Nosey Neighbor Nellie Can Find Out About Your Probate. Really.

Most people think of probate as a private process. However, since wills are filed at the courthouse, probated estates become a matter of public record. That means your nosey neighbor Nellie can simply go down to the courthouse or hop online and find out about your probate. Really.  

It’s Not Just Nellie That Has Access…

After a death, most states require that whoever has possession of the deceased person’s will must file it with the probate court – even if there won’t be any probate court proceedings.  While Nellie may be an annoyance and have no other reason to view the information other than curiosity, others can get access to your public records and make your beneficiaries’ lives miserable, such as:

• Financial predators. While today’s digital world is convenient, it’s also dangerous.  Financial predators find ways to access information online. Since courts are part of a bureaucratic process that often moves slower than a glacier, months can elapse before you (or the court) realizes that your beneficiaries have been swindled.
• Charities. Even the most well-meaning charities can become an annoyance when money is considered “up for grabs.” This is especially true in an estate situation when those inheriting assets want to do the right thing and honor their loved one.  
• Will challengers. Public record documents such as probate provide those with an interest (whether valid or invalid) to challenge the will. This can equate to added costs and time defending the will.

Avoid the “Nosey Nellie” Factor with A Trust

Trusts are never filed with a court, either before or after your death. Probate courts are not involved in supervising your trust administration. So, you can avoid busy bodies and predators by creating a trust. While some state laws require a total, or partial, disclosure of the trust to beneficiaries, it is still the best way to keep your legal affairs private. Did you hear that, Nellie? Contact us today and let us help you create a trust to avoid probate and keep your family and financial affairs private

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Is a Will Obsolete?

Is a Will Obsolete? In my opinion, the Will is not completely obsolete, but it is close.

A Will requires Probate

That surprises many people. They think that by writing a Will, the are avoiding probate. This just isn’t true.

A Will requires a Court to validate it and admit it for administration. Only then is the Will active.

No Lifetime Protection

A Will doesn’t provide any lifetime protection for you or your assets. A Will is only active after it has been validated by a Judge.

It takes a Durable Power of Attorney and a Healthcare Power of Attorney to provide lifetime protection for you.

Medicaid Recovery

A Will alone exposes your home to “Medicaid Recovery.” Even though Medicaid lets you own a home, when you pass, they can put a lien against it. As part of probate, that lien must be paid even if it means selling the home.

Creditors

Creditors can put their claims in during Probate. They will have to be paid as part of the Probate process. Even if it means selling assets, the claims must be paid.

What to do Instead

You need to use more than just a Will.

For your lifetime protection you need a General Durable Power of Attorney and a Healthcare Power of Attorney. These name the person (or people) you want to manage your financial, personal, legal, and medical affairs if you can’t.

You need to work with an attorney well versed in estate planning. They have methods to pass your real estate and other property outside of Probate without a Trust. Arkansas has types of deeds to pass real estate outside of probate and avoid Medicaid Recovery.

Here are a few reasons to use a Trust based plan:

• You have minor children
• You have children with special needs
• You have children with addictions to drugs, alcohol, gambling, …
• You have children with rocky marriages
• You worry about children divorcing
• Your children have trouble managing money or have credit issues
• You want to leave complex instructions or sell everything and split the money

Conclusion

Is a Will Obsolete? Not completely, but it is at the beginning of its end. The only reason you really need a Will is as a safety net in case something isn’t handled otherwise.

No Probate = No Creditors

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Warning: Don’t Let Creditors Inherit from You

Shocking to most people, the retirement account you leave for your spouse can be seized in a divorce, lawsuit, or bankruptcy.

3 Options Available To Surviving Spouses

When your surviving spouse inherits your IRA, he or she generally has three options:

1. Cash out the inherited IRA and pay the associated income tax.

WARNING: the cashed-out IRA will not have creditor protection and accelerates taxation.

2. Maintain the IRA as an inherited IRA.

WARNING: the cashed-out IRA will not have creditor protection.

3. Roll over the inherited IRA and treat it as his or her own.

WARNING: the cashed-out IRA will not have creditor protection.

It’s frustrating to many that a stranger can swoop in and take their hard earned money; fortunately, there’s a solution and that solution is a retirement trust.

Standalone Retirement Trusts Provide Protection

A Standalone Retirement Trust (SRT) is a special type of revocable trust designed to be the beneficiary of your retirement accounts after you die. It can protect your assets from creditors. In fact, we can include trust provisions which specifically benefit your spouse in situations such as:

• Second marriages
• Divorce
• Lawsuits from car accidents, malpractice, or tenants
• Business failure
• Bankruptcy
• Medicaid qualification

Want To Know More?

The bottom line is that a properly drafted SRT is often your best option for protecting your retirement assets (and providing the bonus of tax deferred growth). Want to know more? Contact us today to schedule a conversation. We look forward to working with you.

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Estate Planning Process

The estate planning process, as we see it, is a system of 9 steps.

Why a system?

A system is a repeatable set of steps that maximizes the benefits of the results. Systems are built and monitored to minimize errors and maximize benefits.

The 9 Step Estate Planning Process

Step 1 – Take Action

It is better to get started than to let this sit as something to get done later. You can make changes and fine tune the plan later.

Commit to creating your estate plan just as soon as possible or your family will pay the high price financially and emotionally. If you don’t act, State law will decide who makes decisions if you can’t make them yourself. State law will decide who gets your estate, how much, when, and how.

Step 2 – Decide Goals

The second step of the estate planning process is to decide you your goals.

Different people have different estate planning goals. Some want to leave as much as possible to their children. It is up to you to decide what your goals are. You may have multiple goals and that is fine.

Step 3 – Pick Who Make Decisions

If, when, something happens and you can’t make your own decisions, you need to have people you know and trust to step in and make your decisions.

If you don’t, then your family or friends must go to court and see the Judge. The Judge will decide, not you, who will make your decisions and how much power they get.

Step 4 – Take Inventory

The fourth step of the estate planning process is to take an inventory.

