More Reasons Why Everyone Should Have a Will

Most people aren’t going to have a large number of strangers show up after they die who pretend to be relatives, says the article “Here’s why you don’t want to die without leaving a will” from Arizona Central. However, there are many other reasons to have a will. In Arizona, an estate creditor can step in and become your personal representative after death, if you haven’t designated someone to administer your estate and your family members don’t step up to be involved.

Are you still not convinced? Without a will, you have no say in who inherits your money and possessions, which will be distributed according to the laws of your state.

Here are some tips to help get your estate plan started:

Work with an estate planning attorney. Using an attorney provides accountability, ensures that your wishes are reflected in the estate plan and makes sure that your will is deemed valid by the court. All too often, online documents are found to be deficient, declared invalid and the family is left with the laws of the state.

Name an executor. Your will should include the name of an executor, who will be responsible for handling your financial affairs after you die. She will manage your assets, identify what bills need to be paid, file state and federal tax returns and keep records of anything done on behalf of your estate.

Keep your will in a safe location. Make sure your executor has a copy and knows where it is. Tell your family where it is.

Don’t forget a residuary clause. If you forget to include any assets, a residuary clause will name someone who will receive them.

Don’t forget other important documents. That means a power of attorney and an advance directive. The advance directive spells out what kind of medical treatment you would want, if you are unable to communicate. Power of attorney gives a person you name the authority to act on your behalf.

What if my family fights a lot? Your best bet will be to name a private fiduciary to act as your personal representative. That way, no one can be accused of playing favorites, and a family history of sibling rivalry won’t undermine your wishes.

Make an appointment with a local estate planning attorney, who knows the laws of your state and can work with you to create an estate plan designed for your specific family situation. Both you and your family will enjoy the peace of mind of knowing that you are prepared for the future.

Reference: Arizona Central (June 21, 2019) “Here’s why you don’t want to die without leaving a will”

Social Security Is Just One Slice of Retirement, Not the Whole Pie

Social Security was never designed as a public retirement plan. It doesn’t provide total income replacement for retirement. Those who expect it to do more than fill in the gaps, are often surprised by this, says Fox Business in the news segment “3 Social Security Realities You Need to Face.” Here are three solid facts that everyone needs to know about what Social Security can and cannot do for retirement income.

Social Security will not cover your cost of living in retirement. Many people actually neglect saving for retirement, thinking they can simply rely on Social Security for expenses when they retire. Social Security replaces less than half of the average earner’s pre-retirement income. Most seniors need about 80% of their pre-retirement income to enjoy a comfortable lifestyle.

Don’t believe it? The average Social Security check is $1,461 a month. That’s $17,532 a year. Could you live on that? Even by cutting back on all discretionary spending, that’s not likely to be anywhere near enough for most middle-class Americans. Even a small amount of money set aside during working years will add up over time. What is the best time to start saving, no matter how old you are? Now.

A Social Security reduction is entirely possible. If Social Security doesn’t have enough payroll taxes to draw from, it’s possible that everyone on Social Security will face across-the-board reduction in benefits in the coming years. There are trust funds available to bridge the gap, but those funds are expected to run dry in 2035. Unless and until Congress acts, there might be as much as a 20% reduction in benefits for everyone.

Therefore, if Social Security replaces about 40% of your pre-retirement income and there’s a 20% reduction, you’ll need even more in your nest egg to pay for your retirement.

Claiming benefits earlier than expected happens often. Social Security benefits are based on the 35 highest earning years, but the amount is calculated based on when benefits are first taken. File for benefits at full retirement age (FRA), and you’ll get the full monthly benefit based on your earnings history. If you file for benefits earlier, benefits are reduced for every month they are claimed before FRA.

Some people are impatient to get their benefits and file early, because they want to. However, many end up filing earlier because they have no choice, knowing that they are getting less every month.

Seniors often stop working in their early 60s, and not always by choice. They may have health issues, be laid off or work in a field that is no longer viable. A new job or a part time job may not pay as much as their previous job.

