Fernandez Elder Law LLCFindLaw IM Template2024-02-06T05:13:59Zhttps://www.fernandezelderlaw.com/feed/atom/WordPress/wp-content/uploads/sites/1200637/2020/12/cropped-Fernandez-Elder-Law-site-icon-32x32.jpgOn Behalf of Fernandez Elder Law LLChttps://www.fernandezelderlaw.com/?p=472362024-01-31T14:56:43Z2024-02-06T05:13:59Zprobate also plays a role because, after the individual passes away, the probate court is the judicial body that validates the will and makes sure it is legal, after which the deceased person’s assets are distributed.
The process of probate goes something like this:
If a person does not leave a will, the court will designate an individual to take inventory of the deceased person’s assets and distribute them according to the law
If the person leaves a will, someone must file the will after the person passes away (typically a family member or someone included in the will)
The court authenticates the will and ensures that it is valid
Involved parties take inventory of the assets the deceased person left behind, appraise any property they may have owned, and pay debts and taxes
The court authorizes the designated person to distribute the assets according to the will.
While the probate process might sound straightforward, it can be complex and lengthy. It is also a costly endeavor because it takes time and often involves legal and court fees.
Is there another way?
Yes. This is where estate planning comes in, and you have probably heard many people talk about the importance of creating and having an estate plan. Avoiding probate is wise in many ways, especially because it is time-consuming and expensive.
Estate planning allows you to make choices about your assets for when you are no longer around. If you plan, you help your family avoid the complexities and downsides of probate.
Why estate planning?
Estate planning is unique in that it gives you full control over what you want to do with your assets, which allows you to have peace of mind.
It also allows you to utilize different tools, like trusts, lifetime gifts, or other ways of passing assets on to other people that do not involve going through probate.
If done properly, you can create an estate plan and avoid probate court entirely. While many associate estate planning with wealthy people, it is not only for the wealthy. Plus, it offers benefits like:
Minimizing taxes and legal fees
Protecting your assets from creditors
Provide for your family’s future
While there is a legitimate legal purpose for probate court, it is not something you must go through if you do not want to.
It is often best to avoid probate if possible, so you can ensure that an executor of your choice distributes your assets according to your wishes.
Remember, it is never too early to work on your estate plan. In fact, many people begin their estate planning when they get married or have a child.
Taking the time to plan now can save you and your family time and unnecessary stress and anxiety.]]>On Behalf of Fernandez Elder Law LLChttps://www.fernandezelderlaw.com/?p=472242023-10-10T17:02:45Z2023-10-13T21:03:21ZCommon estate planning mistakes you should avoid
Being cognizant of common estate planning pitfalls is crucial. Here are some of the most common and most disastrous that you’ll want to avoid:
Procrastinating: Many people think they’ve got plenty of time to create an estate plan and that estate planning isn’t needed until later in life. But this isn’t true. You could be severely injured or suffer a medical condition that renders you incapacitated at a moment’s notice, or you could suddenly pass away well before anyone thought. If those events happen and you don’t have an estate plan in place, then your financial and healthcare decisions may be left in the hands of someone you don’t trust, or your assets will be subjected to the state’s intestate succession laws, which may not align with your asset distribution wishes.
Not updating an estate plan: Life changes over time and so should your estate plan. Therefore, you revisit your estate plan documentation every few years to ensure it still reflects your wishes. You might also need to modify your existing plan if you acquire new assets, experience a birth or a death in the family, or see changed relationships with named heirs and beneficiaries.
Failing to voice your intent: It’s usually a good idea to talk to your family about your estate plan. That way everyone knows what to expect when you pass away, which can reduce the chances that your family members will fight over your estate plan and what they perceive to be your intent.
Not addressing your final arrangements: Your family will have a lot to deal with as they grieve your loss. This can make it difficult for them to figure out your final arrangements. But you can take the pressure off them by specifying in your estate planning documents what you want your final arrangements to look like. Your family will be thankful that you’ve done so.
