Monthly Archives: November 2010

Strange Wills!

When working with an elder law attorney to create your estate plan, the last will and testament often takes the forefront. Many people see a will as the entire estate plan. While this is not at all true – estate planning involves trusts, nursing home choices, elder care, and so much more – the will is certainly a pivotal part. When working with an estate planning attorney, make sure that you include every provision you can think of! Specificity is key, so make sure not to leave out any requests – no matter how strange they may seem. Even strange requests are important.

Just to prove this point, here is a list of some of the stranger wills around.

Good thing Houdini made his will early.

Good thing Houdini made his will early.

Born in 1874, Harry Houdini was the greatest illusionist of his time (maybe even of all time!) When he passed away in 1926, his will revealed an eccentric side. He left his extensive library of magic-themed books to the American Society for Psychological Research on the stipulation that the research officer must resign. He left the rabbits that were pulled out of hats to the children of his friends. Most bizarrely, he left a “secret code” (really just a series of ten random words) to his wife and explained he would use them to contact her from the afterlife. Regardless of the decade of annual séances his wife held, he never showed up!

Acting on the assumption that he and his family would be reincarnated, Vermont tanner John Bowman created a $500,000 trust fund in 1891 for the maintenance of his mansion. The will required that dinner be served every night in case they returned hungry. The nuance was carried out until 1950, when the trust fund ran out.

Rock and blues singer Janis Joplin was known for her heavy drinking and drug use, and died of an overdose in 1970. The strange part of the will was that she changed it just two days before her death. She decided to set aside a couple thousand dollars to pay for a party after her funeral for 200 guests at her favorite bar in California. Talk about a strange stipulation (and even stranger coincidence!)

If you have questions on the effectiveness of your will, or to start the estate planning process, contact contact us or arrange a free consultation with Massachusetts Nursing Home Attorney Adam Tobin.

Click here to read some more strange wills!

Common Estate Planning Mistakes

When starting to plan your estate, there are a myriad of decisions to be analyzed and made. There are so many, in fact, that it is difficult to create your own estate plan without running into some sort of error or overlooked clause. While the only way to be sure that your estate plan is airtight is to enlist the help and expertise of an estate planning attorney, there are a few common estate planning mistakes that you can look out for.

The first common mistake: Not preparing for incapacity. Most people assume that the most important part of an estate plan is to address how assets will be divided among heirs — and in truth it is one of the most important, but most people also forget to plan for incapacity. A good estate plan should spend an equal amount of time addressing how your estate should be handled and how you are to be cared for if you are no longer able to manage it yourself. The “who gets what” provisions are certainly important, but there are other aspects that need equal attention.

Another common mistake is assuming that their children, either children or adults, don’t need any sort of inheritance protection protocols put in place. Many assume that the best way to avoid bureaucratic or financial entanglements is to just give their heirs the lump sum of their inheritance. This, however, leaves the inheritance wide open to the divorcing spouses, creditors, and the wims of 18 year olds heirs. It is possible to protect your child’s inheritance with very few strings attached. A trust plan can be created that will allow your child to become his own trustee of his share. This will provide almost unlimited access to the money, but it also allows the child to add an independent co-trustee to their share of the estate in case of problems. This will ensure that the money will still be considered part of the original estate – off limits to creditors or divorcing spouses.

“Blended family relationships” often become a tricky obstacle in estate planning. There are tons of scenarios everyday involving dealing with communication and cooperation between surviving spouses from a second (or third, etc.) marriage and children from the first (or second, etc) marriage. No matter how much you love and trust your children and your new spouse, you must remember that the prospect of money often causes even the best people to be self-serving. Enacting a solid trust plan that specifically covers remarriage restrictions and other protections will ensure minimal dispute, and overlooking these protections is our third common mistake.

The final common estate planning mistake is much less tangible than the rest: thinking of your estate planning as an “event” rather than as a “process.” Your estate planning is a process – one that takes a long time and should be gradually established. Within the time spent estate planning, laws will have changed, assets with develop, and your personal relationships with evolve. These must all be reflected in your estate planning choices. A common mistake is not reviewing your estate plan on a regular basis to ensure that no changes need to be made. Make sure not to forget to review and revise regularly!

The estate planning process is a complicated road that is best navigated with the help of an experienced estate planning attorney. If you have any questions about your current estate plan, or wish to begin the process of creating one, contact Estate Planning Attorney Adam Tobin.

Nursing Home Myths, Busted!

The decision to move a loved one to a nursing home is often riddled with anxiety and unending questions. Nursing home residents and family members have much more influence in determining the care received than they may think. Unfortunately, some nursing homes know that most residents and their family members are unaware of their rights and employ policies that violate Nursing Home Reform Law. These policies involve resident admission, care, reimbursement, and eviction. Without the knowledge and help of a nursing home attorney, it can be hard to ensure that you or your loved ones are not being taken advantage of.

The best thing you can do is contact a nursing home lawyer and ensure that all policies benefit the resident. An elder law attorney knows the ins and outs of nursing home law, and is your best bet for a smooth admission process. There are many myths that often hinder resident admissions, so we felt it was important to post the realities that are important to know.

MYTH: Medicaid probably won’t cover the services you want.
REALITY: Residents on Medicaid are entitled to the same services offered to other residents.

MYTH: The staff alone determines the care a resident receives.
REALITY: Both residents and their loved ones have the right to participate in care plan development.