There’s nothing wrong with factoring in Social Security benefits as part of your retirement cash flow. However, it shouldn’t be the only source of income. Setting aside $200 a month over a 30-year period will give you a $227,000 nest egg, if investments generate a 7% annual return. The ideal is to have a long savings period and to save consistently.

Visit our website for more information.

Reference: Fox Business (June 12, 2019) “3 Social Security Realities You Need to Face.”

Is My Irrevocable Trust Revocable?

Irrevocable trusts aren’t as irrevocable as their name implies, according to Barron’s recent article, “Are Irrevocable Trusts True to Their Name?” The article says that, for both new and existing trusts, there are ways to build in flexibility to make changes to a grantor’s wishes, if terms are no longer appropriate or desirable for beneficiaries.

However, there are strict rules that apply. These rules vary between states. One of the main reasons for an irrevocable trust, is to remove assets from an estate for estate tax purposes. If the rules aren’t followed carefully, a trust can be rendered unlawful. If that happens, the assets may be returned to the grantor’s estate and estate taxes may apply.

If you want to be certain that beneficiaries have some discretion in the future if circumstances change, grantors should build flexibility into the trust when it’s established. This can be accomplished by giving a power of appointment to beneficiaries. However, if the beneficiaries are looking to change the terms or the structure of an existing trust, the trust must be modified, according to state law.

Most states allow trusts to be decanted. When you decant a trust, you pour its terms into a new trust, and leave out the parts that are no longer wanted. Just like decanting a bottle of wine, it’s like the sediment left in the wine bottle.

In a state that doesn’t permit decanting, a trustee can ask a judge to allow it. You should be careful with decanting, because you don’t want to do anything that would adversely affect the original tax attributes of the trust.

The power of appointment in a trust or the ability to decant can’t be given to the person who set up the trust. Thus, grantors can’t have a “re-do” or rescind the terms. It’s only trustees and the beneficiaries that can do that.

If you and your attorney create a trust with a lot of flexibility for the trustee, you may want to appoint an institutional trustee from a bank, trust, or other financial services company.

They can be either the sole trustee or serve as co-trustees with a personal, non-institutional trustee, like a family member. This can help to eliminate future conflicts.

Reference: Barron’s (June 18, 2019) “Are Irrevocable Trusts True to Their Name?”

Can I Create POA without Giving Up Control?

Seniors sometimes hesitate to sign off on a power of attorney that allows someone to act on their behalf, because they fear loss of control and exploitation. It’s not unreasonable, but it does create problems, says Daily Local News in the article “How to stay in control when appointing a power of attorney.”

On one hand, without having a signed power of attorney, which is relatively simple to obtain from an estate planning attorney, the family may be faced with going to court to file for guardianship.

Guardianship is expensive, time consuming, can limit the individual’s freedom and may even result in an appointment of someone the person does not want to be their guardian. There are some instances where guardianship is necessary.

On the other hand, the seniors who believe that a power of attorney is a powerful document that requires careful consideration, are right to give it the thoughtfulness this document deserves.

Here’s how to maintain some measure of control, while having a power of attorney:

Be certain about the agent you name. This is not a role for someone you recently met who feels like an old friend. It must be someone you would easily trust with your entire life savings, without a second thought. You need to be 100% sure that the person would act responsibly, in your best interests, following through in paying bills, consulting with experts when necessary, keeping records and being scrupulously honest and putting your interest first in everything they do.

Don’t name someone just because they are your oldest child and someone’s feelings would be hurt. If a person has money problems themselves, that person is not a good candidate for this role.

Have a backup. Or two. If your primary “attorney in fact” is unable or unwilling to act on your behalf, have a second person, or even a third, ready to act.

Ask your estate planning attorney to create documents that work for you. There are forms you can use, but they may not be appropriate for your situation. Your best bet is to have an attorney prepare a power of attorney document that meets your needs. For instance, you may not want to give someone unlimited power, or you may want to give them power to do everything but gift assets. You might want to give them the ability to cash in insurance policies for your medical expenses, but not to change the beneficiaries on your insurance policies.

