Author Archives: Leslie

Resources to Stay at Home as we Age

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A big concern for most of us is how to financially manage to stay at home as we age, despite ever increasing care needs.  For those that are fortunate enough to have adequate savings, care costs may not be much of a concern.  However, care costs are quite high, with average hourly rates around $25 per hour, and many find paying for care in their home outside of their means.  It is not unusual for 24/7 care to cost $10,000 – $20,000 per month.  Thus other resources need to be located in order to keep our elders in their home, with the proper care.

For those that were forward thinkers and purchased Long Term Care insurance, that insurance can provide payments to help offset the costs of long term care in your home.  The policy typically will begin payments once the elder is unable to perform two activities of daily living.  Most policies have a stated maximum payout per day, and while this will cover some basic level of care, most policies will not cover the cost of 24/7 care.  However, the policies many times will provide enough funds to enable elders to remain at home with a minimal level of care.

In order to stay in their homes, some elders opt to obtain a mortgage on their home, but as a “forward” mortgage does require repayment, and has income requirements to qualify, many elders may not qualify or may not be able to maintain the monthly mortgage payments as their care costs increase.   In these situations, a reverse mortgage may be a good option.  A reverse mortgage allows elders to access the equity in their homes to pay for care and no repayment is required until the elder leaves the residence or passes away.  While fees and interest rates on a reverse mortgage can be high, this can still be a good option for elders who are “cash poor” and “house rich”.  The reverse mortgage primarily provides three payment options, with one being a set monthly payment, one being a flat amount up front, and the third option similar to a home-  equity line, where the senior can draw on the funds up to a stated maximum when those funds are needed.

For our totally and permanently disabled Veterans and their spouses, or those Veterans and spouses over the age of 65, funds may be available to pay for care costs if they qualify under the asset and income limitations.  Funds for Aid & Attendance are designed to supplement your resources to pay for care as the Veteran’s Administration wants you to pay for the care for which you can afford to pay.  The Aid & Attendance program (pension) is not widely known, and can provide up to a maximum of $1,703 to a single Veteran or $2,019 to a married Vet, for those that qualify under the asset and income tests.  These funds may be just enough to keep the Veteran and his/her spouse in their home with the necessary caregivers.

Other community resources are available to help our Elders remain in their home, and ensure that they are safe.  Resources include Outreach or other transportation services, to assist with transportation when the Elder no longer drives, Meals on Wheels and other meal services, to bring hot meals and easily prepared meals, Day Programs which provides needed respite for the family caregivers and for socialization for our Elders, with many programs specific for certain conditions, for instance Alzheimer’s.  If the Elder qualifies, In Home Support Services (IHSS) administered through Medi-Cal can provide limited funds for caregivers to come to the home to provide needed services.

* The information contained in this Blog is intended for general information and educational purposes only and does not constitute legal advice or an opinion of counsel.

 

The Un-Program

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Do you ever wonder how attorneys keep current on the law and consider unique and difficult issues?

All California attorneys have to take a certain number of continuing education classes and report those units to the State Bar.  We attend various seminars to complete the required units and typically have hundreds of hours of classes between us.

However a unique type of program is called the Un-Program.  Rather than attending classes with a formal speaker, we meet with attorneys from all over the country and have the opportunity to discuss actual and complex legal situations in an informal setting.  We recently attended the National Academy of Elder Law Attorney’s (NAELA) Un-Program in Grapevine, Texas.  We spent three days meeting in small groups to discuss a variety of issues, with just general topics as the guide for the group.

This was a great way to discuss complex elder law issues including upcoming changes in Medicaid (Medi-Cal here in California), Veteran’s benefits, Special Needs Trusts and disability issues for our clients.  We had the opportunity to discuss cases and brainstorm options for those clients with the best elder law attorneys in the country.  We also have the ability to continue with the Un-Program format by discussing cases on the NAELA Listserve and in future conference calls that will be established.  We found this to be a wonderful resource for us and a great benefit to clients who have increasingly complex issues with federal benefits.

* The information contained in this Blog is intended for general information and educational purposes only and does not constitute legal advice or an opinion of counsel.

 

Digital Assets, Do They Disappear If You Are Not There?

