Monday, August 6, 2012

Why you should use a personal property list when you make your will

     When you make your will, you plan what each person will receive at your death. While you may know what you want to do with the main part of your estate when you see a lawyer about writing a will, you may not have decided how you would want certain items of your tangible personal property such as your jewelry, furniture, tools, household goods and personal effects or certain precious memorabilia to go, or you realize that you may change your mind about these things over time as your circumstances or desires or the ages and circumstances of your loved ones change.

     Recognizing this, the Virginia legislature passed a law that lets you use a separate written and signed list and change it from time to time as you wish. In that way you do not have to list all your tangible personal property in  your will, and you can change the list whenever you want to without changing your will. This applies only to tangible personal property and not to money or investments. In other words, if you want to change who receives the monetary items, you must change your will. If you want to change who receives the specific items of tangible personal property on your list you need only change the list.

     It is important to remember that you do need to make a will. Just because you promise to give a child or someone you love your ring or your watch or certain pieces of furniture when you die, that verbal promise does not have any legal effect, and you must provide for the gift in a properly executed will or have a provision in your will that refers to your leaving a list signed by you stating who is to receive tangible personal property.

     If you make a list, you do not have to include everything on the list - just tangible things that you want to name specifically for certain people. Other things can just pass generally under your will to whomever your will designates to receive your tangible personal property, without specific items being listed.

Wednesday, June 13, 2012

Making it easier for an Executor or Trustee from another state to transfer real estate located in Virginia

When a non-resident of Virginia dies owning real estate in Virginia, it is now easier for the person who qualifies as executor or trustee in that other state where the will is probated to transfer property in Virginia to the beneficiary named in the will. The out-of-state Executor or Trustee will need to have an authenticated copy of the will admitted to probate in the Virginia county or city where the real estate is located, but if they meet the requirements of the new Virginia statute, they will not have to qualify again as Executor or Trustee in Virginia. This helpful new law is effective July 1, 2012.

Wednesday, June 6, 2012

Veteran's Benefits: A Window of Opportunity

Veteran’s benefits for Aid and Attendance (known as "pension") can be invaluable for a qualifying veteran or the widow of a qualifying veteran. This benefit can be up to $1,949 a month for a married veteran, and up to $1,644 per month for a single veteran, up to $1,056 per month for a surviving spouse. The program currently has very favorable terms for a person seeking to qualify for this benefit. However, this window may close at some time in the not too distant future. The General Accounting Office (GAO) has released a report suggesting that Congress should make changes to this program. The suggested changes include establishing a look back and penalty period for claimant who gift assets in order to qualify, similar to Medicaid rules. Currently, the VA rules are much less strict. Veteran’s benefits for Aid and Attendance can be particularly helpful to someone requiring care in an assisted living facility or when receiving expensive care at home. As elder law attorneys, we can help a veteran or a surviving spouse determine if they are eligible for such a benefit and what they can do to become qualified. Anyone who thinks they might be able to qualify for such a benefit would be wise to look into this promptly while the law is still very Veteran- friendly.

Wednesday, May 16, 2012

Early Detection of Parkinson's Disease

      Veterans face many tough realities and one of them for many Veterans is Parkinson's Disease. Researchers at McGuire VA Medical Center in Richmond, Virginia, have developed a way to determine if a Veteran has a high risk of developing Parkinson's disease, according to a recent article in the Richmond Times Dispatch. Using cutting edge research techniques, doctors at the VA Hospital have found a way to make this determination by tracking eyeball movements. McGuire is one of 150 hospitals in the VA health system, and in the past three years it has doubled the number of physicians in its Neurology section. There are many resources available to Veterans who have served our country, and McGuire Hospital is one of them. As an Elder Law attorney, I try to bring important information about Veteran's benefits such as health care or the little known program commonly known as Aid and Attendance to my clients who are Veterans or surviving spouse's of Veterans so that our Veterans community will be served in the best way possible.

Monday, May 14, 2012

Planning for Your Parents (and Your) Future

When parents don’t plan for the future, this can leave them unprepared and can bring difficulties to their children as well.

Statistics from Pew Research show that nearly 40% of adult children financially assist with the support of elderly parents. Often parents wait until they are retired or nearly retired to plan and to talk with their children about financial matters. This makes good planning harder.

