No Will? Don’t Count on a Happy Ending for Your Family

The gentleman at the heart of this article isn’t the first, and sadly he won’t be the last, to start and not finish the process of preparing a will and all of the other documents that go into having an estate plan. People say they don’t need to do this just yet, or they are having trouble deciding who should be their executor, etc. Regardless of the reason, the end result of an unfinished estate plan is almost always a disaster for the family. It certainly is in the article “Thy will be done (and you really should get it drawn up right now)” from the San Antonio Express-News.

One week after a woman spoke to her dad about his estate plan, he became ill and was hospitalized. The man’s girlfriend became verbally abusive to family members. The sisters of the man had previously sued him, accusing him, as trustee of the father’s trust, of taking more than his fair share of the family money. The daughter was trying to pay for his care during a two-month stay in the hospital. However, without a power of attorney and in the middle of a costly lawsuit from the man’s sisters, the only way forward was declaring a “conservatorship” of her father’s assets. The father died, with no will, and with his estate under attack from his sisters.

It took two years to settle the probate case and the lawsuit between the sisters and the estate of their brother. That’s a long time to mix mourning, family strife and court actions.

The value of the father’s estate was drained by the long litigation and probate process. The daughter estimates that her father’s estate paid 13 times more than necessary, because there was no power of attorney and three times more than necessary because of the lack of a will. And making matters worse, more than 30 percent of the estate vanished because of the unfinished estate plan and poor communication between family members.

More than $500,000 remained in probate, and then was drained by a third over the course of the two years.

However, the worst part can’t be measured in money. It is the emotional cost of siblings who grew to hate other. The sisters didn’t say goodbye to their brother, or even attend his funeral.

A Gallup poll in 2016 found that only 44% of Americans have a will. Thirty-two percent of Americans over age 65 still don’t have a will. What are they waiting for? Some think they are saving their families money by not having a will, but the above example is clear proof of how wrong that thinking is.  Doing an online will isn’t much better. One attorney said it best: when wills are not prepared by estate planning attorneys and they go wrong, they go very wrong.

Speak with an estate planning attorney and make sure that your family is protected from the fights, the costs and the lost time that can’t be regained.

Reference: San Antonio Express-News (March 9, 2020) “Thy will be done (and you really should get it drawn up right now)”

 

Long Term Care Varies, State by State

What if your parents live in Oklahoma, you live in Nebraska and your brothers and sisters live in New York and California? Having the important conversation with your aging parents about what the future might hold if one of them should need long-term care is going to be a challenge, to say the least.

It’s not just about whether they want to leave their home, reports the article “What is the best state for long term care” from The Mercury. There are many more complications. Every state has different availability, levels of care and taxes. If the family is considering a continuing care retirement community, or if the parents already live in one, what are the terms of the contract?

The differences between states vary, and even within a state, there can be dramatic differences, depending upon whether the facility being considered is in a metropolitan, suburban or rural area. There’s also the question of whether the facility will accept Medicaid patients, if the parents have long-term care insurance or any other resources.

Here’s what often happens: you open up a glossy brochure of a senior community in a warm climate, like Florida or Arizona. There are golf courses, swimming pools and a great looking main house where clubs and other activities take place. However, what happens when the active phase of your life ends, slowly or suddenly? The questions to ask concern levels of care and quality of care. Where is the nearest hospital, and is it a good one? What kind of care can you receive in your own apartment? Are you locked into to your purchase, regardless of your wishes to sell and move to be closer to or live with your adult children?

And what happens if you or a “well” spouse runs out of money? That’s the question no one wants to think about, but it does have to be considered.

For people who move to Florida, which has a very generous homestead exemption for property taxes and no state tax, the incentives are strong. However, what if you become sick and need to return north?

For seniors who live in Pennsylvania and receive long-term care and other services, the well spouse’s retirement funds are exempt for Medicaid regardless of the amount. However, if you move over the state’s border to New Jersey, and those accounts will need to be spent down to qualify for Medicaid. The difference to the well spouse could be life changing.

Delaware and New Jersey have Medicaid available for assisted living/personal care. Pennsylvania does not. The Keystone State has strict income limitations regarding “at home” services through Medicaid, whereas California is very open in how it interprets rules about Medicaid gifting.

The answer of where to live when long-term care is in play depends on many different factors. Your best bet is to meet with an estate planning elder care attorney who understands the pros and cons of your state, your family’s  situation and what will work best for you and your spouse, or you as an individual.  The attorneys at Fisher Law LLC are well versed in Massachusetts’ Medicaid (or MassHealth) regulations, as well as the VA Aid & Attendance rules, to assist you and your loved ones on long term care issues and planning.

Reference: The Mercury (March 4, 2020) “What is the best state for long term care”

 

Americans of All Ages are Creating Their Wills During COVID 19 Pandemic

There has been an explosion in the numbers of Americans rushing to make their will online. Understandably, the coronavirus pandemic has created the scramble to set up wills and end-of-life-directives. However, online do it yourself (DIY) wills are often deemed invalid as they do not comply with all of the legal requirements of your state. According to Caring.com, the prevalence of will and estate planning has been on the decline since 2017 but this trend is quickly reversing itself with the advent of the coronavirus pandemic.  So, who needs a will? Ask yourself if you care who gets your property or money if you die? If you have minor children, do you care who will act as their legal guardian? The answer is anyone married, anyone with children or anyone with assets needs a properly executed will. Wills are governed by state law. Your will should reflect your wishes in the language and format required by the state in which you live for it to be valid.

Many law offices are turning to teleconference with their clients to address social distancing protocols while still providing legal services such as writing a will. Businesses like Zoom are experiencing a quadrupling of daily users. Part of this significant increase includes hosting secure attorney/client meetings for will preparations. The importance of an attorney guiding you through the process of creating a will cannot be understated as they understand the nuances of how things need to be written. Once your will is complete, it must be correctly notarized as mistakes made in the will-signing process can potentially invalidate your will. Your attorney will guide you through the signing process, and could involve signing during a video conference.

Beyond the creation of a will, many Americans are increasingly concerned about their powers of attorneys, health care surrogates, living wills, and end of life directives. These “life documents,” as they are active while you are alive, are equally as important as your will. Named executors, successors, beneficiaries, power of attorneys should have several back-up representatives as the mortality rate due to the coronavirus remains unknown.

According to research in a recent New York Times report, health care workers are more likely to contract COVID 19 than the average person. During this pandemic, many doctors and other medical professionals are rushing to have their wills drawn up. In addition to doctors, anyone on the front lines in the fight against COVID 19, from hospital custodians to nurses to EMS responders, should either make a will or review and possibly update their existing one. However, the truth is no matter what your profession or likelihood of contracting this virus, you should have a properly executed will during this time of considerable uncertainty.

There are few things you can act on during the COVID 19 pandemic that can bring you assurance and a sense of relief. The legal creation of your will and life-directives is an action you can take that protects you and your family. We can help. Visit our website to schedule a phone or video conference and we’ll get this importance process started for you.