Month: July 2013

San Jose Elder Law – The Appropriate Use of Magic Words

When many of us were children and wanted something, a parent or other adult often asked, “What’s the magic word?” That was usually the cue that we were supposed to say, “Please.” Well, in our everyday world, we’re still confronted with particular words and the grouping of particular words. Attorneys prepare legal documents every day that have their own “magic words” to get things done properly. In estate planning, these words may not be read and interpreted for years to come, and then people realize too late that it should have been written differently.

While you’re alive and well, documents can be changed. If you’re incapacitated or deceased, other people have to go by the words in your estate planning documents.

I review a lot of documents for people, and I often find that the documents are not clear, or they do not express what the client wanted, or they place the agent or trustee in a very difficult position where the person can’t really do what is needed to act properly. Sometimes the wording can create an unnecessary burden on the surviving spouse after the first spouse passes away.

When a couple prepares a trust to distribute their assets, they do their best to look into the future and think about how they want their property distributed after they both die. Frequently, however, there isn’t a lot of thought given to how the property will be handled after the death of just one spouse. Estate planners have had several ways of addressing this issue over the years, and it frequently came down to an attempt to reduce or avoid any estate tax. ­— But over the last several years, we’ve had numerous tax law changes that affected the estate tax.

The situation that estate planners often find now is that clients who had their estate plan prepared several years ago are sitting with a valid plan that is not the appropriate plan for the tax laws that are in effect today. What’s the result? The plan may severely limit what the surviving spouse can do, and in many cases this wasn’t what was intended. Can it be changed? Yes, as long as both spouses are still mentally competent and they take action.

If you have a trust, take it out and read it carefully to see what it says. If you aren’t comfortable with your own ability to understand the trust, take it to an estate planning attorney to have them look it over and tell you how the assets will be distributed. What is the intent? Are the assets joint assets from a lifetime of hard work? Were the assets inherited by just one spouse? Is this a second marriage? Do either of you have children from a prior marriage? Has your planner bypassed the difficult conversations that need to take place?

What about your durable power of attorney? It’s one of the most powerful documents you have — if it has the powers you need. The same thing goes here. Have it reviewed by a knowledgeable attorney. I have seen durable power of attorney documents that range from two pages to thirty pages. Many of these documents, however, just don’t get the job done. They lack the “magic words” for the agent to take care of the person who signed the document and gave the powers to the agent. This is particularly the case when it comes to elder law. The majority of power of attorney documents are insufficient for elder law planning.

If you don’t have an estate plan in place, get it done now. If you already have an estate plan, have a qualified attorney review your trust, durable power of attorney, and other documents to make sure that they have the magic words that you need.

San Jose Estate Planning for Special Needs Family Members

How to Avoid Jeopardizing Government Benefits for Family Members With Special Needs:  The goal of special-needs estate planning is to provide for loved ones with disabilities when you are no longer there to organize and advocate on their behalf. Apart from the standard estate planning documents that most people are familiar with — such as wills, powers of attorney, and health care directives — parents of a special-needs child often have additional considerations that can only be addressed in certain legal documents.

A special-needs trust—sometimes called a “supplemental needs trust”—provides for the needs of a disabled person without disqualifying him or her from the benefits received from government programs such as Social Security and Medicaid. A supplemental needs trust enables a person that has a physical or mental disability, or an individual with a chronic or acquired illness, to have an unlimited amount of assets — held in trust for his or her benefit. In a properly drafted supplemental needs trust, assets are not considered “countable” assets for purposes of qualification for certain government benefits.

Such benefits may include Supplemental Security Income (SSI), Medicaid, vocational rehabilitation, subsidized housing, and other benefits based on need. For purposes of a supplemental needs trust, an individual is considered impoverished if his or her personal assets are less than $2,000.

A supplemental-needs trust provides for supplemental and extra care over and above that which the government provides.

Special-needs planning encompasses many areas of law, such as trusts and estates, public benefits law, and health care law. Planning for the future of an individual with special needs requires an in-depth knowledge of the federal laws as they pertain to government eligibility and legal documentation. There are important financial considerations, as well, for providing not just lifetime care, but also for an individual’s quality of life.

Special-needs estate planning requires a delicate balance of resources — and careful consideration of each family’s unique circumstances. As an experienced attorney in estate planning, Jim Ward assists his clients in developing special-needs trusts, wills, letters of intent, health care directives, powers of attorney and other means of ensuring that loved ones will enjoy a lifetime of care, assistance and financial security.

Don’t hesitate to call us today for a free assessment — 1-800-JIM-WARD.

Medi-Cal & Nursing Home Planning with a San Jose Elder Law Attorney

The decision to move a family member or loved one into a nursing home is one of the most difficult decisions you can make. When you or a loved one is sick and is faced with the prospect of moving to a skilled nursing facility, it’s important to remember that you have options. Careful planning, whether in advance or in response to an unanticipated need for care, can help protect your estate for your spouse and/or your children. One approach to planning is making sure that you receive all the benefits that you are entitled to under the Medi-Cal program.

