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April 5, 2020

What Happens to Unpaid Bills in a Probate Matter?

Probate is a court procedure that closes out an estate, and one part of probate is ensuring that all creditors are paid before that estate is closed. The court does not pay these bills. It is the executor of the estate that must secure the funds, pay any debts confirmed, and show proof to the court that the debts were satisfied as part of the probate process.

If you find yourself worried that loved ones will be burdened with credit card debts or other bills in your name, you can help protect them by including those debts in your estate plan. Not all debts are paid upon death; instead, it comes down to the type of debt, the creditor, and the funds the estate has on hand to pay.

The Estate of the Deceased Is Responsible for Paying Debts

First, you do not have to worry about a creditor coming after someone in your family for your outstanding debts. You are the borrower; therefore, you are the only party the estate can come after for the funds.

Once a person passes away, their estate is responsible for paying any outstanding bills or debts. The estate includes all assets owned by the deceased, which may include real estate, investments accounts, bank accounts, and other assets that could be sold to pay an outstanding debt balance.

However, not all debts are handled this way. Instead, it will depend on the type of debt, whether there is a cosigner, and where you live.

When the Executor Pays the Debts Using Your Assets

In most cases, any debts in the deceased’s name will be paid using estate assets. Assets may be liquidated to pay down the balance, and the executor will use all assets available to satisfy those debts. If they do not have enough assets to cover the debts, the creditor may have to write off that debt as a lost cause.

They cannot go after family members, with the exceptions listed in the next sections, for the remaining balance. Therefore, if someone dies with numerous credit cards maxed out and no assets to sell to pay for them, the credit card companies will have to close the accounts and go on without payment.

There are exceptions here. Loved ones may have to pay the balance due, depending on two exceptions:

How the Type of Debt Impacts Who Pays for the Balance after Death

The type of debt may determine who is responsible after death. Here are some instances where certain debts may be the obligation of another party aside from the deceased:

  • Home Loan – Any home loan with a joint owner means that the party who co-signed on that mortgage will be responsible for either resuming/maintaining the payments or paying off the balance. If there is no joint owner, but someone will inherit that home, the party inheriting it can take over the mortgage payments. In cases where there is no joint owner or beneficiary to the home, the executor can sell the home and use the sale to pay off the mortgage and any extra would be divvied up to beneficiaries.
  • Credit Cards – Once the estate has no funds left to pay the credit card, it can close out and there is nothing creditors can do. If, however, there is a joint credit account, the joint owner is responsible for the remaining balance. Authorized sellers are not.
  • Vehicle Loans – The lender can repossess the vehicle if payments stop; therefore, the executor will typically sell the vehicle to pay off the loan. If someone is inheriting that vehicle, they can work with the lender to take over payments.
  • Student Loans – Private student loans are only paid by the estate with the funds they have. If someone co-signs on a student loan, however, that co-signer will be responsible for paying. Some lenders, such as Sallie Mae, have a forgiveness system in place when the borrower dies.

Where You Live and How That Might Affect Bills

Anyone living in a community property state may be forced to pay bills for their spouse that accrued during their marriage, regardless of if they are listed as the co-owner or co-signer. Luckily, New York is not a community property state. Debts that occurred before the marriage in a community property state are not the spouse’s obligation.

Not All Assets Go toward Debts

Certain assets are not used to pay down debts, and those include retirement accounts and life insurance policies. These automatically pass to the named beneficiary and are not part of probate; therefore, the funds in those accounts cannot be used to pay debts. That said, in instances of joint ownership mentioned above, a creditor may go after that family member for the remaining balance and they will be forced to use those funds (or any funds available to them) to pay off the debt.

Protect Your Loved Ones with an Estate Plan

If you want to protect your family members from possibly paying for your debts or losing their inheritance to your debts, contact an attorney.

The right estate plan puts into motion a plan for paying off debts, protects loved ones from creditor seizures, and ensures that they are taken care of. Whether you want to give a loved one your home or a large sum of money, one of the best things you can do is avoid probate altogether.

Attorney, Andrew M. Lamkin, P.C., can help you create a trust that protects your assets, ensures loved ones get their inheritance, and that they do not endure the length and cost of probate court.

If you would like to start your estate plan, or you would like to look at options for protecting your assets, contact Andrew M. Lamkin, P.C., to schedule your no-obligation case evaluation. You can also send a message online through the online contact form.

What You Should Know about Respite Care

Respite care is a form of temporary care that gives family members or primary caregivers a break. Respite care might be used when a primary caregiver is out of town, ill, or just needs a day to run errands. Whether you are considering respite care for yourself or a loved one, it is important to understand the type of care that you receive and how you can start planning for the cost long before it is  required.

Respite care benefits the primary caregiver just as much as the patient. It gives each party a much-needed break, and even gives the patient a new person to interact with that may bring new experiences. Respite caregivers are professionals trained in caring for those who are disabled or seniors who need help around the home. They can help with everything from daily hygiene to cleaning in the house, cooking, and even just offering companionship while the primary caregiver is occupied.

Respite care typically occurs in a hospice or other care facility, but there are services that bring respite caregivers into the patient’s home so that they don’t have to leave their comfort zone.

When individuals create a long-term care plan, they tend to forget that respite care exists. One of the best things you can do for yourself and your loved ones is to include the possibility of respite care in your long-term care plan and make it part of your estate plan. Doing so will ensure you have funds set aside to pay for respite care and make sure loved ones get the break they need when caring for you.

Why Is Respite Care Something You Should Plan for When Creating a Long-Term Care Plan?