This doesn’t have to be a complete, detailed inventory, but you need to know what you have and what you owe.

At a minimum, you should write down what you have where. Someday, somebody will be glad that they don’t have to call every bank in the area to find your accounts.

Step 5 – Decide Who Gets What

Decide who gets what, when, how, and how much.

Step 6 of the Estate Planning Process – Decide How You Want to Avoid Probate

This is the step where you probably want to enlist the aid of an attorney with estate planning experience.

A plan to avoid probate ranges from simple to complex, depending on your circumstances.

The plan that works for many people is a beneficiary plan. This plan uses mechanisms that transfer your property and money immediately without probate, skipping the courts, creditors, and Medicaid. It puts a special deed in place on your house that not only moves it to the new owners but keeps it out of the hands of Medicaid if you ever need Medicaid.

Step 7 – Get the Documents Done

            With the decisions made, it is time to go to a professional, knowledgeable, and responsive attorney to have the legal documents created. An experienced attorney will know exactly what questions to ask to make sure that you get the best plan possible for you and your family. You’ll get a plan that captures your wishes, protects you, takes care of your family, and minimizes or eliminates Judges and Court.

Step 8 of the Estate Planning Process – Fund the Plan

Step 8 of the estate planning process is to fund your plan.

No matter what type of plan you have, you’ll need to go to the bank, financial advisor, DMV, retirement advisor, and a few other places to setup the beneficiaries on your accounts or retitle the accounts like you want. This plan depends on having beneficiaries created and properly maintained.

Step 9 – Ongoing Maintenance

Your plan isn’t even complete. Things happen that will require changes to the plan.

A few of these events are:

• Birth or adoption of children
• Death of a spouse, children, or somebody on your powers of attorney
• Adding people to the plan or changing percentages
• You get married or divorced

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Estate Planning Explained

Estate planning explained often as the process of preparing to transfer your property to your loved ones and others when you pass.

This misses a whole lot of what estate planning is all about.

Estate planning also includes preparing for incapacity and dementia before an accident, medical incident, illness, or dementia strikes.  These things often strike without warning or creep up on us and leave us incapacitated.

When we can make our own decisions because of incapacity, nobody else can make them unless you have planned, or your family goes to court. It’s easier to plan now than to force your family into court.

Estate planning explained like I think it should be…

Estate planning is the process of preparing for incapacity and preparing for the distribution of your final estate.

First is preparing for incapacity. To do this, you need to create powers of attorney.

The first power of attorney you want is a Durable Power of Attorney. This names somebody to make legal, personal, and financial decisions when you can’t. Without it, your family is forced to court.

The second power of attorney you need is a Healthcare Power of Attorney. This power of attorney names the person or people you want to make healthcare decisions for you when you can’t.

You also need a HIPAA waiver.  HIPAA is a federal law that protects your healthcare information. Without a HIPAA waiver (protected healthcare information waiver) in place, even your family can’t get information from healthcare workers.

The final thing you want during your lifetime is a Living Will. This is not to be confused with a Last Will and Testament. A Living Will is an advance healthcare directive. This document tells doctors that you don’t want to be kept alive artificially if everything has been done.

Then there is preparing for passing your estate. This is done either with a beneficiary plan or a trust plan.

A beneficiary plan is based on using beneficiary designations to pass your estate outside of probate.

A trust based plan uses a trust to pass your estate outside of probate.

Either way, the goal is to pass as much of your estate outside of probate as possible.

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Estate Planning Costs

Estate planning costs can be looked at in two ways…

First, what is the cost of creating an estate plan?

Second, what is the cost of NOT creating an estate plan?

First, let’s examine the cost of NOT creating an estate plan.

The Estate Planning Costs of NOT Planning

If you don’t create your own plan, then the State has written an estate plan for you!!!

When you decide to NOT create your own estate plan, you are agreeing that the State’s default estate plan is okay with you.

The State’s Estate Planning Costs

Here are the estate planning costs associated with the State’s plan.

Guardianship

If you can’t manage your own affairs, pay bills, make decisions, and more then the State says your family must go to court. They must go to court to get permission to make your decisions. This is called a Guardianship.

The court rips away your rights to make decisions and gives it to a family member. It is not necessarily the family member you would have picked to stand in your shoes.

The financial cost of a guardianship is about $3,500 up front and about $300 per year for the annual reports.

Guardians are restricted in what they can do. Often, they end up back in court, at additional cost, to get permission to do things.

Probate

When you pass, then your family must Probate your estate. Only, without a plan, the State’s plan is used.

The State’s plan requires that your family goes through a very formal, very strict, very expensive probate.

You can expect this to take at least 1 year of time and cost at least $4,000.00!

This is only the financial cost. It doesn’t include family strife and the emotional costs of probate. Until probate is over, many people can’t grieve properly.

Total Financial Costs

Financially, your family is looking at $3,500 for you, $3,500 for your spouse and $4,000 for probate. This comes up to about $11,000. Or $7,000 for guardianships and $4,000 for probate.

Estate Planning Costs

As of October 2021, you can have a comprehensive estate plan created for about $2,150.00 for a couple.

This plan includes

• Durable Powers of Attorney to stop guardianships
• Healthcare Powers of Attorney to stop guardianships
• HIPAA Waiver to allow the people you want to talk to doctors, nurses, and other healthcare professionals
• Living Will to tell doctors you don’t want to be kept alive artificially if nothing else can be done
• Last Wills and Testaments to express your wishes
• Beneficiary Coaching to teach you how to pass property outside of probate
• Deed to pass your house outside of probate and protect it from Medicaid recovery

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Adopted Children Estate Planning

Adopted Children and Estate Planning is a topic that comes up from time to time. It is important to understand the way the law treats adopted children for the purposes of estate planning and inheritance.

Many times, people don’t realize their rights, or lack thereof, by being adopted. Parents are just as confused. Too many parents and children think that adoption doesn’t really change anything. Then children are frustrated when they find out they don’t inherit from the parents that gave them up for adoption. Adoption severs all legal ties between the adopted child and their biological parents.

