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Probate Property: Which Assets Must Go to Probate Court?

Probate Property: Which Assets Must Go to Probate Court?

by | Feb 20, 2022 | Avoiding Probate, Elder Law, Probate

You’ve probably heard horror stories about the nightmare that is probate court. Undoubtedly, friends and neighbors have had to undergo the probate process…and chances are, they don’t have many good things to say about it.

Let us first say, probate isn’t quite as bad as it gets made out to be (though it certainly CAN be for the ill-prepared). Probate is the legal process that authenticates your will in order to properly facilitate the allocation of your assets to your beneficiaries. Upon death, the estate administration process begins, drawing together all the necessary documentation for the distribution and management of your assets, which the probate court then oversees. The most common document utilized is a will.

If an individual passes away without a will—also known as dying ‘intestate’—the estate administration process becomes much more complicated, and a time-consuming, costly probate process is almost inevitable.

Being proactive and drafting a will, as well as understanding which assets must go through probate, can make the probate process much easier, or bypass it altogether.

Which Assets Need to Be Probated?

Whether or not your assets end up in probate is dependent upon how your estate plan is set up. Essentially, any property that does not have a designated beneficiary, or is not set up to pass by operation of law, will inevitably be deemed probate property, and settled in probate court. Some examples of circumstances that lead to probate include:

  • When an individual dies without a will. Without a will present, the estate becomes dependent upon the laws of intestacy, leaving the probate court to adjudicate who will inherit the deceased’s assets.
  • When a person passes away as the single-named owner of titled assets. These assets include items like real estate, investment and bank accounts, vehicles, personal property, collectibles, safety deposit box contents, and other solely titled assets of the deceased.
  • When property does not have a title. If the deceased does not have the compulsory paperwork for assets in their ownership, and the property isn’t clearly named in the will with the deceased’s wishes, the assets become probate property.
  • When the beneficiary predeceases the testator. If your will hasn’t been updated before your named beneficiary passes away, their inheritance will be settled in probate.

Actions You Can Take Now To Avoid Your Assets Being Probated in the Future

As you can see, there are many factors that could land your estate in probate court; however, there are some things you can do now to make a more ironclad estate plan that is specifically designed to keep your assets out of probate, or at least simplify the probate process.

  • Ensure your will is detailed. While having a will isn’t enough to avoid probate (all wills must go through probate), when a will clearly defines your wishes, it simplifies the process, and makes authorization to distribute your property much less laborious.
  • Establish a living trust. A living trust prevents probate because the trust takes ownership of the assets placed within it and, upon your passing, a named trustee will distribute your estate as stipulated in the trust – without the need/input of the probate court.
  • Title property jointly. Property owned in joint ownership with right of survivorship automatically passes the property to the surviving owner(s), without probate.
  • Name a beneficiary. Assets that have a named beneficiary—for example, your retirement plan, life insurance policy, or transfer-on-death or payable-on-death bank accounts—escape probate by sending items directly to beneficiaries.
  • Give assets away while you’re still alive. Although this is a no-brainer, it deserves an honorable mention. Simply put, if the property is no longer owned by you at the time of death, it doesn’t go to probate. This, however, can cause issues with qualifying for Medicaid if long-term care is needed, so we encourage you to speak with an elder law attorney before giving away money or assets.

At Miller Estate and Elder Law, we pride ourselves on providing clients with a high level of attention to detail that takes all of the guesswork out of estate planning. We create tailored solutions that are based on your specific goals and objectives. Our educational resources and unique programs keep you and your estate plan up-to-date, giving you the confidence needed to be secure in knowing your estate is in good hands.

Contact us today, register for a free workshop, or browse our resources, which address many common questions. With our guidance, you’ll gain peace of mind knowing your estate will be ready for smooth sailing after you’re gone.

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bill@millerestateandelderlaw.com

How to Care for Someone with Dementia: Guardianship/Conservatorship for Parents

How to Care for Someone with Dementia: Guardianship/Conservatorship for Parents

by | Feb 3, 2022 | Long-Term Care, Medicaid, Medicaid Planning, Medicaid Qualification

how to care for someone with dementia

As our parents and loved ones grow older, they become the target of scammers and con artists across the globe. This is especially scary if your parents have developed dementia, Alzheimer’s, or another form of mental incapacitation. Knowing how to care for someone with dementia—and how to protect them—isn’t always straightforward, and sometimes legal intervention is required. If you are not named the agent on a preexisting power of attorney document, having an elder care attorney help you set up a guardianship/conservatorship may be the best way to make sure your parent’s finances are safe from predators.

When considering how to care for someone with dementia, it’s important to remember that they are a much easier target than most due to memory loss, confusion, and not being as mentally present as they used to be.

One of the best resources available to help you tackle the legal and financial planning issues that arise with the elderly is to engage the services of an elder care attorney, or a law firm that specializes in elder law. Working with a qualified attorney will ensure you have what you need to protect your parents and aging loved ones.