Forgetting about long-term care: Much of the estate planning process is focused on asset distribution. But don't overlook the importance of long-term care planning. There is a good chance that you’ll need this care at some point in your life, and if you don’t prepare for it then the assets that you intended to pass down to your loved ones will be eaten up by long-term care expenses.
Don’t make preventable errors in your estate plan
The estate planning process can seem difficult and nuanced, but it need not be. You need to have a strong understanding of your estate planning options and what each of them can do for you. Armed with that knowledge, you can then work to avoid the mistakes discussed above. Your efforts here can set the stage for a successful estate plan that provides your loved ones with the future you want for them.
]]>On Behalf of Fernandez Elder Law LLChttps://www.fernandezelderlaw.com/?p=472102023-07-02T17:57:03Z2023-07-03T17:33:47Zthe special needs trust. This trust allows you to provide financial support to your loved one without negatively impacting their ability to qualify for government programs like Medicaid.
A special needs trust can allow your loved one to remain financially stable while still acquiring the treatment and care that they need.
What can special needs trust assets be used for?
Special needs trust assets can be used for any of the following without negative implications:
Medical care not covered by insurance or Medicaid
Dental care not covered by insurance or Medicaid
Medically necessary equipment, like wheelchairs and wheelchair-accessible vans
One vehicle
Training
Education
Home Furnishings
Travel, including those costs necessary to bring a companion
Appliances
Electronics, including a computer
Rehabilitation services
Insurance
Legal expenses
As you can see, there is a wide array of appropriate uses for special needs trust assets. This provides a huge amount of support for your loved one, giving them financial stability and allowing them to live the life you want for them.
Are there restrictions on the use of these trust assets?
Yes. There are some uses that may render special needs trust assets income for purposes of determining eligibility for Medicaid and some Social Security benefits. This includes using the assets to pay for:
Housing
Food
Utilities
Property taxes
Cash distributions from the estate can be problematic, too. Keep in mind, though, that these sorts of distributions aren’t barred. They may just result in a reduction in public assistance that your loved one receives.
The importance of choosing a trustee
Given the intricacies and the importance of a special needs trust, it’s crucial that you have someone responsible and trustworthy managing the special needs trust. This individual should have a grasp on how these trusts work, how distributions can impact a loved one's benefits, and what your loved one needs to live a successful life.
Be sure to vet your options before making a final decision on a trustee.
Should a special needs trust be part of your estate plan?
If you have a loved one with special needs, then this trust can prove immensely beneficial. Yet, it’s just part of a well-developed estate plan. You might want to turn to other legal vehicles to ensure that your estate and your family are adequately protected.
That analysis might even lead to the conclusion that you should begin gifting assets away prior to your passing, that way your loved ones can enjoy your wealth without delay and tax consequences.
What’s key is that you know your estate planning options and how to put the pieces together to develop the strong plan that you need and want.
If you're not familiar with this area of the law, it can be intimidating. However, there are many resources available to assist you in getting started, and you can always seek assistance from an experienced professional.]]>On Behalf of Fernandez Elder Law LLChttps://www.fernandezelderlaw.com/?p=472072022-12-26T04:35:25Z2022-12-30T04:34:55ZMuch-needed legislative action
Signed into law by President Biden, the legislation adds 23 respiratory illnesses contracted when veterans were exposed to burn pits used in the military. The VA has already screened over half a million vets for afflictions. Thirty-seven percent of those who reported exposure and have submitted claims to the Veterans Benefits Administration will start processing in the new year.
With new veterans qualifying for benefits comes the need for additional staffing. The agency is infamous for lengthy weight times. Understaffing and archaic systems have played a role in a growing backlog. To date, the VA has hired more than 12,000 new employees, including 3,600 new hires responsible for health care enrollment and determination of eligibility.
Increasing staffing and efficiency
In addition to the increase in staff, the VA acknowledges that increasing the number of employees is only the first step. Implementing policies and procedures throughout their locations to modernize all processes should also be a priority. The agency is also moving towards standardizing the time physicians spend with their patients and streamlining partnerships with private sector providers.