Even the most patient caretaker or family member in the world needs a break. Caring for a loved one every single day can be exhausting, and sometimes you need a break. A caregiver might become ill, need to run errands, or just want a day off, and without respite care, that option may not be available to them.

If you are on the fence about planning for respite care or not, here are a few reasons to consider adding it into your estate plan:

Respite Care Provides Caregivers with a Much-Needed Break

Caregiving, in some instances, is a 24-hour job. Caregivers are at higher risk for depression and stress according to one study. To reduce instances of stress or severe depression, adding in professional assistance and intervention programs, like respite care, are a must for any caregiver situation.

Whether you have hired a caregiver or a family member is taking on that permanent role, a break is crucial not only for a caregiver’s state of mind, but for the quality of care they provide.

When a caregiver is stressed, depressed, or overwhelmed, the quality of care they give may decline.

Offering Respite Care to a Loved One May Give Them a Break They Need, Too

You may be surprised to hear that loved ones need a break from their caregiver just as much as the caregiver needs a break.

A new caregiver, even for a day, offers your loved one a new person that they can socialize with, which may help promote a better outlook and even thwart depression. Also, it can provide your loved one with a change of scenery – if they go somewhere outside of their home. They may even interact with others living in the care facility, giving them more socialization.

It Can Help You Test Out Community Living

If you and your loved one are considering moving into an assisted living facility or hospice center, respite care may be a good way to test it out. You would be able to see how they care for their residents, how your loved one feels about the facility and, therefore, be more confident in your decision.

When Paying for Respite Care, the Costs Are Surprisingly Low

You might be surprised at how affordable respite care can be. While the rates vary depending on the level of care your loved one needs, the quality of the facility, and area where you live, often the cost for one day is not much more than a hotel cost.

That said, when you need respite care for a few weeks, the cost can add up. If your loved one has special needs, the cost will also increase.

That is why having a plan in place long before long-term care is needed or respite care is a concern is best. You can set aside funds using a trust through your estate plan to make sure respite costs are covered.

How to Plan for Respite Care

Respite care is a valuable addition to long-term care, and it is definitely something you should include in your long-term care plan. When you set aside funds in a trust or other savings account to pay for your long-term care, make sure you include the costs for respite care. Whether you are having a loved one care for you or you plan to hire a caregiver, just some of the instances where you want to anticipate that extra spending includes:

  • Sick days – when you are too ill to care for your loved one or do not want to run the risk of giving them your illness.
  • Family emergencies that may take you away from your role as the primary caregiver.
  • Vacations or travel plans that require you to leave your loved one behind.
  • Running errands, visiting doctors for your appointments, and making sure that you keep up with your own health – whether it is once a week or once a month.
  • Getting a mental break so that you can relax, refocus, and feel refreshed when you come back to your role as a caregiver.

Speak with an Estate Planning Attorney Today to Explore Your Options for Long-Term Care Planning That Includes Respite Care Costs

When you create your estate plan, make sure you think about long-term care and respite care costs. An estate planning attorney will help you set aside the funds you need to care for yourself so that family members are not burdened financially.

Speak with attorney, Andrew M. Lamkin, P.C., today about creating an estate plan that has long-term care in mind, or to modify your existing estate plan so that it includes respite care. Call our office to schedule a case evaluation free of charge or contact us online with your questions.

Are Assets in a Trust Protected from Medicaid?

Medicaid has strict qualification requirements, which means you need to plan ahead and protect yourself from losing out on this healthcare option. You

can protect assets from Medicaid in a trust, but only if you select the right type of trust.

What Is a Medicaid Trust and How Does It Protect Your Assets?

A Medicaid trust is an irrevocable trust. You place your assets into the trust to protect them from future nursing home care costs. You must have the documents drafted correctly, including making a trustee that is a relative, child, or another third party other than yourself.

These trusts are then exempt from the rules for Medicaid eligibility. This means that, because the trust now owns the assets and you are not a beneficiary of that trust, the assets are exempt from seizure.

You Must Transfer Five Years in Advance

The reason you should start your Medicaid planning now is that you have a small window where you can set up the trust, fund it, and transfer ownership of all assets. You must transfer those assets within five years prior to applying for Medicaid or entering a nursing home. Medicaid will do a five-year lookback period, and if you transfer any assets within that five years, they are not exempt.

So, even if you plan to retire in ten years, now is the time to set up that Medicaid trust so that you have a five-year window where no assets were moved from you to the trust.

Can’t You Just Give Your Assets to Family Members Instead?

Sometimes, people will try to skip the trust process and transfer ownership of assets over to loved ones instead. Giving to a family member not only puts them at risk for taxes, but those assets could be lost forever, depending on how the family member manages those assets. For example, you transfer your personal property over to a child. Now, the child’s name is on the title of that property, but you have only transferred it there to avoid losing it when you sign up for Medicaid.

Because your child’s name is on the title, any debts or legal actions taken against them can cost that asset. For example, your child is sued for unpaid debts and the courts allow seizure and sale of the home you titled to them. While your loved one was keeping that asset safe, it is subject to their personal losses. Even a divorce may require that your loved one must sell the home and split the proceeds with an ex-spouse – leaving you with no assets.

Bottom line, transferring these assets over to a family member puts them at risk. When you place them in a trust, even if loved ones are the beneficiaries, those assets cannot be seized or confiscated.

How Does a Medicaid Trust Work?

With a Medicaid trust, you will hire an experienced attorney to create the trust first. Then, your attorney can help you transfer assets in your name into the trust – basically making the trust the owner of those assets.