A child has a legal right to inherit from their adoptive parents just as if they were born to them. Under the law, a child you adopted is treated as having been born into the family for inheritance purposes.

A child has NO legal right to inherit from the parents that gave them up for adoption. Adoption legally severs their tie to the parents that gave them up. Even if they have met up and known each other for years, the child has no right to inherit.

On a related note, your stepchildren have no legal right to inherit from you. If you don’t have an estate plan, then they get nothing. I must tell somebody this all too often.

However, the relationship can be changed back.

Adult Adopted Children and Estate Planning

This brings an interesting fact about adopted children and estate planning…

You can adopt an adult in Arkansas. And I’ve done it to re-establish the legal relationship.

Most often adopting an adult is done in a move to re-establish an existing relationship or confirm a long-standing relationship. As an adult, adoption is not difficult. However, it is strongly recommended to get an attorney to help you with all the steps and paperwork.

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Definition Estate Planning

One definition estate planning is the documents required to protect your family, yourself, and your money for your lifetime and beyond.

You can also define estate planning as the process. It is the process you go through to come up with the documents to protect your family, yourself, and your hard-earned money.

One process, the system we use, has 7 steps.

Why use a definition estate planning system? Because a system is a repeatable set of steps that leads to the same outcome – successful estate planning.

The 7 Steps – Brief Definition Estate Planning System

These are the 7 steps we follow. We can help you from the first step. After you decide to take action, you can give us a call. We’ll walk you through the rest of the process. We can coach you on the best decisions for your situation.

Step 1 – Take Action. Act now. Once you decide to do estate planning, keep moving forward.

Step 2 – Decide on your estate plan goals. Different people and families have different goals. Some want to protect and pass money. Others want to protect children from themselves.

Step 3 – Decide who will make decisions for you when you can’t. If your are injured, sick, or develop dementia you and your family will be glad you picked somebody to step in. Without this done, your family will be forced to court.

Step 4 – Take a basic inventory of what you have and what you owe. It doesn’t have to be a detailed inventory.

Step 5 – Decide who gets what, when, how, and how much. Do you want to leave it in one lump sum or spread it out over time? Who gets the house? Should it be sold and the money split?

Step 6 – Decide how you want to avoid probate. Trust? Will? Combination? Other?

Step 7 – Have the documents prepared and sign them.

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Define Estate Plan

Define estate plan as a set of legal documents that individuals create which helps decide how to distribute their assets and property in the event of their death. It also deals with dealing with incapacity during a person’s lifetime.

An estate plan includes wills, trusts, powers of attorney, living wills, and other documents that are specific to the individual’s needs.

A properly defined estate plan will protect you, your family, and your assets during your lifetime and beyond.

Last Will and Testament

Part of a comprehensive plan is a Last Will and Testament. Don’t confuse this with a “Living Will.” They are different things.

A Last Will and Testament provides direction for who should receive your property after you die. It also names who should be in charge, the executor. Finally a Will names the people you want to raise your minor children if you can’t.

A Will alone requires probate to be validated and activated. Probate means a Judge will oversee the process from start to finish. Probate often takes control away from the family and gives it to a Judge.

Define Estate Plan – Trusts

A Trust, especially a Revocable Living Trust, is a method used to avoid probate, protect assets, protect family, and more. Trusts are a more advanced estate planning technique. When needed, they are great tools. Often they are overused by attorneys.

Powers of Attorney

A general durable power of attorney gives someone else the ability to make your personal, financial, and legal decisions if you can’t.

A healthcare power of attorney names who you want to make healthcare decisions when you can’t.

Other Healthcare Documents

A HIPAA waiver (protected healthcare information release) tells healthcare workers who they can talk to and who they can’t talk to.

A “Living Will” also known as a death with dignity document, tells doctors that after everything they know to do has been done, unplug the machines.

Define Estate Plan – Other Techniques

An estate planning attorney has other techniques to choose from. Some of these are:

• Beneficiary designations
• Deeds
• POD/TOD
• and more

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Wills and Estate Planning

The process of creating wills and estate planning is complex and it is advisable to seek professional advice.

Wills can be used to distribute your assets, name guardians for any children, nominate an executor to carry out your wishes, and decide who gets what, when, how, and how much.

What is a Will and Estate Planning

A Will or a Last Will and Testament (not to be confused with a living will) is a document that specifies how you want your estate distributed when you die.

Estate planning includes making arrangements for who takes care of minor children after death, naming someone to handle financial affairs upon death, specifying what should happen to family heirlooms, deciding whether to donate organs or tissues for research or transplantation after death.

Estate Planning is more than just writing a Will. It also includes powers of attorney, asset protection, coaching, and more to protect you, your family, and your hard earned money during your lifetime and beyond.

Why Have a Will

Everybody should have Wills and Estate Planning done. Because Without a Last Will, the State will determine who gets your stuff, how, how much, and when.

A Last Will and Testament is important in case there is no next of kin or if you want to give assets away in specific ways. This document will provide instructions for how your assets are handled upon your death.

If you have minor children, a Last Will and Testament is where you name the people you would want to raise your children if you can’t.

Having a will drafted is important for everybody over the age of 18. When it comes time for your heirs to handle your assets, they may not be able to do so if they don’t know what you wanted them to do with them.

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What Powers of Attorney do You Need? (Video)

What powers of attorney do people need?

Hi. I’m Gary the owner of DeWitt Law.

A durable power of attorney for finances, legal matters, and personal decisions. You need a comprehensive durable power of attorney.

A durable power of attorney for healthcare management to tell the doctors and nurses who will manage your healthcare.

A “HIPAA Waiver” also called a Protected Healthcare Information Release. This document tells healthcare workers who they can talk to about your condition or if you are even a patient at a facility or hospital.

A “Living Will.” A “Living Will” is a document that tells the doctors what treatment you would want or not want in case of a terminal disease or brain death.

