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Having a Will vs. Not Having a Will

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Having a Will vs. Not Having a Will

People are afraid of death, especially their own. Add to that the question of what will happen to their assets after they die, and it’s no wonder so few people have estate plans.

According to a 2021 Gallup poll, only 46% of US adults have a will. This is a slight increase from 2016 when 44% had a will. Still, less than half of US adults have taken the time to create this important document. The poll also showed that older adults are more likely to have a will than younger adults. Of those polled who were over the age of 65, 76% said they have a will. It’s important to know your options on having a will vs. not having a will.

Dying Without a Will

If you were to die without creating a will, depending on the type of and amount of property involved, a state probate court may have to choose an administrator to manage the probate process for your estate and choose a guardian for any minor children you have, provided the children’s other biological parent is deceased or unable to care for them. The downside to this process is that the decisions the probate court and the administrator would make may not align with what you would want.

Dying without a will is known as dying intestate.  It  can sometimes create problems as to what happens to your assets and children. When your intentions aren’t known before you die, you set the stage for potential conflict among your family members and heirs. Although the law will divide values up equally among the legal heirs, without the will to use as a guide, the administrator has to guess what you would want and have the probate court approve it.  This places an undue burden on the administrator, who is often a family member.

The administrator’s duties generally include the following:

  • Locating all your living heirs and notifying them of your death
  • Compiling a list of your assets
  • Paying off any debts and taxes that are owed
  • Collecting any money owed to your estate
  • Distributing any remaining assets to beneficiaries deemed valid by the probate judge

To avoid creating conflict that could cause rifts in your family, draft and execute a valid will spelling out how you want your estate distributed, who should become the guardian for any minor children, address funeral arrangements, and what should be done with your remains.

Dying With a Will

When you have a valid will, it often makes life for your survivors much easier. In a will, you can appoint a person you trust to manage your estate after your death. The person you appoint is known as the executor for your estate. A will acts as their guide.

Even if you have a will, your estate still has to go through the probate process. The first step in the process is for the named executor to file your will with the probate court. The court then determines the authenticity of your will. Upon confirming that your will is valid, the probate court officially appoints the executor, most likely the person named in your will, to carry out the administrator duties. Generally speaking, as long as you don’t leave out forced heirs and your wishes in your will are not contrary to law, the executor the court will divide things out the way you have spelled out in your will. (Forced heirs are children under 24 years old or disabled. Disabled grandchildren can also be forced heirs. Forced heirs are generally entitled to a portion of your estate regardless of what your will says. There are several exceptions.)

Avoiding Probate

Regardless of whether a person dies with a will or not, the probate process exists to help ensure the decedent’s bills and taxes are paid and that their assets are distributed fairly. Though this sounds good in principle, the probate process can be a long and expensive process. And since the process takes place in the court system, it’s open to the public and the will can be contested. For these reasons, some people create trusts for their assets before they die. Their estates can settle outside of probate court and there is less of a chance that family members can successfully contest the will. Furthermore, trust-based estate planning, particularly with married couples, may be a money saver in the long run.

Consult with an estate planning attorney about your options. You may be able to keep your estate out of probate and leave a better legacy for your heirs.

This article offers a summary of aspects of estate planning and elder law. It is not legal advice and does not create an attorney-client relationship. For legal advice, contact our Ruston, LA office by calling us at (318) 255-1760.

What is a Power of Attorney?

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An integral part of estate planning is implementing Power of Attorney (POA) documents. All states recognize powers of attorney, but rules and requirements will differ from state to state. The document gives one or more individuals the legal authority to act as your agent or proxy on your behalf. Depending on which POA you choose, the agent’s power may be limited to a particular activity, such as a real estate sale, or cover broader applications.

Permanent and Temporary Powers

A Power of Attorney may give permanent or temporary authority and be invoked immediately or be activated by a future event, such as mental or physical disability. The latter is known as a “springing” Power of Attorney. Powers of Attorney may be rescinded, but most states will require written notice of revocation to the named individual or entity.

Durable, General, and Non-Durable Powers

Some Powers of Attorney are nondurable for the sake of convenience, especially in the case of a single transaction, such as a property sale. Your agent may conduct the sale of a boat or a home described in the POA document. If you are traveling abroad or know you can’t transact this business, a nondurable power of attorney can be greatly beneficial. Once the time period or transaction is complete, the nondurable power of attorney terminates.

