What to Do When Your Spouse Dies

Kiplinger’s recent article entitled “A Checklist for What to Do (and NOT Do) After Someone Dies” provides some worthwhile information to help you if you are faced with a death in the family and must organize the next steps.

Contact the funeral home. You need to make arrangements and ask them for 10 additional copies of the death certificate.

Call your attorney. They can help with the process.

Contact Social Security. Your Social Security benefits may change after a spouse’s death, so you’ll need to notify them.

Cancel their health insurance. If insurance is provided by the spouse’s former employer, you will need to contact them post death.

Contact the spouse’s pension company (if applicable). Depending on the pension plan option originally selected by your spouse, you may be eligible to get payments.

Contact the life insurance company and file a claim. This is a very easy process. Do this right away to receive the proceeds of the policy.

If your spouse one was a veteran, contact the Department of Veterans Affairs. Check with the VA to see if there are any benefits payable to you upon the death.

Notify all your financial institutions. Contact banks to change account names; credit cards to remove spouse or close accounts; mortgage companies, insurance companies and all other important bills to change them to the surviving spouse’s name only.

Contact your CPA. You will need to discuss taxes for this year.

Contact your financial adviser. You will need to change account titles, file beneficiary paperwork for IRAs, 401k(s) and other retirement accounts.

Retitle assets. Assets like real estate or cars in the spouse’s name should be retitled.

Prepare and probate the estate. If the estate doesn’t qualify for simplified procedures, then the assets must go through probate. Ask an attorney to help you.

Reference: Kiplinger (Aug. 24, 2022) “A Checklist for What to Do (and NOT Do) After Someone Dies”

How Can an Elder Law Attorney Help Me?

Seasons’ recent article entitled “Finding an elder care lawyer” discusses ways in which an experienced elder law attorney can help you.

Social Security. Did you know that you’re statistically more likely to achieve a positive outcome when you get help from a lawyer when approaching the Social Security Administration?

Elder attorneys know the steps they can take to get the Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI) your senior deserves. Both of these programs can provide your senior with considerable financial assistance as they age.

Medicare and Medicaid planning. An elder attorney can accurately assess your eligibility and determine if it’s worth applying for Medicaid. If your application is denied, your attorney can also help you to appeal this decision.

An experienced Medicare lawyer can also help you to understand the various options available to you, letting you move forward and pursue the best possible health care assistance for your elder loved one. You may be paying more than necessary in premiums or out-of-pocket expenses, and a lawyer can guide you toward more suitable choices.

Probate. You may need to engage an elder law lawyer after your senior loved one has died. They can guide the entire family through this difficult time, assisting executors and ensuring that beneficiaries receive their inheritances.

While the probate process can be avoided entirely if your senior works with a qualified estate planning attorney prior to their death, there are several estate planning tools that can make inheriting assets much easier, including trusts.

With help from an experienced estate planning attorney, your senior can identify the most effective types of legal documents for their needs. Estate planning attorneys can also help with wills, advance directives, powers of attorney and more.

Reference: Seasons (Aug. 30, 2022) “Finding an elder care lawyer”

There are Less Restrictive Alternatives than Guardianship

The benefit of restrictive alternatives to guardianships is that they don’t require court approval or judicial oversight. They are also much easier to set up and end.

The standard for establishing incapacity is also less rigorous than the standard required for a guardianship, says Kiplinger’s recent article entitled “Guardianships Should Be a Last Resort – Consider These Less Draconian Options First.”

Limited guardianships. A guardianship takes away an individual’s right to make decisions, just as full guardianships do, but they are specific to only some aspects of the person’s life. A limited guardianship can be established to manage an individual’s finances and estate or to control medical and health care decisions. These types of guardianships still require court approval and must be supported by a showing of incapacity.

Powers of attorney. Powers of attorney can be established for medical or for financial decisions. A second set of eyes ensures that financial decisions are well-considered and not harmful to the individual or his or her estate. A medical power of attorney can allow an agent to get an injunction to protect the health and well-being of the subject, including by seeking a determination of mental incapacity. A durable power of attorney for health care matters gives the agent the right to make medical decisions on behalf of the subject if or when they are unable to do so for themselves. Unlike a guardianship, powers of attorney can be canceled when they are no longer needed.

Assisted decision-making. This agreement establishes a surrogate decision-maker who has visibility to financial transactions. The bank is informed of the arrangement and alerts the surrogate when it identifies an unusual or suspicious transaction. While this arrangement doesn’t completely replace the primary account holder’s authority, it creates a safety mechanism to prevent exploitation or fraud. The bank is on notice that a second approval is required before an uncommon transaction can be completed.

