Many people have heard how much faster and easier it is to administer a trust than a will. They often hear this from the Estate Planning Attorney who is preparing their estate plan. This may not be true, as an Estate Administration, whether a trust or will, often occurs during one of the most emotionally taxing periods in a person’s life, the death or incapacity of a loved one. In this article, I will attempt to explain why it is necessary to go through an organized and systemic Estate Administration process. In this article, I will break this process into steps. These steps may be more involved than described in this article and as such you should discuss your Estate Administration with a qualified attorney.
Step One: Gathering Information about the Estate
The first, and perhaps most important step, is to collect the information about the Estate that you are administering. You must gather the entire estate plan, including the Will, Trust, Health Care documents and death certificates. These documents will inform you who is going to be responsible for the next steps and what those step are. These documents name the Trustee and Personal Representative I will refer to these roles collectively as the Administrator. This person is responsible to making sure that the estate is distributed in a timely fashion in a manner consistent with the estate creator’s wishes. These documents disclose who will be getting something from the estate, the beneficiaries, and how much each person or entity will be receiving.
Step Two: Gather Information about the Assets and Debts
Once you have determined who is in charge and who the beneficiaries are. The next step is to collect the information about the assets and debts of the estate. This is critical since the Administrator is a fiduciary who is responsible not only to the beneficiaries of the estate but also to the creditors. It is essential that the Administrator determine current values for all of the assets, as an Estate Administration can result in major tax benefits to the beneficiaries, for example Step-Up in Basis and/or the preservation of Proposition 13 real estate values. The Administrator should also secure the assets of the estate in a secure location to prevent their loss or a reduction in value. The Administrator should also prepare a preliminary inventory and present that inventory to all of the beneficiaries.
Step Three: Paying Creditors
The third step, is to make pay the valid debts of the estate. The debts will include filing a final tax returns, one for the Decedent and another for the estate. Medi-Cal and Social Security must be notified and any claims paid. These creditor claims must be paid before any distributions are made to the beneficiaries. Remember, if you are acting as the estate Administrator you are a fiduciary and therefore you may be personally liable if a creditor does not receive the amount to which they are entitled.
Step Four: Distribution to Heirs
Finally, the beneficiaries will be paid. It is essential that the terms of the estate plan be followed. When making this distribution you will need to prepare a final accounting and a notice of proposed distribution. Receipts should be prepared and signed by each beneficiary when they receive their share. These receipts are to protect the Administrator from claims from beneficiaries that they did not receive their entire share.
As you can see from this article there are many steps to an Estate Administration. It is essential that each step be taken and completed before moving on to the next one. Further, one should always discuss this process before undertaking it with a competent attorney.
Choosing a long-term care living arrangement is one of the most difficult challenges faced by aging adults and their loved ones. Most families try to avoid the nursing home option to the very end, believing that assisted living or small residential care homes provide a better quality of life. But this may not necessarily be the case.
New research suggests that the type of living situation itself makes little difference in a resident’s emotional well-being. Instead, the happiness and contentment of the resident depends more on the characteristics of the specific environment they’re in, and of course in no small part on their own personal characteristics — how healthy they feel they are, their age, and even their marital status.
Logically enough, a resident of a long-term care facility of any kind is more likely to report satisfaction and comfort if they had a hand in choosing their living situation, if they were part of the decision making process. In fact, studies show that the process of finding and choosing a living situation—researching options, visiting facilities, considering current and future social and physical needs and how they will be met—plays a very important role in the beginning of acclimatization.
Whatever your choice, you’ll need to talk to your family and plan how to finance whichever choice is made for long-term care living. Medicare.gov has published a helpful chart summarizing and comparing the various options for long-term care financing. Or please feel free to contact our office for more information.
Caring for an aging relative is difficult—and often underappreciated—work. Many people who serve as caregivers often feel as if they have two jobs—their full-time day job at the office, and the part-to-full-time job of caregiver at home. As their parents age and decline, most of these caregivers end up not only giving up more and more of their time, but also, eventually, their opportunity for more income. Caregivers need to know that it doesn’t have to be this way; that if their elderly loved one (and perhaps the rest of the family) agree, the caregiver can be compensated according to mutually agreed upon terms of a Caregiver Agreement, also known as a Personal-Care Contract.
Elder law attorneys have known about Caregiver Agreements for a long time, but very few caregivers themselves are aware of this useful contract. A Caregiver (or Employment) Agreement serves to document a caregiver’s responsibilities and hours, and to set a rate of pay that’s in line with local practices and incomes. The contract would then be signed by both the caregiver and care recipient, and eventually shared with the rest of the family.
An agreement of this sort can be useful not only for the care-giver and the cared-for; it also comes in handy if you think you may need to rely on Medicaid to cover nursing home costs sometime in the near future. Medicaid often will not provide payment for nursing-home costs, unless applicants have already recouped payments made to relatives over the previous five years and used the money to pay existing nursing home bills. However, if payments to relatives are made under the terms of a written employment agreement such as a personal-care contract, the law allows those payments to stand.