Automation for decision support will also play a role in increasing efficiency when it comes to pouring through countless veterans’ records. A current pilot program in eight facilities shows promise, with processing times measured in days instead of months and years.
The Veteran’s Administration is a vital resource for those who have served their country and are desperately in need of the services that they have earned.]]>On Behalf of Fernandez Elder Law LLChttps://www.fernandezelderlaw.com/?p=472002022-10-18T21:41:32Z2022-10-11T11:53:01Zguardianship over your elderly loved one, whether it be your parent, an uncle or aunt, grandmother or grandfather or a family friend. But if you’re uncertain about whether you should seek guardianship, you might want to consider whether any of the following circumstances exist:
Your loved one’s mental health has declined to the point that they are incompetent or incapacitated: If your loved one is suffering from mental declines, such as when dealing with Alzheimer’s, it can be difficult for them to make decisions that are in their best interests. Here, you can assess how much your loved one can handle their own affairs and consider whether you should seek full guardianship or one that is limited in nature.
Your loved one’s physical capabilities have diminished: This may be because of physical decline, or it might be due to a disability. Although your loved one might be able to do some things, their condition might render it impossible to get through the day. Under these circumstances, you may want to consider seeking guardianship so that you can assist them.
There’s a disagreement over long-term care: You and your loved one might have different ideas about what your loved one’s long-term care should look like. And, given your loved one’s condition, your loved one might not be in a position to make the right decision for them. If you want to ensure that you can get your loved one into the facility that you’ve identified for them, you may have to seek guardianship.
You need to make medical decisions: If your loved one cannot comprehend available medical options, they will not be able to consent to that treatment. Therefore, you might have to seek guardianship if you want your loved one to get needed medical attention.
Decision-making is compromised: Your loved one must make competent decisions in all aspects of their life. If they struggle in some respects, their well-being might be jeopardized. If you’re in that situation, you might want to think about seeking guardianship so that you can assist them in making those decisions that are best for them.
There may be other characteristics that warrant seeking guardianship. What’s important is that you realize that your loved one has to be incapacitated in some fashion for you to be appointed guardian.
Navigating your guardianship petition
Many legal nuances and emotions are involved in pursuing a guardianship petition. The matter may end up being more contentious than you expect. That’s why it’s best to discuss your situation with an attorney before you move forward with your case. Hopefully, you can gather the evidence you need to support your legal position and ensure the best outcome for your loved one.
If you’d like to learn more about what an attorney can do to help you in these matters, now may be the time to reach out to a legal team that you think is a good fit for you and your family.]]>On Behalf of Fernandez Elder Law LLChttps://www.fernandezelderlaw.com/?p=471602022-08-04T13:00:30Z2022-07-12T14:41:21ZHow long-term care fits into estate planning
A lot of people think that estate planning is just about figuring out how your assets will be distributed when you pass away. But it actually entails much more than that, including planning for long-term care.
One way to get long-term care costs covered is to qualify for Medicaid. However, if you have significant assets, that may require you to spend down an enormous portion of your estate, which puts your remaining assets, including your home, at risk of being recovered by the state once you pass away.
So what options are available?
Fortunately, there are several. Let’s look at some of them here:
Property transfers: You might be able to transfer some of your real property to your spouse, your child, or a sibling without facing a Medicaid penalty. This can be a powerful way to ensure that your home stays in the family and isn’t used to offset the costs expended by Medicaid. Keep in mind, though, that there may be certain requirements that you have to meet for one of these exempt transfers, such as the period of time that your child lives in the residence prior to the transfer.
Create an irrevocable trust: Another option may be to use an irrevocable trust. You can’t change an irrevocable trust, which basically makes it a permanent decision. However, assets that are placed into one of these trusts are exempt from creditors and are not counted for Medicaid eligibility purposes. This means that you’re free to decide how those assets will be divided upon your passing while helping you qualify for Medicaid and thus, the long-term care that you may need.
It’s important to note, though, that there’s a lookback period when it comes to Medicaid eligibility, especially when you use an irrevocable trust. That period is generally 5 years from the time of the trust’s creation when you’re seeking nursing home care, but the period is generally shorter when you’re looking at obtaining in-home care.