However, with or without a lawyer, you should know how to care for someone with dementia, as well as how to recognize the warning signs that your aging loved one has fallen victim to a scam:

Common Scams To Be Aware Of

Some of the most common scams that target the elderly, as well as those with conditions like dementia and Alzheimer’s, are:

  • Fake lotteries and sweepstakes that ask for money upfront for prize collection or entrance fees
  • People posing as representatives from government agencies like Social Security, Medicare, or the IRS
  • Bogus discount prescriptions and medical equipment
  • Credit card fraud
  • The “Grandparent Scam” where someone will claim that a grandchild is in trouble and needs money
  • Investment schemes
  • And others…

Signs To Look Out For

Guarding against those who would abuse our elders is a big part of how to care for someone with dementia. The following are some of the many signs of suspicious activity to be wary of:

  • Unusual monthly charges on bank and credit card statements
  • Out-of-the-ordinary calls from companies, utilities, government agencies, or charities requesting money in an unusual way
  • Callers who pressure you to make immediate decisions, ask for a lot of personal or financial information, or demand payment in unusual or specific ways
  • Official-looking emails, letters, bills, offers, etc. with spelling and grammar mistakes, or that seem out of place

What You Can Do?

If you have a parent who has Alzheimer’s or dementia—or some other form of incapacity—and they’re having a difficult time making decisions, or are getting taken advantage of, you may want to contact an elder care attorney about getting a guardianship or establishing a conservatorship over their finances. If your aging loved ones are not able to manage their own care or money, an elder law attorney can help you navigate the process of stepping in and protecting them.

Download our Free Guide: Caring for Aging Loved Ones

If you need to protect your own aging parents or loved ones, start by downloading our free guide: Caring for Aging Loved Ones: The ABCs of Long-Term Care Planning or by calling our elder law firm at (256) 251-2137. Our team is here to help guide you through the process of planning for long-term care, and setting up guardianships and conservatorships when needed.

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bill@millerestateandelderlaw.com

Ensuring Medicaid Eligibility Before Long-Term Nursing Care is Needed

Ensuring Medicaid Eligibility Before Long-Term Nursing Care is Needed

by | Feb 3, 2022 | Long-Term Care, Medicaid, Medicaid Planning, Medicaid Qualification

medicaid eligibility

If your spouse needs nursing home care, we hope that you’ve prepared by taking out a long-term care insurance policy or ensuring Medicaid eligibility well in advance of needing it. The question of how to pay for long-term care is generally the first issue that arises when placing a loved one in a nursing home. Many people don’t realize it, but there are only three viable ways to pay for long-term care:

1. Long-Term Care Insurance

Planning ahead by securing long-term care insurance is the best way to pay for nursing home care, but it only works if your spouse already has an insurance policy long before care is needed. If you try to get long-term care insurance after you need it, it’s too late to qualify. This is because most policies require medical underwriting, and if you already receive long-term care services, you are unlikely to qualify. Getting a long-term care insurance policy well before you need the benefits will save you much stress and hardship down the road.

2. Out of Pocket

Exactly as it sounds, out of pocket means that you will have to pay 100% of the nursing home care costs yourselves. Most couples don’t have the finances on-hand to cover care this expensive, especially considering how long you may need the care. In Alabama, for example, the average cost of long-term nursing care is $78,000 per year. Your life savings can be eaten up in a matter of months with nursing home fees that high!

3. Qualify for Medicaid

Medicaid—not Medicare—is the government program that covers the cost of long-term nursing home care. The application process is slow and difficult, and the requirements to qualify are very financially restrictive. Applying for Medicaid when you already need nursing home care—also known as Medicaid Crisis Planning—will likely mean paying out of pocket at first. That’s because, in order to qualify for Medicaid when you’re married, you’ll only be able to keep about 50% of your combined assets—up to a maximum of about $130,000. This means that if you have $300,000 total in assets, you won’t meet Medicaid eligibility requirements until you spend down about $170,000. Then, once you do qualify for Medicaid, all of your spouse’s income will go directly to paying for the nursing home, and you’ll have to rely on your income alone—plus whatever is left of your assets—to get by on. Learn more about the rules of Medicaid eligibility in Alabama.

However, through Long-Term Care Planning, you can employ several strategies to protect your assets from the cost of nursing home care and ensure Medicaid eligibility when you need it. A qualified elder law attorney will help you determine the best way to organize assets now, so you don’t lose everything to the nursing home later.

Take the Next Step

Sign up for our free webinar about how to get qualified for Medicaid by using the brief form below, or contact attorney Bill Miller today at (256) 251-2137.

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bill@millerestateandelderlaw.com

What Does Medicaid Cover…and What Does Medicaid NOT Cover?

What Does Medicaid Cover…and What Does Medicaid NOT Cover?

by | Jan 11, 2022 | Elder Law, Medicaid, Medicaid Planning, Medicaid Qualification

what does medicaid cover

Medicaid is a government-administered health insurance program that provides coverage to low-income Americans during all stages of life, from birth to age 65+. Given the massive breadth of this program, it should not come as a shock that it’s an incredibly complex system, governed by a confusing set of rules. This article aims to answer the questions, what does Medicaid cover, and what does Medicaid NOT cover?

