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The Dean Law Firm Blog

Tuesday, January 13, 2015

No Will? Beware...

Ignorance is not bliss when it comes to estate planning. If you do not make proper legal arrangements for the management of your assets and affairs after your passing, the state of Texas will come in and write a Will for you, but the result is usually much different than most people desire. You may believe that if you were to die before your spouse and you had no will, Texas law would ensure that everything would go to the spouse first and then upon his or her death, to the children. But that is not necessarily true.

While nobody wants to think about death or disability, establishing an estate plan is one of the most important steps you can take to protect yourself and your loved ones. Proper estate planning not only puts you in charge of decisions concerning your legacy, your finances and medical matters, it can also spare your loved ones the expense, delay and frustration associated with managing your affairs when you pass away or become disabled.

So, what happens if you neglect to sign a will? The answer depends upon several factors, including: 1) whether all of your children are also the children of your spouse, and 2) the type of property you own: community property or separate property. For example, if you have a blended family, then your community property is split between your children, not your spouse. Not the result most people desire…

Why let these important matters be decided by the State of Texas? The problems created by a lack of a will are easily remedied by having one. By proper planning, you can ensure your legacy is as you want it and your family’s needs are provided for when they need it most.

By Julia Dean


Tuesday, April 22, 2014

People. The Essential Component of Your Estate Plan's Success

People.  The Essential Component of Your Estate Plan’s Success

Properly drafted estate planning documents are integral to the success of your legacy and end-of-life wishes.  Iron-clad estate planning documents, written by a knowledgeable attorney can make the difference between the success and failure of having your wishes carried out.  However, there’s more to estate planning than paperwork.  For your wishes to have the best chance of being honored, it is important to carefully choose the people who will carry them out.

Your estate plan can assign different responsibilities to different people.  The person who you most trust to raise your children, for example, may not be the person you’d designate to make health care decisions on your behalf, if you are incapacitated.  Before naming individuals to carry out your various estate and incapacity planning wishes, you should carefully consider the requirements of each role and the attributes which each individual has that will allow him or her to perform the duties effectively.

Executor.  You name the executor, (also known as a personal representative), in your will.  This person is responsible for carrying out all the terms of your will and guiding your will through probate, if necessary.  The executor usually works closely with a probate or estate administration attorney, especially in situations where will contests arise and your estate becomes involved in litigation.  You may appoint co-executors, or name a professional – such as a lawyer or accountant – as the co-executor.

Health care proxy
.  Your health care proxy is the person you name to make medical decisions for you in the event you are incapacitated and unable to do so yourself.  In addition to naming a health care proxy (sometimes called a health care power of attorney), most people also create a living will (or health care directive), in which they directly state their wishes for medical care and end-of-life care in the event of incapacity.  When choosing a health care proxy, select a person who you know understands your wishes regarding medical care, and who you trust to carry out those wishes, even if other family members disagree.  You should also consider individuals who have close geographic proximity to you as well as persons you believe can make difficult decisions under pressure.

Power of attorney
.  A financial power of attorney (or simply power of attorney) is different from a health care power of attorney in that it gives another person the authority to act on your behalf in financial matters including banking, investments and taxes.  You can limit the areas in which the person may act, or you may grant unlimited authority.  A power of attorney may also be limited for a specific time, or it may be a durable power of attorney, in which case it will continue even after the onset of incapacity (until your death).  A power of attorney can take effect immediately or “spring” into effect in the event of incapacity.

Guardians.  If you have minor children or other dependents (disabled adult children or other disabled adults for whom you are the named guardian), then your estate plan should name a person or persons to take over the parental role in the event of your death.  The guardian may also have control over any assets that you leave directly to your minor children or other dependents.  If you create a trust for the benefit of your minor children, then the trust’s trustee(s) will have control over those assets and their distribution.  Important considerations include age of the guardian, compatibility with his or her personality and moral values as well as the extent and quality of the existing relationship with your children.

Trustee.  If you place any assets in trust as part of your estate plan, then you must designate one or more trustees, who will act as the legal owners of the trust.  If you do not wish to appoint someone you know personally, you may appoint a corporate trustee – often a bank – to play this role.  Corporate trustees are often an excellent choice, since they are financial professionals and neutral, objective third parties.  Its important you select individuals who are not only trustworthy but also organized, diligent and detail oriented.