Long-term care insurance: Long-term care insurance may also be right for you. Just make sure that you fully understand your policy before purchasing it, as many claims made under these policies are ultimately denied. This may require additional legal action to ensure that you receive the benefits to which you’re entitled.
Be prepared for all the curveballs that life might throw at you
If you want to protect yourself and your estate as fully as possible, you need a holistic estate plan that takes every possible curveball into consideration. This requires you to have a lot of foresight and an understanding of the law. Figuring out how to navigate the intricacies of the legal process can be daunting, though, which is why law firms like ours are here to help.
If you’d like to learn more about how an advocate can assist you in these matters, we encourage you to continue to read our website to learn more about what we have to offer our clients.]]>On Behalf of Fernandez Elder Law LLChttps://www.fernandezelderlaw.com/?p=471562022-08-04T12:58:48Z2022-04-11T13:42:18ZLife insurance
Purchasing life insurance is an important component of estate planning when you have children. This helps assure that there is money available for your surviving spouse to pay the high costs associated with raising children. If both parents die, life insurance can help raise the child to adulthood or pay for their education.
Term life insurance is probably the best choice for most new parents. Premiums are less costly, and the coverage will remain in effect until children become adults and are no longer financially dependent.
A whole life policy, however, may be better if there is a child with special needs who will need care after their parents die. Whole life policies can provide financial resources for lifetime care.
Wills and guardians
There are two important reasons for a will. First, to designate who will receive your assets. The second and more important reason is to name a guardian for your children.
Choosing a guardian should be done immediately after your children are born.
It is important to make this decision, or you may have family members fighting over who should be a guardian. Having a court rule on this is inadvisable and may not address your wishes and concerns.
Naming a guardian allows you to select a person who shares your values, have a relationship with your children and work hard to raise them.
Beneficiaries
Some accounts go to designated beneficiaries on those accounts regardless of what is in your will. These typically include a 401(k) or IRA. Life insurance policies also have designated beneficiaries.
Once you have children, it is important to designate these beneficiaries or update beneficiaries. Typically, your spouse or partner will be the primary beneficiary. Designating your children as secondary beneficiaries will assure that they inherit those assets if you and your primary beneficiary die.
Trusts
Your children cannot directly assume control of their inheritance if you die before they are 18. This can cause problems. A court may appoint someone to manage these assets. Irresponsible young adults may have unfettered assets to a large amount of money.
Creating a trust can help you control who will manage these assets, how your money and assets may be used for your children and when children may receive a wealth transfer.
You can designate a person to manage money and assets on your children’s behalf and provide instructions how these may be used for your children’s benefit. You may also set conditions on children receiving a direct transfer of assets until they reach a certain age or enter college.
Attorneys can provide estate planning options to new families. They can prepare documents that, unlike boilerplate forms and do it yourself documents, specifically address your needs and comply with Missouri legal requirements.
]]>On Behalf of Fernandez Elder Law LLChttps://www.fernandezelderlaw.com/?p=471532022-08-04T13:01:42Z2022-01-10T11:22:32ZThe dangers of DIY estate planning
But trying to create your own estate plan can be extraordinarily dangerous for your estate and your loved ones. Here are a few reasons why:
State laws differ: Although the basics of estate planning may be uniform across the country, seeking to achieve the same goals, the state laws that apply to the process can vary greatly. Therefore, if you rely on templates found on the internet, then you could end up creating a document that has no legal validity. This means that your estate planning wishes won’t be adhered to.
Intestate succession: If your self-created estate plan is found to be invalid, then your assets will be distributed in accordance with state law, known as intestate succession. This means that your assets may fall into the hands of people that you never intended to inherit, and you won’t be able to set the terms of inheritance like you could through competent estate planning.
Lack of comprehensiveness: Even if you think that you only need a simple estate plan, there are probably intricacies that you’ll miss through the use of online and do-it-yourself resources. For example, if you neglect to create a legally valid power of attorney, then your health and financial decisions could be left in the hands of someone you don’t trust should you become incapacitated.
