Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Wednesday, May 24, 2017

Aging Spaces

Old-man-walker-raising-his-hands-full-length-portrait-isolated-white-background-38695234Ernie MacNeill, a longtime contractor and a Certified Aging in Place Specialist (CAPS), points out problem spots as he tours Elliot Goldberg’s home. MacNeill makes note of carpet that needs to be taken up to remove it a possible tripping hazard, doorways that need widening to possibly accommodate a wheelchair, and discusses moving a closet to make space for an electric lift. Goldberg, 71, has difficulty traversing the multi-storied space . Despite living in a three-floor, split-level home, memories of a deceased wife and family keep him from relocating. MacNeill, part of a growing group of specialists, focuses part of his practice on remodeling homes for aging homeowners that may have mobility and access issues.

There are currently around 3,500 CAPS graduates spanning across the country, but their dispersion is uneven and focused in large cities. While the need for such individuals may be growing, their relative scarcity leaves a gap that has been partially filled by occupational therapists. Though not performing the work of tearing down walls and ripping up carpet, these individuals make suggestions to clients to alleviate some of the common risks found in the home. These suggestions include installing bars in the tub, adding curbless showers, improving lighting, and installing stairless walkways.

While these solutions are practical and may potentially save trips to the emergency room, many of these changes come at a high price.  To counter this, some architects have proliferated the idea of a “universal design.” This would encompass some safety features, like a zero-step entrance, with a selling point considering not just the elderly but also the parent hauling twins with a stroller in tow. By incorporating these design features into new homes and scheduled remodels, contractors create a living space their clients can enjoy even as they age and become less mobile.

See Paula Span, Planning to Age in Place? Find a Contractor Now, N.Y. Times, May 19, 2017.

Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.  

May 24, 2017 in Current Affairs, Disability Planning - Property Management, Elder Law | Permalink | Comments (0)

Monday, May 15, 2017

Article on ABLE Account Information for Estate Planning Lawyers

Able georgiaBernard A. Krooks & Benjamin A. Rubin recently published an Article entitled, ABLE Accounts: What Trusts and Estates Lawyers Need to Know, 31 Probate & Property 40 (May/June 2017). Provided below is an abstract of the Article:

Individuals with special needs and their families and advisors are now able to set up ABLE (Achieving a Better Life Experience) accounts under Internal Revenue Code § 529A. These tax-free accounts do not affect an individual’s eligibility for Supplemental Security Income (SSI) or Medicaid so long as certain requirements are met. Currently, at least 19 states are operating ABLE accounts and several more have announced plans to launch ABLE accounts in 2017. Most states allow out-of-state residents to open accounts. Thus, it is generally not necessary for clients to wait until their home state offers ABLE accounts to establish one. When first enacted, the ABLE law prohibited out-of-state residents from setting up accounts. In 2015, however, Congress removed this provision.

Although ABLE accounts offer many benefits, it is important to understand the applicable limitations and how they compare to special needs trusts. In some cases, it may be appropriate for an individual to have both an ABLE account and a special needs trust (SNT). Keep in mind that the individual with disabilities is generally considered the owner of the ABLE account even if a third party (parent, grandparent, among others) contributes funds to the account. There are two kinds of SNTs: first-party SNTs and third-party SNTs. First-party SNTs are funded with the assets of the individual with disabilities. By contrast, third-party SNTs are created by someone other than the beneficiary with disabilities and are a common estate planning tool used to improve the quality of life of an individual with disabilities while allowing that person to maintain his government benefits. A major characteristic that distinguishes a third-party SNT from a first-party SNT is that, on th death of the beneficiary, funds remaining in the first-party SNT must be used first to repay the states’ Medicaid programs the beneficiary received services from for expenses incurred; whereas, in a third-party SNT there is no such requirement. Thus, at the death of the beneficiary of a third-party SNT, any remaining funds may be distributed to other family members or beneficiaries. This distinguishes third-party SNTs substantially from ABLE accounts as will be discussed further later in this article.

May 15, 2017 in Articles, Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Wednesday, April 26, 2017

Estate Planning Lessons from John B.