A general power of attorney permits the agent to deal with any matters on your behalf that state law allows. Under such an agreement, the proxy may sign checks, handle bank accounts, sell property, manage assets, and file taxes when you are unable. This POA has a wide latitude of authority. Therefore, there needs to be coordination between you and your agent to ensure your best interests are always represented.

The better-known Powers of Attorney are durable and take effect upon incapacitation. The word “durable” means the powers will remain intact even when you can no longer manage your affairs. There are two types of Durable Powers of Attorney. One handles financial matters, and the other manages medical affairs, often called a healthcare directive.

Avoiding Guardianship and Conservatorship

Without these Powers of Attorney in place, a court may need to appoint individuals to act on your behalf upon your incapacitation. Depending on your state laws, these individuals are known as conservators, guardians, or committees. This type of court intervention can be expensive, time-consuming, and is a public proceeding. Most people prefer to keep their matters private by implementing powers of attorney documents in their estate plans to avoid conservatorships.

Financial Power of Attorney

This durable power of attorney permits an agent to manage your financial and business affairs, similar to a general power of attorney. When you become incapable of managing your affairs, the agent’s responsibility is to carry out your wishes to the best of their ability. If the financial power of attorney is also a beneficiary of your estate, they must act with great care to avoid misinterpretation of intent. This document is not just for seniors. An unforeseen illness or unfortunate accident can render a healthy, younger individual incapacitated and in need of financial assistance.

Healthcare Power of Attorney (HCPA)

An HCPA is also known as a healthcare proxy and permits a designated person or agent to make healthcare and medical decisions according to your specific instructions or their best understanding of your wishes. Again, consenting to an HCPA agent for medical care decisions is not only relevant to seniors. An unforeseen illness or accident can render a healthy, younger individual incapacitated, which is why an HCPA is a crucial estate planning document.

The best way to establish powers of attorney is to locate a qualified estate planning attorney. They can help you assess which power of attorney is necessary for your unique situation. They also understand the criteria for identifying the individuals or agents to represent your interests. Delegating general and limited powers to agents can create family strain during the planning stages. An estate planning attorney is familiar with the nuances of these family issues should they arise and how to move forward for all concerned. The biggest benefit of having these matters settled before incapacitation or death is allowing a family to care or grieve for their loved one instead of being bogged down in logistics.

This article offers a summary of aspects of estate planning and elder law. It is not legal advice and does not create an attorney-client relationship. For legal advice, contact our Ruston, LA office by calling us at (318) 255-1760.

Will Writing for Blended Families

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Many American families have stepchildren today, and it is not uncommon for them to receive the same treatment as full biological children when it comes to inheritance. This is particularly true where stepchildren are part of a blended family from an early age. Biological siblings may have different feelings about a stepchild inheriting what they perceive as theirs as a natural heir. A surviving spouse may have the same feelings about their children’s inheritance.

Transferring an Inheritance

Estate planning for blended families is key to a smooth inheritance process, especially since probate rules and intestate succession law do not treat step and biological children the same when it comes to inheriting. Open communication about your estate plan is also helpful in managing heirs’ expectations.

Trying to be equitable among your heirs can be tricky, and relying on your spouse and children to work things out after you are gone is not a good plan. To create a solid plan, carve out some quiet time and identify your most important estate planning goals, including distributions of all assets.

These assets include your house, car, jewelry, other personal items, investments, retirement plans, brokerage accounts, and insurance. If you opt to gift items before your death, be certain you no longer include the asset or property in your estate plan. Even items of little financial value may be an expected inheritance from a child. The goal is to reduce tensions among family members.

Creating a Trust

Share your ideas with your spouse and agree on a basic approach, including scenarios for who might pass away first. Leaving property outright to a surviving spouse may not be the best approach as it does not ensure the children, step or otherwise, ultimately benefit. Many blended family systems use a trust to provide for a spouse while leaving their property to their children.

Will Contests

Stepchildren can contest a will to be treated as a full biological child if they are named in a prior will. A will that was written before a remarriage creates an opportunity to contest. Note that your stepchildren have very little chance of inheritance without a will. Dying without a will or intestate prevents your stepchildren from inheriting in all but a very few states. In states where they are eligible, stepchildren will be considered last in line to inherit because of the laws of intestate succession.