Lack of options: One of the greatest advantages of estate planning is that you can custom tailor it to suit your wishes and the needs of your loved ones. If you want to motivate a loved one to graduate college or complete substance abuse treatment, you can do so through an incentive trust. If you want to dictate how assets should be distributed after your initial heir passes away, then you can do so through a remainder trust. The options are nearly limitless. But you’re likely to miss out on those options if you try to engage in estate planning on your own.
Increased risk of familial infighting: If your estate plan is unclear, which is a possibility with DIY estate planning, then your family may end up squabbling over your assets. This can be costly to your estate and damaging to your family members’ relationships with one another. You can avoid this outcome, though, through holistic estate planning that clearly includes all of your assets and accurately portrays your intent.
Let a firm like ours take the burden of estate planning off your shoulders
We know that it’s tempting to try to save time and money by turning to the internet for DIY estate planning tips. But we’ve seen too many estate planning mistakes made in this regard, and the results can be devastating. That’s why we’re eager to help St. Louis-area residents address their estate planning and elder law needs. We take pride in our ability to truly listen to our clients’ needs and create the customized plans that suit their needs. So, if you’d like someone to help alleviate the burden of sound estate planning, then please research your representation options and choose a law firm that is right for you.
]]>On Behalf of Fernandez Elder Law LLChttps://www.fernandezelderlaw.com/?p=471362022-08-03T07:02:12Z2021-11-03T04:27:18Zestate plans can be a sensitive subject, you can find ways to make the conversation empowering.
Let your parents know you want them to be in charge
A person who falls ill or dies with no estate plan is not in charge of their health care or their wealth. When you talk to your parents, you can start off by saying that you want to make sure that their wishes are understood and respected by the people around them. That way, if anything happens to them, their caregivers will have instructions about what to do.
When it comes to certain health care and end-of-life issues, we sometimes don’t know what our loved ones want. Even the people closest to us may not have let us know how much medical intervention they would prefer or who they want to care for them if they are incapacitated.
Help your parents choose their powers of attorney
Agents under powers of attorney will be able to step in and make decisions on their parents’ behalf if they become incapacitated. Choosing them is one of the most important ways that a person can be empowered in their estate planning.
Your parents may choose one or more people to be designated as their health care and financial attorneys-in-fact. It’s important that, while they are healthy, your parents get to make those decisions themselves.
Let your parents know about the financial benefits of wills and trusts
The money side of things can be uncomfortable for some people to talk about. However, a good way to broach the subject is to let your parents know what could happen to their assets if they have no estate plan. Without wills, beneficiary designations, and trusts, state laws of intestacy would govern, and they might not produce the results that your parents desired.]]>On Behalf of Fernandez Elder Law LLChttps://www.fernandezelderlaw.com/?p=471342022-08-03T07:02:18Z2021-08-03T17:34:09ZKeeping your beneficiary protected from creditors
Many people find themselves going through a divorce or owning debts to creditors. If you don't want someone with special needs losing everything in these situations, trusts can help ensure this doesn't happen. Since the income you left behind is in a trust, it's technically not owned by your beneficiary.
Having a trustee to help manage your assets
Another great thing about a special needs trust is getting to appoint a trustee. A person in this role can help manage decisions about trust-related investments. They can also help oversee how you distribute your assets. With that in mind, a trustee can take a lot of time-consuming tasks related to estate planning off of your hands.
Ensuring a disabled person continues receiving aid
People with special needs can receive money for living expenses through government aid programs. While it might seem that having this person inherit lots of money is a good thing, it might hurt their chances of continuing to receive aid. If you establish a special needs trust, you're providing someone with money without taking away their ability to receive government benefits.
Choosing how you distribute your wealth
Receiving money is easy. However, it's often much harder for people to know how to spend their inheritances wisely. If someone in your life needs help managing their money, a trust allows you to achieve this goal. With a trust, you're in control of when and how much of your assets get distributed to a beneficiary.]]>