John b“S-Town” is the successor podcast to the famous “Serial” podcast. The podcast depicts the anti-hero, John B., who lives in a house on 128 acres in Woodstock, Alabama with his mother who suffers from dementia. Most residents of Woodstock thought John B. was a wealthy man, but upon committing suicide, he dies without a will and without a plan for someone to take care of his mother. However, John B. did leave instructions with a friend about what to do and who to contact after his death. His story represents several estate planning lessons. You should always choose a will over a set of instructions, but leaving both is not a bad idea. Without a will, your assets will pass to those heirs designated by the estate, and your loved ones will be cared for by a relative willing to serve as guardian, both scenarios may not represent your true wishes.

See Jay Brinker, Don’t Be Like John B. (Estate Planning Lessons from “S-Town”), Jay Brinker Blog, April 21, 2017.

April 26, 2017 in Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally, Intestate Succession, Wills | Permalink | Comments (0)

Monday, April 17, 2017

Recent Study Finds Complex Family Structures Lead to More Complex Elder Care

Modern elder careA recent study, conducted by Amy Ziettlow and Naomi Cahn and detailed in Homeward Bound: Modern Families, Elder Care, and Loss, presents evidence that as the family structure becomes more complex, elder care also becomes more complex, leaving institutions unprepared to handle these realities. As 79 million Baby Boomers encounter old age, their diverse family structures will need to sustain the burden of care, often relying on the support of different family members than in the past. Specifically, Ziettlow and Cahn reveal how current approaches to elder care are cemented in outdated caregiving models, which presume life-long connections and valuable safety nets for late-in-life caregiving. Accordingly, the authors present solutions centering on awareness and preparation: additional support for individual incapacity and death planning, and the creation of legal, political, and social planning for American elders during a time of increasingly complex familial ties.

See Amy Ziettlow & Naomi Cahn, Family Scholars Find Modern Families Need Extra Help When a Loved One Dies, Homeward Bound: Modern Families, Elder Care and Loss, April 10, 2017.

Download Ziettlow&Cahn Press Release

April 17, 2017 in Current Events, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Monday, March 13, 2017

Article on Creating a Red File for Estate Planning

Red fileMarvin E. Blum recently published an Article entitled, Filling in the Gaps: Create a “Red File” for Clients to Cover Issues Beyond Traditional Estate Planning, Tr. & Est. 68 (Feb. 2017). Provided below is an abstract of the Article:

Most estate planners will agree that one of the most formidable obstacles to the planning process is the general reluctance of clients to discuss their own mortality. There’s one significant motivating factor, however, that drives clients to confront their mortality and plan for their incapacity and death: control. Clients want to ensure that on incapacity, they’re cared for as they wish and on death, their assets pass exactly how they would like. While crafting an estate plan, both planners and clients tend to focus on the effective and tax-efficient distribution of the client’s assets. It’s all too common for a client to walk away with a perfectly crafted portfolio of estate-planning documents that expertly disseminates the client’s property but fails to provide the control so desperately desired. How is it possible for a perfect plan to be so imperfect? The answer lies outside of the formal estate-planning documents and accordingly often goes overlooked by planners and clients alike, but the answer, itself, is simple. By adding a “red file” to the traditional batch of estate-planning documents, clients increase their level of control in two key areas: (1) incapacity, and (2) administration of the estate at death. 

As part of the planning process, estate planners should encourage clients to create a red file and guide them on how to do it. Essentially, a red file is a notebook or other centralized source of information that will not only aid an executor in navigating the waters of estate administration, but also will make very clear the wishes of a client in the event he becomes incapacitated in the future. 

While only clients can actually establish the red file, estate planners should provide their clients with a framework of guidelines for what it should contain. There’s no specific formula for what makes a red file effective, but clients should know that the more information they include, the more helpful it will be to those managing their assets or making care decisions on their behalf. 

 

March 13, 2017 in Articles, Disability Planning - Health Care, Disability Planning - Property Management, Estate Administration, Estate Planning - Generally | Permalink | Comments (0)

Sunday, January 8, 2017

Trump Policies Will Likely Affect the Elderly and Special Needs Populations

Special needs trumpWith the recent election of Donald Trump, the elderly and special needs populations are likely to see changes. The President-elect has claimed that Social Security and Medicare will remain intact and solvent. How he plans to make this happen is something that has younger generations worried about the preservation of the fiscal health. For those who rely on Medicaid, block grants could go into effect, which could create profound changes for individual states, creating uncertainty and concern for planning needs. Additionally, the block grants will potentially affect special needs trusts, reducing or eliminating the benefits they provide. These possible Medicaid changes could also see many older homeowners losing their homes, a legacy for future generations, if the Medicaid program cannot pay for the cost of skilled nursing, keeping them from selling their homes and moving into nursing homes. Ultimately, in the near future, families will become more insular and protective of one another, and there will be high demand for multi-generational planning.  