MYTH: Individual schedules cannot be accommodated.
REALITY: A resident’s needs, schedule, and preferences must be catered to with reasonable adjustments.

MYTH: If the resident does not progress, therapy must be discontinued.
REALITY: Therapy may be fitting even if the resident does not show progress. Medicare will often cover the costs even without recent progress.

MYTH: There might not be available private space for family members or residents to meet.
REALITY: Nursing homes are required to provide private space for resident or family meetings. 

MYTH: Restraints must be used for the prevention of wandering residents.
REALITY: No type of restraint can be used for discipline or for the staff’s convenience.

MYTH: The nursing home can require you to pay extra charges at any time.
REALITY: Nursing homes can only require an extra charge that was authorized in the admission agreement.

MYTH: For optimal care, you must hire private help.
REALITY: Nursing home staff members must provide any and all necessary care.

MYTH: Family must visit within strict visiting hour periods.
Family members may visit the resident at any time, night or day.

MYTH: If a resident is considered difficult or refuses medical treatment, they can face eviction.
REALITY: Neither refusal of medical treatment nor a difficult personality justifies eviction.

The best way to understand how best to go about finding the nursing home for you or a loved one is to work with a nursing home attorney who can ensure that your best interests are kept as a priority.  A little advanced planning can save a great deal of future anxiety; often the need for a nursing home is abrupt and requires quick action.

Click here to find out more about Massachusetts laws regarding nursing home patients and resident rights. If you are have any inquiries as to the process, contact us or arrange a contact us or arrange a free consultation with Massachusetts Nursing Home Attorney Adam Tobin.

Your Trustee Duties, Explained

If you have been appointed to the position of trustee of a trust, congratulations – clearly you are thought of as someone of great judgment, patience, and honesty. A trust (a legal arrangement in which one person, a trustee, holds the legal title of an entity for another, a beneficiary,) however, is a great responsibility. Here are a few duties of the position:

1. Fiduciary Responsibility – Your actions as trustee must be held to a very high standard.  As a fiduciary (someone who holds assets in trust for a beneficiary) you must pay acute attention to the investments and disbursements of the trust.

2. Knowledge of the Trust – You must follow the directions and rules of the trust emphatically. Make sure to read the trust in detail; it is also beneficial to reference the trust when any questions come to light.

3. Standards of Investment – The investments you execute must be prudent and logical; you cannot use money for risky investments. These investments must also take into account the interests not only of current beneficiaries, but future as well. You must consider the future financial needs of the beneficiary.

4.  Distribution – Often the most important role of a trustee is the ability to set limits of the use of trust assets. When making distributions to a beneficiary, you are responsible for evaluating his or her future needs before making a decision.

5. Taxing – You will be responsible for filing tax returns and paying any taxes. You must keep good records and can turn over this responsibility to an accountant to ensure this goes smoothly.

6. Accounting – You are in charge of monitoring all income to, distributions from, and expenditures by the trust. Usually an account of this information is given to beneficiaries annually. It is important to report on income and principal separately.

7. Delegation – All above functions can be delegated. You are allowed to hire financial advisors, accountants, and lawyers to ease the burden of responsibility. You cannot, however, delegate your responsibility to the trust; you still must communicate with those that you hire as well as make any discretionary decisions.

8. Delegation. While you cannot delegate your responsibility as trustee, you can delegate all of the functions described above. You can hire financial advisors to make investments, accountants to handle taxes and bookkeeping for the trust, and lawyers to advise you on questions of interpretation. With such professional assistance, the job of trustee need not be difficult. However, you still need to communicate with those you hire and make any discretionary decisions, such as when to make distributions of principal from the trust to one or more beneficiaries.

Acting as a trustee is an opportunity to enhance the lives of the trust’s beneficiaries, and also a great responsibility. You don’t have to do it alone! Get professional advice to make sure you are correctly fulfilling your role. Adam Tobin is an experienced living trust attorney and can help you carry out these responsibilities. Contact him today for a free consultation.

Protect Your Assets!

The time to protect your assets is now! While the estate tax may have lapsed this past year, many are convinced it will come back in full force in 2011.  According to this Wall Street Journal article, Congress is now attempting to place limits on a type of trust (called a GRAT) that many families use to avoid the tax.  A GRAT (grantor-retained annuity trust) allows the trust creator to allocate a portion of an asset’s future profits (e.g. a small business, real estate, or other money-generating assets) to heirs tax-free.  This kind of trust is the perfect way to ensure that any assets with profit potential will be protected.

This type of trust is most productive in an economic climate just like the one we are living in now – low interest rates and depressed asset values.  Because of this, and because Congress is trying to impose guidelines that impeded their success, right now is the time to set up your GRAT.  Working with an estate planning attorney as soon as possible will ensure that you will benefit the most from your future GRAT.

According to the article, Congress is attempting to impose restrictions on GRATS to raise revenue.  The restrictions could take the form of an increased time limit on the trust’s lifespan (making them much less useful for people with shorter life expectancies and less profitable to investors) or a higher percentage rate on minimum interest paid to the GRAT funder.

So with GRATs staying as they are for an uncertain time frame, estate planners are urging their clients with assets to take advantage of a GRAT before next year’s estate tax return.  As for now, until Congress acts, clients can still have short term, low interest GRATs.

To learn more about grantor-retained annuity trusts, set up a free consultation with Estate Planning Attorney Adam J. Tobin.

Source Article