be needed now or later.
d. Does the client need financial planning? Many clients that come into the elder law attorney's office have never had pro financial guidance or are dissatisfied with their current advisors. They may need help Insight the assets they have or with organizing and consolidating them for ease of administration. They may also be implicated with not having adequate wage to last for the rest of their lives. The elder law attorney will typically know a number of capable financial planners who are experienced with the needs and wishes of the senior client, along with (1) procure investments with security of principal, and (2) assets that tend to maximize income.
3. Reviewing the Client's Assets
The third step is to procure a perfect list of the client's assets, along with how they are titled, their value, whether they are noteworthy investments, such as Ira's and 401(k)'s and, if they have beneficiary designations, who those beneficiaries are. Armed with this information, the counselor is in a position to decide whether the estate will be subject to estate taxes, both state and federal, and may begin to formulate a strategy to cut or eliminate those taxes to the extent the law allows. This will often lead to shifting assets in the middle of spouses and their trusts, changing beneficiary designations, and, with discretion, trying to decide which spouse might pass away first so as to result the most inherent tax savings. Ideally, the attorney should have the client fill out a confidential financial questionnaire prior to the first consultation.
4. Developing the Estate Plan
The fourth step is to determine, with input from the client, who should make curative decisions for the client if they are unable to and who should be appointed to deal with legal and financial affairs Through the power of attorney in the event of the client's incapacity. Next, we will think what type of trust, if any, should be used, whether a straightforward will would suffice, who should be the trustees (for a trust) or executors (for a will), and what the plan of distribution should be. In order to avoid a conflict, the trustees who are chosen in lieu of the grantor should be the same persons named on the power of attorney. At this point, great care should also be taken to ensure that the feelings of the heirs will not be hurt. Good estate planning looks at the client's estate from the heirs' point of view as well as the client's. For example, if there are three children, it may be preferable that one be named as trustee or executor, as three are commonly too cumbersome and if the client chooses only two, then they are leaving one out. If there are four or five children, we prefer to see two trustees or executors chosen. This way, the pressure will be reduced on just the one having to acknowledge to all the others. More importantly, the others will feel far more procure that two siblings are jointly finding after their interests.
If the distribution is to be unequal, it may need to be discussed with the affected children ahead of time to forestall any ill will or even litigation after the parents have died. By inspecting the relative ages of the children, where they live, and their relationships among each other and with their parents, the counselor will ordinarily find a way to craft a plan that accommodates the needs and desires of all parties concerned. Some of the techniques we find useful in this context are to offer a delayed distribution, such as twenty percent upon the death of the grantor, one-half of the remaining equilibrium after five years, and the remainder after ten years. These same percentages may also be used at stated ages, such as thirty, thirty-five, and forty. Also, when leaving percentages of the estate, unless it is naturally to the children in equal shares, it is often useful to decide the monetary value of those percentages in the client's current estate. This will allow the client to see whether the number is truly what they wish to bequeath. Percentage bequests to charities should be avoided so that the family may avoid having to list to the charity for the expenses of administering the estate.
In terms of the type of trust, we are ordinarily finding at any options for most clients. It is leading to decide whether there should be one trust or two. In order to avoid or cut estate taxes, there should be two trusts for spouses whose estates exceed or may at a later date exceed the state and/or federal estate tax threshold. Should the trust be revocable or irrevocable? The latter is leading for protecting assets from nursing home expenses subject to the five-year look-back period. Primary features of the irrevocable Medicaid trust are that neither the grantor nor the grantor's spouse may be the trustee and that these trusts are income-only trusts. Most citizen pick one or more of their adult children to act as trustees of the irrevocable trust. Since considerable is not available to the grantor, the client will not want to put all of their assets into such a trust. Assets that should be left out are Ira's, 401(k)'s, 403(b)'s, etc. The considerable of these noteworthy assets are ordinarily exempt from Medicaid and should not be settled into a trust, as this would originate a assessable event requiring wage taxes to be paid on all of the Ira. If the institutionalized client has a society spouse, up to about one hundred thousand dollars may also be exempted. Notwithstanding that the home is exempt if the society spouse is living there, it is ordinarily a good idea to safe the home sooner rather than to wait until the first spouse has passed, due to the five-year look-back period. It should be noted that the look-back means that from the time assets are transferred to the irrevocable trust, it takes five years before they are exempt, or protected from being required to be spent down on the ill person's care before they qualify for Medicaid benefits. What if the client does not make the five years? Imagine that the client must go into the nursing home four years after the trust has been established. In such a case, by confidentially paying the nursing premise for the one year remaining, the family will be eligible for Medicaid after just the remaining year of the five-year penalty duration has expired.