If you want two agents to act together, you need to know whether your bank, brokerage house, financial institution or financial advisor will accept two. Will they be able to work together?

Separate financial power of attorney and health care power of attorney. One person does not need to handle all your tasks. One of your children may be great in crisis situations, while another is good at finances. Divide up the tasks, so that each can participate in decision making, in different areas.

Who needs to know about your power of attorney? It’s best if all your children know if one of them has been named attorney in fact and others have not. They will find out eventually, and it may be better, even if there is some grumbling, for them to know in advance of a crisis.

Fire at will. You retain the right to fire your agent(s), by serving them with a revocation or by appointing another attorney in fact. If the family is not getting along and things have turned ugly, speak with your estate planning attorney to ensure that the proper protections are in place.

Lastly, protect yourself by keeping access to debit cards, credit cards, usernames, passwords and online access to bank and investments carefully secure. If you run into a problem, don’t hide from it—get the help you need, either from a family member, trusted friend, or your estate planning attorney.

Reference: Daily Local News (June 11, 2019) “How to stay in control when appointing a power of attorney”

Why You Need a Last Will and Testament

A will and testament is the document that allows you to describe how you want your belongings and assets to be distributed after you die. It’s different than a “living will,” explains The Daily Sentinel, in the article “It’s important to have a Last Will and Testament.” A living will is a document used to detail how someone wants their end of life matters conducted.

In Colorado and some other states, the Living Will is referred to as an Advance Directive, which helps to avoid some confusion between what it accomplishes and the tasks of the will.

The will is also the document used to name the person who will be the personal representative, often referred to as the “executor”, to carry out the directions in the will.

When there’s no will, there is much more work to settle an estate. The distribution plan is determined by the laws of the state. It is not likely to be what the person had in mind, but by then, it is too late.

Every parent needs a will, because it is used to name a guardian for minor children or a child with special needs. This is not a decision that can be left to the law. There is no automatic solution based on state law, like there is for assets and belongings.

If there is a disagreement about who should care for the dependents, or how the assets should be used to care for the dependents, the only solution is to go to court and have the court decide what is in the children’s best interests. The time, expense and stress on the family is easily avoided, simply by having a properly prepared will.

There are occasionally questions about whether a general or special power of attorney can be used to name a person to handle affairs when someone dies. This is not true. The authority given to a person in a power of attorney automatically and legally terminates, when the person who gave that authority to another person has died.

Several years ago, a widow was preparing to create a will, but never did. She had no surviving parents or siblings, but she did have a son. She probably thought that the law would give him all her assets automatically.

Unfortunately, after the woman died, it was learned that the “son” was an informally adopted son who had never been legally adopted. According to the laws of the state, he had no legal right to her estate. She could have had a will prepared and he would have inherited everything. However, because she had no will, distant relatives who she did not even know, were the recipients of her estate.

This example may be a little extreme, but it is not uncommon. Many unexpected things occur when there is no estate plan, or an estate plan is prepared by an inexperienced person using a form they found online or at the local library.

Reference: The Daily Sentinel (June 1, 2019) “It’s important to have a Last Will and Testament”

Top Four Facts to Know about Estate Planning

Estate planning can save your family the stress of court cases and family feuds before the process of settling your estate begins. A plan that you create will provide tremendous peace of mind to those who are left behind. The sorrow of losing a loved one is more than enough for a family to experience, says NewsGram, in the article 4 Things You Must Know About Estate Planning.” You had better to have a plan to ensure that your estate is executed with as little acrimony as possible.

Estate planning focuses on planning for how an individual’s assets will be preserved, managed and distributed after their death. It also addresses how the person’s financial life, including their property, is to be managed, in the event they become incapacitated because of an accident or an illness. This is done with the help of an experienced estate planning attorney.

The core of estate planning while you are living, is to protect your assets, protect your estate from having to pay unnecessary taxes and protects you and your wishes, if you are incapacitated or pass away. Here are four key things everyone should keep in mind while preparing their estate plan.