Some parents take the initiative to talk with their children about their finances; others don’t. If you are the child or children that your parents would turn to if they needed help, then you should initiate that discussion in an appropriate way if they don’t. It is never too early. Such conversations can be started by talking about your own financial planning and asking how they handled theirs, or by asking them if they have been thinking about retirement or what they think they would do if they developed health problems.

You need to find out in an appropriate way if they have done planning to cover them in case of death or disability. You need to know if they have authorized someone to act in case of emergency and where their important papers are located. You should find out if they have wills and powers of attorney in place. It would be helpful to know if they have long term care insurance and what retirement income they have or can expect.

If they are reluctant to talk with you about these things or you feel that more planning is necessary, you could suggest talking with an elder law attorney.

Monday, May 7, 2012

Beware of Fake IRS Websites

According to a recent report from the Treasury Inspector General for Tax Administration, fake IRS websites are growing. Foreign sources are sending emails and giving fake IRS websites that help them gain confidential information from you and steal your identity and/or your tax refund.

  1. IRS does not contact tax payers through email or social media.
  2. If you receive an email claiming to be from the IRS, just delete it. Do not respond, do not open any attachments, do not click any links to websites.

Monday, April 30, 2012

Reverse Mortgages- There Goes MetLife

The largest reverse mortgage lender, MetLife, no longer offers reverse mortgages. It has sold its reverse mortgage division. Reverse mortgages have helped many seniors stay in their homes. It is a way that in an appropriate case seniors can take equity out of their homes through a reverse mortgage but continue to live there as long as they wish without having to make monthly mortgage payments. The loan is repaid from the proceeds from the ultimate sale of the house when the senior dies or no longer lives there but the senior is never liable to personally pay the mortgage. The drop in housing values has made such mortgages less appealing to mortgage lenders.

Monday, February 6, 2012

What does funding a trust mean?

     I find, and my colleagues all around the country report, that too often people set up lifetime trusts without funding them. They don't realize that merely creating a trust isn't enough, and that they need to follow the necessary steps to formally "fund" the trust. Funding a trust means actually placing money or other assets in a trust, generally by re-titling them in the name of the trust. To make sure that a living trust is funded during a person's lifetime you usually start the trust with ten dollars and then add other assets when you are ready. Additional assets may be added during your lifetime and/or assets may pour-over into the trust at death through your will. What you do to create a funding plan is based on advice from your attorney and any financial advisors.

     It also is possible (but not required) to provide that other people can contribute assets to the trust you set up. Those contributed assets will be divided among the trust beneficiaries in whatever way you determine when you set up the trust terms. The third party additions to the trust cannot change the trust terms or add additional terms, because it is your trust. You will already have established all of the terms, and someone adding to the trust if you allow additions will know what terms you have selected. You do not have to allow a third party to add to the trust, and the trust can contain whatever terms you decide on with your attorney as the best course for you. Whenever you are doing estate planning, no matter how large or how small your estate, it should reflect your goals and your values, and it is your wishes that count.

Friday, February 3, 2012

What is the difference between a living trust and a testamentary trust?

     As lawyers, we get so used to using terms that we often don't think to explain the terms we use. An example of this is when we talk about living trusts and testamentary trusts.

     A living trust is a trust that you set up and fund (at least partially) during your lifetime. This kind of trust comes into existence while you are still alive.

     A testamentary trust is a trust that you create through the terms in your will. Because a will has no effect until you die, a testamentary trust is not considered as being made during your lifetime even if you sign the will directing that the trust be set up at your death. You may want to create a trust in your will for tax purposes or because there are minor or disabled persons who may inherit from you or because you feel that one or more beneficiaries would not be able to manage the inheritance on their own.

     A really interesting aspect of testamentary trusts is that at times it is possible to accomplish objectives through a testamentary trust that cannot be accomplished through a living trust. For example, if you live in Virginia and are concerned that your spouse may need longer term care and you don't want your spouse's ownership of assets or receipt of an inheritance to pay for expenses that Medicaid could be expected to cover, you can set up a Special Needs trust that will be more effective if created in your will than if created during your lifetime.

     An elder law attorney can help you decide whether you need a trust and, if so, whether it should be a testamentary or living trust and what terms to include.

Wednesday, February 1, 2012

What is the difference between a revocable trust and an irrevocable trust?

