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.

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.

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.

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.

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!

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 http://www.hapnetwork.org/assets/pdfs/2012-fact-sheet/pdf 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.

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

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.