An Elder Law Attorney’s Perspective on Estate Planning

An Elder Law Attorney’s Perspective on Estate Planning

Four Things to Focus On

I. Get Your Estate Plan in Order – Six Easy Steps

• List what you own today

1. 1. 1. How each asset is titled
      2. Name of beneficiary, if any
      3. Value of each asset
      4. Income tax basis of each asset, if not in retirement account
      5. Include retirement accounts and life insurance death benefits

• Decide where you want your assets to go if you were not living today

1. 1. 1. Family – spouse, children, grandchildren, siblings, etc.
      2. Charities
      3. Friends
      4. Other people or entitles
      5. How much money or what percentage of total assets to each?
      6. Where should it go if a person you choose does not survive you?

• How do you want each beneficiary to receive your assets?

1. 1. Only two options:
      1. Outright, with no restrictions, or
      2. In trust – many different options
   2. How to choose:
      1. Need to protect inheritance FROM the beneficiary?
      2. Need to protect inheritance FOR the beneficiary?

4. What process do you want to use to transfer assets?
5. Only Two options:

1. Probate (court oversight) – Last Will and Testament controls
2. Avoid Probate – only three ways
   1. Joint with right of survivorship
      1. Assets transfer to surviving owner outright (not in trust)
      2. Other owner(s) must survive you
      3. Makes other person owner with you now; this is risky
   2. Beneficiary designation / Transfer on Death / Pay on Death
      1. Assets must be distributed outright (not in trust)
      2. Recipient must survive you

• Revocable Living Trust

1. 1. Assets can be distributed outright or in trust
   2. You can control where your property goes if recipient does not survive you
   3. Beneficiary designation can distribute to this trust

 

	5.	Fund your estate plan
		A. Title all assets correctly
		B. Name correct beneficiaries
	6.	Coordinate all documents, asset titling, and beneficiary designations so your
		plan is carried out, and review every 3 to 5 years to keep current.
II.		Plan for Your Potential Future Incapacity
	1.	Without proper planning a guardian & conservator must be appointed for you
	2.	Can avoid guardianship & conservatorship with a Durable Power of Attorney
		A. They must be signed while you have intellectual capacity
		1)  Legal and Financial (General)
		Health Care These need to comply with HIPAA
III.		Do You Want to Be Kept Artificially Alive on Life Support?
	1.	You need an Advance Directive – no matter what your answer.
		A. Two kinds: 1)  Instructive (stand-alone) – Living Will, Health Care Treatment Directive – Must follow decision of physician
		2)   Proxy (inside Health Care Durable Power of Attorney)
		a)   If physician says you have crossed the line, then people
		you nominate can decide what and when to stop
	2.	If you want artificially supplied nutrition and hydration (feeding tubes) stopped, you
		must explicitly say so in the document
	3.	Talk to your family and people named in your Advance Directive/Health Care
		Durable Power of Attorney
		Let them know what you want This will help them cope better if your life support is stopped
IV.		Plan for Your Potential Need for Long-Term Care
	1.	You will need income and/or assets that can be liquidated to pay for long-term care
		If not sufficient, consider purchasing long-term care insurance
	2.	Don=t plan to qualify for Medicaid unless you have to; it is there as a last resort, not
		a life goal
	3.	Make sure your estate planning documents are flexible so they can be adapted
		and changed as circumstances and laws change. This includes powers to transfer
		assets, establish and/or amend trusts, and spend money in a manner that benefits
		you and protects assets for Medicaid eligibility, if that becomes necessary.
	4.	Plan for adequate and appropriate housing for you and dependents. Where can
		you age in place as long as possible?