     I often am asked this question, because it is a really important one to understand. Revocable trusts and irrevocable trusts have different purposes, and an estate planning elder law attorney can help you choose the type of trust you should have if you need a trust. Usually the reasons for creating a revocable trust include goals such as avoiding probate, providing privacy, discouraging wills contests, or providing for management of assets. On the other hand, the purpose of an irrevocable trust most often is to provide asset protection or to help a person be in a position in the future to qualify for government help with long term care expenses for which there is no health insurance. This may include planning for Medicaid or for Veterans benefits for Aid and Attendance for a Veteran or Veteran's widow.
     It is important to understand that a key difference between a revocable and an irrevocable trust is whether or not it can be changed by the person setting up the trust. When you set up a revocable trust you can change it or terminate it whenever you want (as long as you are competent). When you set up an irrevocable trust, by its nature, it cannot be amended or changed (except in very limited circumstances).

     An elder law attorney can help you decide whether you need a trust and, if so, whether it should be revocable or irrevocable based on your particular needs and circumstances.

Monday, January 30, 2012

Should you have a trust as part of the estate planning process?

Many people have heard of living trusts and other types of trusts, but they are not sure if they need one. There are good reasons to have a trust or not to have a trust which an attorney can explain in a consultaiton based on your particular facts. Some of the situations where people frequently choose to create a trust are where there are minor children or a disabled family member, where long term care is a concern, where they want to avoid probate, where there is a concern that someone might contest a will, or where there is a desire for managment and consolidation of assets. Often where one or both person in a couple have children by a prior marriage a trust can be a good idea. A trust may or may not involve tax planning. You do not need to be wealthy to need a trust, but where wealth is involved, tax considerations may come into play in designing an estate plan and trust that is right for you. Consultation with an estate planning attorney can help you determine what plan best fits your needs.

Friday, January 27, 2012

Which takes priority a will or a beneficiary designation?

Many people making a will think that the will controls everything. That is not the case. The will does not trump beneficiary designations, payable on death designations, or transfer on death designations. Nor does it control how property held  jointly with right of survivorship passes. This means that if a house or a bank account is held jointly with right of survivorship with another person, that asset passes to the survivor no matter what the wills says. Similarly, if life insurance or a retirement account is payable to a named beneficiary it passes to that beneficiary and is not affected by the will. There are other wrinkles in the law that affect how property passes, such as creditors rights or augmented estate rights in Virginia. This is why making a will should be part of a planning process involving consultation with an attorney and it should not be just a creation of a document without an understanding of the legal aspects that an attorney can explain. You do not need to be wealthy to make a will or to benefit from consulting with an estate planning attorney.

Wednesday, January 25, 2012

What is a will?

A will is a document that tells how your assets pass when you die and that names the person(s) who will handle your estate. A will speaks as of the time of death and has no effect at all while you are alive. A will can be revoked or changed during your lifetime as long as you are competent. Once someone reaches the point that they don't know who their relatives are, don't know what they own, or can't understand that in signing a will they would be leaving their property to the beneficiaries they name, they no longer can make a will. Every adult should have a will in place to make things easy for their loved ones.

Friday, January 20, 2012

Safe Deposit Box- Reap the Benefits of the Documents You Make

Do you reap the benefits of the documents you make? Can you find them when you need them? Do your family members know where to find them if something happens to you? Will they be able to access them?

Many people have no repository for their important documents and belongings. This includes even legal documentation such as wills. When you go to all the trouble of creating important legal documents you (or your family members) need to be able to locate them and use them when necessary. You want them somewhere safe where they won't be damaged or lost.

When deciding where to put your important papers and belongings you should consider a safe deposit box. Many people maintain safe deposits at their local bank and pay a small annual fee. Others have fireproof safes at home. Either way, it is important to have one.

If deciding to rent a safe deposit box, you must contact your local institutions and request a box. These boxes comes in many different sizes; thus, it is important to choose one that is able to fit all items inside. From there you must decide who will have access to this box. The box can be rented in one person's name or can be joint. A child or close friend or relative can be added as an additional signature if you desire. Only people you have been authorized to enter the bank, who have signed the bank's signature card, and who have the key can enter the safe deposit box during your lifetime. Virginia Law controls who can access a Virginia safe deposit box after your death and what they can do with the contents.