Start your plan at dewitt.law.

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What Does a Probate Attorney Do?

This is a short direct answer…

A probate attorney makes sure the probate process flows along and works like it should.  The probate attorney knows the laws and cases involved and takes care of all the little steps involved in a probate.

The probate attorney guides the personal representative (executor or administrator) through the process of probate.  The attorney does not actually do most of the work unless the personal representative requests the attorney to do the work.

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Common Estate Planning Mistakes

This article from the Wall Street Journal Blog is excellent.

We all know that having an estate plan is good for our finances and for our heirs. But many of us fail to put a plan in place—for fear of facing our own mortality, among other reasons. And those who do have a plan often make mistakes that can lead to familial and financial problems down the road. The Experts, a group of finance professionals and academics, weigh in on what they see as the biggest mistakes people make with estate planning.

Read the rest by clicking here…

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What’s the Difference Between Estate Planning and Drafting a Will?

What’s the Difference Between Estate Planning and Drafting a Will? Many people think that an estate plan is a Will and vice versa. But nothing could be further from the truth. Drafting a Will is an important piece of estate planning, but is only one piece, and in my opinion not the most important part of estate planning.

Drafting a Will only tells people, after you’re gone, who gets what, when, how, and how much. A Will also names the person you want in charge – the executor. A Will alone requires probate to move your assets to those people you’ve picked to get them.

A comprehensive, complete estate plan includes coaching and documents for protecting you, your family, and your assets during your lifetime! A great plan avoids probate, fees, and costs later.

Some of the other documents in a comprehensive estate plan are:

• A Durable Power of Attorney. This tells the world who you want and allow to manage your finances, legal matters, and personal affairs if you can’t or don’t want to.
• A Healthcare Power of Attorney. This very important document tells healthcare professionals such as doctors and nurses who you want to make your healthcare decisions if you can’t. Without it, the decisions are left up to the doctors.
• A HIPAA Waiver (Protected Healthcare Information Release). This allows the doctors, nurses, and other healthcare professionals to share information with the people you’ve named. These people have no decision-making authority.
• A Living Will or Right to Die with Dignity Document. Detail your wishes for life support and under what conditions life support will be used. It works hand-in-hand with your Healthcare Power of Attorney.
• Revocable Living Trust. In certain cases you’ll want a trust as a part of your plan. A trust allows you more flexibility and privacy than a Will alone. You also get a Will as part of this plan. But the Will with a trust is a safety net. When you have a trust, you’ll also get some supporting documents.
• Memorandum of Gifting. Whether you have a Will or Trust, the “memorandum of gifting” allows you to “override” the Will or Trust. In this memo, you can leave gifts of “tangible personal property” to people without the need to rewrite your will or trust to do so. This doesn’t include cash, stocks, bonds, or other securities.
• A Deed or Deeds. Protect your house and real estate from probate and possibly the ravaging cost of long-term care. With the proper planning now, you won’t have to worry about losing your house later.

All these documents work together to create a comprehensive estate plan. A comprehensive estate plan protects you, your family, and your money during your lifetime and beyond. It lets you enjoy the peace of mind you deserve and lessens burdens on loved ones during difficult times.

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Qualifying for Medicaid Without Losing Everything You Have

Qualifying for Medicaid without losing everything you have is possible.

How do you qualify for Medicaid without losing everything you have in the process?

Hi, I’m Gary DeWitt the founder of DeWitt law.

I have good news and bad news. You usually can’t protect everything you have, but you can protect what you have.

Qualifying for Medicaid – What Makes it Work?

Qualifying for Medicaid requires one of two things to make it all work.

First, the person needing long term care must be mentally competent and able to sign the forms and move money around.

Or, Second, the spouse or family must have a durable power of attorney with sufficient power and language to let them sign the forms and move money around. If you don’t have a power of attorney or haven’t had it reviewed for Medicaid purposes, I highly recommend getting it done before you need to apply for long term care.

Brief History of Medicaid

Medicaid was created in 1965 to assist low-income people get long term care.

Medicaid provides health coverage to millions of Americans, including eligible low-income adults, children, pregnant women, elderly adults, and people with disabilities. Medicaid is administered by states, according to federal requirements. The program is funded jointly by states and the federal government.

Income and Assets Overview

Qualifying for Medicaid has income and asset limits.

For Medicaid purposes, you have 2 kinds of assets.  First you have countable assets.  These are assets Medicaid is going to count against you. You also have non-countable assets which I’ll talk about.

First, everybody is allowed to have a home under Medicaid law. The equity in that house can be up to $603,000.00 in 2021. Thanks to some changes that happened in August of 2021, this equity can be preserved for the family in Arkansas.

Let me clarify. Everybody is allowed to have a home and all adjoining real estate if it’s worth less that $603,000.00. And adjoining means across the road too. But it doesn’t mean that you can have property in another state or another area of the state. That would count.

Second, a couple is allowed to keep up to $130,380.00 of cash on hand. I’ll come back to this in a minute. It’s not quite that simple.

The individual needing care can make up to $2,382.00 per month of gross income. The person that stays at home is allowed unlimited income.

The individual needing care can have $2,000.00 in their name.

An unmarried individual can have a home too. But they can only have $2,000.00 in their name.

Qualifying for Medicaid – Cash on Hand Limits

Let’s talk about the cash on hand limits. I said earlier that a couple, the spouse staying at home, can have $130,380.00 of cash or cash equivalents.  In Arkansas that includes checking, savings, retirement accounts, IRAs, 401(k), stocks, bonds, investment accounts, and more. This doesn’t mean you have to spend all your excess on nursing home care.

You can turn countable assets (cash) into non-countable assets. You can spend money to improve your home, pay down the mortgage, buy a new car, prepay a funeral, and much more. You can also turn cash on hand into an income stream. This is done with special financial planning.

The reason we talk so much about what you can spend money on and how much you can have is that Arkansas is a “half” state.