Age should not be a factor. Anyone who is of legal age and owns anything has an estate. An estate refers to anything of value that you own. It does not mean a $10 million mansion. A home, a car, bank accounts, retirement accounts and personal possessions make up an estate, regardless of their size or value. Once you have assets, you need an estate plan. We don’t know when we are going to die, but we can be sure that if you have no estate plan, the state will determine who receives your assets. You may want to make those decisions for yourself. That’s what an estate plan does.

You need an estate planning attorney. Estate planning crosses into several different legal practice areas. Asset management, tax planning, real estate, guardianship and other areas need to be addressed by a legal professional who understands how these elements all work together. An estate planning attorney has a professional responsibility to help you document your wishes for incapacity and death.

However, they do more than that. The estate planning attorney will help you fine-tune your wishes, gain clarity on what you want to happen during life and death and translate that into the legal language that ensures that your wishes are achieved.

Planning helps avoid or minimize probate. Depending on where you live, probate can be a simple process or one that takes a long time. The estate planning attorney will help you plan to pass your assets to your spouse or the next generation to avoid going through the court process known as probate. This is a process of authenticating your will, verifying that the assets in the will are correctly named, paying off any outstanding tax balances and approving the distribution of the assets. With a good estate plan, you can make this a simple process.

An estate plan works to minimize family squabbles. Disagreements over estates, including personal possessions as well as money, routinely tears families apart. You don’t have to be wealthy or even a celebrity to have a family that is fractured over a misunderstanding or someone feeling like they were not treated fairly. This is another area where an experienced estate planning attorney can help bring you through the process of distributing assets, with a deep dive into how your decisions may be received by various family members.

To get started, contact an experienced estate planning attorney in your community. If you have an estate plan but haven’t reviewed it in more than four years, it’s time for an update. A number of laws have changed on the federal level that may require some changes to your estate plan. If you have had any major life events, you also need a review.

Reference: NewsGram (June 5, 2019) 4 Things You Must Know About Estate Planning.”

What Does ‘Getting Your Affairs in Order’ Really Mean?

That “something” that happens that no one wants to come out and say is that you are either incapacitated by a serious illness or injury or the ultimate ‘something,’ which is death. There are steps you can take that will help your family and loved ones, so they have the information they need and can help you, says Catching Health’s article “Getting your affairs in order.”

Start with the concept of incapacity, which is an important part of estate planning. Who would you want to speak on your behalf? Would that person be the same one you would want to make important financial decisions, pay bills and handle your personal affairs? Does your family know what your wishes are, or do you know what your parent’s wishes are?

Financial Power of Attorney. Someone needs to be able to pay your bills and handle financial matters. That person is named in a Financial Power of Attorney, and they become your agent. Without an agent, your family will have to go to court and get a conservatorship. This takes time and money. It also brings in court involvement into your life and adds another layer of stress and expense.

It’s important to name someone who you trust implicitly and whose financial savvy you trust. Talk with the person you have in mind first and make sure they are comfortable taking on this responsibility. There may be other family members who will not agree with your decisions, or your agent’s decisions. They’ll have to be able to stick to the course in the face of disagreements.

Medical Power of Attorney. The Medical Power of Attorney is used when end-of-life care decisions must be made. This is usually when someone is in a persistent vegetative state, has a terminal illness or is in an irreversible coma. Be cautious: sometimes people want to appoint all their children to make health care decisions. When there are disputes, the doctor ends up having to make the decision. The doctor does not want to be a mediator. One person needs to be the spokesperson for you.

Health Care Directive or Living Will. The name of these documents and what they serve to accomplish does vary from state to state, so speak with an estate planning attorney in your state to determine exactly what it is that you need.

Health Care Proxy. This is the health care agent who makes medical decisions on your behalf, when you can no longer do so. In Maine, that’s a health care advance directive. The document should be given to the named person for easy access. It should also be given to doctors and medical providers.

DNR, or Do Not Resuscitate Order. This is a document that says that if your heart has stopped working or if you stop breathing, not to bring you back to life. When an ambulance arrives and the EMT asked for this document, it’s because they need to know what your wishes are. Some folks put them on the fridge or in a folder where an aide or family member can find them easily. If you are in cardiac arrest and the DNR is with a family member who is driving from another state to get to you, the EMT is bound by law to revive you. You need to have that on hand, if that is your wish.