 


Friday, November 8, 2013

Upcoming Symposium: Empowering Caregivers for Today and Tomorrow

Upcoming Educational Symposium

FREE for Preferred Client Maintenance Program Members


Fort Bend Senior Trust Alliance is hosting “Empowering Caregivers for Today and Tomorrow,” a Symposium sure to benefit present and future caregivers. Each of us will one day be in the position of caregiver for our loved ones and this Symposium will give you the tools necessary to successfully handle the challenges that arise during this time. If you are part of our Preferred Client Maintenance Program, The Dean Law Firm is offering FREE registration for this Symposium as one of your educational benefits.

Julia Dean will be speaking along with other notable professionals related to senior care. Keynote speakers for the event are Dr. Knox and Dr. Jang from The University of Texas MD Anderson Cancer Center. Dr. Knox will be addressing “End of Life Issues in the Emergency Department,” and Dr Jang will be presenting “Exciting New Initiatives and Directives in Alzheimer’s Research.” Breakfast, lunch and snacks will be provided for this event at Houston Methodist Sugar Land Hospital on Saturday, November 16th. Please see the attached brochure for more details.

Space is limited, so register today! You can register online at www.seniortrustalliance.org. 


Monday, March 25, 2013

Advance Planning Can Help Relieve the Worries of Alzheimer's Disease

Advance Planning Can Help Relieve the Worries of Alzheimer’s Disease

The “ostrich syndrome” is part of human nature; it’s unpleasant to observe that which frightens us.  However, pulling our heads from the sand and making preparations for frightening possibilities can provide significant emotional and psychological relief from fear.

When it comes to Alzheimer’s disease and other forms of dementia, more Americans fear being unable to care for themselves and burdening others with their care than they fear the actual loss of memory.  This data comes from an October 2012 study by Home Instead Senior Care, in which 68 percent of 1,200 survey respondents ranked fear of incapacity higher than the fear of lost memories (32 percent).

Advance planning for incapacity is a legal process that can lessen the fear that you may become a burden to your loved ones later in life.

What is advance planning for incapacity?

Under the American legal system, competent adults can make their own legally binding arrangements for future health care and financial decisions.  Adults can also take steps to organize their finances to increase their likelihood of eligibility for federal aid programs in the event they become incapacitated due to Alzheimer’s disease or other forms of dementia.

The individual components of advance incapacity planning interconnect with one another, and most experts recommend seeking advice from a qualified estate planning or elder law attorney.

What are the steps of advance planning for incapacity?

Depending on your unique circumstances, planning for incapacity may include additional steps beyond those listed below.  This is one of the reasons experts recommend consulting a knowledgeable elder law lawyer with experience in your state.

  1. Medical Power of Attorney.  A medical power of attorney designates another person to make health care decisions on your behalf should you become incapacitated and unable to make decisions for yourself.  You should consider filing copies of your medical power of attorney with your doctors and hospitals, and give a copy to the person or persons whom you have designated as your agent.  If you are part of our LegalVault program, your healthcare providers can access to all your legal documents concerning medical care via The Dean Law Firm website.
  2.  Financial Power of Attorney.  Similar to a medical power of attorney, a financial power of attorney assigns another person the right to make financial decisions on your behalf in the event of incapacity.  The power of attorney can be temporary or permanent, effective immediately or only upon incapacity, depending on your wishes.  Consider filing copies of this form with all your financial institutions and give copies to the people you designate to act on your behalf.
  3. Directive to Physicians (or Living Will).  Your directive to physicians (or living will) describes your preferences regarding end of life care, resuscitation, and hospice care.  After you have written and signed the directive, make sure to file copies with your health care providers or provide access via our website using LegalVault.
  4. Plan in advance for Medicaid eligibility.  Long-term care payment assistance is among the most important Medicaid benefits.  To qualify for Medicaid, you must have limited assets.  To reduce the likelihood of ineligibility, you may be able to use certain legal procedures, like trusts, to distribute your assets in a way that they will not interfere with your eligibility.  The elder law attorney you consult with regarding Medicaid eligibility planning can also advise you on Medicaid estate recovery planning.