A stepchild named in a previous will can challenge on the grounds of undue influence, lack of capacity, mistake, fraud, or coercion. If the will being contested is thrown out of probate, estate inheritance reverts to the next most recent will. A stepchild must be named in at least one prior will to have “standing” to challenge the will. If all wills are invalidated, the state will treat stepchildren as intestate heirs.

Separate Wills

Even if a biological parent, in concert with a stepparent, makes their wills simultaneously and identically to leave the estate to one another, a surviving spouse can change their will upon the death of the other. It’s possible they may then exclude the stepchildren. But, if the original will left equal shares to biological and stepchildren, a stepchild could contest to have the most recent will invalidated.

Reciprocal or Mutual Wills

Most states do not recognize reciprocal or mutual wills as a binding contract. A mutual will can only be enforced if it specifically constitutes a binding contract that can’t be changed. It’s far more reliable to create a trust to care for a surviving spouse and your children’s inheritance than depend on mutual wills and goodwill after you’re gone.

While contesting a will is permissible under certain circumstances, there is no guarantee it will be successful. To ensure your legacy wishes are met, consult with a qualified estate planning attorney who understands the intricacies and nuances of estate planning for blended families.

This article offers a summary of aspects of estate planning and elder law. It is not legal advice and does not create an attorney-client relationship. For legal advice, contact our Ruston, LA office by calling us at (318) 255-1760.

Estate Planning for LGBTQIA+ Communities

Estate Planning for LGBTQIA+ Communities

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To protect your assets, your wishes, and your loved ones, estate planning is crucial regardless of gender identity or sexual orientation. Estate planning for LGBTQIA+ Communities you to designate your partner, whether you are married or not, as the person who can make decisions for you if you are unable to make them yourself. This offers protection against discrimination by people who may be reluctant to recognize your relationship. You can also provide financial support for your partner in your estate plan.

How RFMA Affects Same-Sex Couples

On December 13, 2022, President Biden signed the Respect for Marriage Act (RFMA). The RFMA requires the recognition of valid same-sex and interracial civil marriages by the US federal government and all US states and territories. Note that this law doesn’t apply to unmarried couples. However, unmarried couples can still get partnership decision-making benefits and privileges by way of a different type of estate planning. However, you define your partnership, creating a valid estate plan to protect yourselves is possible and important.

With proper estate planning, married same-sex couples may receive all federal and state benefits of marriage, including unlimited marital deductions for federal estate and gift taxes. By using other legal strategies, unmarried same-sex, transgender, or non-binary couples who can’t receive marital tax benefits can still ensure they will receive the legal right to inherit each other’s assets. They will also be able to make financial and healthcare decisions for each other.

Trusts for the LGBTQIA+ Community

Whether you’re in a marriage or a similarly committed relationship, a revocable living trust allows you and your partner to nominate each other as trustees of your respective trusts. This will allow you and your partner to manage each other’s financial affairs if one of you becomes incapacitated. A trust is also the best way to ensure your loved one receives the assets and privileges you want them to have. If a same-sex, transgender, or binary couple has children, in which one parent is a biological parent, a trust allows the biological parent to name the other parent as guardian of the children while they are minors if the biological parent were to become incapacitated or die.

Durable Financial Powers of Attorney for the LGBTQIA+ Community

A durable financial power of attorney is an easy way to designate your partner as the person who may handle your financial affairs if you become incapacitated. Durable financial powers of attorney documents vary somewhat from state to state, so it’s important to review and modify this document if you move to a different state.

Advance Health Care Directives for the LGBTQIA+ Community

Executing an advance health care directive allows you to specify medical treatments you want or don’t want. It also allows you to name a person, or persons, to make health care decisions for you if you are unable to make them yourself. An advance health care directive can prevent your biological family members from interfering with your partner’s ability to make health care decisions for you.

Including a HIPAA form with your advance health care directive is important. The form permits health care professionals to disclose pertinent health information and medical records to your partner.

Wills for the LGBTQIA+ Community

A will allows you to name a person to act as executor of your estate after you pass away. An executor is tasked with producing an inventory of your estate, paying all credible debts, paying remaining taxes, and distributing assets to heirs. In your will, you can indicate to whom each asset should be allocated.

If a same-sex, transgender, or binary couple has children, in which one parent is a biological parent of the children, a will addresses guardianship of the children if the biological parent dies while they are still minors. This can help prevent a custody battle between the surviving parent and the children’s biological parent’s family.

