by Bill Miller | Jun 22, 2018 | Estate Planning, Probate
Sometimes people die without leaving a valid Will. This is referred to as being “intestate.” In fact, only about 40% of Americans have bothered to write the most important document they’ll ever write – their Last Will and Testament. However, just about every adult has estate assets that need to pass to their heirs. Even though there’s no legal document to guide the transfer of those estate assets, Alabama law provides a way to settle an intestate estate.
Not All Assets Are Probate Assets.
Some assets pass to named beneficiaries or surviving co-owners, even if no Will exists:
- Anything you own as a joint tenancy or tenancy by the entirety.
- Property transferred to a living trust;
- Proceeds from life insurance policies payable to named beneficiaries;
- Funds in an IRA, 401(k), or other retirement account;
- Securities in a transfer-on-death account; and
- Payable-on-death bank accounts.
Distributing Assets When There’s No Will.
Alabama law provides for the succession of other assets, taking into consideration the marital status of the decedent and whether there are any descendants. By the way, any part of a person’s probate estate that is not addressed by his Will transfers to heirs pursuant to intestate laws.
Succession in a complicated family will be, well, complicated.
| If decedent is survived by: |
Then probate assets pass: |
| a spouse, but no children |
entirely to spouse |
| a spouse, no children, parent or parents |
first $100,000 to spouse, then one-half of the rest |
| a spouse, children of decedent and spouse |
first $50,000 to spouse, plus one-half of the balance |
| a spouse, children of decedent but not surviving spouse |
one-half of the estate to the spouse |
| children of decedent |
in an amount based on degree of kinship to decedent |
| parents, but no spouse or children |
equally to the parents |
| no spouse, children, or parents |
to other children of parents (siblings) |
| no spouse, children, parents, or siblings |
to grandparents or children of grandparents based on degree of kinship. |
If there are no obvious heirs, the estate administrator will conduct an investigation. In cases where they are unable to find any heirs, the probate estate passes to the state.
Probate Without a Will
When there’s no Will, probate is much more difficult and more expensive.
A probate court will appoint a personal representative. This person performs the same duties as an executor, but without the guidance of a Will. At the conclusion of probate, the executor distributes estate assets to the appropriate heirs.
Sounds easy, dying without a Will can set up family feuds that last for generations. Potential heirs may disagree on everything from who should be the administrator to who is actually an heir.
Don’t Wait to Prepare Your Will.
The best solution for your family is to leave a valid Will. Avoid letting a court determine who gets your stuff. Make a Will and keep it up to date.
Schedule a free consultation with the attorneys at Adams & Miller, P.C. Our attorneys know how to help people like you. Just give us a call at 256-251-2137 or use our Contact Form to set up an appointment. Serving clients in the greater Anniston area, including Birmingham, Talladega, and Gadsden.
by Bill Miller | Jun 20, 2018 | Estate Planning
A power of attorney is a powerful legal document. The principal, the person signing the document, names an agent to act on his or her behalf if necessary. There are different types of power of attorney forms with different purposes. Powers or attorney also cover different time frames, with some taking effect immediately, or just covering a limited time period, or a specific event. When signing a power of attorney, it’s important to know whether it’s a springing power of attorney or an immediate durable power of attorney.
Springing Power of Attorney
This type of power of attorney “springs” into action if you become incapacitated for some reason.
People may use a springing power of attorney because they don’t feel comfortable signing a power of attorney that becomes effective immediately. Maybe they don’t trust their agents, or perhaps they want to remain in control for as long as possible. Military personnel sometimes sign a springing power of attorney when they are deployed.
There are some problems with a power of attorney that becomes effective upon incapacity. The most important issue is how to determine whether you are truly incapacitated or not. If you use a springing power of attorney, at least one doctor will have to examine you to determine capacity, or the ability to make decisions. While the determination is being made, your agent will be powerless. All of this can be time consuming and the delays can cause problems.
Durable Power of Attorney
When a principal signs a power of attorney, it becomes effective immediately unless the document states a future effective date or a triggering event. A durable power of attorney remains in effect even if the principal becomes in capacitated.
An agent named in a durable power of attorney is authorized to make decisions when the power of attorney is signed, unless stated otherwise in the document. If the principal becomes incapacitated, the agent can immediately begin to act without a determination from a doctor.
Learn More About Powers of Attorney.
Maybe you have an older parent facing elder law issues. Maybe you are looking ahead to your own future. Either way, it’s important to know what rights and protections are available for senior citizens. Schedule a consultation with one of our attorneys and find out where you stand. Our phone number is 256-251-2137, or you may want to use the Contact Form on our website. We’re have office in in Anniston and Birmingham and assist clients in communities like Hoover, Vestavia Hills, Irondale, and Calera.
by Bill Miller | Jun 19, 2018 | Estate Planning, Medicaid, Medicaid Planning
Many people have never heard of Medicaid Estate Recovery. Medicaid recipients may not realize that benefits received for long-term care may have to be repaid. After certain recipients pass away, Medicaid may attempt to recovery some or all of the funds paid for their care. You may need Medicaid benefits in the future, so it’s important to know how to go about protecting your estate from Medicaid recovery.
What is Medicaid Estate Recovery?
Medicaid is a federally funded, state administered program that pays health-care benefits to qualified individuals.
Due to federal law, individual state Medicaid programs must attempt to recover some of the money paid to certain recipients age 55 or older. As with most government programs, there are restrictions to Medicaid Estate Recovery.
And there are ways to protect against it.
Protection from Medicaid Estate Recovery.
Advance planning is key. It may be too late if Medicaid files a claim against an estate.