Wills and trusts. These estate planning documents let people map out what will happen in the event they become incapacitated or otherwise incapable of managing their affairs. Trusts can avoid guardianship by appointing a friend or relative to manage money and other assets. A contingent trust will let the executor manage assets if necessary. For seniors, it may be wise to name a co-trustee who can oversee matters and step in should the trustor lose the capacity to make good decisions.

Reference: Kiplinger (July 7, 2022) “Guardianships Should Be a Last Resort – Consider These Less Draconian Options First”

What Does a Living Will Do for Me?

During a medical crisis, families frequently must make decisions quickly regarding whether to withhold or provide life-sustaining treatments. A living will is a part of advance care planning. It’s a legal document that provides specific instructions on how to carry out your wishes to receive or decline such treatments when you otherwise can’t communicate those wishes yourself, explains, Forbes’ recent article entitled “How Does A Living Will Work?”

Your estate plan may already include a durable power of attorney for health care, which is a legal document that lets your designated agent or proxy make medical decisions for you if you become incapacitated. However, unlike that document, the instructions in a living will can be used only when the person named in the living will has no hope of recovery or cure.

A living will provides limited authority to an agent on behalf of the principal who’s no longer able to communicate their preferences to withhold or withdraw artificial means of life support or life-sustaining treatments. A living will should have your wishes noted for receiving or going without treatment when your condition isn’t expected to improve and treatment would extend your life for only a limited time.

A living will is designed to apply only in very limited situations when the principal who signed the document has an incurable or irreversible medical condition or conditions that will most likely result in the principal’s death within a short period of time—typically six months or fewer.

Life-sustaining treatments addressed in a living will may include:

  • Ventilators
  • Heart-lung machines
  • Nutrition via a feeding tube
  • Hydration via feeding tube or IV
  • Cardio-pulmonary resuscitation (CPR) or other extraordinary measures; and
  • Dialysis.

Living wills can also address issues, like pain management and palliative care. You may even include provisions such as “I would prefer to die at home” in a living will.

Provide as much information as you can to make certain that your proxy isn’t making the decision for you, but rather your wishes and words are moving through your proxy. The more information you can provide in your living will to your proxy to illustrate for them the type of care that you’d want to receive or decline, the better.

Reference: Forbes (Aug. 18, 2022) “How Does A Living Will Work?”

What’s Going on with Marvel Comics Creator Stan Lee’s Estate?

According to a court document filed recently, comic book icon Stan Lee’s estate moved to dismiss claims against Lee’s former business manager, Jerardo “Jerry” Olivarez. Terms of the deal weren’t disclosed. The settlement doesn’t include claims against Lee’s former attorney, Uvi Litvak.

The Hollywood Reporter’s recent article entitled “Stan Lee’s Estate Settles Elder Abuse Suit Against Ex-Business Manager” explains that the four-year legal saga, sparked by The Hollywood Reporter‘s investigation detailing accusations of elder abuse, centers on a fight over Lee’s estate. The battle includes his daughter, J.C., and people who allegedly manipulated her in efforts to exploit her famous father. Lee accused J.C., his only child and heir to his estate, of verbally abusing him.

J.C.’s outbursts turned physical at some points in conflicts over money, reports say.

The executive vice president and publisher of Marvel Comics, Stan Lee sued Olivarez and Litvak in 2018, calling them “unscrupulous businessmen, sycophants and opportunists” seeking to take advantage of him following the death of his wife, Joan Lee. Olivarez joined Stan’s inner circle as a consultant to J.C. and Joan’s various business endeavors before ending up with power of attorney over Lee after Joan’s death. He was given the title of “senior adviser,” handling caregiving duties for Lee.

“Jerry Olivarez and JC Lee, Stan and Joan Lee’s only daughter and Trustee of the Lee Family Trust, are happy to announce the resolution of their Court dispute,” said Olivarez’s attorney Donald Randolph in a statement. “The genesis of this dispute was the unfortunate manipulation of Stan Lee and his family undertaken by certain individuals — not named in the lawsuit — which was intended to unfairly malign Jerry Olivarez. These individuals exerted undue influence on the Lee family to accuse Jerry Olivarez of harmful acts which he did not do.”

According to the complaint, Olivarez fired Stan Lee’s banker of 26 years along with his lawyers and transferred roughly $4.6 million out of his bank account without authorization. After convincing Lee to sign a power of attorney to give him authority, Olivarez allegedly appointed his own lawyer, Livtak, as Lee’s lawyer without disclosing the conflict of interest.

Prior to his death, Lee alleged fraud, financial abuse of an elder and misappropriation of name and likeness, among other claims.

“Olivarez abused his relationship of trust with Lee and JC Lee, knowledge of Lee’s and JC Lee’s confidential business and estate planning operations, and ability to mislead Lee due to his advanced age all in a covert and intentional effort to dupe Lee into a host of schemes and financial missteps that benefited Olivarez and disenfranchised Lee,” reads the complaint.