While Medicaid can support individuals of any age, it’s an especially excellent resource for seniors. Long-term nursing care costs in Alabama average $78,000 per year, and that is for a shared room. However, qualifying for Medicaid can be a challenge. Applicants must meet certain financial and medical eligibility requirements. There are strict income and asset limits, with policies designed to prevent individuals from giving away their assets in order to qualify. A qualified elder law attorney can help you navigate the Medicaid maze, and avoid unsuspecting mistakes that could leave you or a loved one without the coverage they need.

For seniors who qualify, Medicaid is a wonderful program that works in collaboration with Medicare to cover a variety of healthcare needs

What Does Medicaid Cover?

Medicaid covers mandatory healthcare services, including:

  • Hospital care
  • Skilled nursing
  • Home healthcare
  • Doctor’s appointments 
  • Preventative care & wellness screening
  • Transportation to and from medical appointments
  • Diagnostics

Optional benefits include hospice care, case management, prescription drugs, physical or occupational therapy, rehabilitation, dental, vision, and more.

However, Medicaid does have some limitations…

What Does Medicaid NOT Cover?

In most circumstances, Medicaid will not cover medical care provided outside of the United States, though certain circumstances—such as if a foreign hospital is closer than a domestic hospital—may be covered. Like with private health insurances, Medicaid will also not cover services deemed unnecessary, or services paid for by another insurance provider. 

Some other services that Medicaid will not cover include:

  • Free health screening or medical devices that are given away
  • Cosmetic surgery or complications that result from cosmetic surgery
  • Personal comfort items or beauty services

Every state has slightly different Medicaid qualifications and coverage, so the best way to gain comprehensive (and accurate) understanding is to speak with a qualified elder law attorney in your home state.

Miller Estate and Elder Law is happy to offer a number of free resources to help you better understand how Medicaid planning works, and how to avoid going broke paying for long-term care. Gain access to our brief 20-minute webinar about how to get you or a loved one qualified for Medicaid by completing the brief form below, or download one of our free guides.

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bill@millerestateandelderlaw.com

Fixing a 5-Year Look-Back Penalty: Tips from an Elder Law Attorney

Fixing a 5-Year Look-Back Penalty: Tips from an Elder Law Attorney

by | Jan 4, 2022 | Elder Law, Medicaid

elder law attorney

Medicaid is a wonderful government program that helps low-income seniors with limited assets to afford healthcare and long-term nursing care. Applicants must meet certain medical criteria, and there are strict financial eligibility requirements that must be met when applying for Medicaid, and while already qualified. 

Many seniors find that their countable assets and/or income exceed their state’s Medicaid limits. To meet the financial requirements for Medicaid qualification, they must carefully minimize—or spend down—excess funds. Funds may be spent down on things like medical expenses, home improvements, and prepaid funerals, etc. Gifting assets to children and grandchildren, friends, and loved ones may sound like a smart way to spend down assets, however, this can cause the applicant to become disqualified for Medicaid.

To prevent applicants from simply giving away their money or resources in order to qualify for Medicaid, the federal government implemented a “look-back period.” This is a set period of time prior to the individual’s application during which the Medicaid administering agency can review the financial transactions that a senior has made. If a transaction is found to be in violation, the applicant will be assessed a penalty. 

Each state’s Medicaid program uses slightly different eligibility rules, but most states examine all of a senior’s financial transactions dating back five years from the date of their application. If a senior is found to have gifted assets during this look-back period, they will be disqualified from receiving benefits for a certain number of months. The length of the penalty depends on the total amount of assets the applicant gifted, and their state’s penalty divisor. 

When it comes to the length of the penalty period, there really is no limit. Many find themselves wondering what will happen if a senior needs care, but has spent all their assets in a way that makes them ineligible for Medicaid coverage. Unfortunately, if a senior has gifted their assets during the look-back period and requires nursing home care, the cost of care will have to be paid out of pocket until the penalty period runs out, and they become eligible for Medicaid. 

Fortunately, there are exceptions to the rules and exemptions made for families who find themselves in difficult situations. Under these exceptions, applicants are permitted to transfer assets—to certain parties—during the look-back period, without incurring a penalty. Additionally, a penalty can be “cured” if transferred assets are returned in their entirety, or reduced if the transferred assets are partially returned. In order for this to work, the person who returns the assets needs to be the same person who received the gift. 

Less fortunately, these exceptions and exemptions are often confusing and difficult to take advantage of without the expertise of an elder law attorney. Reaching out to an attorney is the best way to navigate Medicaid’s complicated rules and application process. The best time to start planning for the cost of long-term care is well before you or your loved one’s need it. 

We encourage you to call attorney Bill Miller to discuss how to best preserve your assets and avoid going broke paying for long-term nursing care. You can reach Miller Estate and Elder Law at (256) 251-2137 or by emailing info@millerestateandelderlaw.com.

Contact Miller Estate & Elder Law

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256-472-1900

bill@millerestateandelderlaw.com