Half the Cash

That means that a couple can keep half their cash on hand up to the $130,380.00 limit.

For example, if you have $200,000 you can keep $100,000. If you have $260,760 or more, you keep $130,380.

Qualifying One Person in a Couple

Qualifying one person in a couple usually consists of coming up with a good spending plan and converting the excess cash into income for the spouse staying at home.

We arrange the accounts so the person at home name is on the accounts. We open an account for the person needing care just in their name and put $2,000 in it.

If the person needing care makes over $2,382.00 per month, then a special trust must be setup to hold the excess.  In the end, the money in that trust gets paid over to Medicaid.

Qualifying a Single Person

Qualifying a single person for Medicaid is harder than qualifying a person in a couple.

First, they can only have a total of $2,000.00 on hand. Their income is limited to $2,382.00 per month.

What to do if mom or dad has $100,000 in a retirement account?

The Penalty Period

Before I can explain how to handle this, I need to go over the penalty period.

If somebody gives away property within 5 years of applying for Medicaid, then that “gift” is penalized by the Medicaid rules. Technically the gift has to be made for the purpose of qualifying for Medicaid to be penalized.

The penalty is that the person must pay for their own care for a period of time until the penalty is used up.

So, if mom gave away $25,000 last year knowing she would need help and the “penalty” is $5,000 per month, then mom must pay for 5 months of care.

Qualifying for Medicaid by Giving Money Away

Medicaid has a penalty for giving money away.  But, what if we do it anyway, in a controlled way?

Can we give some money to the family, but pay for care during the penalty period?

I’m going to use $5,000 as the monthly penalty for easy math, but it is $5,871 per month in Arkansas.

Assume dad has $102,000 in the bank. He gets to keep $2,000 leaving $100,000.00 that must be dealt with before he can qualify.

What if he gave half to the family, and turned the other half into income payable to the nursing home?

So, $50,000 goes to the family.  This is going to result in a 10-month penalty period. That is $50,000 divided by $5,000 per month. But dad kept $50,000. However, that’s more than the $2,000 he is allowed. So, we take dad’s money and turn it into a stream of income paid to the nursing home for 10 months at $5,000 per month.

It’s not nearly as simple as that because income and other things must be factored into the calculations. I highly recommend seeking professional legal help that knows how to do the calculations.

Qualifying a Couple for Medicaid

Qualifying for Medicaid for a couple is about the same as qualifying an individual.

The only real difference is the couple can have $3,000 of cash.

Qualifying for Medicaid starts now!

You need to get comprehensive, complete durable powers of attorney done so that your family doesn’t have to worry about it later. You see, if you need long term care and can’t make decisions, you can’t sign a power of attorney and its too late to protect what you have.

You need to meet with an experienced estate planning and elder law attorney that knows what can be done now to get as many assets protected as possible from the ravaging costs of long-term care. They will guide you in what can be done to protect your assets.

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FAQ: Why does it cost so much?

The process is relatively easy and inexpensive when you consider the end cost emotionally and financially of not doing it.

Breaking this down by a minimum every 5 year review, you are looking at $1.21 per day. That is less than the cost of a cup of cruddy convenience store coffee.

Really, less than a cup of cruddy convenience store coffee every day.

You are getting a well thorough, custom, individualized plan you can trust. Not a “box” plan from the office supply store or online.

There is something to the saying “you get what you pay for.” Lisa did an online will but did not get part of it notarized. This could have caused a big problem later if it was not caught during other work being done. The overall cost would have been much greater than having a custom plan done.

Asset transfers will add to the base price. Any Supplemental Needs Trusts will add to the price.

If the attorney has to go to your location, then travel time at the hourly rate will typically be added.

Finally, don’t expect bargain prices if you just need a single document. An attorney, like a CPA or doctor’s office, has an overhead to open the file, make notes, do the work, and close the file.

 

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Keeping your estate plan up-to-date

You need to have the Adobe Flash Player to view this content. Please click here to continue. Attorney Misty Watson of the Danna McKitrick law firm stopped by Fox 2 today to give people vital information in planning their estate in case of emergency. Many people wait until the last minute to update documents such as their will, or not at all. When updating your documents, you should consider not only the property and assets that are being distributed, but also the people involved. Carefully consider beneficiaries as well as people with whom you have entrusted other responsibilities. These responsibilities include the executor of your will, trustee of a trust, power of attorney and guardian of your children. Below are possible events and circumstances that may require changes in your will or other estate planning documents: Marriage Divorce New baby/child Family member gets a diagnosis Death of a family member or beneficiary Change of guardians Reasons to do your estate plan in 2016: Substantial savings for probate fees Control of who makes decisions on your behalf Naming guardian for children A will is the only place you can name a legal guardian Reduce future taxes Recognized charities important to you (tax benefit as well)

Click here to view original web page at fox2now.com

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What is Elder Law?

I’m often asked what elder law is.  So here is a little more information.

One of the better articles I’ve read is located here at Wikipedia.

Elder law consists of 3 major areas:

1. Medicaid and Medicaid planning issues
2. Estate planning and administration
3. Guardianships

Very related to Elder Law are Elder Rights.  These are the rights of the elderly, who are not a Constitutionally protected class.

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What is Elder Law (Video)?

What is elder law?

What is elder law? What is involved? What isn’t elder law?

In this video I’m going to tell you what elder law is and what it doesn’t cover. Elder law is a broad topic.

Hi, I’m Gary. I’m an estate planning lawyer with DeWitt Law Firm and I’ve helped 1000’s of people here in NW Arkansas avoid probate, protect assets, and pass on what they’ve worked so hard to enjoy the peace of mind they deserve.

Many people of think of elder law as strictly dealing with issues of nursing homes and Medicaid. This just isn’t true.

Elder Law Involves a Lot of Law

Elder law covers the intersection of estate planning, contract law, real estate law, Medicaid, Medicare, and a few other areas of law. It also involves protecting people in nursing homes and creating guardianships for those that haven’t planned.

