Posts Categorized: Elder Law

When to Change Your Will

I am often asked when a Will should be changed. The answer is that a change in a Will is primarily triggered by personal circumstances. It is unlikely that there would be such a significant change in law that would require everyone to change his or her Will. Excluding the future federal estate tax uncertainty, most of the circumstances that trigger a change in estate planning documents result from changes in your personal or family life.

1. Marriage or Divorce: In Massachusetts, a marriage or divorce may revoke a part of or the entire Will. If you are getting married, there is special wording than may be inserted into the acknowledgement that will prevent the Will from being revoked. The suggested wording is: “This Will is made in contemplation of my marriage to __________________ and the provisions of this Will shall not be revoked by such marriage.”

A divorce will revoke any distribution to the former spouse. Any property passing to a former spouse will be treated as if the former spouse had predeceased the will-maker. A divorce also revokes any appointment of a former spouse as executor, trustee, guardian, health care agent, or conservator. A separation does not revoke these terms, because the court does not consider a separation to be a legal dissolution of the marriage.

Unless the divorce agreement prohibits, also remember to replace an ex-spouse as the beneficiary on any life insurance policies or retirement accounts. Recently the United States Supreme Court decided whether a waiver, signed by an ex-spouse, in which she gave up her rights to her former husband’s retirement benefits was valid. The Court found that the waiver was not enough to overcome her former husband’s designation, and awarded the benefits to his ex-wife. Kennedy v. Plan Adm’r for DuPont Savings and Investment Plan, 129 S. Ct. 865 (2009) (plan administrator correctly paid $400,000.00 to ex-wife because original designation form was properly done while waiver form was not done within rules governing the plan).

2. Separation or Marital Troubles of a Child: If a child is separated or experiencing marital troubles, it may make sense to redo your Will. In Massachusetts, one of the factors used in determining the division of marital property for a divorcing couple is the “opportunity of each for future acquisition of capital assets and income.” This means the Probate Court Judge deciding the property division of the divorcing couple is allowed to consider the potentialinheritance of both parties.

As long as the parent is alive, the actual inheritance itself is not at risk, but the possibility of an inheritance may be used to calculate division of assets awarded to each spouse. Davidson v. Davidson, 19 Mass. App. Ct. 364, 374-377 (1985) (potential inheritance may be considered by judge as “opportunity of each for future acquisition of capital assets and income” in determining what disposition to make of the property which is subject to division); Zeh v. Zeh, 35 Mass. App. Ct. 260, 264-265 (1993) (“expectancy of an inheritance does not qualify as property subject to division . . . [but may] be considered by the judge under the “criterion of ‘opportunity of each for future acquisition of capital assets and income’ in determining what disposition to make of the property which is subject to division”).

Divorce attorneys are well aware that the court may use a potential inheritance when dividing the marital property. Even though only one of many factors used, a changing a Will, even if only temporary, may make sense.

3. Death of a Spouse: Most Wills already have language that details the distribution of an estate if a spouse has already passed away. However, it is still a good idea to review those terms. In some cases, the Will may have been made decades before, and the terms no longer really reflect the wishes of the surviving spouse.

For example, if the now deceased spouse was named the executor, make sure there is an alternate listed. If a child was named as the alternate executor, are they still the best choice?

4. Spouse in a Nursing Home: When one member of a married couple has to go to a nursing home, the Will of the person remaining at home should be reviewed as soon as possible. Many times couples have “I Love You” Wills. These types of Wills leave everything to the surviving spouse, and are very common – particularly if the Wills were done years earlier. But, if one spouse is now in a nursing home, this is probably not the best distribution plan.

It may be a much better idea to direct that assets be given to a trustee of a trust used for the benefit of the surviving spouse. The Trustee will then be able to control and manage the money for the surviving spouse, and if the trust is properly drafted, the assets may be protected from the cost of nursing home care. To take full advantage of a testamentary trust (a trust created in a Will), the assets must be only in the name of the spouse living at home. Remember, jointly owned assets are not controlled by the terms in a Will. “Joint Ownership Is Not An Estate Plan”

Estate Planning and Elder Law Newsletter: Special Needs Trusts

Every month I send an E-Newsletter that has articles on Estate Planning and Elder Law topics. If you would like to subscribe to my E-Newsletter, please feel free to sign up. The topic this month is the challenge facing parents of children with Special Needs. With a little advanced planning, a potential inheritance may be used to supplement any benefits being received, but not financially disqualifying the child from receiving those much needed governmental benefits.

Tips for Selecting a Nursing Home In Massachusetts and Nationally

It is something no family expects or wants to do. It may be one of the most difficult decisions a child has to make, but there is always the possibility that a parent or other loved one will eventually need a skilled nursing home. Moving a parent from home to an assisted living facility may be difficult, but placing them in a nursing home may be far more traumatic. Jonathan Rauch, of Atlantic Magazine, in his article titled “Letting Go of My Father,”described the emotional journey he experienced placing his father in an assisted living facility.