How Much Should You Tell Your Kids? While it’s really up to you as to how much you want to share with your kids, the more they know, the more they can help in an emergency. Some seniors bring their kids with them to the estate planning attorney’s office, but some prefer to keep everything under wraps. At the very least, the children need to know where the important documents are, and have contact information for the estate planning attorney, the accountant and the financial advisor. Many people create a binder with all of their important documents, so there are no delays caused in healthcare decisions.

Reference: Catching Health (May 28, 2019) “Getting your affairs in order.”

Long-Term Care Costs and Your Estate Plan

There are many misunderstandings about long-term or nursing home care and how to plan from a financial and legal standpoint. The article “Five myths about nursing home costs and estate planning” from The Sentinel seeks to clarify the facts and dispel the myths. Some of the truths may be a little hard to hear, but they are important to know.

Myth One: Before any benefits can be received for nursing home care, a married couple must have spent at least half of their assets and everything but $120,000. If the person receiving nursing home care is single, they must spend almost all assets on the cost of care, before they qualify for aid.

Fact: Nursing homes have no legal duty to advise anyone before or after they are admitted about this myth.

Several opportunities to spend money on items other than a nursing home, include home improvements, debt retirement, a new car and funeral prepayment. An elder law attorney will know how to use a Medicaid-compliant annuity to preserve assets, without spending them on the cost of care, depending on state law.

There are people who say that an attorney should not help a client take advantage of legally permitted methods to save their money. If they don’t like the laws, let them lobby to change them. Experienced elder law and estate planning attorneys help middle-class clients preserve their life savings, much like millionaires use CPAs to minimize annual federal income taxes.

Myth Two: The nursing home will take our family’s home, if we cannot pay for the cost of care.

Fact: Nursing homes do not want and will not take your home. They just want to be paid. If you can’t afford to pay, the state will use Medicaid money to pay, as long as the family meets the eligibility requirements. The state may eventually attach a collection lien against the estate of the last surviving homeowner to recover funds that the state has used for care.

A good elder law attorney will know how to help the family meet those requirements, so that the adult children are not sued by the nursing home for filial responsibility collection rights, if applicable under state law. The attorney will also know what exceptions and legal loopholes can be used to preserve the family home and avoid estate recovery liens.

Myth Three. We’ve promised our parents that they’ll never go to a nursing home.

Fact: There is a good chance that an aging parent, because of dementia or the various frailties of aging, will need to go to a nursing home at some point, because the care that is provided is better than what the family can do at home.

What our loved ones really want is to know that they won’t be cast off and abandoned, and that they will get the best care possible. When home care is provided by a spouse over an extended period of time, often both spouses end up needing care.

Myth Four: I love my children equally, so I am going to make all of them my legal agent.

Fact: It’s far better for one child to be appointed as the legal agent, so that disagreements between siblings don’t impact decisions. If health care decisions are delayed because of differing opinions, the doctor will often make the decision for the patient. If children don’t get along in the best of circumstances, don’t expect that to change with an aging parent is facing medical, financial and legal issues in a nursing home.

Myth Five. We did our last will and testament years ago, and nothing’s changed, so we don’t need to update anything.

Fact: The most common will leaves everything to a spouse, and thereafter everything goes to the children. That’s fine, until someone has dementia or is in a nursing home. If one spouse is in the nursing home and receiving government benefits, eligibility for the benefits will be lost, if the other spouse dies and leaves assets to the spouse who is receiving care in the nursing home.

A fundamental asset preservation strategy is to make changes to the will. It is not necessary to cut the spouse out of the will, but a well-prepared will can provide for the spouse, preserve assets and comply with state laws about minimal spousal election.

When there has been a diagnosis of early stage dementia, it is critical that an estate planning attorney’s help be obtained as soon as possible, while the person still has legal capacity to make changes to important documents.

The important lesson for all the myths and facts above: see an experienced estate planning elder law attorney to make sure you are prepared for the best care and to preserve assets.