Be Prepared

Perhaps more important than getting Medicaid is being prepared for long term care. This is the job of estate planning. If you end up unable to manage your own affairs, then without a plan, your family, not even your spouse, can sign for you. If your spouse needs to sell the house or move assets around, they may not be able to. But, with a plan in place that includes durable powers of attorney, healthcare powers of attorney, and medical information waivers, your family won’t end up in court. Without a plan, your family will end up in court getting permission from a Judge to make those decisions.

Going to court and getting a Judge’s permission to manage is called a “guardianship.” In Arkansas, the powers of the guardian are limited. For example, a guardian cannot sell real estate or other property without a Judge’s order.

Protect Your Home and Money

The second part of estate planning is to protect your home and as much money as possible from being used to pay for long-term care costs. This is done, in Arkansas, by using a special deed that keeps your real estate out of probate. By keeping your real estate out of probate, Medicaid can’t recover their costs from your real estate. And thanks to some changes in the law as of August 2021 in Arkansas, Medicaid can’t “reach through” this special deed to recover their costs.

The third part of estate planning is to pass what you have on to your family in the way you want. Depending on your goals you may need a Will based or a Trust based plan. This isn’t a one plan fits everybody thing.

Contract Review

Part of elder law is reviewing nursing home contracts. If you sign without reading, you don’t know what you are agreeing to. Sometimes they’ll sneak a clause in that you are responsible for the bill if the person in the nursing can’t pay or qualify for Medicaid.

Elder Law to Qualify for Medicaid

Then there is qualifying for Medicaid.

Many people have too much money to qualify for Medicaid, but not enough money to pay for long term care and their spouse to live. A lawyer can help a family reallocate their money to spend as little as possible on long term care and pass on as much as possible to the spouse and family. Don’t let a nursing home tell you that you need to pay it all to the nursing home before your loved one qualifies. By reallocating assets, your loved one can qualify much faster and your family will spend less money.

Medicaid is a “means tested” government benefit. Means tested means that your income has to be under the income limit and your assets (including real estate) have to be under the asset limits. For a couple, they can’t have more than $130,380.00 not including the house and car.

In Arkansas, as of 2021, the income of the person needing care has to be under $2,382. But, the income of the spouse at home can be unlimited.

It’s a strange thing… The assets of both are counted, but only the income of the person in long-term care is counted.

A person or couple can own one home and all adjacent land up to a value of $603,000. In some cases, this is a planning opportunity. They can also own pre-paid, non-refundable funeral plans. Another planning opportunity.

Arkansas is a “half” state when it comes to liquid assets. This means that the spouse at home can only keep half the cash, up to $130,380. So if you have $200,000 in savings, then the spouse at home can have a maximum of $100,000 to qualify.

Most nursing homes will tell you that you need to spend the money to qualify. This isn’t a complete truth. The money can be reallocated to create income for the spouse at home.

But, if your loved one had done some comprehensive estate planning earlier, then getting qualified for Medicaid would be much easier because the real estate is protected already.

Elder Law Conclusion

I hope this helped and that you learned something.

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Medical Estate Planning and Records

In this day of electronic records, it is still a good idea to track what medicines you take currently, and have taken in the past as part of your medical estate planning.

It is actually a simple task to create a spreadsheet in Google or Excel to track your medicines, how much, when, and who prescribed it.

Here is a sample of my tracking spreadsheet.  Notice that it has the medicine, how it is taken, the dose and units of dose, when, who ordered it, their speciality, the time of day and reason it is being taken.

Medicine	Route	Dose	Unit	Timing	From	To	Ordering Physician	Specialty	Timing	Reason
Oxygen	canula	2	liters	sleeping			Fomin, Dimitry	Neurology/Sleep	PM	sleep apnea
CPAP	nasal	6 to 10	cm H20	sleeping			Fomin, Dimitry	Neurology/Sleep	PM	sleep apnea
Tramadol	PO	50	mg	1 or 2 PRN			James Blankenship	Neurosurgeon	PRN	pain

Also, I have a separate worksheet in Excel that has the medicines I have taken in the past so I have a history.

Then, you should create another spreadsheet that has your procedures in it with as so:

Procedure	When	Who	Where	Why
Remove transverse process from T1	5/15/1985	Dr. Carry Couch	Stillwater, OK	Alluvial fracture of spinous process of T1
Rhinoplasty	12/20/1997	Dr. Fincher	Fayetteville, AR	Deviated septum. Left side of nose unusable

Now, when you go to see a new doctor, you don’t have to take all those bottles or try to remember everything.  Just print out the spreadsheets and voila, you are ready.

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What Happens if I Don’t Have Powers of Attorney? (Video)

What will happen if you are injured, sick, or develop dementia?

Who will be in charge of you, your money, and your affairs?​​​​

Hi. I’m Gary the owner of DeWitt Law.

If you’re unable to manage your affairs and don’t have a Power of Attorney, a Judge may have to appoint someone to act on your behalf in a legal proceeding called a Guardianship.

Your personal and financial information become public. This information can cause problems for you and your family that you haven’t thought about. Financial predators watch these records and prey on the unsuspecting, like your family.

A Guardianship is very expensive.

A guardianship starts at $3,000 + costs for an uncontested guardianship. If somebody contests the guardianship, or complications develop, the cost goes up rapidly. It is not unusual for an emergency or complicated guardianship to cost $5,000.

Your family will also have the cost of the annual reports, accountings, and inventories that the court will want. Even for a simple estate, this can add another $750 or more every year. If these are reports are not filed on time, the Judge will send your family a letter asking where the report is. If they don’t produce the report in time, the guardianship can be cancelled, or they can be held in contempt of court.

A complete set of comprehensive durable powers of attorney starts at $650 per person.

Start your plan at dewitt.law.