Once your assets are in the Medicaid trust, the government no longer considers them your assets. That means you can still use those assets, including living in your home that is owned by the trust, but that home and the value of the home will no longer be considered part of your estate.

Upon your death, the assets in the trust would then be passed down to beneficiaries you named at the time you created it. Often, these are children, charities, or other relatives.

Will Medicaid Cover Long-Term Care?

Medicaid does cover medical care, including long-term medical care and hospitalizations.

However, to unlock this coverage, you must meet strict requirements, including:

  • Be at least 65 years old or have a diagnosis of a permanent disability under SSA
  • Be diagnosed blind

On top of those primary requirements, you then must meet the financial eligibility, which is where your Medicaid trust comes into play.

Here are the financial requirements for Medicaid’s long-term care coverage:

  • You must meet a strict monthly income limit. Medicaid sets a hard limit, regardless of where you live, which is $2,313 per month. Exceptions are made for seniors who have serious medical conditions and their medical costs are much higher, even when their income is above this limit.
  • You must have limited assets available. Exempt assets include your primary home and personal belongings, and you can also keep one vehicle. You may be able to keep your life insurance, but only if it is valued under $1,500 – which is rare for any life insurance policy. Any assets outside of the exempt list are subject to Medicaid consideration. The reason being, Medicaid assumes you can sell those assets and use the proceeds for your care, even though it does not always work that way.

Considering a Medicaid Trust? You Still Need an Attorney

While you have learned the basics of a Medicaid trust and how it may protect your assets and allow you to unlock long-term care, you still need to hire an attorney.

An attorney will evaluate your current assets and see if a Medicaid trust is the right choice for you. Furthermore, setting up an irrevocable trust is a complex procedure that requires professional assistance. You need an attorney to not only draft the initial documents, but make sure all assets subject to Medicaid requirements are protected by that trust.

Sometimes, a trust is not the right answer when evaluating your options for long term care. Meeting with an attorney allows you to explore all options outside of a Medicaid trust to make sure you are choosing the right path to protect your assets.

If you are ready to explore your options for long term care or you would like to see if a Medicaid trust is the best option for you, schedule a free case evaluation today with Andrew M. Lamkin, PC. For your free consultation, call us directly or request more information online.

What You Need to Know to Help You Save on Taxes in 2020

Whether it was part of your New Year’s resolutions, or you just want to avoid paying too much in taxes this year, there are ways to save on your income tax for 2020. Not only is it good practice to implement these ideas right away (so you are not scrambling just before filing next year), but you can integrate your tax saving plan into your long-term care planning as well.

First: Know the Big Changes Ahead for the 2020 Tax Year

There are a few big changes coming when you file your 2020 taxes, but you need to be aware of these now to take full advantage.

What You Need to Know to Help You Save on Taxes in 2020

  • The standard deduction rate is increasing for singles and married couples. If you are single, you have a new standard deduction of $12,400. Married couples filing jointly on their tax returns will get $24,800. These standard deductions alone may eliminate the need for more complex deductions. That is an extra $200 for singles and an extra $400 for married couples filing jointly. Those filing head of household will get a $18,650 deduction, which is a $300 increase.
  • You can put away extra in your retirement plan this year. For 2020, you can stash up to $19,500 in your retirement plan (as long as it is a 401(k)), and you can do an extra $6,500 if you are 50 and over.
  • Know the tax bracket changes. While you do have more deductions, there are seven brackets that range from 10 to 37 percent of someone’s adjusted gross income, and the tax brackets are adjusted this year.

Consider the Big Tax Credits for 2020

You should always be on the lookout for tax credits, because these can help lower your tax burden significantly. A tax credit will reduce your taxes more than a deduction, which is why you should look at these and prioritize them over deduction opportunities.

The earned income tax credit still applies in 2020, and it usually helps those with low to medium incomes.

One big credit is the child tax credit. This year, you get $2,000 per eligible child. To get these credits, you have income limitations. Singles cannot use the child tax credit if they make over $200,000 gross per year, while married couples cannot exceed $400,000 gross per year.

Don’t Rule out Tax Deductions for 2020

Tax deductions are still valuable, and you should always strike a balance between credits and deductions to lessen your tax burden for the year. Some deductions to utilize as much as possible include:

  • Your mortgage interests. If you are currently paying a monthly mortgage payment, then you are also paying interest on that loan. You can deduct up to $750,000 in real estate debt that accrues interest. You can also deduct the interest on your home equity loans, especially those used to purchase or improve a home.
  • Donations to charities and organizations. Any donations you make in cash or check to qualified charities are deductible. You will want a receipt from that organization showing that they are legitimate and the amount you contributed for 2020.
  • Property tax on your home. When you pay your annual property tax, you can deduct up to $10,000 for that tax to the local government.
  • Child Care If you pay for childcare, you can deduct that from your income tax. Just make sure you get a full record of child care payments made.

Other Tips for Surviving 2020’s Tax Year

Now is the perfect time to get yourself organized and make sure that when April 2021 shows up, you are ready to file without any headaches or holdups.

You can start by implementing just a few steps:

  1. Start Organizing Now – Do not wait for your New Year’s resolutions in January 2021 to start organizing your finances. Now is the time to make a folder (digital or otherwise) for all of your receipts for tax credits and deductions you plan to use when you file next year.
  2. Keep an Eye on Investments – Keep track of how much you have invested, and where you invest when it comes to stocks and funds. Also, if you sell any, track the amount you earned compared to what you paid – you will owe taxes on the earnings.
  3. Save for any Unexpected Taxes – You should make sure to have ample savings for any tax bills that you know you will pay – such as self-employment quarterly taxes.