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We all know we live in an increasingly digital world, but have you ever given any thought to how your loved ones would access digital assets if you become incapacitated or pass away?

Digital Assets covers a broad range of assets and accounts.  Do you have on line access only to a bank or investment account?  Do you have your photos stored on line?  What about a Paypal account, or a Facebook account or credits on a virtual game?  All of these assets or accounts may be lost if your successors do not know about them.

We have encountered situations where assets are trapped with no access by family due to the inability to login and access them on-line.  Clients may not even be aware that the assets exist, and may not have any mechanism to determine if they have missed anything.  In addition, social media accounts and access to those accounts following incapacity or death is increasingly becoming a problem.

Consider the need to give your successor agents or trustees, or even family members, a list of logins and passwords to all of your accounts.  Security issues are clearly a concern, and one way to still have protection is to give the logins to one child and passwords to another.  Another is perhaps to utilize a password protection system and only leave the main password locked in a safe that a trusted family member can access.  Financial Powers of Attorney should now contain language to authorize access to these accounts, including the power to change login and password information.  We should also consider providing instructions to our agents as to what to do with our social media accounts when we pass away.

It is critical to keep a list of all digital assets, covering everything from investments, to photos to social media,  how they can be accessed and then keeping it up to date.  However, keeping that list solely in the computer may not provide any assistance as the family may be unable to access the computer.  Thus, ensure that a paper copy of the list of all digital assets has been printed and is maintained with your other estate planning documents.

* The information contained in this Blog is intended for general information and educational purposes only and does not constitute legal advice or an opinion of counsel.

Increase in Small Estates Limits

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As part of an estate administration, it is typical to use a small estate affidavit to claim assets that may have not been titled in the name of a trust, or assets which were “lost or forgotten” by the family.  Previously we were limited in the usefulness of this process, as the asset limit for a small estate process was $100,000.  Often, when a number of accounts were located which needed to use this process, the total would exceed $100,000 which would then require a full probate proceeding to be opened.

As of January 1, 2012, California Probate Code section 13100 has been updated to allow for small estate transactions where the estate does not exceed $150,000.  This increase in dollar amount should help us avoid the need to open a probate for small estates and to claim assets in a much easier manner.

It is likely however that banks and financial institutions will be resistant and unaware of this change.  Most financial institutions have pre-printed forms which list the old $100,000 limit on them.  Unless the financial institution has updated their forms, the clerks processing the paperwork will be unaware of the change and refuse to process transactions in excess of $100,000 but less than $150,000.  In addition, for financial institutions out of state, it is likely that they will also be resistant to processing a transfer in excess of $100,000 and will need to be educated as to the recent change in California law.  While we may have to educate the financial institutions regarding the law change, overall this new law will greatly ease some of the estate administration issues and avoid the need for probate proceedings for estate less than $150,000.

* The information contained in this Blog is intended for general information and educational purposes only and does not constitute legal advice or an opinion of counsel.

Knowing Where to go to for Help . . . Priceless!

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Being an elder law attorney, I spend my days advising clients on various aspects of elder law.   However, when the tables are turned and I found myself in the position that many clients find themselves in, it is nice to experience firsthand what resources are available and the help that can be provided.

I recently had a family crisis issue when a family member, who is the primary caretaker for another family member who suffers from Alzheimer’s, was herself admitted to the hospital with Pneumonia.  Her absence triggered all sorts of caregiver related concerns and family realizations as to the care level required.  I was able to utilize our care coordinator here in our office to provide resources to my family relating to specific issues for the care of Alzheimer’s patients, particularly information relating to eating issues and the progression of the disease.  It was so comforting to have a knowledgeable resource specialist who could provide calm advice in the middle of a serious issue for my family.

We were prepared, or so we thought, as the house had been sold, parents were living at a stepped up living facility, care givers were available, and yet when the crisis hit, there was still so much to arrange and worry about.  I was so glad that our care coordinator and resource specialist was here to assist me and realize her services are invaluable not only to help all of us prepare for long term care issues, but also to help us in our moments of crisis.

* The information contained in this Blog is intended for general information and educational purposes only and does not constitute legal advice or an opinion of counsel.

Dividing Up The Stuff

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People sometimes ask me: What is the most difficult part of my job when advising clients on post death administration matters?  Surprisingly, that often is the division of tangible personal property, or the “stuff” in the home.