Monday, January 16, 2012

10 Tips for Caregivers

Taking on the role as a caregiver can be very difficult and stressful. It truly is a full time job. The National Family Caregivers Association, a group that is dedicated to representing and providing support to caregivers, provides ten tips for caregivers to go by. They are as follow:
  1. Caregiving is a job and respite is your earned right. Reward yourself with respite breaks often.
  2. Watch out for signs of depression, and don't delay in getting professional help when you need it.
  3. When people offer to help, accept the offer and suggest specific things that they can do.
  4. Educate yourself about your loved one's condition and how to communicate effectively with doctors.
  5. There's a difference between caring and doing. Be open to technologies and ideas that promote your loved one's independence.
  6. Trust your instincts. Most of the itme they'll lead you in the right direction.
  7. Caregivers often do a lot of lifting, pushing, and pulling. Be good to your back.
  8. Grieve for your losses, and then allow yourself to dream new dreams.
  9. Seek support from other caregivers. There is great strength in knowing you are not alone.
  10. Stand up for your rights as a caregiver and a citizen.
You may feel as though you are alone when it comes to taking care of an elderly loved one, but groups and associations, such as National Family Caregivers, provide you, and so many others that are in the same position as you, both advice and support. Networks like these are a great way to share stories and ask questions to other caregivers. It is also important to give yourself a break! Although you would love to, you can't do everything on your own. Accept any help that is offered so that you can give yourself a break. You deserve it, both physically and mentally!

Friday, January 6, 2012

2012: Changes in Medicare

     With 2012 under way, it is important that those persons ages 65 and older and their families are aware of the changes that will be made to Medicare under the Patient Protection and Affordability Act. Interesting information is posted at and includes the following:

     The Sections that will be mostly affected are Parts C and D. Medicare Part C, referred to as Medicare Advantage gives Medicare beneficiaries the option to choose private insurance instead of using Medicare Parts A and B. The reform will require these Medicare Advantage Plans to use a single, uniform exceptions and appeals process, payment rates will be reduced in phases based on a new formula that takes in to consideration geographic variations, and high-quality plans that receive four or more stars will receive a bonus.

     Part D of Medicare focuses on Prescription Drugs. One of the main changes that occurred on January 1, 2012 will "eliminate cost-sharing for dual-eligible beneficiaries receiving services under a Medicaid home and community-based services (HCBS) waiver program." In addition, just as with Part C, the reform will require a single, uniform exceptions and appeals process. Lastly, continuing in 2012 the reform will continue to close the donut hole.

Wednesday, January 4, 2012

Elder Abuse

For many adult children a main concern is the safety of their parents. For those who have parents living in facilities or receiving care at home, a significant concern is the treatment that their parents are receiving. Elder abuse can include, and is not limited to: physical, emotional, sexual, and financial abuse or neglect. Some of the main warning signs adult children should look for are any unexplained physical injuries, tension between their parent and the caregiver, an apparent significant change in behavior in the parent, or unexplained changes in finances. It is important as an adult child always to look for these signs and to be able to identify them. Many elders do not report abuse because they are afraid of consequences such as retaliation or abandonment. If there is any suspicion of elder abuse it is important to address the problem immediately. The elderly parent should be taken out of the situation as soon as possible, and the abuse should be immediately reported to the director of the facility or employer of the caretaker and the local government. It may also be necessary to seek legal advice on how to proceed

Monday, January 2, 2012

New Year's Resolution: The Right Time to Make That Will!

With a new year beginning many of us create New Year's Resolutions. Because the first of the Baby Boomers turned 65 in 2011, one resolution that may be crossing their minds is to take steps they have been putting off. A will is one of three essential legal documents every person should have. It is a way to have your own wishes followed to make things easier for your loved ones. A will can determine how your assets (including money, investment, and any other possessions) will be distributed after your death in the manner you choose. This often entails a person either giving their possessions at death to their spouse or distributing them to their children. Of course, special planning occurs when one or both parties in a couple have children from prior marriages. Sometimes it is necessary to exclude certain persons from taking under the will or to set up a trust for minor or disabled beneficiaries. When creating a will, it also may be important to include particular instructions, personal wishes, and/or important messages to family members. A will enables a person with children to name a guardian. While creating a will may bring certain unsettling feelings about death, it can be very helpful to the family in preventing arguments and/or legal issues that may arise after death. It is recommended that you review your will every year and anytime that an event occurs which would change your current needs or wishes. You should consider assessing your will if you move to a different state (laws on wills vary by state), or when there are significant changes in assets, changes in marital status, deaths in the family, or changes in Federal and State laws. Writing a will involves more than just writing a document. As estate planning and elder law attorneys, we are able to help our clients make decisions and plan while creating or updating legal documents, such as wills.