Why Plan Your Estate?
First of all, a good estate plan must provide the documents necessary to take care of you while you are still here and provides for the distribution of your assets after you pass away. A good estate plan will include either a will or a trust that will determine the distribution of your property after you die, but will also include a General Power of Attorney and Durable Power of Attorney for Healthcare that will give your loved ones the legal authority to take care of you and your property while you are still alive.
Estate planning will help you control how your assets will be distributed after your death and allow you to be in control of those decisions. If we do not make such plans we run the risk that we will leave a confused mess for our heirs or that our assets will not go to those we intended. Or, we may leave an estate with excessive administration costs, estate taxes, and family feuds.
Proper planning cannot eliminate all of those risks, but it can most certainly minimize such problems. In addition, a proper estate plan can make life much easier for both the planners and beneficiaries. A good estate plan should include, at a minimum the following documents:
- Durable General Power of Attorney
- Durable Power of Attorney for Healthcare/Living Will
- HIPAA Releases
In some circumstances, optional documents are necessary to properly provide for you and your estate such as:
- Living Trust/Revocable Trust
- Directions for Final Arrangements
- Irrevocable Life Insurance Trust
- Special Needs Trusts
Each case is different and a plan is necessary to determine which tools are right for you. We are happy to meet with you for a free consultation so we can discuss what is right for your individual circumstances.
Your Durable General Power of Attorney
A general power of attorney is a document that empowers someone else-your Agent-to make decisions regarding your financial affairs should you become incapacitated and unable to make such decisions yourself. This document is used to permit such decision making, for your benefit only, without the necessity of having a probate court appoint a guardian. Because you are giving almost total control over your financial affairs to your Agent, it is imperative that you choose someone you can trust to act as Agent. If you do not have such a person, then a Guardianship might be preferable because of the Court oversight. However, Guardianship is expensive and to some extent public, factors weighing in favor of the Power of Attorney.
A will is a document that directs the disposition of your estate at your death and allows you to choose who gets your assets and who will be in charge of distributing your Estate. If you do not have a Will, your assets will be distributed according to a state law usually called the Law of Intestacy (“Intestacy” meaning “without a will”). The distribution by those laws may very well not be what you desire. The Will includes a nomination of a person or persons to execute your instructions. This person is called a Personal Representative, a Fiduciary, or an Executor and, again, should be someone that you trust to carry out your instructions.
If you still have children who are under 18, you may designate a custodian (Guardian) over your minor child or children. This designation may be made in a will or in a free-standing Nomination of Guardian document. The Court will have ultimate say in who will raise your minor children but the Judge will usually accept the person you nominate. It is also possible, and many times desirable, to name one person or persons to raise your minor children and another person to have control over their inheritance until the children are mature enough to handle money on their own. This can be done through what is called a “testamentary trust” or a trust created by a will. The Probate Court will retain jurisdiction until the trust ends.
A Will must also be probated, meaning that it must be submitted to the Probate Court and the Court will supervise the administration of your estate- something you may wish, but, also something you may wish to avoid. A good Estate Plan by an Experienced Estate Planning or Elder Law Attorney will help you decide what is right in your particular circumstances.
Durable Power of Attorney for Healthcare/Living Will
A Durable Power of Attorney for Healthcare/Living Will empowers a person or persons of your choosing (your Agent(s)) to make healthcare decisions when you cannot. A common misconception is that spouses can make such decisions for each other. In some states, that is true. However, in New Hampshire a spouse has only limited authority unless your spouse holds this important Durable Power of Attorney for Healthcare/Living Will or is a Court-appointed Guardian. Although this document has several “end-of-life” decision points in it, the most likely use is in much more common and semi-routine situations wherein you are temporarily unable to make your own decisions due to medication or pain.
Living Trust / Revocable Trust
This is a document that is used as a “Will substitute.” Revocable Trusts have many advantages over a simple Will, foremost among which is the avoidance of Probate and the accompanying probate expenses and possible loss of privacy. A Trust is a rather simple arrangement wherein the legal title to your assets is conveyed to a Trustee (usually you and, if appropriate, your spouse). During your lifetime, the Trust is administered for the benefit of you and your spouse and then it acts as a Will to distribute your assets however you may desire. Because the Trust has the actual title to your assets and nothing is in your name, there is no probate.
A Trust can also be beneficial in some cases to minimize or eliminate estate taxes, to provide ongoing financial management for minors or the disabled, and to provide power of attorney management powers should the Settlor (person or persons creating the Trust) become incapacitated.
