FAQs about Estate Planning and Elder Law

Estate Planning Law

Is Jointly Owned Property a good estate Plan?

It can be in certain circumstances, but it is not right for all situations. Jointly owned property as an estate plan:

  • Creates risk because other owners are given complete access to assets and can use the funds for their own purposes. Assets are also available to the creditors of all joint owners.
  • Can lead to inequity among heirs.
  • Might create confusion and chaos if one of the joint owners dies before another and there is no plan in place.

What happens if you die without a will?

When someone dies without a will, which is known as dying intestate, the state is responsible for deciding all property that will be distributed. In community property states, this means the deceased’s property is given to his or her spouse. Property that is owned in joint tenancy is automatically distributed to the joint owner. Any property held in a trust goes to the trust beneficiaries. Dying without a will also means the probate process will likely take longer and be more complicated.

How long do you have to file probate after death?

Probate can generally begin immediately after someone dies, but must take place within the allotted time period following death, which varies from state to state. In most states the deadline is approximately three to five years. Most probate takes a few months, but can be longer in more complex situations with that are usually related to taxes or the sale of property in an estate. Smaller estates might not be eligible for probate until 30 days after death, but is complete upon filing.

Can An Estate Be Administered With A Missing Heir?

Yes. However, the probate process is more complicated if heirs are missing. Each state has its own laws regarding missing heirs, but in general, there must be a genuine effort made to find the heir. When the heir is unable to be located, property is held in trust for a length of time based on state laws and then passed to the next heir in line. If there is nobody next in line, legal ownership transfers to the state.

What is a living will/advance healthcare directive?

A living will, which is sometimes called an advance healthcare directive, is a tool empowering someone to make medical decisions on behalf of a person. The document specifies the actions that should be taken regarding a person’s health and appoints a person in charge of healthcare decisions, should someone be unable to make those decisions on their own behalf due to illness or incapacity. To be enacted, living wills must be in writing and legally sound.

Elder Law

What can an elder law attorney do for you?

The main purpose of an elder law attorney is to help older people navigate issues in life that arise due to advancing age. This might include issues related to long-term care, retirement planning, and dealing withers matters related to a person’s estate. Elder law attorneys can also help older individuals and couples explore government benefits that might be available through federal and state programs. Elder law attorneys are experienced in and understand issues important to older people, including government assistance, retirement, and end of life planning.

What assets are protected from Medicaid?

Several assets might be exempt from Medicaid seizure, but it is important to speak to an elder law attorney who understands how to protect assets. Assets that might be protected include:

  • Home
  • One car
  • Personal property
  • Life insurance policies
  • 401k and IRAs
  • Unsellable assets
  • Assets that can be converted to income
  • Assets that can be converted to income
  • Income producing property

There are specific laws that affect the property of Medicaid recipients, which is why you should have an attorney review your situation and help you make choices specific to your estate.

Does a living trust protect assets from nursing home?

A revocable living trust does not protect your assets from a nursing home because the assets are still under your control. An irrevocable trust, which does not allow you to retain ownership of the property in the trust, can prevent Medicaid seizure. The property remains in the trust until your death when it passes to the named beneficiaries. You are not able to modify, amend, or terminate an irrevocable trust without a special process, but the assets will be protected from seizure, unlike those in a revocable living trust.

What is qualified income trust?

A Qualified Income Trust, sometime shortened to a QIT, is a tool that helps a person qualifies for benefits when his or her income exceeds the income limit. It is designed for people who surpass the income limit, but who do not receive enough income to pay for their care in a nursing home facility. It is different from other types of trust and serves only one purpose: to create a legal path to Medicaid eligibility when you have too much income to qualify but it can still not afford needed care.

When should I begin elder law planning?

Thinking about the later stages of your life can begin at any time, but legal planning typically begins around the age of 65. This does not mean that you should put off estate planning until this point. Instead, you should have a plan in place that you adjust periodically as you grow older and your situation changes. In general, planning that you do for your elder years and your end of life should begin as soon as possible.

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