It is important to remember, however, that in order for government programs to recognize an employment agreement between family members the contract must already be in place before services are rendered.
This is why it is so important to talk to an attorney who is well-versed in elder law and Caregiver Agreements before any contracts are signed or money changes hands. Contact our office today to provide for your loved ones by exploring your options for caregiving and caregiver agreements.
According to statistics the average U.S. family size is 3.2 members. The median age of a man upon his first marriage is 28.1, 47% of women aged 75 or older live alone. Also according to statistics, approximately 60% of couples own their home, 70.7% of mothers with children under the age of 18 go back to work, 6% of men are likely to be unemployed, and approximately 485,000 grandparents aged 65 or more have the primary responsibility for their grandchildren.
Do these statistics accurately portray your family?
“Average,” “median,” and “approximately” may be fine for statistics, but it’s certainly not what you want from your estate plan. Your estate plan should represent your family; your hopes for the future as well as your current needs. This may include a nomination of guardian and education trust for young children, it may include a special needs trust for a disabled child or parent, or it may include incentive trusts for unambitious heirs. Alternatively, you may find that you need none of these, and that a will and simple ancillary documents will serve you just fine.
Whatever your family’s needs may be, you want them to be met by a keen, compassionate, and knowledgeable attorney; someone who will meet you face to face and listen to your concerns with an open mind, not a machine which will spit out a standard document based on numbers and averages. Estate planning may be a business, but it’s also an art, and as such it takes a real person to help create the plan that will provide for you and your family now and in the years to come. The members of our firm have our own families, we understand that you want the best for your family, and we want to help.
If you are the child of parents who are currently over the age of 65 you’ve probably given a little bit of thought to the day when one (or both) of your parents may need Long Term Care. Understandably, most adult children prefer not to think about the day when their parents may not be able to care for themselves, but in some cases it simply cannot be avoided, especially if your parent is already showing early signs of Alzheimer’s or dementia. If you are concerned about your parent’s future, there are steps you can take now to make the transition to giving and receiving care later easier on both you and your parents:
1. Talk to your parents. Find out if your parents have already thought about the topic, if they’ve made provisions for it, or if they have any specific wishes. Furthermore, opening the lines of communication lays the groundwork for trust and cooperation in the future.
2. Encourage your parents to create an Estate Plan if they don’t have one already. An Estate Plan will be important in expressing your parents’ wishes on necessary issues such as preferred agents in case of incapacity, financial power of attorney, and health care decisions. These essential documents will not only let you and others know their wishes, it will also prevent many expensive delays and frustrating red tape in the future.
3. Talk to trusted advisors about how to prepare for the financial burden of Long Term Care—because there will be a financial burden. Our firm can help you your options with Medicaid and Long Term Care Insurance, as well as some lesser known options such as a Dependent Care Account.
As you think and talk about these issues with your parents, siblings, and other trusted advisors, remember that you don’t have to go through this alone. Elder Law and Long Term Care are intricate and convoluted subjects, but there are caring professionals out there whose business it is to guide you through the intricacies of Elder Care. Let us help you look into the future with confidence and clear eyes.
Do you have a hobby that you feel passionate about?
Do you love reading and collecting books? Are you a rabid coin or stamp collector? Do you find peace and tranquility out tending your garden?
Whatever it is that you love; you can bet the people who love you are aware of it. These are the people who join you on your wilderness hikes; the one who might give you a rare baseball card for your birthday; or the friend who goes with you to the antique car show because he knows hobbies are better when you have someone to share them with. These friendships last a lifetime, and yet these friendships are often forgotten when people create their wills and divvy up their estates.
Many people go to their estate planner with their descendents and their financial assets foremost in their minds, and that is as it should be; but your estate plan can be more than a just a way to distribute property to the next generation, it can also be an opportunity to say thank you to the people who have touched your life—by sharing with them the accoutrements and paraphernalia of your hobbies and passions.
You can express how much you appreciate your best chess opponent by leaving her your favorite chess board, or encourage the interest of a young philatelist nephew by bequeathing to him your extensive stamp collection. All you need is an estate plan which includes a personal property memorandum—and which is correctly designed to recognize and refer to that memorandum.
Our office can help you create an estate plan that not only ensures the protection of your heirs and property; it also helps you leave a meaningful ‘thank you’ to the people who matter most.
Siblings trying to come together to help mom or dad through the aging process will often run into more road blocks than they expect; and quite often these road blocks are internal. Can mom stay home for a few more years, or does she need round the clock help? Should the sister who lives down the street from dad get financial reimbursement for driving him to doctor’s appointments and the grocery store four times a week? How do you tell mom you think it’s too dangerous for her to drive by herself anymore?
These kinds of questions (and more) can end up leading to huge family fights, and in some severe cases, to litigation. This article in Smart Money suggests that when siblings can’t agree on elder care for aging parents, there is an alternative to litigation: An Elder Mediator.
Elder Mediators are mediators who specialize in elder law, caregiving, and elder decision-making issues. These mediators can “help families work through concerns — and fights — involving caregiving, inheritance, living arrangements, estate planning and related issues.” In fact, bringing an elder mediator into a family disagreement at the right time can save the family from a bitter and lengthy court battle, and therefore save hundreds of dollars in court and/or attorney’s fees.