Consider Setting up a Trust to Protect Your Loved Ones and Estate

Now is the ideal time to meet with an attorney about your estate plan, too. You do not want your family to deal with the burden of estate tax or probate. While you are planning out these tax tips for 2020, meet with an estate planning attorney to see if your estate could benefit from a trust. With a trust, you put all of your assets into the trust so that you no longer own them. With the trust in control, if you were to pass away, you can easily send those assets over to beneficiaries – all without them paying for the hassles of probate.

Considering Long-Term Care? Start Medicaid Planning Now, Too

While you are working on taxes for 2020, do not forget about Medicaid planning. Medicaid is a federal and state program that pays for your healthcare when you retire. Even if you are ages away from that, now is the time to make sure you are managing your finances so that, when you do need Medicaid, you are not disqualified for owning too many assets.

Tax returns are considered when you apply for Medicaid, so speak with an attorney about your options.

If you are curious about how you can plan for long-term care, take care of your loved ones, and still keep your finances in order, meet with attorney, Andrew M. Lamkin P.C., today. We can help you find a good balance between protecting your estate with a trust and protecting yourself from long-term care limitations. Schedule a free consultation by calling directly or requesting more information online.

What Happens If You Don’t Designate a Beneficiary?

In addition to creating a will, you must designate beneficiaries to receive any assets that you owned. In the state of New York, the intestacy laws will apply if you do not designate a beneficiary. It is important that you name your beneficiaries, because without anyone named specifically, the state will dictate how your assets are distributed among surviving family members.

In most cases, a person will designate more than one beneficiary. A beneficiary is a party that will receive an inheritance upon your death. The amount of their inheritance is dictated by your will. You can name multiple beneficiaries, and they will typically involve family members. In some cases, you may want to designate a charity, coworker, or even just a friend as a beneficiary. Who you select is entirely up to you. You have the right to forgo traditional naming tactics, including not naming any loved ones as a beneficiary and instead selecting a charity as your sole beneficiary.

Without any beneficiaries named for your assets, including any New York State or local retirement system accounts, while your estate is going through probate, the judge will determine which beneficiaries are suitable for receiving your assets.

Why Is It Important to Designate a Beneficiary on Your Retirement Accounts and Bank Accounts?

Beneficiary designations for financial accounts and retirement accounts are completely different from those you name in your will. Your beneficiary designations for these types of accounts are what the court will honor upon your death. You can designate anyone for this beneficiary role, including an organization or trust. You are not required to select a spouse or family member.

In the state of New York, you can select a primary beneficiary and a contingent beneficiary.

  • The Primary – Your primary beneficiary is the party that will receive your benefits upon your death. You can name more than one party for the primary beneficiary role, but you will want to dictate how much of the death benefit each primary beneficiary receives. For example, you might provide one primary beneficiary with 60% of your assets and the other primary beneficiary receives 40%. If you do not leave a percentage, then primary beneficiaries will all receive equal shares of the death benefit.
  • The Contingent – You may also name a contingent beneficiary. This party would receive an inheritance only if the primary beneficiaries are no longer alive to receive their half of your death benefit. Contingent beneficiaries will also share the death benefit equally unless you create portions for each party.

What If You Have No Will; Therefore, No Beneficiaries?

The most common situation is when a person dies without a will. If you were to pass away without a will, the court would have no document indicating which parties will receive an inheritance from your estate assets. Therefore, the court will use the existing statutes to determine the rightful beneficiaries. These selections by the court may not be the parties you would have picked yourself.

This is why it is critical to create a will and name your beneficiaries to avoid having the court pick for you. Without a will, your estate goes through the probate process. One exception, if you die without a will, is that any jointly owned property under $30,000 is filed as a small estate under New York laws. Most jointly owned property will automatically pass to the joint owner. However, the court will still need to decide if the joint owner can inherit the property.

When you die without a valid will, you are considered intestate by the state. All state succession laws now determine the distribution of your assets. Various surviving relatives will receive a portion of your assets, but the typical order involves surviving spouses 1st, children 2nd, and remaining family members as the court sees fit.

In a typical probate court proceeding with a valid will in place, the executor of the estate is distributing assets based on the designations left in the will. If you die without a will, the judge must first appoint an executor to handle your estate. Instead of following a will for distributing assets, the court appointed executor will follow all New York intestate laws to divvy up your assets.

What about Surviving Spouses?

New York does have spousal rights of election when it comes to inheritances. The law allows the spouse to receive an inheritance of $50,000 or 1/3 of the deceased assets. If a spouse does not receive this amount, they have the right to request it in court as long as they do so within six months after the court appoints an executor for the estate.

When a person is married to another individual, but they have no biological or adopted children together, and there are no children from a previous marriage, the court typically gives all assets to the surviving spouse. If there are biological or adopted children, the court will provide the surviving spouse with the first $50,000 in assets before dividing the remaining assets equally among any adopted or biological children.

It Is Not Worth the Risk to Not Name a Beneficiary

Whether you do not have a will or you have no designations on your financial accounts, leaving it up to the statute is never a good idea. Doing so only means that certain parties will receive an inheritance that you may have otherwise not provided them with. The only way to control which loved ones or charities receive your assets is to create a will and complete your beneficiary designations on all financial accounts.

If your situation changes, such as getting a divorce, it is imperative that you update your beneficiary designations and your will to reflect that change. It is best to meet with an estate planning attorney to ensure that all of your bases are covered when it comes to naming beneficiaries. When you do not have an attorney creating your will or reviewing your existing assets, you run the risk of leaving it open for the court to decide on your behalf.