Moving a parent to an assisted living facility, in some ways, may be less traumatic, but is still heart wrenching. Moving a parent to a nursing home, many times the next step in the care cycle, can be an even more difficult decision.

The decision may be forced on a family in a number of ways: the assisted living facility has called to say the person can no longer stay in assisted living; money is running out for care that had been given in the home; the family member who had been devoting time to the care decides he or she can no longer safely provide for the person. Far more likely is that the loved one has been in the hospital, and the hospital is suggesting that the person be discharged to a nursing home for long-term placement.

Plan Ahead and Research Tools

Often, decisions made in the middle of a crisis are not the best. If a family member is ill, or starting to decline, start looking at facilities before you actually need to make the placement decision.How do you choose? What nursing home is going to be the right fit for the person and family? The first step is to research. If geographic location is important so that a spouse or other family can visit regularly, check with friends who may have placed a family member in a nearby community.

Massachusetts Survey of Nursing Home Satisfaction

The Massachusetts Office of Health and Human Services publishes a report on Nursing Home Satisfaction. The surveys were done in 2005, 2007 and 2009. A family member of residents in every facility in Massachusetts were sent questionnaires, and asked to rate the nursing home from the consumer point of view. The questions covered a wide spectrum of facility services, including: the staff, physical environment, activities, personal care services, quality of the food, and residents’ personal rights. Each facility has an overall rating for satisfaction. This Summary of Individual Facility Results report is a wonderful resource and starting point for selecting a facility.

Medicare National Survey

Medicare also does a yearly review of nursing homes throughout the country. For this report, Medicare collects information on over 15,000 nursing homes and publishes the data.Unlike the Massachusetts survey, Medicare looks only three categories: Health Inspections, Staffing, and Quality Measures (e.g. how well the nursing home helps people keep their ability to dress and eat, or how well the nursing home prevents and treats skin ulcers).

Nursing homes are rated from one to five Stars, but only ten percent of nursing homes in each state may be rated Five Stars, so don’t eliminate a facility just because it may rated at Four Stars.

Visit the Facility

Visit the facilities. Then visit again. Nothing is better than a visit to the nursing home – except one or two more visits. Medicare has a Nursing Home Checklistthat you print out and bring with you on your visits.Although never an easy task, placing a parent in a facility in which you have confidence can ease the anxiety.

Basic Steps in a Chapter 7 Bankruptcy Process

The steps below are the basic steps for filing for Chapter 7 bankruptcy relief. Since everyone’s circumstances are different, however, please review the process with your attorney prior to any filings.

 

Income Qualifies for Chapter 7 – Next Steps

 

1. Debtor Education: There are two classes that must be completed before getting a discharge. The first class, Credit Counseling, must be completed before any papers can be filed with the court. The classes must be taken with a court approved agency, and that agency will issue a certificate after the course has been completed. This certificate will be included in the paperwork filed at the start of the bankruptcy process. The certificate is valid for 180 days after taking the Credit Counseling class. Massachusetts Approved Credit Counseling Agencies

The second class, Financial Management, must be completed before the court will order the debts discharged. This class must be completed within 45 days after the Meeting of Creditors. The cost is generally about $50.00 for each class, and can be done on the telephone or over the internet. Massachusetts Approved Financial Management Agencies Most court approved agencies offer both classes.

2. Filling out the Bankruptcy Petition: The bankruptcy petition is somewhat like a tax return. It has summary pages, followed by more detailed supporting information. On these forms will be listed income, debts, and assets. The asset section of the petition is where all assets will be listed and also where they will be protected. This protection is done by using the exemption amount allowed by selecting either the state or federal exemption amounts. Simply stated, although an asset may be listed, it may also be that you are allowed to keep everything that had to be listed. Some states, Massachusetts is one of them, allow a choice between using the federal exemptions or the state exemptions to keep your assets. That decision should be discussed with your attorney.

3. The Meeting of Creditors: after the papers have been filed with the court, a meeting will be set up by the bankruptcy trustee assigned to the case. This meeting is also known as a “341 Meeting.” Creditors are notified of this meeting, and have the option to attend and ask questions. In reality, rarely do creditors attend these meetings. The bankruptcy trustee runs the meeting and will ask the debtor a series of questions about the papers filed with the court. The bankruptcy trustee’s job is to determine if all assets have been included on the initial filing and whether there are any new assets that may not be protected. The meeting generally lasts for about ten minutes.