Although the Medicaid trust is termed irrevocable, the home may still be sold or other trust assets traded. The trust itself, Through the actions of the trustees, may sell the house and buy a condominium in the name of the trust so that the asset is still protected. The trust may sell one stock and buy another. For those clients who may wish to continue trading on their own, the adult child trustee may sign a third party authorization with the brokerage firm authorizing the parent to continue trading on the account. The trust continues to pay all wage (i.e., interest and dividends) to the parent grantor. As such, the irrevocable trust payments should not affect the client's lifestyle when added to any pensions, social security, and Ira distributions the client continues receiving from face the trust. It should also be noted that while no detach tax return is needed for a revocable trust, the irrevocable trust requires an "informational return" which advises the Irs that the wage is "passing through" to the grantors and will be reported on their individual returns.
If there is a disabled child, observation will be given to creating a supplemental needs trust, which will pay over and above what the child may be receiving in government benefits, especially social security wage and Medicaid, so that the inheritance will not disqualify them from those benefits.
Finally, with the size of estates having grown today to where middle class families are leaving vast bequests to their children (depending, of course, on how many children they have), the trend is toward establishing trusts for the children to keep the inheritance in the bloodline. Variously termed inheritance trusts, inheritance trusts, or dynasty trusts, these trusts may comprise supplementary features, such as protecting the inheritance from a child's divorce, lawsuits, creditors, and estate taxes when they die. The Primary feature of all of these trusts for the heirs, however, is to supply that when the child dies, in most cases many years after the parent, the hard-earned assets of the family will not pass to a son-in-law or daughter-in-law who may get remarried, but rather to the grantor's grandchildren. On the other hand, if the client wishes to favor the son-in-law or daughter-in-law, they may pick to supply that the trust, or a measure of it, continue as an "income only" trust for their adult child's surviving spouse for their lifetime, and only thereafter to the Grantor's grandchildren.
5. Applying for Medicaid Benefits
In the event the client requires home care or institutionalized care in a nursing home facility, an application for Medicaid benefits may be required. Due to involved asset and transfer rules, the application should be made with the aid of an experienced elder law attorney. Again, it is useful in this context for a confidential witness of the client's assets, as well as any transfers of assets, to be filled out prior to the first consultation. This form of financial witness will be significantly dissimilar from the one used for estate planning purposes. As a combined federal and state program, Medicaid asset and transfer rules vary significantly from state to state. A few techniques, nevertheless, will be widely applicable. First, in the event an adult child takes the parent into their home in order to care for them in their later years, a housing and care business agreement should be executed so that assets may be indeed moved from the parent to the child prior to any nursing home care. The adult child will be required to description any payments received under the business agreement as earned wage on their tax returns. Also, since the family home is commonly the most considerable asset, observation will need to be given as to whether the home should be deeded to the client's adult children while retaining a life estate in the parent or whether the irrevocable Medicaid trust should be used to safe the asset.