Before finishing your estate plan, you should make sure you tie up any loose ends from any previous committed relationships. If you were in a legal union before same-sex marriage was an option, you might be subject to updated state laws that now consider your previous legal union as a lawful marriage. Some states have automatically converted registered civil unions or domestic partnerships into legal marriages.

Prior to the US Supreme Court’s Obergefell v. Hodges ruling in 2015, some same-sex couples married in states that recognized their marriage but then moved to states that did not recognize their marriage. Some of these couples may have split up without legally dissolving their marriage, believing it was no longer valid in their new home state. Many LGBTQIA+ people are unaware they are still married to former partners. This can lead to the possibility of future claims against their estate from a former partner.

Estate Planning is Important for Everyone

Estate planning can be especially beneficial for non-married LGBTQIA+ couples in a committed relationship. If you and your partner have not properly executed adequate estate plans, state laws will, by default, grant rights to biological family members. This may contradict your wishes.

Members of the LGBTQIA+ community have unique needs that can potentially make estate planning more nuanced. We are happy to meet with you to discuss how to properly document your wishes regarding the inheritance of your assets, who can make decisions for you if you’re unable to, and who should care for your minor children if the need arises.

This article offers a summary of aspects of estate planning and elder law. It is not legal advice and does not create an attorney-client relationship. For legal advice, contact our Ruston, LA office by calling us at (318) 255-1760.

Common Mistakes in Special Needs Planning

Common Mistakes in Special Needs Planning

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Statistics show that 26% of American adults live with some form of disability–  more than you might think. However, federal and state benefits, such as Medicaid and Supplemental Security Income (SSI), are available for persons with special needs. These benefits are “needs-based,” which means the amount of assets and income the beneficiary can have are very limited.

When planning for a loved one with special needs, you must ensure they don’t receive money or other assets thatcould cause disqualification from their government benefits. Here are some common mistakes in special needs planning.

Gifts

Gifts of money or assets from well-intentioned family members or friends can disqualify a loved one with special needs from government benefits. This would cauwe their countable assets to exceed the acceptable limit. After getting disqualified, it can be difficult to requalify for benefits. It’s better to have gifts go to a special needs trust or a similar financial planning tool set up for the benefit of the recipient.

Disinherit

Some parents believe if they disinherit their child with special needs, that child’s siblings will help take care of them for the remainder of their life. This plan puts a lot of responsibility on the other siblings and can fall apart for many reasons. If the inheritance is in the siblings’ names, it could be lost due to divorce, lawsuits, bankruptcy, or irresponsible spending. Additionally, Louisiana’s forced heirship laws can foil such a plan. Forced heirship requires that a special needs child (or grandchild in some circumstances) must received a certain amount of a decedent’s estate after he or she dies.

Lack of a Trust

Failing to create a special needs trust for your loved one with special needs is a common mistake.  Government benefits are used for basic living expenses, such as housing, food, and medical care. Therefore, a person with special needs usually won’t have enough money for other expenses, such as travel and hobbies. Creating a special needs trust can make funds available for expenses that government benefits don’t cover.

Crowdfunding

Similar to gift-giving from family members and friends, donations from a crowdfunding campaign can negatively affect your loved one with special needs. By pushing their countable assets over the acceptable limit. If you want to create a crowdfunding campaign to benefit your loved one with special needs, find a way to keep the funds out of your loved one’s name. Again, a special needs trust could be a good option.

Consult an Attorney

The best way to avoid making mistakes that could cause your loved one with special needs to lose their government benefits is to consult with an attorney experienced in elder law and estate planning. They will be able to help you find the best solution for your particular situation.

Our law firm is dedicated to informing you of issues affecting persons with special needs. We help you and your loved ones plan for the best possible future. Contact us today to schedule an appointment.

This article offers a summary of aspects of estate planning and elder law. It is not legal advice and does not create an attorney-client relationship. For legal advice, contact our Ruston, LA office by calling us at (318) 255-1760.

Estate Planning with Your Parents

Estate Planning with Your Parents

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Discussing your parents’ wills, or lack thereof, with them, can be intimidating. Many adult children put off having the “dreaded talk” of estate planning with your parents and are unprepared when an unforeseen event like an accident or illness happens. A 2022 survey conducted by caring.com shows despite the COVID-19 pandemic, two-thirds of adult Americans do not have a will or estate plan. Putting off the discussion is risky, even if there is apprehension about getting started.