Reference: The Hollywood Reporter (July 27, 2022) “Stan Lee’s Estate Settles Elder Abuse Suit Against Ex-Business Manager”

What Should I Know about Guardianships?

Guardianships – also known as conservatorships – are drastic and invasive. They strip away control adults otherwise exercise over their own lives and establish someone else as the decision-maker.  They require a rigorous showing of legal incapacity and approval by a judge. In many jurisdictions, parties must establish a specific need for guardianship and demonstrate that other alternatives considered would not adequately protect the individual.

Kiplinger’s recent article entitled “Guardianships Should Be a Last Resort – Consider These Less Draconian Options First” says that guardianships should never be undertaken lightly. Once established, they can be extremely difficult to undo. Therefore, other options should always be considered first.

Guardianships ensure that those who are unable to handle their own affairs aren’t exploited or injured. There are circumstances when a guardianship may be the best – or only – choice. For example, an elderly gentleman with dementia may have lacked the planning to make adequate provisions in his will or trust for management of his affairs. Without a plan for oversight of his assets, he could end up jeopardizing the estate he intended to pass on to his family. In that case, the heirs may look to have a court-appointed guardian appointed who will ensure that their father or grandfather doesn’t sign away his estate or compromise his physical well-being.

Transparency is important. Before it becomes necessary for a guardian to be appointed to handle your physical or financial decisions, consider whom you’d trust to act in that capacity and put it in writing.

It also informs others that, if a guardian is needed, this person is the one you’d like to see serve in that capacity.

A one-page directive will make your wishes clear and keep this important decision from a judge who will know nothing about you or your priorities or your specific circumstances.

In addition, you should delegate a second person now to support you in the future. It’s preferable that this is someone younger whom you trust. This individual will bring a fresh perspective to the situation. They should also possess a sound understanding of money management.

If you don’t consider these things now, the state will make the decision for you after you no longer can make such decisions for yourself.

Talk with an experienced elder law attorney and create the documents now that will save your loved ones from having to seek guardianship for you in the future.

Reference: Kiplinger (July 7, 2022) “Guardianships Should Be a Last Resort – Consider These Less Draconian Options First”

Understanding the Issues of Elder Law

The legal needs of many older Americans go beyond basic legal services. They are also all intertwined. In addition to understanding the legal issues and complications that older Americans face, elder law attorneys must also understand the surrounding personal concerns of their clients, such as health, financial and family issues, and how those affect their clients’ legal issues.

Recently Heard’s article entitled “What You Need to Know About Elder Law” explains that other specific areas of expertise include the following:

  • End of life planning could extend to planning your health care support system as you age, signing a power of attorney, establishing a living will and other issues surrounding end of life care.
  • Financial issues frequently entails questions about retirement and financial planning, housing financing, income and estate tax planning and gift tax issues.
  • Long term care can include planning for asset protection, insurance for in-home care or assistance with activities of daily living, Medicare planning, insurance, veterans’ benefits and other issues.
  • Residents’ rights issues may include claims or complaints you bring while a patient in a nursing home or long term care facility.
  • Workplace discrimination issues stem, from the fact that older Americans sometimes face age and disability discrimination in the workplace.
  • Guardianship issues might include guardianship avoidance, planning wills and trusts, planning for the future of a special needs child, probate court and other issues surrounding minor or adult children.
  • Landlord-tenant law may mean handling disputes with landlords, contesting an eviction, dealing with foreclosure issues, rent increases and more.
  • Abuse, neglect, and fraud. These elder law attorneys specialize in cases where an older client is being victimized.

An elder law attorney can be a great partner for you as you plan out the legal and financial aspects of the next stage of your life-or the life of a loved one. Speak to one today.

Reference: Recently Heard (June 23, 2022) “What You Need to Know About Elder Law”

What’s Involved in an Estate Inventory?

If you’re named as executor of an estate, you will be tasked with identifying all the assets of the decedent. Let’s look at some of the options you may have for identifying assets:

  • The deceased’s will if they have one
  • Their financial statements or legal documents
  • Their recent tax returns
  • Abandoned asset database searching; and
  • A public property records search.

Yahoo Finance’s recent article entitled “What Is Included in an Estate Inventory?” says you may also be able to find assets for an estate inventory by talking to the decedent’s financial advisor, estate planning attorney, or relatives. An executor must be as thorough as possible, so the final inventory list submitted to the probate court is accurate and complete.

If you’re planning your estate, you can make this job easier for your executor by creating an estate inventory yourself. Keep a copy of this inventory with a copy of your will, if you have one in place. (If you don’t have a will, draft one sooner rather than later.) If you pass without a will in place, your assets would be distributed according to state law.