Meet with a Local Estate Planning Attorney Now

Whether you are creating a new estate plan or you would like to revise an existing one, schedule a free no-obligation consultation with attorney, Andrew M. Lamkin, P.C., now. Schedule an appointment by calling us today or requesting more information online.

What Are the Powers and Duties of a Trustee?

A trustee is a party who has a fiduciary obligation to any property held by the trust. While the trust holds the legal title to all property and assets within it, the trustee is responsible for following the instructions left in the trust documents, including ensuring the best interests of the beneficiaries are considered.

The role of the trustee is a complex one – and one that comes with numerous responsibilities. Trustees have a duty to serve the trust and the trust’s beneficiaries, and failure to do so could result in potential liability lawsuits.

It is important to understand the role, powers, and duties of a trustee whether you are considering serving as one or you are appointing one for your trust.

Exploring the Primary Role of the Trustee

A trustee takes on numerous tasks, and once named, they will be in charge of the trust’s assets and ensure that beneficiaries receive their inheritances. Due to the delicate nature of this position, you should be cautious if you are taking on the role or appointing someone. Before picking a trustee, it is important to understand the role of the trustee and the character of the person who fills that role.

There are three primary tasks that a trustee will do, including:

  1. Making all investment decisions on behalf of the trust using trust assets;
  2. Distributing assets from the trust to beneficiaries; and
  3. Handling all administrative duties while administering the trust.

As you can see, the list of primary duties within this role are not something you should give to just anyone. The party named as the trustee will have full control over the trust and all associated assets. That kind of power requires a person with good judgment, intelligence, and trustworthiness.

What Are the Duties of a Trustee?

Once you appoint a trustee, their primary duty is to serve the needs of the trust beneficiaries. Some essential duties can include:

  • Remaining impartial while administering the trust. A person cannot let their emotions affect their judgment in this position. The trustee must remain impartial while administering the trust. Even if they dislike a beneficiary, they must follow all trust rules and guidelines while administering the trust. This means putting all feelings, beliefs, and emotions to the side while they fulfill their duties.
  • Being prudent and acting as quickly as possible. A trustee cannot purposely delay administering the trust. They must perform their duties within a reasonable amount of time, including any distributions that are on a specific schedule. Likewise, they must be prudent with their investment decisions to ensure that the trust assets are protected and invested wisely.
  • Preserving and protecting trust assets until the trust is distributed. Until the trust is fully distributed, it is the duty of the trustee to preserve and protect any assets held by the trust.
  • Reporting and keeping accurate records. Another duty of the trustee is to keep records of all trust activities. This includes recording any investments or distributions, and depending on the trust document, the trustee may be required to provide activity reports to all named beneficiaries every so often. A beneficiary also has the right to request an activity report, and the trustee must supply that report to the beneficiary within a reasonable amount of time.
  • Maintaining the productivity of the trust. A trust is meant to grow and stay productive. Therefore, the trustee has a duty to invest assets and make them grow or work for the trust to benefit the beneficiaries later on. They must make sound investment decisions, manage all existing investments, and make changes as necessary to keep the trust productive. If a trustee were to allow assets to sit without any investments, the trust would not be productive.
  • Following all investment expectations. While a trustee is expected to keep the trust productive, their investment decisions are based on numerous factors. The trustee must consider the current economic conditions and any possible inflation or deflation effects on every investment decision they make. They also must consider any tax consequences, when applicable. Likewise, before investing trust assets, a trustee must consider the return on the investment before doing so. Lastly, the trustee must make sure that all needs for liquidity are addressed as well so that the trust has liquid assets when needed.

What Powers Does a Trustee Hold?

A trustee has considerable power over the trust assets. The trustee may take actions on behalf of the trust. That means they have the power to invest and remove investments as they see fit. They still must abide by any state laws or relevant common laws while handling assets in that trust.

A trustee’s power also relates to their authority over three primary areas. These three areas include administration, investment, and distribution. The trustee has the power to influence all of these areas. If a trustee makes a poor investment decision, for example, it will directly impact the payout and distribution area of their role.

Choosing a Trustee Wisely

Understanding the role, powers within the role, and duties of the trustee can help you better decide who to name for this very critical role. It can also help if you are considering taking the position of a trustee. In some cases, a trust requires daily interaction and work and it can be very time consuming for the party in the role.

You want a person who is diligent and trustworthy, especially when you consider all of the power they hold over a family’s legacy.

Create Your Trust Documents with a Local Estate Planning Firm

If you are ready to create a trust for your family and protect your assets, you will want to speak with a local estate planning law firm. An attorney will review your current assets and help you determine whether or not a trust is right for you.

While creating the trust, your attorney will also draft the related trust documents that help protect beneficiaries from abuse by the trustee. Your attorney can also advise you on picking the most suitable candidate for your trustee position.

To get started, contact the Law Office of Andrew M. Lamkin, P.C., today. We offer free, no-obligation consultations, and we can discuss your options for a trust as well as help you begin creating a trust when you are ready.

What You Need to Know If You Are Named Executor of a Will or Trustee of an Estate

Whether you have been named the executor of a will or a trustee of an estate, you have just been appointed a major role. This rule comes with strict guidelines and expectations that you must follow as a fiduciary duty. Failing to follow these duties could not only result in you being removed as the executor or trustee, but you may also face a civil lawsuit, depending on the violation.