Protecting Your Family While Still Alive

A will is only part of an estate plan and only becomes active upon death. However, crucial documents such as a living will, powers of attorney, and living trusts protect a parent’s quality of life and outline their medical preferences while alive. This point is an important distinction to draw in conversation with your parents. Estate planning isn’t just about inheriting property, money, and objects. It is also a plan for your parents’ future, bringing peace to their daily lives, knowing emergency instructions exist.

While talking to your parents about estate planning helps them, it also helps the family’s adult children. Often with their own family to care for, they must plan for their future beyond their parents. When parents don’t prepare for retirement, including the need for long-term care or end-of-life decision-making, caretaking might cost the adult children a lot of money, derailing the next generation’s financial stability. Every family has a vested interest in discussing their parents’ estate plans.

Incapacitation and End-of-life Care

Even if your parents have a modest estate, they should make their preferences known regarding incapacitation and end-of-life care. Are there enough available estate assets to cover them through retirement and long-term care issues? If not, there are other options for protecting you and your parents from financial ruin. An estate planning or elder law attorney develops strategies to meet these specific goals.

Professional legal advice helps to start the conversation with parents and siblings. There will be many ideas and viewpoints. Each may be valid, but remember, what seems fair to one sibling may not seem reasonable to another. An open family discussion will instruct specific people to make medical and financial decisions, pay for higher levels of care, and offer options for long-term care services and facilities. It also prevents conflict after parents are gone about “what they would have wanted.” If your parents are making a first-time plan, encourage them to create one that clearly outlines expectations while alive and after death to avoid future issues.

When to Talk about Estate Planning

The sooner, the better. It may take several planning sessions. Figure out the best time when the entire family can get together and keep each meeting to about an hour, presenting a clear agenda. Consider when your parents are at their best during any given day. Some parents may prefer the morning while others prefer the afternoon. Working family members may require weekend meetings. Try to accommodate all family members’ needs but prioritize your parents.

To clearly understand what to address in your family meetings, research what is included in comprehensive estate planning. At your first meeting, providing a general overview may encourage your parents to retain an estate planning attorney. Their attorney may attend some of your meetings or provide answers to specific questions that come up.

Updating an Estate Plan

If an older estate plan is in place, you will need an estate planning lawyer to review its current effectiveness. A child-specific trust when children were minors is outdated if you are adults. Rules and safeguards for trusts and other legal entities may change or no longer be relevant. Estate planning is not a set-it-and-forget-it enterprise. State and federal laws frequently change and can impact existing plans.

Your parents may have multiple marriages between them. In blended families, stepparents can be cause for concern for adult children. It can get very messy, so specific instructions about what goes to a second husband or wife versus what goes to biological or stepchildren must be clear. Some parents consider this a privacy issue and do not want to share these details. Do your best to explain future concerns and pivot to long-term care planning issues while still alive rather than inheritance after death. The goal is to help preserve their assets to live comfortably in a medical crisis and leave the legacy they intended after death. You want to understand their wishes for themselves as well as other family members.

Understanding Your Parent’s Point of View

Have your parents review, or identify what roles they expect their spouse and adult children to play in the estate plan — letting the family know who is selected and why helps manage future expectations. If there is contention on the part of a family member about roles, talk out the feelings and try to bring everyone to an understanding about your parents’ point of view. Take notes during your discussions and refer to them often, following up with supporting data to put family members at ease when resolving sticking points.

Try to keep the conversation on track and handle one topic at a time. Key topics to review will include the estate plan, net-worth statement, family business (if any exists), powers of attorney for health care and financial and digital assets, trusts, will, living will, real and personal property, investments, and long-term care. Set goals for your meetings to provide direction. Know that some of these conversations may be unpleasant or unpredictable. There are as many communication styles among family members as there are unique personalities. Scenarios are endless, so patience and flexibility are key to success.

Include your estate planning attorney and financial advisor if there are certain issues you can’t seem to get past as a family. Directly or indirectly, professional guidance will provide information that will clear up disagreements. Everyone can air their grievances, and the professionals can address each issue from a practical standpoint and how it affects your parents’ well-being emotionally and financially. Although a series of family meetings with honest intentions to help guide your parents’ estate planning can be challenging, the entire family will benefit in the future. Contact our Ruston, LA office by calling us at (318) 255-1760 to speak to one of our experienced estate attorneys.