Wednesday, November 28, 2012

The ABCs of Ademption

 

What happens if you are bequeathed a car that no longer exists?  The ABCs of Ademption

If you’re involved in settling a loved one’s estate, you may come across the curious word “ademption”. Ademption describes what happens when something designated in a will no longer exists.  For example, your uncle dies and leaves you in his will an old-school Harley Davidson motorcycle.  However, if your uncle crashed the motorcycle two years before the will was probated and there’s nothing to leave, then that gift would be considered adeemed and you would receive nothing.  This is why certain wills include language that says, “if owned by me at my death.”

However, it is important to realize that certain items cannot be adeemed, such as money.  For example, if your uncle died and left $7,000 for you in his will, but left a zero dollar balance in his accounts, your gift of cash would not be adeemed.  Instead, the estate would be responsible for satisfying that gift, for example, through the sale of the house or other such property.

There are exceptions to ademption, however, so please consult a qualified probate lawyer if you want to learn more about ademption and its exceptions.


Thursday, November 8, 2012

Events that Trigger Estate Planning Revisions

 

7 Events Which May Require a Change in Your Estate Plan

Creating a Will is not a one-time event.  You should review your Will periodically to ensure it is up to date and make necessary changes if your personal situation, or that of your executor or beneficiaries, has changed.  There are a number of life-changing events that require your Will to be revised, including:

Change in Marital Status:  If you have gotten married or divorced, it is imperative that you review and modify your Will. With a new marriage, you must determine which assets you want to pass to your new spouse or step-children, and how that may relate to the beneficiary interest of your own children.  Following a divorce, it is a good practice to revise your Will, to formally remove the ex-spouse as a beneficiary.  While you’re at it, you should also change your beneficiary on any life insurance policies, pensions, or retirement accounts.  Estate planning is complicated when there are children from multiple marriages, and an attorney can help you ensure everyone is protected, which may include establishing a trust in addition to the revised Will.

Change in Beneficiary’s Status:  If one of your Will’s beneficiaries experiences a change in marital status, then that may also trigger a need to revise your Will.

Births:  Upon the birth of a new child, the parents should amend their Wills immediately to include the names of the guardians who will care for the child if both parents die.  Also, parents or grandparents may wish to modify the distribution of assets provided in their Wills, to include the new addition to the family.

Deaths or Incapacitation:  If any of the named executors or beneficiaries of a Will, or the named guardians for your children, pass away or become incapacitated, your Will should be revised accordingly.

Change in Assets:  Your Will may need to be changed if the value of your assets has significantly increased or decreased, or if you dispose of a significant asset.  You may want to modify the distribution of other assets in your estate to account for the changed value or disposition of the asset.

Change in Employment:  A change in the amount and/or source of income means your Will should be examined to see if any changes must be made to that document.  Retirement or changing jobs could entail moving to another state, thus subjecting your estate to the laws of that state when you die.  If the change in income modifies your investing, saving or spending habits, it may be time to review your Will and make sure the distribution to your beneficiaries will be as you intended.

Changes in Probate or Tax Laws:  Wills should be drafted to maximize tax benefits, and to ensure the decedent’s wishes are carried out. If the laws regarding taxation of the estate, distribution of assets, or provisions for minor children have changed, you should have your Will reviewed by an estate planning attorney to ensure your family is fully protected and your wishes will be fully carried out.


Wednesday, October 31, 2012

Common Estate Planning Myths

Common Estate Planning Myths

Estate planning is a powerful tool that among other things, enables you to direct exactly how your assets will be handled upon your death or disability. A well-crafted estate plan will ensure you and your family avoid the hassles of guardianship, conservatorship, probate or unpleasant estate tax surprises. Unfortunately, many individuals have fallen victim to several persistent myths and misconceptions about estate planning and what happens if you die or become incapacitated.

Some of these misconceptions about living trusts and wills cause people to postpone their estate planning – often until it is too late. Which myths have you heard? Which ones have you believed?

Myth: I’m not rich so I don’t need estate planning.
Fact: Estate planning is not just for the wealthy, and provides many benefits regardless of your income or assets. For example, a good estate plan includes provisions for caring for a minor or disabled child, caring for a surviving spouse, caring for pets, transferring ownership of property or business interests according to your wishes, tax savings, and probate avoidance.