The question then is when is the right time to hire an elder mediator? A mediator might be needed to help adult siblings scattered across the country come to an agreement over very different opinions about the best care for mom or dad. “Elder mediation is sometimes called adult-sibling mediation… While sisters and brothers typically know each other (and how to push each other’s buttons) well, they rarely have occasion to work together to solve problems. A parent in need of help can set off some nasty disagreements.”
That’s not all; Elder Mediators can also help children and parents in dispute come together in conversation and see eye-to-eye. “Adult children may find themselves united on a particular issue, only to face an unyielding parent. But often the parent simply wants to be heard… The mediation process, ideally, gives everyone an equal voice.”
You can locate an Elder Mediator in your area by clicking here; or to find out more about whether an Elder Mediator might be able to help your family through some tough decisions or disagreements, please contact our office.
Our firm works frequently to help divorced or remarrying couples update their estate plans to protect their new blended families, so we know just how significantly the stress of divorce, family upheaval, and tighter finances can impact a family, and how those effects can last years into the future. We have seen firsthand how the effects divorce can continue to make waves 20 or even 30 years down the road—not just on the divorced couple, but on their grown children now acting as caregivers.
Adult children of divorced parents often find themselves caring not only for mom and dad when they get older, but also for stepmom, stepdad and sometimes even another stepparent from yet a third or current marriage. Dividing time (and often finances) between so many parents with new and special needs can quickly take its toll, as can the family politics that come with adult siblings, half siblings, and step siblings.
With all of this complexity and intermingling family ties, it is more important than ever to have conversations about estate planning and long-term care with parents and siblings before mom and dad (and stepmom and stepdad) get to an age where they need in-home or around the clock nursing care. This article in a recent issue of the CSA Journal (from the Society of Certified Senior Advisors) gives tips on how to conduct a meeting of blended families to discuss the care of parents and stepparents.
While open communication between blended family members is key, a good estate plan can also go a long way towards eliminating potential fighting and confusion by clearly defining who will be making financial decisions and who should be making health care decisions when mom or dad become incapacitated. A caregiver agreement can also provide clarity, as well as financial assistance to the one sibling who inevitably ends up shouldering most of the care giving burden.
If you are a part of a blended family talk to your parents and siblings now about any challenges the future may bring—and how to meet those challenges together.
Should you talk to your heirs about your estate plan?
The subject of inheritance is one that most people studiously avoid for a number of different reasons: superstition, fear, lack of knowledge, or a desire for secrecy. Many adults were raised to believe that money was a private affair, and that talking about it was inappropriate; but beyond that, many people simply fear that if they talk about their estate plan with their heirs they will meet with resistance, disagreement, or in a worst-case scenario—their heirs will try to counter the estate plan with legal action of their own.
While in some families and circumstances these fears are justified, in most circumstances being silent about your estate plan can have disastrous consequences. A refusal to talk about money or your estate plans with you children means that they will have a difficult time following your wishes in regards to your medical treatment or protection of your assets should disaster strike. Most adult children are actually eager to fulfill their parents’ last wishes, regardless of how it may or may not impact their own inheritance.
Furthermore, your plans for leaving a legacy for your children or grandchildren may clash with their own needs or plans. For example, you may want to leave extra money to a grandchild with special needs, but if that child is receiving government benefits, leaving a significant inheritance in their own name could disrupt that. Discussing your plans with your children ahead of time can prevent situations like this from occurring.
So the answer to the question above is yes, you should talk to your children or heirs about your estate plan if you can. Talking about it will not only make it easier for them to follow your wishes, it may even help you determine how you want to make the best difference in the lives of your heirs.
As people in the U.S. continue to live longer, and as our aging population grows, more and more adult children are finding themselves straying from their own goals and career paths in order to provide caregiving services to elderly parents or grandparents. It should come as no surprise to our readers that, according to a recent article in USA Today, “family members [of aging parents] provide a staggering $450 billion worth of unpaid care annually.”
This trend has resulted in a growing concern for the caregivers themselves, who have a tendency to take on more and more responsibility for others at great cost to their own health and financial future. “Although they often don’t identify themselves as ‘caregivers,’ more than 42 million Americans perform some form of consistent care for older or impaired adult relatives or friends, according to a 2009 estimate. It can range from paying bills, to driving Mom to doctor appointments, to more hands-on care such as bathing, and even tasks once left to nurses such as the care of open wounds… the stress and the time involved can take a toll on the caregivers’ own health and finances as they put off their own doctor visits, dip into their savings and cut back their working hours.”
AARP has recently sponsored an ad campaign aimed at letting caregivers know that they aren’t alone, that they don’t have to neglect their own health and finances for the sake of their loved ones, and that there are resources out there to provide help and support.
We hope that our readers will consider us a resource as well. Whether you need to petition for conservatorship, execute a power of attorney, or find a care manager to help you locate service providers in your area, our office can help.