Medi-Cal is California’s Medicaid program. It’s a public health program, which provides needed healthcare assistance for eligible individuals. The state of California and federal government finance it equally. The nursing home Medi-Cal program is designed to assist with the payment of skilled nursing care costs for individuals who qualify. Without Medi-Cal, a skilled nursing home resident can expect to pay about $9,500 per month in Santa Clara County.

There are three very important areas to consider when developing a comprehensive Medi-Cal plan:

  1. Eligibility planning (to qualify for Medi-Cal benefits)
  2. Income planning (to reduce or eliminate Medi-Cal beneficiary’s monthly “share-of-cost” co-payment)
  3. Medi-Cal estate recovery planning (to reduce or eliminate Medi-Cal estate recovery against the beneficiary’s estate)

Early Medi-Cal qualification planning can enable you to create estate-planning documents with Medi-Cal planning language. This will ensure that your appointed agent is able to carry out further Medi-Cal eligibility planning if you become incapacitated at a later time. Proper estate planning documents can also insure that your appointed agent has legal authority to implement an appropriate Medi-Cal estate recovery minimization or avoidance plan.

California laws regarding Medi-Cal eligibility are constantly changing. Because of this, it’s important to consult with an attorney who will help you understand how Medi-Cal changes can affect your current estate plan, as well as your plan for the future. As an experienced attorney in elder law and current in California Medi-Cal planning, Jim Ward can help you avoid the pitfalls associated with Medi-Cal. If you are planning for a sick parent or for the future of you or your spouse, please give Mr. Ward a call today to see how he can help you and your family.

San Jose Estate Planning Attorney: Incorrect Titling of Assets Can Have Costly Repercussions

One of the most overlooked aspects of estate planning is failing to properly title your assets. Coordinating the way that you title your assets with the type of estate plan you have can save you time and money and such a great deal of heartache for your loved ones.

Titling is directly tied to what happens to a person’s assets upon death. If a person’s assets are not titled in a manner that coordinates with their estate plan, upon death, certain dispositions specified in the will and/or trust may not be fulfilled. Therefore, your estate plan is only as good as your account titling. Understanding who owns what is a very important key to efficient estate planning; without the proper titling of property, even the most sophisticated and well-thought-out estate plan will fail.

A common example of this is that oftentimes people own different types of properties that have been acquired at different times in life. If assets are incorrectly titled in their will, they will not be distributed where they are intended to go. The title on the will often supersede what the will says and any other legal documents.

There are three ways that assets can be held at the time of death: fee simple (individually), tenancy in common (jointly), or by joint tenancy with right of survivorship (by contract). If assets are held fee simple, they are in your own name. If assets are held tenancy in common, they are held with at least one other person. And if a named beneficiary holds assets, they are held by joint tenancy with right of survivorship. Depending on your goals in life, and your wishes after death, the way you title your assets could be the difference between financial security and financial hardship for your family and/or beneficiaries. It is generally considered the best option to have major assets, such as real estate and investment accounts, held in the name of a couple’s or person’s revocable living trust.

As an experienced attorney in estate planning, Jim Ward will help you understand the differences between the various types of property ownership. His expert advice will not only guide you through a complicated process, but also ensure that your savings, investments, valuables, and real estate are distributed according to your wishes.

Please do not hesitate to call us today for a free assessment, 1-800-JIM-WARD.

The Importance of Beneficiary Designations in Estate Planning

When it comes to estate planning, making the proper beneficiary designations is an integral component of an effective estate plan. Understanding how your assets will transfer after your death helps you create an estate plan that ultimately grants your wishes and prevents unnecessary obstacles for your heirs. Some people may believe that creating an estate plan is too much work, or that they may not have enough assets to qualify as an estate. However, what you may not realize is that, (a.) your retirement savings are an important part of your estate, and (b.) your retirement savings will pass on to the beneficiaries named on the forms of your retirement savings accounts — not to the heirs named on your will or other estate planning documents. The same is true for life insurance.

“Avoid making mistakes that can cause an undesired effect after you die by properly designating your beneficiaries,” said Jim Ward. “As an experienced attorney in estate planning, I can help you avoid many of the common mistakes that are made when designating beneficiaries.”

A beneficiary designation clearly states who you wish to receive benefits upon your death. It’s imperative that you periodically review your estate plan with an attorney to make sure that all of your beneficiary designations are clear and current. This is particularly important when major life changes occur – including divorce, the birth of a child, the death of a beneficiary, or the marriage of a beneficiary.

Naming an “estate” as a beneficiary, not naming a beneficiary at all, listing a parent as a beneficiary after getting married and having children, not removing the name of an ex-husband or ex-wife as a beneficiary, or not having a contingent or secondary beneficiary are all very common mistakes.

In essence, reviewing and updating beneficiary designations is essential to creating an efficient distribution of your assets to heirs. Call Jim today for a free initial consultation so that he can assist you in choosing your beneficiaries strategically and within the context of your entire estate plan.