Myth: I’m too young to create an estate plan.
Fact: Accidents happen. None of us knows exactly when we will die or become incapacitated. Even if you have no assets and no family to support, you should have a power of attorney and health care directive in place, in case you ever become disabled or incapacitated.

Myth: Owning property in joint tenancy is an easier, more affordable way to avoid probate than placing it in a revocable living trust.
Fact: It is true that property held in joint tenancy will pass to the other owner(s) outside of the probate process. However, it is a usually a very bad idea. Placing property in joint tenancy constitutes a gift to the joint tenant, and may result in a sizable gift tax being owed. Furthermore, once the deed is executed, the property is legally owned by all joint tenants and may be subject to the claims of any joint tenant’s creditors. Transferring property into joint tenancy is irrevocable, unless all parties consent to a future transfer; whereas, property owned in a living trust remains under your control and the transfer is fully revocable until your death.

Myth: Keeping property out of probate saves money on federal estate taxes.
Fact: Probate, and probate avoidance, are governed by state law and address how property passes upon your death; they have nothing to do with federal estate taxes, which are set forth in the Internal Revenue Code. Estate planning can reduce estate taxes, but that has nothing to do with a discussion regarding probate avoidance.

Myth: I don’t need a living trust if I have a will.
Fact: A properly drafted trust contains provisions addressing what happens to your property if you become incapacitated. On the other hand, a will only becomes effective upon your death and specifies who will inherit the property. Thus, you may still want to consider a living trust.

Myth: With a living trust, a surviving spouse need not take any action after the other spouse’s death.
Fact: Failure to adhere to the proper legal formalities following a death could result in significant administrative and tax implications. While a properly drafted and funded living trust will avoid probate, there are still many tasks that have to be performed. However, the tasks are usually minimized with a living trust.


Wednesday, September 26, 2012

Considering Online Estate Planning? Think Twice

Considering Online Estate Planning? Think Twice

The recent proliferation of online estate planning document services has attracted many do-it-yourselfers who are lured in by what appears to be a low-cost solution. However, this focus on price over value could mean your wishes will not be carried out and unfortunately, nobody will know there is a problem until it is too late and you are no longer around to clean up the mess.

Probate, trusts and intestate succession (when someone dies without leaving a will) are governed by a network of laws which vary from state to state, as well as federal laws pertaining to inheritance and tax issues. Each jurisdiction has its own requirements, and failure to adhere to all of them could invalidate your estate planning documents.  Many online document services offer standardized legal forms for common estate planning tools, including wills, trusts or powers of attorney.  However, it is impossible to draft a legal document that covers all variations from one state to another and using a form or procedure not specifically designed to comply with the laws in your jurisdiction could invalidate the entire process.

Another risk involves the process by which the documents you purchased online are executed and witnessed or notarized. These requirements vary and if your state’s signature and witness requirements are not followed exactly at the time the will or other documents are executed, they could be found to be invalid. Of course, this finding would only be made long after you have passed, so you cannot express your wishes or revise the documents to be in compliance.

Additionally, the online document preparation process affords you absolutely no specific advice about what is best for you and your family. An estate planning attorney can help your heirs avoid probate altogether, maximize tax savings, and arrange for seamless transfer of assets through other means, including titling property in joint tenancy or establishing “pay on death” or “transfer on death” beneficiaries for certain assets, such as bank accounts, retirement accounts or vehicles.  In many states, living trusts are the recommended vehicle for transferring assets, allowing the estate to avoid probate.  Trusts are also advantageous in that they protect the privacy of you and your family; they are not public records, whereas, documents filed with the court in a probate proceeding are publicly viewable. There are other factors to consider as well, which can only be identified and addressed by an attorney.  No online resource can flag all potential concerns and provide you with appropriate recommendations.

By implementing the correct plan now, you will save your loved ones time, frustration and potentially a great deal of money.  In most cases, proper estate planning that is tailored to your specific situation can avoid probate altogether and ensure the transfer of your property happens quickly and with a minimum amount of paperwork.  If your estate is of a certain size, it may be subject to inheritance tax unless the proper estate planning measures are put in place.  A qualified estate planning attorney can provide you with recommendations that will preserve as much of your estate as possible, so it can maximize the amount distributed to your beneficiaries.  And that’s something no website can deliver.