Unlike cash or other financial assets which can typically be easily divided between the children, tangible items are much more difficult to divide.  With only one piano or grandfather clock, who will receive those items when there are four children?  Trustees and estate administrators struggle with how to divide up the items, especially if the decedent left no specific instructions regarding their distribution.  In addition, the trustee is often struggling with their own grief and personal memories which are attached to some of the personal property items, and may find themselves having difficulties achieving an equitable division.

Jennifer Modenessi’s article Dividing Up a Life’s Worth of Memories (11 September 2011, Living Section) in  the San Jose Mercury News    discussed dividing up personal property following a parent’s passing and how difficult that process can be.  I find that in my practice, older estate planning documents tend not to mention the division of the personal property while current estate plans will often contain some sort of direction particularly regarding certain items.  When drafting estate plans, I do encourage clients to consider keeping a list which will indicate to whom certain items should be distributed.

However, for my administration clients, as there is typically little or no direction coming from the documents, I have to advise my clients to find a method which may work for them and their families to equitably divide up the personal items.  There is no one solution that will work for everyone, however it remains in everyone’s best interest to work through the difficult task of dividing up the personal items, as the probate judge would prefer to keep these issues out of the courtroom!

* The information contained in this Blog is intended for general information and educational purposes only and does not constitute legal advice or an opinion of counsel.

Your loved one just died–what should you do now?

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We recognize that this is a very difficult time for you and your family having just lost a loved one.  The process to administer an estate after a loved one dies can seem overwhelming.  For some clients, the stress of meeting with the attorney shortly after the passing is too much.  For others, they feel reassured to start the legal process, often while other family members are in the area.  We are available to meet with you to discuss the basic steps of the estate administration either immediately after the passing or within the first month.  We recommend that the first meeting be within the first month of the passing.

Although you do not need to meet with us immediately, there are some decisions which have to be made immediately.  The questions most often asked are: “How do I get death certificates? and How many death certificates do I need?”  Typically the funeral home will assist you with obtaining death certificates.  It is important to review the form with the submitted death certificate information.  Of particular importance are the spellings of names, and the decedent’s social security number.  For most estates, at least five (5) certified death certificates are needed, and often we recommend that ten (10) be requested.  The exact number will depend on the types of assets the decedent owned and the process which will be used to administer the estate.  Should you find you need more death certificates later, we can assist you with ordering more from the county.

The process to administer a deceased person’s estate will depend on the type of Estate Planning documents the decedent had.  If the decedent had no documents or just a will, the estate will most likely need to pass through Probate.  If the decedent had a living or revocable trust, then a Trust Administration will need to be commenced.  The estate administration process depends not only on the type of documents, but also the type of assets the decedent owned.

At the first meeting, we will request that you bring the originals of all estate planning documents, as well as a certified death certificate. The type of estate planning documents will dictate the process required to administer the estate, as well as the type of assets and the title of those assets.   In order to review the type of estate administration work which will be necessary, we will need copies of all asset statements which cover or are as close to the date of death as possible.  Information relating to life insurance, retirement accounts, annuities and other assets which may have named beneficiaries should also be provided.  Upon review of all of the information, we can then provide you with the guidance necessary to administer the estate efficiently with the least amount of stress for you.

* The information contained in this Blog is intended for general information and educational purposes only and does not constitute legal advice or an opinion of counsel.

New Information About Retirement Benefit Planning

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I was fortunate enough to recently attend a seminar featuring Natalie Choate, one of the foremost nationwide experts on retirement benefits Ataxplan Publications.  Having heard Ms. Choate speak numerous times, I am always amazed how she manages to keep the topic of retirement benefits fresh and timely.

While the seminar confirmed many estate planning and tax strategies which we are utilizing for retirement benefits, a few warnings which were presented might impact our clients in the future. The IRS has now blocked the ability to reform trusts post-death to comply with the trust rules for minimum distribution purposes. The IRS is also apparently going to devote energy to auditing required minimum distributions as a result of non-compliance with people failing to take their annual required distribution.

* The information contained in this Blog is intended for general information and educational purposes only and does not constitute legal advice or an opinion of counsel.