Avoiding Inheritance Mistakes

Avoiding Inheritance Mistakes

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Having to cope with the death of a loved one and receiving an inheritance can be an emotional time. The loss of a loved one is sad, but the influx of funds can bring joy or relief. It can be hard to think and plan objectively. After receiving an inheritance, some people are blowing through it surprisingly quickly.  Avoiding inheritance mistakes is important. Here are some mistakes people make when inheriting money and how to avoid them.

Not Factoring in Potential Taxes

Depending on the size of the inheritance, you may get bumped into a higher tax bracket than you were previously. You could also be on the hook for capital gains taxes. It is a good idea to talk with a financial advisor or an accountant before you spend any of your inheritance.

Failing to Make a Budget

If you don’t have a budget and are not used to managing money, you may not be prepared to handle a large influx of funds. This could lead to overspending and quickly disappearing inheritance. If you already have a budget, factoring in your new funds will help you see how it will affect your saving and spending strategy.

Spending Too Much

When receiving a large sum of money, it can be easy to think that there is plenty to last. All too often people blow through inheritances by making big ticket purchases, such as cars, boats, or vacations. Even if the purchases don’t seem all that big, the costs add up quickly, especially if items purchased have additional costs, such as maintenance and insurance.

Stay grounded and think about whether or not you really need what you’re thinking of buying. Also consider how much more money you could have in the future if you invest the money instead of spending it now. If you know how much you will inherit before you receive it, you can create a budget to make it last.

Not Paying Off Debts

Paying off debts is the first thing you should do if you inherit a large sum of money. Paying off your mortgage, credit cards, or student loans will give you more freedom to do other things. You will still need to balance the debts you decide to pay with the amount of money you’d like to invest for the future.

Losing Other Income Sources

For people receiving asset-based or income-based government benefits, such as disability payments or Supplemental Security Income (SSI), receiving an inheritance could disqualify them from the benefits. This is something the benefactor needs to plan for before they pass on the inheritance. Establishing and funding the appropriate type of trust will reduce the possibility of this happening.

Not Saving Enough

Suddenly getting a large amount of money can make it easy to think about all the things you can do with it now instead of how you can save and invest for your future. After paying off debts, create an emergency fund with enough money to live on for about six months. Once you have done these two things, start increasing your contributions to your retirement accounts.

Not Getting Expert Advice

An inheritance, especially a big one, can help you achieve financial security and allow you to pursue a dream career or some other life goal. However, an inheritance can vanish surprisingly quickly if not managed well. Before doing anything with your inheritance, consult with a financial advisor, an accountant, and an estate planning attorney. Each of these professionals will help you manage your inheritance wisely and plan for a financially healthy future.

This article offers a summary of aspects of estate planning law. It is not legal advice, and it does not create an attorney-client relationship. For assistance, please contact our Ruston, LA office by calling us at (318) 255-1760.

I Have a Will, Do I Need an Estate Plan Too?

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I Have a Will, Do I Need an Estate Plan Too? 50% of American adults have written a will, and a significant amount of these individuals believe this means they don’t need an estate plan. Although this belief is untrue, it may be the leading reason why only 33% of US adults have an estate plan.

It’s a common misconception that an estate plan and a will are the same. A will is just a single component of an estate plan designed to cover much broader actions while a person is living and after death. A will is a single tool, whereas an estate plan uses multiple documents and legal strategies.

What is a will?

A will is a legal document providing instructions on how to manage your assets after your death. It encompasses names of beneficiaries, guardianship for dependents or minors, and distribution of assets. It also provides an executor for the estate. The executor is responsible for carrying out all actions stated by your will, such as paying debts, estate management, and the distribution of assets.

What is an estate plan?

Estate planning includes thinking through situations beyond basic legal documents. It can be as detailed or as simple as you want. However, there are four essential components that should be included in addition to a will.