Wednesday, September 19, 2012

Medicare vs. Medicaid

Medicare vs. Medicaid: Similarities and Differences

With such similar sounding names, many Americans mistake Medicare and Medicaid programs for one another, or presume the programs are as similar as their names. While both are government-run programs, there are many important differences. Medicare provides senior citizens, the disabled and the blind with medical benefits. Medicaid, on the other hand, provides healthcare benefits for those with little to no income.

Overview of Medicare
Medicare is a public health insurance program for Americans who are 65 or older. The program does not cover long-term care, but can cover payments for certain rehabilitation treatments. For example, if a Medicare patient is admitted to a hospital for at least three days and is subsequently admitted to a skilled nursing facility, Medicare may cover some of those payments. However, Medicare payments for such care and treatment will cease after 100 days or if the patient stops improving.

Nursing home patients often find their Medicare payments are terminated much sooner than 100 days. If a patient’s condition stops improving, Medicare coverage will be discontinued. For example, many older Americans are suffering from diseases with no known cure, such as Parkinson’s or Alzheimer’s Disease. Accordingly, it is simply impossible to “rehabilitate” these patients so Medicare typically denies skilled nursing facility coverage in these types of situations.

In summary:

  • Medicare provides health insurance for those aged 65 and older
  • Medicare is regulated under federal law, and is applied uniformly throughout the United States
  • Medicare pays for up to 100 days of care in a skilled nursing facility
  • Medicare pays for hospital care and medically necessary treatments and services
  • Medicare does not pay for long-term care
  • To be eligible for Medicare, you generally must have paid into the system

Overview of Medicaid
Medicaid is a state-run program, funded by both the federal and state governments. Because Medicaid is administered by the state, the requirements and procedures vary across state lines and you must look to the law in your area for specific eligibility rules. The federal government issues Medicaid guidelines, but each state gets to determine how the guidelines will be implemented.

In summary:

  • Medicaid is a health care program based on financial need
  • Medicaid is regulated under state law, which varies from state to state
  • Medicaid will cover long-term care
     

Wednesday, September 12, 2012

Gifting to Grandchildren

Issues to Consider When Gifting to Grandchildren

Many grandparents who are financially stable love the idea of making gifts to their grandchildren. However, they are usually not aware of the myriad of issues that surround what they may consider to be a simple gift. If you are considering making a significant gift to a grandchild, you should consult with a qualified attorney to guide you through the legal and tax issues that are involved in making such gifts.

Making a Lifetime Gift or a Bequest: Before making a gift, you should consider whether you want to make the gift during your lifetime or leave the gift in your will. If you make the gift as a bequest in your will, you will not experience the joy of seeing your grandchild’s appreciation and use of the gift. However, there’s always the possibility that you will need the money to live on during your lifetime and in reality, once a gift is made, it cannot be taken back. Also, if you anticipate needing Medicaid or other government programs to pay for a nursing home or other benefits at some point in your life, any gifts you make in the prior five years can be considered as part of your assets when determining your eligibility.

What Form Gift Should Take: You may consider making a gift outright to a grandchild. However, once such a gift is made, you give up control over how the funds can be used. If your grandchild decides to purchase a brand-new sports car or take an extravagant vacation, you will have no legal right to stop the grandchild. The grandchild’s parents could also in some cases access the money without your approval.

You could consider making a gift under the Uniform Gift to Minors Act (UGMA) or the Uniform Transfer to Minors Act (UTMA), depending on which state you live in. The accounts are easy to open, but once the grandchild reaches the age of majority, he or she will have unfettered access to the funds. You could also consider depositing money into a 529 plan, which is specifically designed for education purposes. Finally, you could consider establishing a trust with an estate planning attorney, which can be more expensive to set up, but can be customized to fit your needs. These trusts can provide wonderful spendthrift, creditor and divorce protection while allowing for more control over how the money is spent. You can have a conservative or liberal trust that can choose to provide for certain expenditures, such as their education, healthcare expenses or purchase of a first home.