You may also want to consider a trust if you have a substantial IRA or 401K. Many issues with inherited IRAs and 401Ks may be avoided by naming a qualified trust as a beneficiary instead of an individual. The Trust will also protect the hard earned assets from being passed to a beneficiary who may not have good money management skills or may be too young to know to properly manage the money.
If someone has not done proper planning and has not signed a General Durable Power of Attorney or a Durable Power of Attorney for Healthcare/Living Will and becomes unable to manage their own health care or financial decisions, a guardianship may come into play. A Guardianship is a Court appointed position and the Court will oversee the Guardian’s management of the disabled person’s assets and/or person. If someone you love has become unable to manage their own affairs and has not selected someone to act as Power of Attorney on their behalf, we can assist you in being appointed as guardian over the person.
Special Needs Trust
A Special Needs Trust (sometimes called a Supplemental Needs Trust) is a specialized legal document designed to benefit an individual who has a disability. A Special Needs Trust is most often a “stand alone” document, but it can form part of a Last Will and Testament or a Revocable/Living Trust. A Special Needs Trust enables a person under a physical or mental disability to have held in Trust for his or her benefit, an unlimited amount of assets.
In a properly-drafted Supplemental Needs Trust, those assets are not considered countable assets for purposes of qualification for certain need-based governmental benefits. Such benefits may include Supplemental Security Income (SSI), Medicaid, vocational rehabilitation, subsidized housing, and other such benefits. A Special Needs Trust provides for supplemental and extra care over and above that which the government provides. For example, few, if any, governmental programs will provide for recreational activities and most will not cover clothing except for the absolute basics. A Special Needs trust can even be used for things the government does provide if, in the Trustee’s discretion, the beneficiary will be better off by so doing.
There are two basic types of SNTs: a self-settled SNT and a third party SNT. The self-settled SNT is a trust established with the beneficiary’s own assets while a third-party SNT is one established with the assets of another person, usually a parent, grandparent, etc. The main difference in the two trusts is that in the self-settled trust the government must be the first beneficiary of any funds remaining at the beneficiary’s death (up to the amount paid by the government on the beneficiary’s behalf) while the third-party trust can dictate what happens to any assets remaining.
If you find yourself in the position of administering the estate of a loved one, you may feel intimidated by the lengthy, cumbersome and expensive Probate process. In Massachusetts New Hampshire, all assets owned by a deceased person, in that person’s individual name, must go through the probate process. There are certain exceptions such as assets held jointly with a right of survivorship, assets held in a Trust, or certain assets that have beneficiary designations. Probate is not necessarily bad as it does provide Court supervision of the Executor and the distribution of assets. However, Probate is a lengthy and potentially complex and expensive process. It can take well over a year for relatively simple estates and longer for any estate with complex issues or disagreements among the heirs. There are various ways to avoid Probate and we can help with that by creating a good estate plan. If, however, you find yourself in a position of having to probate an estate, we can help you through the process.
Medicaid is a federal and state funded program that provides payment for health care services ranging from routine preventive medical care for children to institutional care for the elderly and disabled. If an individual is eligible, Medicaid will cover all necessary medical services, including long term nursing care. For folks who do not have long-term care insurance, Medicaid is an important resource to cover the burdensome cost associated with long term care.
Medicaid planning is the assistance provided to a client to both help navigate the very complex application process but also to help preserve assets as much as possible. Especially if a person who needs Medicaid is married, there is much that can be done to preserve both assets and income for the spouse at home. Because Medicaid is “need-based,” the recipients must meet certain financial eligibility requirements. Those requirements are quite complex and can be financially damaging to a “community spouse”, i.e., a well spouse who remains at home while the other spouse is admitted to a nursing home. Anyone contemplating nursing home admission should contact a qualified attorney before submitting an application for Medicaid.
Many clients have come to me after attending a seminar that purports to save their assets from the ravages of expensive nursing home care, should the client enter a nursing home. Most of these plans involve a so-called Medicaid Irrevocable Trust. While in theory, such trusts can work, and any good estate planning lawyer may use such tools when they are appropriate, the complications can be enormous and can often be far worse than any costs of nursing home care if misused. Before signing any documents provided at such a seminar, you should consult with a knowledgeable estate planning attorney. There are things that can be done in certain circumstances to plan for Medicaid eligibility and the need for long-term nursing home care, but a total plan from a qualified attorney is required. One way of finding such an attorney is to look for a member of NAELA. See the web site at http://www.naela.org/