WILLS, TRUSTS & PROBATE

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Robert Young has years of experience helping people just like you with their estate planning needs. Whether you are a millionaire or just own your home, Robert Young can help you decide what options are best for you and prepare the documents, all at a reasonable price.


WHAT IS "ESTATE PLANNING"?

Estate Planning is the process of anticipating and arranging for your property to go to the people you want it to go to upon your death, while minimizing tax consequences. In some cases, it involves obtaining medicaid eligibility while keeping as much of your property as you can in your family. Different people have different types and amounts of assets and are wanting those assets treated differently upon their death. So there are many different types of documents to try and achieve the things people are wanting to do.

WHAT IS "MEDICAID PLANNING"?

This type of planning is generally being done due to the fear of a long-term nursing home stay. When an older person goes into the nursing home, they have medicare which will only pay for nursing home coverage for 100 days (there is a deductible for days 20 to 100 which must be paid by the individual). In order for the nursing home to be paid for long-term care, the person must become eligible for medicaid. Medicaid is a needs based program which requires the person to spend all of their money and sell their assets before they are eligible. Wealthy people are not worried about medicaid planning because they can afford nursing home costs out of their own pocket. It is the middle class who do not want to lose the few things they have worked hard for their entire life only to have it go to the nursing home. This can be a very complicated area of the law with frequent changes made by the government.

POWER OF ATTORNEY

A Power of Attorney is a legal document which allows one person to represent another person for their financial affairs, business matter or a legal matter. They can be “specific” or “general.” A Specific Power of Attorney allows an authorization for only one specific matter, such as selling the house. A General Power of Attorney is for all matters. A Power of Attorney terminates upon a person’s death, but is usually set to continue if a person becomes incapacitated.

HEALTH CARE POWER OF ATTORNEY

This document is sometimes called an "Advanced Directive", "Living Will", "Appointment of a Personal Health Care Representative", "Health Care Proxy" or "Appointment of a Health Care Agent". A Living Will or Advanced Directive states to medical providers what kind of care you want or don’t want if you become incapacitated. Most people are wanting someone they appoint to be able to talk with medical providers about their condition and make medical decisions based for them based on the specific circumstances of their medical prognosis. This document can also be used to notify the Court for whom you want to act as your guardian should one need to be appointed.

TRUSTS

What is a trust and why would I want one? A trust is a fictitious entity created to hold any personal or real estate assets you want it to for a specific purpose. Think of it as being similar to a corporation. A corporation is a fictitious entity created for a business purpose. Directors control it for the benefit of shareholders. A trust is controlled by a trustee(s) for the benefit of a beneficiary(s) for various purposes. Some trusts are designed for medicaid eligibility planning purposes. Some trusts are designed to protect assets from potential creditors. Some trusts are set up to help a disabled child. Most trusts are controlled by you for the benefit of you until you die. Trusts can also be used to avoid the costs of probate if you die. State laws vary significantly on what you can and cannot do with a trust.

WILLS (LAST WILL & TESTAMENT)

A Will is a legal document setting out how you wish your property to be distributed upon your death and designating the care for any minor children. Many types of property do not go through a Will. Most bank accounts have a POD (Payable On Death) beneficiary listed and the bank account is paid directly to that person outside of a Will. Most financial accounts have a TOD (Transfer On Death) beneficiary listed and the financial account is paid directly to that person outside of the Will. Life insurance is paid directly to the listed beneficiary. If you have property in a trust, it is not affected by your Will.

So with all of these exceptions, why do you need a Will? Because a Will usually provides for multiple different types of situations. Most people have everything going to their spouse. What if you are in a common accident and your spouse dies with you? A good attorney is going to write a Will to address this type of situation. Sometimes a person will have their house in a trust; then trade houses for a new one and forget to put the new house in the trust. The property would then be controlled by the Will. A Will is also usually used so that your children and grandchildren know what personal items you specifically want them to have.

PROBATE

Probate is the name of the legal proceeding by which a Will is enforced. If someone dies without a Will, every state has designated laws on how property is to pass upon a person’s death. Probate is also used to enforce transfer according to the laws of the state. Probate can be expensive because the process is designed to make sure your assets and debts are being administered in an organized and supervised manner.


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