Frequently Asked Questions
Do I need a Will?
If you don't have a Will, the state's inheritance laws will determine who gets your estate upon your death. Those rules may or may not reflect your wishes, and they certainly don't modify themselves with any changes in your circumstances. They also don't handle any other issues, such as who will be your executor, or who will take care of your minor children and any assets you leave for their benefit. A Will, and often a Trust, is a virtual necessity in the case of a second marriage. The best way to ensure that your wishes are carried out is to consult with an attorney who concentrates on Wills and related legal fields to have a Will prepared for you.
My parents aren't as sharp as they used to be -- can they still sign a Will?
Yes, if they meet the standard for mental capacity to do a Will, which is: that they understand the nature and extent of their assets, and understand who their family members are (i.e., the so-called "natural objects of their bounty"). The mental capacity needed to do a Will is often described as being among the lowest levels of capacity needed in law -- this is for public policy reasons: society wants to encourage people to have Wills.
Am I better off with a Trust?
A Trust can, in some circumstances, accomplish things that a Will cannot. For example, a Living Trust (also known as an Inter Vivos Trust, one that takes effect during your life) can avoid the cost and delay often associated with probate, can transfer assets confidentially (since a Trust is a private document) unlike a Will (which is a public document), can protect assets held for the benefit of someone receiving government benefits, and often can reduce taxes or qualify a person for Medicaid by removing assets from their own name. A Testamentary Trust (one that takes effect upon your death) can protect assets intended for a minor or a person with special needs. The decision as to whether a Trust would benefit you can only be reached after a detailed consultation with a qualified attorney.
What is Estate Planning?
Estate Planning is the use of sophisticated tools and techniques to address the whole set of concerns and considerations a person would have about what will happen to his assets and loved ones after his death. This can include a Will, Advance Directives such as a Durable Power of Attorney (so someone can act on your behalf if you are unavailable or incapacitated), a Healthcare Proxy (so someone can make medical decisions if you cannot), and a Living Will (stating your wishes about whether to be kept alive using extraordinary measures). It can also involve other techniques as well. Among the issues addressed are: Can estate taxes be reduced? Can income taxes be reduced? Who will take care of minor children and their assets?
What is Medicaid Planning?
Medicaid Planning is a set of complex techniques used to qualify a person for Medicaid. It can be used when the need for Medicaid is imminent, or it can be part of long term planning. Certainly, if planning is being done for other purposes, the simultaneous consideration of the Medicaid consequences would be wise. That is why consultation with an attorney who is versed in both estate and financial planning, as well as elder law and Medicaid Planning, is advisable. Medicaid Planning can minimize the enormous financial and personal burden on families facing serious illness or long-term care.
Is Medicaid Planning legal?
Yes, the government allows individuals to do Medicaid Planning so long as it complies with the rules governing Medicaid. Because these rules are complex and not always intuitive, such planning must only be done by, or with the close supervision of, a qualified Elder Law attorney knowledgeable in Medicaid Planning.
What is Guardianship?
Guardianship is a legal procedure whereby someone is appointed to make personal and/or financial decisions for another person. Typical scenarios where this is needed are: for parents to make decisions for a disabled child that has reached adulthood, for a person to make decisions for an aging parent that is no longer able to take care of himself, and for an independent agency to make decisions for someone whose mental problems prevent him from making responsible decisions. A Guardianship would also be used to make emergency medical decisions where an incapacitated patient does not have Advance Directives in place. The guidance and representation of an attorney knowledgeable and experienced in Guardianship can help ease the burden and assist in making the sensitive choices that are inevitable in these types of cases.
I have questions involving Real Estate, what should I do?
Our experience practicing, litigating, teaching, and publishing in Real Estate Law enables us to advise and represent you in all kinds of real estate matters, including sales, purchasers, refinances, and even disputes involving real estate. We can also stop foreclosures, negotiate loan modifications, and represent you in all phases of short sales. Visit our Real Estate section for more information.
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