Greetings - Welcome to our firm's Blog!
Curious to learn more about topics of interest in regards to Estate Planning, Medicaid Planning/Asset Protection and other Elder Law matters in general? Be sure to sign up for our blog!
To see a listing of the blog articles tagged and sorted by their own specific topics, just click on their corresponding 'Blog Categories' links below, located directly under the 'Contact Us Today' field on the lower right.
Don’t toss that junk mail in the recycling bin just yet — it might contain your stimulus check in the form of a prepaid debit card! For those who haven't received their COVID-19 stimulus payment yet, be aware!
Ventilators are used for people with respiratory failure. A signature consequence of severe COVID-19, these machines pump oxygen into a patient’s body while he or she lies in bed, typically sedated, with a breathing tube snaked down the windpipe (known as “intubation”).
For some seniors, this is their greatest fear: being hooked to a machine, helpless, with the end of life looming. For others, there is hope that the machine might pull them back from the brink, giving them another shot at life.
To read the full article, click the link below:
It is a common myth: "Estate planning is only for elders and the rich." This is simply not true! Those with minor children also need to prepare and plan for the future, especially during the uncertain times we live in!
It is understandable... In the excitement and exhaustion of staying on the move and caring for young children, estate planning is probably not at the top of your to-do list. When raising children, there is so much to do every second, and they grow up so fast, after all!
The simple truth here is all families, especially those with young children, should really have a basic estate plan in place. If something unfortunate were to happen, your family will be grateful that you set aside the time to put a plan together.
Here are 8 things to keep in mind as you create an estate plan for your young and growing family:
(1.) Choose Guardians for Your Children
Certainly one of the biggest decisions you will make: As a parent of a young child or children, the number one reason why you need an estate plan — specifically a will — is to name who will take care of your child or children if both you and the other parent pass away. If you don’t, the court will appoint a guardian. This person is usually a family member (or other capable friend), but which person? Instead of leaving it to the courts to decide among family members, make this decision yourself, and express your written wishes for this decision in the Will. Also, if you are a single parent, it is even more important to have these decisions made as soon as possible and documented in a will!
Many parents disagree about who they would like to raise their child. Maybe one parent thinks a grandparent would be perfect and the other parent predicts that your children would control that household. Or you might think of a perfect person, but he or she isn’t really ready yet for the responsibility. It’s better to figure all of that out now than to leave such an important decision up to a stranger!
Once you narrow down the choices, make sure to ask the potential guardian if he or she would be willing to take on the role. You want this person to be a willing and informed participant!
(2.) Make Your Wishes Known with a Last Will & Testament and a Living Will
A Last Will & Testament does more than appoint guardians for minor or dependent children. A will also outlines exactly how you’d like to distribute your property. If you don’t put a will in place, your estate may be distributed, in a way that is not to your liking!
In some states, property is split equally between a spouse and the children. If you have two children, your spouse would only receive one-third of the estate. He or she might need more than that to take care of everything. In this case, the portions left to the children would be difficult to access until they reached the age of majority (or the age at which they are considered an adult).
Another basic estate planning document everyone needs is a Living Will. This document lets you state your wishes for your end-of-life medical care if you should become incapacitated. This would make your wishes known in regards to situations where your condition may be terminal and death is expected within a short amount of time, or you are in a vegative state due to coma. It is best to put these wishes in writing rather than leaving the responsibility of such a decision to a grieving loved one.
(3.) Consider Who Will Manage Your Children’s Finances
When naming a guardian for your children, you’ll also want to consider who will manage the money and property for the children until they have reached the age of majority. This person can be the same person as the guardian, but it doesn’t have to be. For example, if your sister is wonderful with your kids, but stinks at money management, that’s okay! You can appoint her as the guardian and appoint someone else as the trustee of your children’s money. If you don’t appoint a financial trustee, the courts will appoint a person on your behalf.
You might also want to consider establishing a trust to manage your children’s inheritance more effectively. This can reduce costs when settling an estate, and it’s easier to specify exactly how you’d like your assets distributed for your children.
(4.) Choose An Executor or Trustee for Your Estate
You’ll also want to specify who will perform the mechanics of winding down your estate. This person, also called an executor or trustee, will help distribute the property according to your will, close down bank accounts, pay down debts, sell property if needed and so on. Once again, if you don’t appoint this person, the courts will decide for you.
(5.) Name the Right Beneficiaries
Beneficiaries on life insurance and retirement accounts like 401(k)s and IRAs take precedence over what’s listed in a will. So if you’d like your assets to go to your spouse or to your children, you’ll want to make sure you name the right beneficiaries!