Tax Consequences: If you have a large estate, giving gifts to grandchildren may be a great way to get money out of your estate in order to reduce your future estate tax liability. In 2012, a single person can pass $5 million at death free of estate tax or gift tax, and a couple can pass a combined $10 million without paying estate taxes. In addition, a person can give $13,000 in 2012 to any number of individuals without incurring any gift taxes. A grandparent with 10 grandchildren could give $130,000 per year to all grandchildren (and a married couple could give $260,000), thereby removing that property from his or her estate.

This is the time to consider gifting with the expiration of the $5 million gift tax exemption on December 31, 2012. Call us at (281) 277-3326 to schedule a consultation to discuss your gifting options.


Wednesday, September 5, 2012

Preserve and Protect Your Documents

Preserving and Protecting Documents Is Part of Healthy Estate Planning

In the unsettled time after a loved one’s death, imagine the added stress on the family if the loved one died without a will or any instructions on distributing his or her assets.  Now, imagine the even greater stress to grieving survivors if they know a will exists but they cannot find it!  It is not enough to prepare a will and other estate planning documents like trusts, health care directives and powers of attorney.  To ensure that your family clearly understands your wishes after death, you must also take good care to preserve and protect all of your estate planning documents.

Did you know that the original, signed version of your will is the only presumed valid version?  If your original signed will cannot be found, the probate court presumes you intended to revoke your will.  If the probate court makes that decision, then your assets will be distributed as if you never had a will in the first place.  However, it is possible that a copy of the will may be allowed to be probated.  Even if a copy can be located, however, additional proof must be given to establish that the original will was never revoked before it may be admitted to probate.

Where should you keep your original signed will?  There are several safe options – the best choice for you depends on your personal circumstances.

You can keep your will at home, in a fireproof safe.  This is the lowest-cost option, since all you need to do is purchase a well-constructed fireproof document safe.  Also, keeping your will at home gives you easy access in case you want to make changes to the document.  There are two main disadvantages to keeping your will at home:

  • You may neglect to return your will to the safe after reviewing it at home, which increases the risk it will be destroyed by fire, flood, or someone’s intentional or accidental actions.
  • Your will could be difficult to find in the event of your death, unless you give clear instructions to several people on how to find it, which then creates a risk of privacy invasion.

You can keep your will in a safety deposit box.  Most banks have safety deposit boxes of various sizes available to rent for a monthly fee.  Banks, of course, tend to be more secure than private homes, which is one primary advantage.  Also, if you keep your will in a safety deposit box, then after your death, only the Executor of your estate may access the original will.  Thus, the will is strongly protected against alteration or destruction, because family members may have access to a copy but only the Executor will have access to the all-important original.  But be sure to leave written authorization for the person you have named as Executor to have access to your safety deposit box upon showing your death certificate.  Otherwise, it may require a court order to obtain access to your safe deposit box. 

If you do keep your will and other estate planning documents in a safety deposit box, try to do so at the same bank where you keep your accounts and inform your executor of its location.  This will streamline the financial accounting process.

Although some law firms have systems for long-term document storage of original wills, keep in mind that the law firm may dissolve before the willmaker’s death.  This can make it difficult to track down your original will.    

You may also be able to store your will and other documents online.  Many large financial institutions have begun offering long-term digital storage of important documents.  However, any electronic version of your original will is – by definition – a copy, not the original.  So, you still must find a safe place to store the original, signed and witnessed will.  Online storage “safes” may be an excellent back-up, but you must still find a secure place to store the paper originals.

At The Dean Law Firm, PLLC, on-line document storage called "Legal Vault" is available for our Preferred Client Maintenance Program members beginning January 1, 2013.  Using Legal Vault, you can access all your estate planning documents via our website.  Legal Vault also allows healthcare providers special access to only your medical documents, keeping your other estate planning documents private.  Please call to inquire about this secure manner to store a back-up copy of your documents. 




The Dean Law Firm, PLLC assists clients with Estate Planning, Advanced Estate Planning, Planning for Children, Probate/Estate Administration, Elder Law and Civil Appeals in Sugar Land, TX and throughout Houston in Fort Bend County and Harris County.



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