While the deed with a life estate will be less high-priced to the client, in most cases it offers considerable disadvantages when compare to the trust. First, if the home is sold prior to the death of the Medicaid recipient, the life estate value of the home will be required to be paid towards their care. If the house is rented, the rents are payable to the nursing premise since they belong to the life tenant. Finally, the client loses a considerable measure of their capital gains tax exclusion for the sale of their Primary home as they will only be entitled to a pro rata share based on the value of the life estate to the home as a whole. All of the foregoing may lead to a situation where the family finds they must contend a vacant home for many years. Conversely, a properly drafted irrevocable Medicaid trust preserves the full capital gains tax exclusion on the Primary home and the home may be sold by the trust without obligation to make payment of any of the considerable towards the client's care, assuming we have passed the look back period. It should be noted here that both the life estate and the irrevocable Medicaid trust will retain the stepped-up basis in the asset in case,granted it is only sold after the death of the parent who was the owner or grantor. Upon the death of the parent, the basis for calculating the capital gains tax is stepped up from what the parent paid, plus any improvements, to what it was worth on the parent's date of death. This effectively eliminates payment of capital gains taxes on the sale of appreciated property, such as the home, after the parent dies. Both the revocable and irrevocable trusts also retain any tax exemptions that the client may have on their home, such as senior and veteran's exemptions.
Finally, even with a client already in a nursing home, considerable assets may be saved Through advanced techniques that are beyond the scope of this guide. Please consult your elder law attorney for supplementary information if you or a family member is in this situation.
Major Mistakes in Estate Planning and Elder Law
1. Failure to address all of the issues.
A thorough report of the client's situation should address planning for disability as well as for death, along with minimizing or avoiding estate taxes and legal fees and proceedings. A plan should be in place to safe assets from nursing home costs. Like a chess player, counsel should look ahead two or three moves in order to decide what may happen in the future. For example, attorneys will too often place a majority of the assets in the wife's name or in her trust in light of the husband having considerable Ira assets in his account. However, since the husband is often older and has a shorter life expectancy, this may result in the Ira assets rolling over to the wife, all of the couple's assets ending up in the wife's estate, and no estate tax savings effected. someone else example would be where the client's children are in a second marriage but have children (the client's grandchildren) from a former marriage. Unless planning is done with inheritance trusts for the client's children, a situation may occur one day where the client's child predeceases their second spouse, all assets pass to the second spouse, and the client's grandchildren, from a son or daughter's prior marriage, are denied any advantage from the grantor's estate.
2. Failure to commonly report the Estate Plan
At a minimum, each client's estate plan should be reviewed every three years to decide whether changes in the client's personal life, such as their health, assets, or family history (births, deaths, marriages, divorces, etc.) impact the plan. It is unrealistic to expect a plan established today to be productive ten, twenty, thirty, or more years in the future. Over time, clients will want to turn their back-up trustees or plan of distribution. They may wish to add inheritance trusts for their children. They might, after a number of years, wish to turn from a revocable trust to an irrevocable trust because they were unable or unwilling to procure long-term care insurance. The attorney will advantage from the supplementary legal work needed, and the client will advantage from having a plan good noteworthy to their current needs at any given time.
Conclusion
Despite the knowledge, earnestness and even charm of some of the finest practitioners in the land, clients occasionally do not act on the guidance given. As experienced attorneys, we know not to take it personally when clients pick to ignore our guidance or perhaps pick other counsel. We know that citizen don't always do what they need to. They do what they want to and, even then, only when they want to. Recently, a ninety-three year old client told us that she "wanted to think about it" so far as planning her affairs. perceive tells us that this client is not ready to plan at the present time, despite her advanced years, and we respect that choice. On the other hand, we recently had a client come in to see us eleven years after their first consultation stating that they were now ready to proceed. We prepared their estate plan.
Perhaps the best advent to the estate planning and elder law institution is to result the four Sw's. Some will, some won't, so what, someone's waiting. We move forward, help those who will allow themselves to be helped by us and keep turning towards those to whom our firm's services are appreciated, admired, and sometimes even determined heroic.
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