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No Kids? You Still Need an Estate Plan

For people without children, a will is important for ensuring your wishes are fulfilled. As the adage goes, you can’t take it with you. Whether you want to spend your last dime or leave it all behind when you go, creating a comprehensive plan for your estate begins earlier than you might think. If you don’t have children or obvious heirs, documenting your wishes and making them accessible will help ensure those wishes are fulfilled should something happen to you. “If today were your last day on earth, who would get your stuff?” says Jean-Luc Bourdon, a certified public accountant in Santa Barbara, California, and a member of American Institute of Certified Public Accountants’ personal financial planning executive committee. It’s a question he poses to all of his clients, especially those without kids . While parents may think their children are the answer, Bourdon says people without children need to plan more carefully. “When it comes to what you’ll leave behind, there are only three buckets: Uncle Sam, charity or individuals,” he says. “Generally speaking, Uncle Sam is the least appealing.” Many people with children create a will to ensure their children are cared for, and in the absence of a will, next of kin are the obvious heirs. But for people without children, a will can be just as important, and it can easily be overlooked. “It’s important to check all the estate planning documents,” Bourdon says. “Having a family creates more of an urgency in making sure […]

Click here to view original web page at money.usnews.com

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The 7 Step Estate Plan (Video)

An estate planning system makes sure your plan do what you expect it to do, not what you think it does.

If you search on the internet for how to create an estate plan or the steps to estate planning, you’ll find that the articles talk about creating the documents.

This is literally putting the cart ahead of the horse.  There are several steps to go through before creating and signing the documents.

Let’s talk about the 7-step planning system.

Step 1 – Take Action

It is better to get started with an estate planning system than to let this sit as something to get done later. You can make changes and fine tune the plan later.

If something were to happen tomorrow – an auto accident, household mishap, or medical incident – and leave you unable to make decision, your family will pay the price and face the problems.

Commit to creating your estate plan just as soon as possible or your family will pay the high price financially and emotionally. If you don’t act, State law will decide who makes decisions if you can’t make them yourself. State law will decide who gets your estate, how much, when, and how.

Estate Planning Step 2 – Pick Your Goals

Different people have different goals. An estate planning system narrows and focuses your efforts.

• Avoid Probate
• Protect Assets
• Protect Family
• Maximize Inheritance
• Prepare for Long Term Care
• And More…

Step 3 – Decide Who Decides

You need to pick somebody you know and trust to manage for you when you can’t mange for yourself.

This happens in two cases

First is when you are unable to make decisions because you’ve had an accident, medical incident, or other mishap that leaves you unable to make decisions. It is extremely important that you have somebody picked ahead of time to make decisions.  If you don’t, then your family will be forced to court to get a Judge to pick somebody to make the decisions for you. You can plan on that trip to court costing about $3,500. You can create a comprehensive plan to avoid court for about $675.

Second is when you’re gone. You need to pick somebody you know, like, and trust to manage and distribute your property..

Estate Planning Step 4 – Take Inventory

It is important that the loved ones you leave behind know what you had and what you owe. They will have to deal with both parts of it.  Part of settling an estate is paying off debts. The other part is distributing assets.

Don’t forget to include intangible assets.  If you have a patent, book rights, and other things, they need to be included.

Step 5 – Decide Who Gets What, When, How, and How Much

You get to decide who gets what, when, how, and how much instead of the State.  If you don’t have a plan, then State law decides for you.

It’s not uncommon for me to tell step-children that they get nothing because mom or dad didn’t have a plan. By default, the State’s plan is for only blood or adopted children to inherit.

Estate Planning Step 6 – Decide on a Probate Avoidance Plan

An estate planning system is incomplete without a probate avoidance system.

You can decide to have nothing left. However, this is very difficult to do. But it is easy to have nothing left in your name.  More on that in a moment.

The first plan we can do in Arkansas is called a Beneficiary plan.  This plan depends on a beneficiary deed for your real estate and beneficiary designations for the rest of your property. For many people, it is the plan for them. It is fairly simple to implement and maintain. This plan also includes a Will for a safety net.

If you have family with special needs, addictions, marital issues, or complex distribution rules then you need a trust. We probably write 25% trusts and 75% beneficiary plans.

When you give money, real estate, or other property to your trust, you are taking that property out of your name and putting it in the name of the Trust.  You are literally giving your property to the trust. Therefore, you don’t have anything left in your name. When you pass, the person you name takes over managing the assets in the Trust and follows the instructions.

Step 7 – Create the Documents

The last step is to create and sign the documents that cover the decisions made in the previous 6 steps.

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Wills

Who should have a will?

Anybody and everybody.

What is a Last Will and Testament?

A will is instructions on how to pay the final expenses, who should take care of wrapping everything up, and who gets your stuff.

A Last Will and Testament is only one of the many estate documents of a complete estate plan. If you die without a will or trust, you are said to have died “intestate.” The state will determine who gets what in that case. You really want to put your plan in place of the default state plan.

When should I have a will drafted?

If a will is what you want, then immediately.

When should I have a will updated?

Anytime you have a major life change such as the birth or adoption of a child, buying or selling real estate, major inheritances, etc.

Why have a will?

Answer these 3 questions and you will have a good idea of what your estate plan needs to be:

1. Who should get my stuff?
2. How much should each person get?
3. When should they get it?

Making a will, even a “simple will” is better than nothing in making your wishes known.  At the very minimum everybody should create a will.  Creating a will is not the hard task you may think it is if you keep the 3 questions in mind.  However, writing your own will is not suggested as legal wills are complex legal documents in the area of estate law.