You most likely already knew that a family member or good friend named you as the executor or trustee. While you may feel honored to take this role, you now have taken on an exceptional number of responsibilities. Once that loved one passes away, you must take over duties of the estate so that it can be closed out by the court.

It is in your best interest to contact a local attorney for assistance with your role. An attorney can help go over all of the responsibilities that you must complete, help you stick with strict probate court deadlines, and even assist you with some of the various responsibilities so that you are not shouldering the entire burden.

Your Primary Job as an Executor or Trustee

As the personal representative, you will be responsible for settling the deceased’s final affairs.

Just some of those tasks that you will take on include:

Locating Property and Assets

Your first job will be to locate any property and assets in your loved one’s name. This can include bank accounts, retirement funds, real estate, and other possessions. If the deceased has set up a trust, all their assets and property should have been transferred into the trust already. In this case, your job becomes easier because all of their assets are already accounted for and assigned to the trust.

If there is no trust established, you will need to use any will and other documents to locate the deceased’s property. You must also include any jointly held property or properties that have a beneficiary designation. Assets with a beneficiary designation will not go through probate court and instead pass directly to the named beneficiary. A common example of an asset with a beneficiary designation is a retirement account and sometimes even a bank account. Property that is jointly owned would transfer to the joint owner automatically when the other owner passes away.

Any property or assets that you find that are titled in the deceased name would go through probate court if they did not transfer ownership over to a trust.

What Is Probate Court?

Probate court is the state’s oversight of a person’s possessions and ensuring that their last wishes are carried out per their will. The only time you would not have to deal with probate court is if you are a trustee of an estate. Trusts do not go through probate court so, instead, you would use the trust documents and follow any instructions in them for distributing assets.

Probate assets are those that must go through probate court. A person’s assets can go through probate court if they have a final will and even if they do not have a will.

Meeting with an Estate Attorney

One of the other tasks you will complete early on is obtaining documents you need to meet with an attorney. Some of the documents you need to obtain before your first meeting would include:

  • Copies of the will
  • Death certificate
  • Funeral bills
  • Documents for divorces
  • Documents for any armed services
  • Copies of any trust agreements

Opening the Estate

As the executor of a person’s estate, you will need to open the estate in probate court. To start, you will file the will with the county clerk along with a petition to probate the will and receive letters of testamentary. You will need the letters of testamentary to access bank accounts in the deceased person’s name.

Once you have opened the estate and created an inventory of assets, you will then open a checking account just for the estate. You must then start the claims process with all creditors and not only notify them of the death, but ensure any pending debts are paid.

You will also be required to file a final tax return for the estate. The tax return and paying creditors are done before any assets are distributed to beneficiaries of the deceased. You may need to obtain updated appraisals, especially if the last appraisals of the property are outdated.

During all these tasks, you will notify named beneficiaries of the estate about the pending probate process and any designations found in the will or designations in the trust.

Once all creditors have been paid and the taxes filed, you will be able to distribute the remaining assets to the named beneficiaries.

What If You Don’t Need Probate Court?

If there is a trust, you do not have to worry about going through probate court. While the process is easier, you still have numerous tasks that you must complete as the trustee. You must review all trust documents and notify beneficiaries named in the trust about their inheritance. Even with a trust, you will file a final tax return for the estate.

Should You Use an Attorney to Help with Your Role as an Executor or Trustee of an Estate?

While there are numerous guides available online, no one should attempt to handle their duties as a trustee or executor alone. Both roles have numerous tasks assigned to them. And if you already have a family or job, it is a lot to take on. Also, you would need to know which documents to file and where to file them. And, there are strict timelines you must follow as part of this job as well.

Having an attorney assist you with your job is one of the best decisions you could make. An attorney handles probate and trust on a weekly basis. They know what you must complete and when you must complete it. Furthermore, they are there to ensure you fulfill your duties in your role.

If you were named a trustee or executor and you need legal assistance, contact attorney, Andrew M. Lamkin. Schedule your free case evaluation by calling our offices, or contact Andrew M. Lamkin, P.C., online to learn more about our services.

What Does Guardianship of an Elderly Parent Mean?

Elderly guardianship occurs when the court appoints one individual to care for an elderly party who can no longer care for themselves. The guardian will then assume duties and responsibilities for that elderly person. The individual appointed does not always have to be a family member, but usually a family member is appointed for this role.

When Would an Elderly Individual Need a Guardian?

Sadly, an individual may be unable to care for themselves at some point later in life. Whether it is due to a medical condition or just part of aging, they may be unable to maintain hygiene, manage their finances, or remember to take medications. If an elderly adult cannot take care of their own daily needs, then it may be in their best interest for the court to appoint a guardian who will then oversee that care.

How Do You Appeal to the Court to Receive Guardianship of an Elderly Adult?

Typically, the court will decide if the party seeking guardianship is suited for their role. In these cases where more than one person is requesting guardianship, the court will decide which party is more qualified to care for the elderly party. Other times, the court may split duties between two guardians. An example would be having one guardian handle daily care and medical decisions while another handles all financial tasks.

To request to become a guardian for an elderly individual you must first file legal documents with the court. You will also need medical evidence that the elderly individual is incapacitated. Also, if the party already has a living will or advanced directive, the court will use that document when determining the best guardian for the aging adult. In most cases, if the individual named in the living will can take care of the elderly adult, the court will grant them guardianship.

When there is no living will or advanced directive, the court prefers to give guardianship to a spouse, adult child, or another adult family member because they are more familiar with their loved ones needs and care. When a relative is unavailable or not willing to serve in the role, or the court finds that they are unqualified, they may select a professional or public guardian instead.