Know that you shouldn’t list your minor children directly as contingent beneficiaries as they can’t own property directly until the age of majority. You’ll want to the name the trust that will hold the assets for them until they’re older.
(6.) Appoint Someone to Make Financial and Health Decisions If You Were Unable To
Estate planning isn’t just thinking about what to do when someone passes away. It’s also important to have documents in place that help loved ones know what to do if you become unable to make your decisions yourself. A Durable Power of Attorney for money matters and Health Care Power of Attorney for medical and health-related matters, appoints a person to act on your behalf if you become incapacitated. These duties include doing simple things like paying your bills, as well as making sure your wishes are carried out according to your Living Will in an end-of-life situation, if necessary.
(7.) Get Life Insurance
We get it: Buying insurance is not a fun purchase by any stretch of the imagination, but it is necessary, and a good move for the future. One crucial part of protecting your family after you have passed away is to make sure that they will have enough money to pay the bills after you’re gone. If you have dependent children, you need life insurance. Term life insurance is often very inexpensive for young parents. You’ll want enough to cover any debts and funeral costs. Also consider how much money is needed for a transition period, living expenses, and future large costs like college.
(8.) Review And Update Your Estate Plan Over Time
Just as your family changes over time, so should your estate plan. Your state's laws might change or, you might even move out of state, expand your family, get divorced, get married, or a guardian or executor might pass away. Have your documents reviewed periodically by an attorney who specializes in Estate Planning, like a Certified Elder Law Attorney to make sure they still reflect your wishes, and will work for your current situation.
We can help! Contact us to schedule a consultation.
The truth is that everyone should have an estate plan in place! Do you have questions on Estate Planning, but haven't had a chance yet to catch Mr. Haley during one of his live webinars or seminars?
The following is a short excerpt posted on our Facebook Page(@estateandelderlawcenter) ( (6 minutes and 46 seconds long) on the subject of Last Will & Testaments pulled from Certified Elder Law Attorney Robert Haley recent live Zoom webinar hosted through New College Institute in case you missed it, on 'The Basics of Estate Planning.' (This clip is part 1 of 5.)
For those who have questions of when stimulus direct deposit payments will go into their accounts, or when paper checks will mail out to them, this article is worth reading. It discusses rough time-frames and also some methods to track them online:
We often receive a lot of phone calls like this example: In this scenario, a loved one has recently passed, and family start trying to remove items from the house of the deceased without permission. Is this against the law? The short answer here to this question is that no one should remove items from a home of a person who has died until the executor or administrator of the estate gives approval.
When someone dies with a will, an executor is appointed to administer the estate. The executor has the duty and powers to settle the decedent's estate according to the dictates of the will. Part of the executor's duties include getting an appraisal of the decedent's personal property, which includes such things as a home's furnishings, vehicles, bank holdings, stocks, and other belongings. The executor also must account for the decedent's interest in real property, which includes things like land, commercial buildings, and homes.
Accordingly, an executor can't stand by while a decedent's personal property walks out the door as if it were suddenly up for grabs on a first-come, first-served basis. If, for instance, a big-screen television were specifically willed to someone, the executor has a duty to make sure that the person named in the Will gets that TV.
If, however, the television weren't left to a particular person, it should be included in the general inventory of the estate. The executor can then decide whether to sell the television in order to convert it to cash for distribution according to the will or distribute it to a beneficiary in lieu of cash. Preserving the property in the estate becomes crucial so that the executor can distribute the decedent's property as dictated by the will. In some cases, executors will secure a home so that the belongings inside can be preserved for inventory, appraisal and distribution.
As a matter of practicality, most wills aren't specific enough to account by name every single television, book, chair, diamond ring, pistol, rifle,or collectible and tea cup as bequests, but that doesn't mean that a friend or relative of the decedent can simply cart off belongings as if they were free!
Every situation could be different, but it's certainly possible that someone taking property could be charged with burglary or theft. Ownership doesn't go into limbo when someone dies - the property would belong to the estate of the decedent until it is distributed. So, if someone takes property that wasn't willed to them or distributed by the executor, it's possible that he or she has committed a crime.
The bottom line here is that people have to understand the process, exercise a little patience along with common sense. In most cases, the executor is part of the family and families usually can work together to divide property in a way that's acceptable to everyone involved. However, bringing the trailer over to grandma's and just hauling out that antique dresser you've always wanted, or walking out with some of grandpa's guns from his collection definitely isn't the way to go about it!
Although it may sound cruel to disinherit a child in their wills, many people do, and have valid reasons for doing so.