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Revocable trust is important estate planning tool

(Photo: Desert Valley Times) The use of a revocable trust (sometimes referred to as a “living trust” or “family trust”) to plan one’s estate has become very popular. Despite the popularity of the revocable trust, revocable trusts are not without their potential problems. First, it is important to understand that there is no definitive answer as to whether a trust is necessary. Another estate planner explained that asking whether a revocable trust is good or bad is like asking whether a wrench is good or bad. It depends on what you are trying to accomplish. A trust is just an estate planning tool. Whether it is good or bad depends on your needs and desires. Although there are many factors to consider in determining whether a revocable trust is right for you, here are a few of the more significant factors: Avoiding Probate It is true that a properly funded trust avoids probate. If the goal of the client is to avoid probate, it is critical that the trust be properly funded. To “properly fund” a trust, title to all assets and beneficiary designations for insurance policies and retirement accounts must be reviewed. A properly funded trust avoids probate because the owner of the assets (generally termed the trustor, settlor, grantor or trustmaker in the trust document) conveys ownership from him or herself (in his or her individual capacity) to him or herself as trustee of his or her trust. Probate is avoided because for “probate purposes” the deceased […]

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Fill-in-the-blank estate planning is playing with fire

(Photo: Special to the Statesman Journal) This summer, Oregon saw more forest fires and smoke than any other year in recent memory. Families and towns were evacuated, and some did not have homes to go back to. Like a forest fire, an estate plan with a will or living trust that is poorly developed often goes up in smoke along with your family relationships. Putting time and thought into your will or living trust is time well spent. In general, a will transfers an estate after death to beneficiaries through court probate. A will also names guardians for children. A living trust is often the heart and soul of an estate plan. A trust contains instructions for your care during disability and enables named trustees to handle your finances. A trust transfers assets after your death, avoiding court probate. By developing these legal documents beyond filling in the blanks on forms, your estate plan can incorporate your goals, wishes and values into a plan for the benefit of you and your family. The following planning considerations will help preserve family values and alleviate any sparks that could ignite family relationships after you are gone: For children, consider a plan that does not pay outright but provides them with guidance on how to spend inheritance (for example, for college or retirement). Without guidance, most inheritance is spent within 18 months. For nonprofits, consider setting up a charitable fund with as little as $25,000 that continues for generations. Oftentimes, parents are […]

Click here to view original web page at www.statesmanjournal.com

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Sibling Rivalry Complicates Estate Planning

When a parent dies, siblings may battle for years over their inheritance. For example, a sibling of the late guitarist Jimi Hendrix and a company affiliated with another sibling recently reached a tentative settlement in a suit involving the Hendrix estate. Their father, Al Hendrix, died in 2002 and left Jimi Hendrix’s estimated $80 million estate under the sole control of one of the siblings. Jimi Hendrix died without a will in 1970. For estates of all sizes, many of these sibling battles can be avoided, estate lawyers and financial advisers say. That can require more than simply writing a will. Leaving detailed instructions regarding jewelry and other family valuables, appointing a professional fiduciary as executor and communicating your wishes before death are a few ways to prevent your heirs from battling it out once you’re gone. Battling over a $15 watch Fights over Mom’s or Dad’s possessions—whether it is a prized watch, lucky five iron or wedding ring—is a common area of conflict in estate settlements, advisers say. Even if the object isn’t of great financial value, the emotional attachment can make it priceless in the eyes of heirs. Parents should anticipate that heirs may have sentimental attachments to certain objects, and they should plan ahead to smooth over conflicts and right any perceived wrongs. Michael Wernersback, regional estate-settlement manager for Wells Fargo Private Bank in Bay St. Louis, Miss., recalls a particularly ugly example of two sisters who fought over their late mother’s jewelry—specifically a $15 watch […]

Click here to view original web page at www.wsj.com

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Estate Planning: Getting the Conversation Started

A trust is created to avoid conflicts that all too often tear even the most close-knit families apart. Often, the issue isn’t even money.

Source: Estate Planning: Getting the Conversation Started

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Financial Advisor IQ – The Best Estate Plan Is Worthless If It Can’t Be Found

Do your clients hide documents a little too well for their own good? Source: Financial Advisor IQ – The Best Estate Plan Is Worthless If It Can’t Be Found

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Simple Will is a Mythical Document (Video)

A Simple Will is a Myth In spite of what people think, there is no such thing as a simple Will. Whatever isn’t in a simple Will as it is written is included in State law. Hi. I’m Gary, the owner of DeWitt Law. Avoid Probate and protect your family, money, and more now at […]

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Life Plans

In life, you make many plans and probably have: Marketing plans Business plans Financial plans Retirement plans Vacation plans But, do you have an estate plan? Estate Planning Call today at (479)717-6300 to set your free 30 minute appointment.

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How Do I Protect My House From the Nursing Home and Medicaid? (Video)

In Arkansas, with proper planning, you can protect your house from the nursing home and Medicaid recovery. The really exciting part is that this works for other real estate too. Hi. I’m Gary the owner of DeWitt law. If you need help with Medicaid planning or filling out the application, go to DeWitt dot law […]

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Who Decides Who Gets My Stuff? (Video)

Who decides who gets my stuff? If you pass without a Will or other planning in place, the State has decided who gets what, when, how, and how much! The Judge in charge of Probate will use those rules to make the Judge’s rulings. Here is the State’s rules in a nutshell: Most people assume […]

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Who should have a revocable trust or irrevocable trust?

Anybody that wants to avoid probate (but there are other ways too…) Anybody that is receiving certain government benefits and is expecting an inheritance or settlement Anybody with young children (say under 30) and want to continue to control the money. What is a Trust? A trust is a “fictional” legal person that holds title […]

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Guardianships

Who should nominate a guardian? Anybody that is concerned about who will care for them. Anybody that has children under 18. Anybody that has a special needs child that cannot make their own decisions. What is a guardianship? A guardianship is a court decision appointing somebody to manage the affairs of a person. When should […]

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Powers of Attorney

Who should have a power of attorney? Everybody.  Seriously.  You never know when fate will strike and you can’t make decisions for a few days. People going to boot camp should have a temporary power of attorney so somebody can pay their bills while they are away. People going to a nursing home should also […]

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Medical Estate Planning

Who should do medical planning? Everybody at any age. What is medical estate planning? Medical estate planning is the process of deciding who can make medical decisions for you if you can’t. Living Will This document instructs the medical staff what you want to happen if you are close to death and/or permanently unconscious.  A […]

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