Alabama’s Partnership for Long-Term Care program allows people to buy long-term care insurance. Restrictions apply, and you may need to qualify to purchase this insurance.
Some use trusts as a part of their estate planning with an eye toward asset protection. Currently, only an irrevocable trust provides protection from Medicaid Estate Recovery. Even then, an irrevocable trust is still subject to Medicaid’s 60-month look back period.
Simply giving your assets to your family may create more problems than it solves. Your estate may be protected from Medicaid Recovery, but there’s no guarantee your family will do the right thing.
Your best course of action is to talk to an attorney who has extensive Medicaid experience.
A Final Note.
Some states have what are called filial responsibility laws. In these states, children can be held accountable for their parents’ nursing home bills. Fortunately, Alabama does not have this type of law.
Learn More About Protecting Your Estate.
The attorneys at Miller Estate and Elder Law can help you with Medicaid eligibility, applications, and asset protection. For a free consultation, contact us at 256-251-2137 or use our convenient Contact Form. We have offices in Anniston and Birmingham and we assist clients in the Leeds, Gadsden, Hoover, Talladega, Vestavia Hills, and surrounding areas.
by Bill Miller | Jun 17, 2018 | Elder Law, Estate Planning, Medicaid
Elderly people often want to remain in their homes as long as practical. But their caregivers and loved ones face some tough decisions. How can they keep Grandma Ruth safe while respecting her rights? Sometimes, Medicaid home and community-based waivers provide the best solution to a difficult situation.
Avoiding the Move to a Nursing Facility
Long-term nursing care doesn’t have to mean you have to pack up and move to a nursing home. When it’s appropriate for a patient, in-home care is preferred over residential care. For one thing, it’s less expensive. Depending on the level of care needed and the location, costs may be as follows:
Nursing home care – between about $200-$235 per day, or approximately $6,000 – $7,000 per month.
Assisted living care – about $2,930 per month. Care for patients with severe Alzheimer’s or dementia may cost $830 more per month.
Adult day care – averages around $47 a day. Again, it’s more expensive in some areas than others.
In-Home Care – typically costs $17 to $22 per hour. Monthly cost, of course, varies depending on the number of hours the paid caregiver works. At 4 hours a day, 20 days a month, the cost would range from $1,360 to $1760.
So, How Can Medicaid Help?
Home- and community-based services are available to qualified Medicaid applicants. The Alabama Elderly and Disabled (E & D) Medicaid Waiver program offers waivers to people age 65 or older, or disabled. Those who qualify may have the state manage their care or may choose their care providers through a program called Personal Choices. This is sometimes called self-directed, participant direction, or cash and counseling.
The waivers are used to pay for in-home or community-based care. The program will not pay for 24/7 in-home care, though.
Use of Medicaid waivers for in-home care helps individuals while also reducing costs for Medicaid. However, participants in the program must first be qualified to receive Medicaid benefits.
Eligibility Is the Issue.
The attorneys at Miller Estate and Elder Law assist clients with applying for the right public benefits, like the Alabama Elderly and Disabled (E & D) Medicaid Waiver program.
For a free consultation with an experienced Alabama attorney, contact us at 256-251-2137 or use our convenient Contact Form. We have offices in Anniston and Birmingham and serve clients in Gadsden, Hoover, Talladega, Vestavia Hills, and surrounding areas.
by Bill Miller | Jun 16, 2018 | Estate Planning, Special Needs, trust
As the caregiver of someone with special needs, you’re called upon to make important decisions on a daily basis. Those decisions may be life-changing for you and for your loved one. Often, therapists, medical specialists, and other advisers help plan the best care for individuals who require extra care. It’s also important to talk to an attorney who understands the needs of disabled individuals. It may be time to establish a special needs trust to provide funds for immediate and long-term care.
Is a Special Needs Trust Different from Regular Trusts?
A trust generally involves three parties:
- the trustor who signs a trust document to create the trust;
- the trustee who manages the trust assets and distributions to beneficiaries; and
- the beneficiary who receives distributions from the trust.
In some trusts, one person may serve all three roles. However, a special needs trust is for a beneficiary with conditions that require a high level of care. The trust, then, may be structured to allow the beneficiary to be eligible for public benefits, like Medicaid.
Who Can Benefit from a Special Needs Trust?
Special needs trusts may provide significant assistance for the following types of beneficiaries:
- People under age 65 who may need government benefits like Medicaid or SSI in the future.
- Individuals who suffer from one or more conditions that limit independence or require long-term or substantial treatment.
- Someone who will need assistance when you are no longer able to assist.
What Can We Pay with a Special Needs Trust?
Trustee of special needs trusts must spend trust funds for the benefit of the beneficiary. Trustees should know what state and federal law allow. Consulting an attorney is a good way to get started. In fact, the attorney who drew up the trust or who is representing the trust, may be able to give you more information the trust. Trust documents provide guidance to trustees, as well as the attorney representing the trust.
How Will I Know if I Need a Special Needs Trust?
Keep the following things in mind:
- A special needs trust may provide additional financial security to you and your loved one.
- Anyone drafting a special needs trust needs to understand the needs of the disabled person.
- Special needs trust can negatively affect eligibility for programs like Supplemental Social Security Income (SSI) or Medicaid if not properly written.
Have Questions? We Can Help.
Schedule a free consultation with the attorneys at Miller Estate and Elder Law Our attorneys know how to help people like you. Just give us a call at 256-251-2137 or use our Contact Form to set up an appointment. Serving clients in the greater Anniston area, including Birmingham, Talladega, and Gadsden.