Why Does It Happen? In many situations, parents might feel one adult child is well-off and does not need an inheritance, while, perhaps another adult child is not as financially successful and needs an inheritance much more. Still, a person’s circumstances can change, so be cautious when making such decisions based on that reasoning. Certainly, fair doesn’t necessarily mean equal, but feelings can still be hurt despite the fact that the person making the distribution had good intentions.
In the case of an adult-disabled child, there are much better options available than simply disinheriting that child, and leaving what they would have received to their brother or sisters instead who "will take care of the adult-disabled child's share, because they will know what I want them to do with it." Morally, the siblings may know what you want, but legally, they would not actually have to follow through with sharing what they may receive in that situation... There are many other ramifications with that approach as well! It is far better and less riskier for all involved to explore a Trust for that purpose instead. One common recommendation for protecting an adult-disabled child's share as part of Special Needs Planning for an heir includes a Special Needs Trust, which insures that they receive their share in a way that it is protected for their use without risking the loss of their state or public benefits. For more information on why disinheriting a child with Special Needs is not the answer, be sure to check out this earlier VAElderlaw.com blog article.
More expected reasons for disinheriting someone would be because there is no relationship or a strained relationship or, in certain cases, a single incident has occurred that has impacted a relationship negatively. In all cases of a strained relationship, we inquire with clients as to whether they have taken any steps to try to repair that relationship or to understand the reasons for that rift. For example, in a situation where a loved one is battling cancer, perhaps a child is still a loving daughter, but is simply afraid of dealing with that person's possible upcoming death. Perhaps the reason she has not visited is not out of a lack of love, but out of fear of losing that loved one, and simply not being able or willing to face this fear. Keep in mind that cancer and death are scary for most people, and especially scary for children, particularly younger children.
Not a lot of people may be aware, but children do not have an absolute right to inherit! Regardless of the above reasons listed, it is your absolute right to disinherit your daughter or son if you so wish. But there are other options that may be preferable to outright disinheritance, especially if you are concerned about those decisions being challenged later once you pass.
The 4 Myths of Estrangement
Estrangement looks different for those affected, but research relayed by New York Times health reporter Catherine Saint Louis shows that the experience is more common and complex than we might think. Here are the four myths about estrangement that Saint Louis debunked in her article:
Myth 1. - Estrangement is sudden.
Estrangement is actually a “continual process.” Although it sometimes means a clean break, a fight and that’s it, it can also be a chaotic disassociation, or a relationship that’s on and off again over a period of years.
Myth 2. - Estrangement is rare.
Estrangement is more common than most people realize. In fact, one research study said 12 percent of parent-child relationships in the U.S. are estranged, which is likely a conservative estimate, since the study only observed mother-daughter relationships.
Myth 3. - People become estranged for a clear reason.
Estrangement typically falls into one of three categories, according to St. Louis’ findings: choosing between the parent and someone or something else (a partner, a passion, an identity, a lifestyle, etc.); a difference in values or perceived wrongdoing; or stressors such as domestic violence, divorce or failing health. A combination of two or more of all these factors is also possible.
Myth 4. - Estrangement happens on impulse or whim.
According to St. Louis, “(m)ost of the participants said that their estrangement followed childhoods in which they had already poor connections with parents who were physically or emotionally unavailable.” She believes that estrangement is typically years in the making — resulting of unhealthy relationships that couldn’t be saved.
Let's Talk About Virginia Disinheritance Laws!
When it comes to your children, you do have the right to disinherit them in Virginia and in most other states, but you must be explicit in doing so. If you don’t make your disinheritance explicit, there is room for confusion after you pass. Failing to do so could easily give a disinherited child leverage during court hearings.
- Ideally, your estate planning attorney needs to know about any children early on that you wish to disinherit at the first initial consultation when discussing your documents. In the conversation with your attorney, be sure to explain in detail your reasons for disinheriting an adult child. No actual reason needs to be stated in your Will or Living Trust, but it is a good idea for you or your attorney to prepare a written statement that can be left with your estate planning documents explaining your reasons. If a child's name is left out of a Will and not mentioned at all, pretending that they didn't exist, that child could easily have the whole Will thrown out in court as being invalid!
- There are several instances where disinheriting children in your Will can be invalidated in Virginia, such as undue influence, lack of testamentary capacity, fraud, and duress.
- Though it’s often extremely difficult to prove any of this to the court, you should be aware that there is a chance your children can prove this after you pass.
If A Will Is Challenged (Contesting A Will)
A no-contest clause (also referred to in latin as an in terrorem clause) in a Will or Trust is a provision that states that if a beneficiary under the Will or Trust challenges the validity of the document (or, in some instances, tries to take certain other actions against the executor, administrator, or trustee), that person will forfeit his or her rights to take under the document.