Reference: The Sentinel (May 10, 2019) “Five myths about nursing home costs and estate planning”

Think It’s Elder Abuse? Here’s What You Need to Know

If you take those numbers for a single county in California, and multiply them across the nation, you’ll get a clear understanding of how our nation is aging and the number of vulnerable people susceptible to elder abuse in the coming years. With the growth of older adults, the risk will grow, reports Event-News Enterprise in the article “How to Recognize, Prevent and Address Elder Abuse.”

There are a number of types of elder abuse: physical, emotional, neglect and financial abuse. Overmedicating a resident of a care facility is one form of physical abuse. Self-neglect occurs due to physical or mental decline or from the senior’s inability to pay for their medications.

It’s estimated that 11% of all elder abuse cases in the United States occur in California. Financial elder abuse is the fastest growing form of elder abuse in the country.

Elder abuse is also the most unreported crime. There are a few reasons for this: the senior is embarrassed at having been taking advantage of. When the abuser is a family member, or a caregiver, the senior is often afraid to report the person for fear of being harmed. They are reluctant to report a family member. And they are reluctant to report a person they have come to depend upon for care. Who will take care of them?

The most common types of elder abuse are the romance scam, the grandparent/friend/family member facing an immediate emergency, imposter scams (Social Security or IRS scams), employment scams and sweepstakes/lottery/prizes scams.

To combat elder abuse, reporting all and any types of abuse is critical. Physical elder abuse must be reported to Adult Protective Services (APS) or the local police department. Reports to APS are kept confidential. Anyone who is a victim of financial scam or fraud should contact the local law enforcement, APS or the Federal Trade Commission (FTC). Think of it this way: you are not only defending yourself, but you may be protecting someone else from being scammed.

Sometimes people can get their money back, but it is difficult. The best way to prevent elder abuse is to be educated and forewarned about the scams, so as not to become a victim.

Most nursing care facilities or hospitals have an ombudsman or patient representative office. Contact the office—most offer the ability to remain anonymous.

Elder abuse is a terrible shame, when people take advantage of those who are least able to protect themselves. With strong public outreach and education programs, seniors who are aware of the scams and their own vulnerabilities will be better protected and able to defend themselves.

Reference: Event-News Enterprise May 29, 2019 “How to Recognize, Prevent and Address Elder Abuse.”

Do Veterans Need to Pay for Help to Apply for Benefits?

The Tribune-Review’s article, “Veterans don’t need to pay for help to apply for benefits in Pa,” explains that the issue of military veterans being charged when applying for benefits is a common problem in Pennsylvania. There are about 800,000 veterans in the Keystone State.

The article warns that there are still some who attempt to profit, by assisting veterans to sign up for their benefits.

Vets should never have to pay to apply.

In January, an Allegheny County company was fined $10,000 after an employee fraudulently represented that he was an accredited veteran service officer. Some of the claims handled by the Allison Park firm were from Westmoreland County.

Veterans should ask for assistance only from an accredited veteran service officer, an attorney accredited by the VA, or an accredited claims agent. These agents provide veterans and their dependents free assistance to identify, determine eligibility for and apply for a wide range of benefits on the local, state and federal levels. That benefits include the following:

  • Burial allowances;
  • Grave markers and headstones properly requested and placed;
  • The Disabled Veterans Real Estate Tax Exemption Program;
  • Veterans Emergency Assistance;
  • Pensions for blind and paralyzed veterans;
  • The Education Gratuity Program;
  • Service connected disability and non-service connected disability pensions;
  • Federal health care benefits; and
  • Survivor benefits.

You may be eligible for VA benefits, if you’re a uniformed servicemember, veteran, or spouse, child, or parent of a deceased or disabled servicemember or veteran.

A summary of benefits can be found at the Veterans Affairs website: https://benefits.va.gov/BENEFITS/benefits-summary/SummaryofVABenefitsFlyer.pdf.

Reference: (The Tarentum, PA) Tribune-Review (May 17, 2019) “Veterans don’t need to pay for help to apply for benefits in Pa”