See Michael Gilfix, How Trump Policies Could Affect the Elderly and Those with Special Needs, Wealth Management, January 6, 2017. 

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

 

January 8, 2017 in Current Events, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Friday, December 9, 2016

The Special Needs Trust Fairness Act Has Passed

Special needs trustFirst Party Special Needs Trusts are established under 42 U.S.C. § 1396p(d)(4)(A). The prior federal statute only allowed the trusts to be set up by a disabled individual’s family member, not the person with the disability. The law presumed that individuals with disabilities lacked the mental capacity to establish a trust. The Special Needs Trust Fairness Act has now passed the House and Senate. This Act will allow a disabled individual to establish his or her own special needs trust. The President is expected to sign the bill soon.

See It Passed!: The Special Needs Trust Fairness Act Has Passed Both the House and the Senate and Is on Its Way to the President for Signature, The Interactive Legal Team, December 7, 2016.

Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.  

December 9, 2016 in Current Events, Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Friday, November 11, 2016

End-of-Life Estate Plan Lessons

Estate plan lessonsIt can be hard to think about the time you might be incapable of making basic decisions, but it is an absolute must for someone with estate plans. There are a few lessons to learn when making the right decisions for your future. First, make your location wishes known and explain your thought process, so that the decision-maker has all the necessary information when the time comes. Second, pick strong surrogates who are capable of standing in your place and managing your sophisticated finances. Finally, do not leave a child who is easily heartbroken to make hard decisions about your end-of-life needs. The emotional challenge is huge, so the person needs to be able to communicate your wishes even at the most painful times. 

See Sonia Talati, Three End-of-Life Estate Plan Lessons, Barron’s, November 8, 2016.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

November 11, 2016 in Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally | Permalink | Comments (0)

Thursday, October 13, 2016

Buy-Sell Agreements at the Time of Ownership Transfer Events

Buy-sell agreementA buy-sell agreement usually ensures the continuity of ownership in the business and, in practice, most deal with two events: death and disability of the owner. But, what about other transfer events that are often more harmful to the remaining owners? For example, does your client’s buy-sell agreement cover transfers caused by personal bankruptcy or divorce; forced termination of the owner’s employment; or irreconcilable differences amongst the owners? 

In the incident of bankruptcy or divorce, the buy-sell agreement should give the business first opportunity to acquire that owner’s interest at the time of this involuntary transfer. On the other hand, no simple provision exists to deal with the termination of an owner’s employment. Instead, a client should seek an advisor that will help the owners weigh the alternatives. Possibly the most valuable asset of a buy-sell agreement becomes available when owners get locked into a bitter dispute. The agreement often settles this dispute by forcing one or more of the irritated owners to sell their ownership and leave the business. 

See John Brown, Buy-Sell Agreements Ignore Most Lifetime Ownershihp Transfer Events, BEI Exit Planning Solutions, October 10, 2016. 

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

 

October 13, 2016 in Disability Planning - Property Management, Estate Planning - Generally | Permalink | Comments (0)

Saturday, August 6, 2016

Retirement and Estate Planning for Alzheimer's

Alzheimers developA study shows that Americans fear developing Alzheimer’s more than any other life‑threatening disease. It also shows that Americans fear the inability to care for themselves if diagnosed. This fear is valid because the end-of-life care for Alzheimer’s patients is often underestimated and more expensive than cancer or heart disease. Insurance pays for a portion of these costs but not all, so it is important to appropriately plan a retirement and estate plan. Accordingly, you must identify family members to be included in financial plans and any projected costs that can be covered by government benefits.

See Art Koff, What to Know About Alzheimer’s and Retirement Planning, Market Watch, July 7, 2016.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

August 6, 2016 in Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally | Permalink | Comments (0)