In Virginia, if a person challenges a Will or Trust with a no-contest clause and prevails in that challenge, the court will declare the Will or Trust to be invalid and of no effect (thereby eliminating the effect of the no-contest clause), and a prior Will or Trust (if any) will control the disposition of the assets. if there is no prior document, then the laws of intestacy will control the disposition of the estate, which may not have been what the deceased wanted! So, when a person is considering challenging a Will or Trust that contains a no-contest clause, he or she faces a very important choice: risk challenging the Will or Trust (and, if unsuccessful, potentially losing his or her inheritance), or not take any action and instead accept an estate plan as it was written.
Consider Leaving Something To Your Adult Child, In Case He Or She Contests The Will
If the potential challenger has a sizeable sum of money at stake, he or she will need to carefully think through the merits of the challenge. So, although you cannot do anything to completely prevent the risk of a disinherited child challenging your estate plan, it is sometimes best — depending in part on your age and health, because these things factor into a potential claim of incapacity or undue influence or duress — to leave the child you wish to disinherit enough money to serve as a disincentive for them to challenge your Will or Trust, even if you have a “no-contest” clause, because a no-contest clause is effectively meaningless without a bequest to go along with it that the disinherited person risks losing by filing the contest.
Estate Planning Is Vitally Important For Families With Estranged Loved Ones
We see many families who have a loved one who is estranged. For those with an estranged loved one when disinheritence for that person is desired, estate planning is vitally important. Our offices have strategies in place to help all types of families plan for themselves and their loved ones (whether you are tight-knit, estranged, or "it's complicated"). With proper advance planning, each person can retain the assets it has taken a lifetime to accumulate and the peace of mind that the needs of the loved ones who he or she designates will be adequately and properly addressed. If you or members of your family have not done Incapacity Planning or Estate Planning, or if a loved one is beginning to need more care than you can handle, please contact us as soon as possible to make an appointment for a consultation.
Congratulations are in order: Managing Attorney Robert W. Haley has been recognized in Finance Monthly Legal Awards for 2020 as Elder Law Lawyer of the Year!
Ah, the joys of moving! Among all the changes you must make when you move from your old state to a new state: driver's license, voter registration, be sure to not forget about your Last Will & Testament or other estate planning documents you had drafted in your previous state like Trusts, Powers of Attorney and Living Wills!
While your original will should still be valid in your new state, there may be differences in the new state's laws that may make certain provisions of that will invalid. Moving from one state to another is a good reason to consult an attorney fluent in your new state's laws to make sure your estate plan in general is still up-to-date for your current situation.
Of course, you may ask - Why is this important to do? Why bother meeting with a different attorney? Why can't it stay as drafted originally, or, why can't I just have my will amended by the original attorney instead who drafted it in my old state of residence if I needed to make changes to it?
There are a lot of reasons: Most obvious one being that your original attorney you used before may not be licensed to practice law in your new state! Also, property laws can vary from state to state. For example, It is especially important to have your estate plan reviewed if you move from a common law state to a community property state, like Arizona, California, Idaho, New Mexico, Louisiana, Washington, Nevada, Texas, Wisconsin, and Alaska) or vice versa.
In a common law state each spouse's property is owned individually, while in a community property state, property acquired during the marriage is considered community property. In addition, states may have different rules about when co-owned property may pass to the surviving owner and when it may pass under the will.
Other things to consider are whether there is any language you can add to the will to make it easier to probate in your new state and whether your executor named in the document made in your previous state of residence, still makes sense now based on your new location. Other elements of your estate plan may certainly need updating as well. For example, your new state may also have different rules for powers of attorney or health care directives.
While it may seem troublesome or unnecessary, the best practice is to meet with an Elder Law Attorney licensed in your new state to make sure that all documents will still work the way that you want them to. There may be changes that now need to be made under that state's law.
Asset Protection & Medicaid Planning Webinar (FREE)
May 6, 12:00 PM – 1:30 PM
UPCOMING FREE WEBINAR: Are you prepared for the massive expense of long-term care, or a nursing home for yourself or a loved one? In far too many instances, the costs can quickly wipe out a lifetime of savings as the cost can easily reach upwards of $80,000 or more a year.
The truth is you don't have to lose everything! This webinar by Managing Attorney Robert Haley is being done in conjunction with New College Institute as part of their LIFE series, and focuses on the important topic of Asset Protection and Medicaid Planning.
Join us on Zoom, Wednesday, May 6 at 12pm.
Please click the link below to join the webinar:
Dial In by phone:
1 312 626 6799
#estateplanning, #elderlaw, #assetprotection, #medicaidplanning, #aginginplace
Page 2 of 33