  1. A living will details your wishes for end-of-life medical care. If you can’t communicate or make decisions while in a vegetative state or with a terminal condition, a living will specifies what medical treatments, care, life-sustaining measures, and organ donation preferences you want.
  2. A health care power of attorney, or health care proxy, is a legal document that appoints an entity or individual to make medical decisions on your behalf if you can’t. This can be used regardless of whether you are at the end of your life. The appointed person makes decisions about procedures, diagnostic exams, medications, long-term or rehab care, surgical intervention, and end-of-life care.
  3. A financial power of attorney designates someone to act in your place for matters relating to finances. The authorized individual or entity will manage all financial issues if you can’t independently handle financial affairs. This may include paying bills, preparing taxes, making real estate decisions, and managing investments. The power of attorney can be effective immediately or “spring” into effectiveness upon your incapacity.
  4. A trust is a type of fiduciary relationship where property is held by a trustee for the benefit of the beneficiary. For certain trusts, you can still retain control when living. However, at the time of death, the trustee will distribute the property to the beneficiary. This can be beneficial for distributing assets if privacy is important since it doesn’t involve probate court, and it can significantly reduce succession and probate legal fees and costs after death.

Do you need an estate plan if you have a will?

In short, the answer is yes. While a will is important, it’s only the first step in creating an estate plan. A comprehensive estate plan is necessary. Ensure that your wishes are honored and to leave your loved ones in the best position once you die.

Estate planning is a detailed and complex process. Seeking professional guidance is the best way to ensure that you are fully informed and properly executing your estate plan. Contact our Ruston, LA office by calling us at (318) 255-1760 to speak to one of our experienced estate attorneys about your estate plan.

Government programs for seniors

Government Programs for Seniors

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AdditioNot knowing government programs for seniors and inflationary pressures are leading to financial insecurity for many US seniors. Besides reducing unnecessary expenses, many retirees or near-retirees should consider contacting the government to see if they qualify for assistance. It can reduce the anxiety many Americans feel living on a fixed income.

Government Programs for Seniors

The National Council on Aging (NCOA) works with thousands of national and local partners to provide tools, resources, advocacy, and best practices for every aging American to have health and financial security. Checking out if you qualify for senior benefits through government programs is easy to do with NCOA’s online BenefitsCheckUp tool.

Wasted Benefits

Every year billions of available dollars in US benefits programs are not claimed. Older adults (55 or more) are unsure if they are eligible. And, if so, how to apply. No registration is necessary, and requests for information are minimal. Personal data entered into the website will remain confidential, and accessing the database costs nothing. If you hate filling out forms and get confused by all the questions, estate planning and elder law attorneys go through this process every day. Contact them for help. There is rarely an upfront cost for legal help. You will be in a much better financial position once you begin receiving assistance.

The Online Benefits Check Up

If you complete the benefits check-up online, NCOA will send a confidential report to your mailing address. It will list the help available to you and how to apply for it. Since 2001 this NCOA program has helped millions of older adults receive help. This includes paying for medicine, food, utilities, and more. More than 2,000 benefits programs are in the check-up system, including categories such as:

  • Food and nutrition
  • Health care and medication
  • Housing and utilities
  • Income
  • In-home care and aging in place
  • Disability services
  • Skilled nursing facilities and other long-term care environments
  • Tax help
  • Legal, crisis, and general assistance
  • Veterans’ programs
  • Discounts and activities

The online BenefitsCheckUp site helps older individuals identify the federal and state assistance programs for which they can qualify. This NCOA website is newly revamped and permits error corrections and the addition of information if you feel the need to revise your answers. The resulting online individualized Eligibility Results report can be saved in a PDF format to email to yourself, your lawyer, or a trusted family member.

Providing this eligibility information to your elder law or estate planning attorney is a smart strategy. Suppose you already receive disability benefits through SSDI, SSI, or other programs. In that case, adding other government assistance programs may result in unintended and negative consequences. It may render you ineligible for benefits you already receive. Your lawyer will know the strategies already in place and how additional programs may affect your current planning.

The chart above shows how many older adults struggled to manage basic expenses. This even before the inflationary circumstances of late 2021 – 2022 (and predicted beyond). Participation rates in government assistance programs are at a historic low, with a mere low to mid sixty percent of eligible individuals participating.

Benefit take-up rates are low due to program enrollment barriers. Many older adults lack awareness that these benefits exist. When they do, the application process for many programs can be cumbersome and complex. Additionally, perceived stigma about receiving government assistance and other program misconceptions contribute to lower participation rates.