What Can an Appointed Guardian Do?

An appointed guardian’s sole responsibility is to ensure that the elderly person receives the care that they deserve. Just some of the tasks that they may take on can include:

  • Determining where they will reside;
  • Consenting or denying medical treatments;
  • Monitoring them in their residence;
  • Hiring in-home care help;
  • Determining how finances are managed, including what benefits are used;
  • Paying bills;
  • Managing any assets and real estate the elderly individual owns;
  • Keeping records;
  • Making any end-of-life care decisions necessary;
  • Consenting to the release of confidential information; and
  • Reporting to the court about their duties and status as a guardian.

Does a Guardian Receive Compensation for Their Work?

A court appointed guardian can receive compensation for their services. However, when a friend or family member becomes the guardian, they do not typically charge for their services. Compensation is more common when a private or public guardian is appointed by the court who is not related to the adult they are caring for. When compensation applies, the court must approve that compensation amount and the guardian must keep careful records of all services and time dedicated to their role to justify compensation.

Can Friends Receive Guardianship?

The courts prefer immediate family members when looking for suitable guardians. That doesn’t mean a friend of the elderly individual could not petition for guardianship. If immediate family members do not wish to be guardians or they are not qualified, a friend could apply for the role with the court. You would still need to prove to the court that you are the most suitable guardian for your friend before a judge would approve the guardianship petition.

Can You Argue against a Person Who Has Guardianship?

If your loved one already has a court appointed guardian, but you feel that they are not looking out for your loved one’s best interests, you can still file a petition with the court to have that guardian removed. You will need to supply evidence showing that the guardian has breached their duty of care, and evidence showing that you are the more qualified guardian to take over responsibilities.

Any case involving removing an existing guardian should be handled by an attorney. These cases are exceptionally complex and require in-depth knowledge of local elder laws and wards.

Do I Need an Attorney to Petition Guardianship?

If you are concerned about your aging parent and you would like to explore your options for applying for guardianship, it is best to speak with an attorney. There are multiple steps involved in applying for the guardianship of an adult. An elder law attorney knows these special requirements and can assist you with gathering all documentation necessary to file your petition. Furthermore, an elder law attorney can help argue against any petitions in court from other family members trying to seek guardianship and lookout for the best interest of your loved one.

If your loved one already has a living will, you should bring that document along with you to your consultation appointment. Even if you are not named in the living will, but you feel the named party is not qualified to care for your loved one, you may be able to petition for guardianship and contest the party named in the living will. In complex situations like this, it is best to speak with an attorney.

Elder law attorneys have handled countless guardianship cases regarding aging adults. To get started on your case or to draft a living will that names a guardian for your own care, schedule a free consultation today. Attorney Andrew M. Lamkin, P.C., can assist you with your guardianship case.

Get started by scheduling your appointment. You can do this by calling the office directly or contacting him online with your questions regarding adult guardianship.

What Is the Difference between Elder Law and Estate Planning?

Most people use the terms “estate planning” and “elder law” interchangeably. If you find yourself curious whether they are the same or not, you are not alone. Estate planning deals mostly with helping plan for disability, death, and taxes. The purpose of estate planning is to make sure loved ones receive their inheritance and are taken care of after one’s death.

Elder law, on the other hand, involves some of the same issues as estate planning but also touches on others outside of it. Elder law helps those who are aging take care of their legal and health needs. One difference between elder law and estate planning is that elder law can help with long term care. For example, you may need to plan for nursing home care later in life, and an elder law attorney can help you do so.

While elder law can overlap some of the same tasks as estate planning, estate planning does not go into long term care planning or assisting someone with Medicare. An attorney, however, may offer both estate planning and elder law services.

Digging Deeper into the Definition of Each and How to Tell Which Service You Need

Here, we will go over each type of planning process so that you can determine which one is right for your current situation.

What Is Estate Planning?

Estate planning is a long-term, proactive planning procedure that addresses what you would like to happen after your death. Some of the items you plan for in your estate plan can still help you while living, including creating a trust or having a health directive.

Most importantly, when you are doing estate planning, you are preparing for post-death situations. Your estate plan establishes several rules and guidelines for loved ones, including who inherits what from your estate, how you would like to be buried, and any special instructions you wish to leave behind for loved ones.

When you meet with an estate planning attorney, you will let your attorney know any concerns or wishes you may have about how you would like your property distributed after death. Your attorney will then consider your estate size, current laws, and any unique factors to create an estate plan that addresses all of those concerns and wishes. Some items you may take care of during this process include:

If you do not have an estate plan, the court will decide how to distribute your assets. The court follows the current law, and your estate’s assets may go to parties that you would not have given your assets to initially. Therefore, it is important that anyone with assets creates an estate plan to make sure that the right parties receive an inheritance. An estate plan essentially tells the court where you would like your money to go, who will care for any minor children you have, what you would like to happen if you become disabled, and may help you avoid probate court if you establish a trust for your assets.

Most importantly, estate planning is ongoing. As your family changes or you acquire new assets, you will update your will accordingly. Most attorneys advise their clients to update or at least review their existing plans once a year or once every other year. You should also revise your plan immediately after any significant life change. An example of a substantial life change would be remarrying, having another child, or purchasing property.

What Is Elder Law?

While your estate plan creates a guideline for surviving family members to carry out your wishes, elder law addresses issues that will occur during your life. You may need to save assets so that you can use them for care later. You might also need assistance in creating instructions in case you become incapacitated or disabled later on.