If you’re making an inventory of your estate, include the types of assets for which an executor might search. Depending on your financial situation, your personal estate inventory might include:

  • A 401(k) plan or similar employer-sponsored retirement plan
  • Traditional or Roth IRAs
  • Business retirement accounts, such as a solo 401(k) or SEP IRA if you’re self-employed
  • Taxable brokerage accounts
  • A Health Savings Account (HSA)
  • College savings accounts
  • Life insurance policies
  • Bank accounts
  • Vehicles
  • Real estate and land
  • Personal possessions that are valued at $500 or more; and
  • Family heirlooms, antiques, or collectibles.

The executor’s job can be simplified by making a list of any liabilities or debts that you owe. This can include a mortgage on your home, auto loans, private student loans, credit cards, installment loans, business loans, tax liens, medical bills and personal loans. Once you complete your personal estate inventory you may want to file a copy of it with your estate planning attorney. Review your inventory annually to make certain that it’s up to date.

Knowing what’s included in an estate inventory can make your job as an executor easier. If you submit an incomplete inventory, it may delay the probate process.

Reference: Yahoo Finance (Feb. 15, 2022) “What Is Included in an Estate Inventory?”

How Do I Find a Great Elder Law Attorney?

Zobuz’s recent article entitled “4 Tips for Hiring a Lawyer to Help with Medicaid Planning” says you may need to turn to an Elder Law attorney who can help you with Medicaid planning.

Here are some factors in choosing the best attorney:

Referrals and Recommendations. Look for an elder law attorney in the National Elder Law Foundation or the National Academy of Elder Law Attorneys database. You can also ask local agencies who work with seniors, such as the Alzheimer’s Association, AARP, as well as hospitals and nursing home social workers.

Experience. Elder law attorneys specialize in legal and financial issues that affect seniors. This includes areas such as estate planning and Medicaid planning. Look for an attorney who’s been successful in Medicaid planning and is board-certified in elder and special needs law.

Fees. Be sure that you understand how fees are structured. You should get a client engagement letter that outlines the services he or she will provide, as well as the fees they charge.

Customer Service. Dealing with Medicaid planning is a process that takes time. You need an attorney you can contact when you have questions.

A Few Other Thoughts…

Meet the elder law attorney in person for a consultation. This will help you to get a sense of his or her personality.

Look for a lawyer who will speak to you in a way you can understand and clarify points as needed.

Remember: if you don’t feel at ease with the attorney, look elsewhere.

When you select a qualified lawyer to help you with Medicaid planning and other medical insurance concerns, you will secure your future care.

Don’t risk your financial security or that of your family by waiting until it is too late.

Reference: Zobuz (April 22, 2022) “4 Tips for Hiring a Lawyer to Help with Medicaid Planning”

What Is Elder Law?

WAGM’s recent article entitled “A Closer Look at Elder Law“ takes a look at what goes into estate planning and elder law.

Wills and estate planning may not be the most exciting things to talk about. However, in this day and age, they can be one of the most vital tools to ensure your wishes are carried out after you’re gone.

People often don’t know what they should do, or what direction they should take.

The earlier you get going and consider your senior years, the better off you’re going to be. For many, it seems to be around 55 when it comes to starting to think about long term care issues.

However, you can start your homework long before that.

Elder law attorneys focus their practice on issues that concern older people. However, it’s not exclusively for older people, since these lawyers counsel other family members of the elderly about their concerns.

A big concern for many families is how do I get started and how much planning do I have to do ahead of time?

If you’re talking about an estate plan, what’s stored just in your head is usually enough preparation to get the ball rolling and speak with an experienced estate planning or elder law attorney.

They can create an estate plan that may consists of a basic will, a financial power of attorney, a medical power of attorney and a living will.

For long term care planning, people will frequently wait too long to start their preparations, and they’re faced with a crisis. That can entail finding care for a loved one immediately, either at home or in a facility, such as an assisted living home or nursing home. Waiting until a crisis also makes it harder to find specific information about financial holdings.

Some people also have concerns about the estate or death taxes with which their families may be saddled with after they pass away. For the most part, that’s not an issue because the federal estate tax only applies if your estate is worth more than $12.06 million in 2022. However, you should know that a number of states have their own estate tax. This includes Connecticut, Hawaii, Illinois, Maine, Massachusetts, Minnesota, New York, Oregon, Rhode Island, Vermont and Washington, plus Washington, D.C.

Iowa, Kentucky, Nebraska, New Jersey, and Pennsylvania have only an inheritance tax, which is a tax on what you receive as the beneficiary of an estate. Maryland has both.

Therefore, the first thing to do is to recognize that we have two stages. The first is where we may need care during life, and the second is to distribute our assets after death. Make certain that you have both in place.

Reference: WAGM (Dec. 8, 2021) “A Closer Look at Elder Law“