Ramsey Alwin, NCOA CEO and President, admits, “In today’s economy, inflation is taking a bigger and bigger bite out of people’s incomes.” He adds, “We completely redesigned BenefitsCheckUp to make it even easier … no one should have to choose between paying for medications or food.”

 

In Summary

To worry less and age better with more resources at your disposal, explore the NCOA’s BenefitsCheckUp website and learn what is available to you. Before you use the contact information to take the next step to apply consult with your elder law or estate planning attorney. Also, all assistance you receive should not interfere with existing plans and help you age successfully. More than 2,000 government benefit programs are available to help you. It can make the difference between thriving or just surviving. For assistance and information on government programs for seniors please contact our Ruston, LA office by calling us at (318) 255-1760.

Getting to know probate

Getting to Know Probate

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Getting to Know Probate

You can minimize or avoid probate entirely by getting to know probate and working with an estate planning attorney. Probate proceedings are part of the public record and can be very time-consuming and expensive. However, in nearly every case, some probate is necessary, so it is important to understand how to navigate the process.

Probate proceedings seek to validate the decedent’s last will and retitle the estate’s assets into the name of heirs according to the deceased’s wishes. These court-supervised proceedings ensure estate debts are paid and oversee the distribution of assets to heirs.

After losing a loved one, the family will generally come together and hopefully encounter a properly written will and other crucial estate planning documents. Without a well-organized plan, the probate process can take much longer. Family members will be tasked with gathering information necessary for court.

Probate Court Proceedings

The petitioner, usually the estate executor or succession representative, will begin the process by filing a death certificate and a last will to the probate court. It is also useful to produce a list of know creditors and names and contact data of the decedent’s heirs. Smaller estate probate processes and those estates not contested by heirs can usually work through probate fairly quickly and efficiently.

Laws regarding probate are state-specific, and most states set valuation thresholds. In Louisiana an estate value is less than $125,000 may allow your lawyer to reduce court filing fees or even avoid probate court altogether.

For larger value estates, there is a substantial amount of necessary paperwork to validate the will, determine asset distribution, settle disputes, pay off remaining debts, and ultimately close the estate by paying the decedent’s final taxes. A checklist of documents to gather getting to know probate include :

  • Death certificates
  • Final will
  • Revocable trust documents
  • Heir and beneficiary contact data
  • Beneficiary designations
  • Pre or post-nuptial agreements
  • Previous three years of federal and state income and gift tax returns
  • Life insurance policies
  • Real estate deeds
  • Vehicle titles
  • Statements of financial accounts
  • Contracts and business agreement documents
  • Appraisals for high-value art, collectibles, or jewelry
  • Other known assets
  • Known debts
  • Ongoing bills
  • Medical and funeral expenses

Probate Proceedings Without a Will

The decedent’s residence states intestacy laws will apply if your loved one dies without a last will (intestate). All personal property without a beneficiary designation will be subject to the probate process at the court’s direction.

But some assets will avoid the probate process under state property title, state contract, or state trust law. These assets may include:

  • Beneficiary designate life insurance policies
  • Beneficiary designate retirement funds
  • Beneficiary designate annuities
  • Pay-on-death or transfer-on-death accounts
  • All trust property (in most circumstances).

Cost of Probate

Complex probate processes can be costly and take years to finalize, which is why many individuals retain an estate planning attorney to minimize probate proceedings. Lengthy proceedings can be frustrating for heirs getting to know probate who are rightful beneficiaries but must comply with the probate process. The average cost of probate varies by state; however, five to ten percent of an estate’s value in administrative costs and legal fees is not atypical. Some estates may lose as much as twenty percent of their value.

Other fees may include executor compensation, court fees for filings and paperwork, and a probate bond. After the probate proceedings are complete, a probate bond may be refunded. The most common reason for high probate costs occurs when beneficiaries contest the will, as ongoing litigation can be expensive. Issues relating to preparing and filing the decedent’s last federal estate tax return and any ensuing audit may also increase the cost of the probate process.

Most individuals will create an estate plan with their lawyer that allows assets to pass outside the probate process, typically through creating a revocable living trust. Depending on your situation, your estate planning attorney may recommend other types of trusts as well as ensure that named beneficiaries on accounts that pass outside of probate are up to date. Regularly reviewing your estate plan with your attorney can help minimize probate court interactions and streamline your heir’s inheritance process. For assistance, please contact our Ruston, LA office by calling us at (318) 255-1760.