Planning for long term care is very complicated. Most people hire attorneys because they do not understand the nuances of state aid programs and how their assets affect eligibility. Qualifying for these types of benefits can be confusing, and all it takes is a minor error on your initial application to set back the receipt of benefits. Your attorney can advise you on how to protect those assets. They will explore options for transferring your assets and advise you on which assets you can still keep so that you qualify for insurance benefits without losing all of the retirement funds you have saved up for.

Your attorney can also help you complete the necessary applications for Medicare and Medicaid. When you have an attorney complete these applications for you, you are more likely to be accepted than if you attempt to do them yourself.

Hire an Experienced Attorney for Both Estate Planning and Elder Law

It does not matter where you are in your life; you should meet with an estate planning attorney in your area to explore your options. An attorney will review your current estate and help you decide which parts of estate and elder law planning apply to you. Most importantly, you need to create an estate plan now. Even if you do not have many assets or no extended family members, having no estate plan means that the court will decide how to distribute the assets you do have.

You can protect loved ones, dictate who receives what from your estate, and provide for family – all by starting with an estate plan.

Get started by scheduling a free consultation with attorney Andrew M. Lamkin today. This is a no-obligation meeting, and we can review your existing estate plan for changes needed, create a new estate plan, and address any elder law planning needs you may have. Call my office directly to schedule a consultation appointment or request more information online.

Do Bank Accounts with Beneficiaries Have to Go through Probate?

Probate is a normal process that occurs after someone passes away, and the courts verify that their assets are distributed to the proper parties. Some assets, such as insurance policies and retirement accounts, do not have to go through probate. That is because these assets usually have a designated beneficiary who is named at the time the account is created.

Anytime you have an account with a named beneficiary, special rules apply. Now, not all assets with a named beneficiary skip probate. Therefore, if you are estate planning or you are an executor reviewing the law, it is best to speak with an estate planning attorney to see how named beneficiaries apply to your assets.

How Are Bank Accounts Distributed?

How your bank accounts pass at death will depend on the type of setup you chose when you initiated the account. It will also depend on whether you were the sole owner of the account, if you signed a payable on death document, and whether there are any applicable challenges to your named beneficiaries.

Bank Accounts with You as the Sole Owner

If you own a bank account that is in your name only, you might have had the option to sign a document designating a beneficiary for your account upon death. If, however, you do not sign a designation document, then your bank account funds would go through probate. The court would use the standard estate laws to determine who would receive the funds from your account along with the designations you have made in your will.

Therefore, this is an instance where bank accounts would go through probate court before funds are distributed.

Bank Accounts with a Named Beneficiary on a Payable-on-Death Document

Most financial institutions make the payable on death document optional. It is advisable that you pick someone when you create your account, and make sure that you update that document throughout your lifetime, especially if your beneficiary has changed. When you have a signed beneficiary document, the funds will not go through probate. Instead, that money is no longer part of your estate. The funds in the account will be transferred to the beneficiary you named on the document automatically.

To claim the funds, the beneficiary would need to go to the financial institution with current identification and a death certificate. The bank will already have the beneficiary designation form on file. They will verify that the person claiming to be your beneficiary is the correct party, and then they will transfer the funds into their name.

As you can see, it is essential to review your beneficiary designations. If you do not update this form, your funds will automatically transfer to someone that you may no longer wish to inherit your funds. If you cannot recall the party you designated when you opened your bank account, you can visit your financial institution in person and request a copy of the beneficiary designation form. You can then update it to a more recent beneficiary if you wish to do so. The beneficiary designation form overrides your final will. So, even if your will designate a different party, the bank honors the form instead.

Bank Accounts That Are Jointly Owned

Joint bank accounts are complicated. If you have a joint account with someone and one of the parties dies, usually the surviving joint owner automatically becomes the sole owner of the bank account. In this case, the account would not go through probate court. However, there are instances where the funds may go through probate court, or there may be a contest against who is the rightful owner of those funds.

Right of Survivorship Issues

When a bank account has two names owning the funds of that account, it is called a right of survivorship. That means, when one party dies, the surviving owner becomes the sole owner. Usually it is clear which party is the sole owner after the other party passes away. If, however, there are more than two parties, it may complicate determining how the funds will be distributed.

When Someone Contests the Joint Ownership

In most cases, when a couple owns a joint bank account, it is unlikely anyone would argue that someone else is entitled to the funds when one party passes away. However, there are instances where other family members or beneficiaries of the estate may argue that the other joint owner is not the intended beneficiary on the account. In this case, they would need to petition the court and have a hearing to determine the rightful owner of the funds.

Bank Accounts Held by a Trust

Another type of bank account that does not go through probate court is a bank account held by a living trust. When you set up a living trust, you pass overall assets to your trust and your trust is now the owner of those assets rather than yourself. All assets in your trust bypass probate court. If you have a lot of high-value assets and you want to save your family the hassle of dealing with probate court, creating a trust is most likely the best route for you and your loved ones.

Speak with a Local Estate Planning Attorney First – before You Assume Accounts Will Not Go through Probate

As you can see, there are plenty of instances where a bank account will not go through probate and other cases in which it will go through probate. Therefore, the only true way to see which bank accounts go to probate court and which do not is to speak with a local attorney in your area. An attorney can review the law, review any beneficiary designations, and then decide which accounts are likely to go through probate and which will automatically pass to the named beneficiary.

To explore your options, especially when it comes to protecting loved ones and ensuring bank account funds are distributed as you intended, contact attorney Andrew M. Lamkin, P.C. for a free case evaluation. Call 516-605-0625 to schedule now or contact us online with your questions.