4. Getting to Discharge: Within 45 days after the Meeting of Creditors, if not already filed, a certificate showing that the second required Debtor Education class has been completed must be filed. Once that has been done, and unless there is an objection filed by a creditor, the court will issue a discharge within 60 days of the date of the Meeting of Creditors. This is usually the end of the process, and the case is closed.

Playground for Seniors

Where Seniors (and others) Can Go To Play

 

London recently opened its first playground for seniors. Playground for SeniorsThe purpose of the playground is to encourage people, seniors and those recovering from surgery, to exercise on the low-impact equipment, without having to commit to a gym membership. According to the article, these types of outdoor playgrounds are not uncommon in Europe.

There may not be a specific senior playground locally, but there are several wonderful options for seniors to participate in exercise programs geared for them.

  • The Jenks Center in Winchester offers exercise classes three times per week. Details may be found on the Jenks Centers web page: Jenks Center (click on Calendar to see the dates and times of the classes).
  • The Medford Council on Aging has both exercise classes and a Walking Club in the Spring and Fall. More information may be found on their web site: Medford Council on Aging, or by calling them at (781) 396-6010

Most Councils on Aging will offer classes geared specifically to older athletes. Not only do these classes have appropriate exercises, it is often a way to get out and participate in activities without making any long-term commitment to a membership. There are 348 Councils on Aging in Massachusetts, serving more than 400,000 families. A list of the Councils on Aging may be downloaded from the Massachusetts Executive Office of Elder Affairs.

Overview of Councils on Aging in Massachusetts

  • The Burlington Mall opens the Mall at 7:00 AM to people of any age who want to walk inside during inclement weather. “The Burlington Mall Heart and Soles Club” was established in 1991, and is free. More details may be found on the Burlington Mall Groups web site: Mall Walking. A full lap around the lower level equals .75 miles.

Many other Malls across the country open their doors early for walkers. To find out the times and requirements, call your local Mall for details on the hours and entrances to use.

Seniors and Bankruptcy

Most people are aware that the number of consumers filing for bankruptcy protection has grown dramatically over the last decade. A report released by the American Bankruptcy Institute simply confirms the numbers. According to a report published in AARP, the fastest growing population filing for bankruptcy protection is people over the age of 50. In 1991, people over the age of 55 accounted for eight percent (8%) of all bankruptcy filings. In 2007, that figure increased to 22 %. For people over the age of 75, the increase in filing percentage was even more dramatic: 567%.

There are many reasons for this increase in the need for bankruptcy protection: cost of living, health care expenses, and fixed income amounts combined with a dramatic decrease in investment returns.

Another problem area may be adult children and grandchildren. Before the current economic downturn, many parents routinely made gifts to children and grandchildren. Whether these gifts were done for estate tax planning or simply because they gifts were so needed, parents may have started a tradition they cannot continue. Unfortunately, even with dividend payments and interests rates sinking, many parents are not comfortable with telling their children they can no longer afford to make those same gifts. It is better to explain that previous gifting habits may have to be suspended rather than continue to make gifts that no longer consist of un-needed cash.

 

I Am Over 65, Should I Even File?

 

For people who are in financial trouble, that is the primary question. The answer is, “It depends on your circumstances”.

Filing may be beneficial if:

– Your credit card debt is more than you will ever be able to pay;

– You have no intention of ever applying for a mortgage;

– You are unlikely to apply for a job where a bankruptcy filing may disqualify you (e.g. bank teller);

– If you can eliminate the existing debt, you will be able to maintain a quality lifestyle.

 

Getting Beyond The Perception of Filing For Bankruptcy

 

Abraham Lincoln, P.T. Barnum, John Barrymore, Samuel Clemens (Mark Twain), Walt Disney, Debbie Reynolds, Johnny Unitas, and Burt Reynolds. These are just a few of the people that have declared – and survived – a bankruptcy filing.

Many people are concerned with the emotional aspect of what a bankruptcy filing may mean. However, the bankruptcy laws were enacted to give people a second chance – a clean slate to start again. The chance at a fresh start should not be limited to people less than 65 years old. Financial troubles can occur at any age and for a variety of reasons. For people over 65, the opportunity to increase their income is greatly reduced, and most seniors have already cut back on spending as much as possible.
If you are experiencing financial trouble, do not wait too long to consult with an attorney about whether a bankruptcy filing may be the best solution. Many attorneys will offer either a no cost or low cost consultation. The National Association of Consumer Bankruptcy Attorneys has a searchable web site.

Resources and Other Articles of Interest:

– Seniors Fastest Growing Population for Bankruptcy Filing

– Consumer Bankruptcy Filings Surge (AARP)

– Avoiding Bankruptcy (AARP). NOTE: I include this link for informational purposes. I strongly disagree with much of the advice contained in the body of the article. I disagree that bankruptcy should be a last resort and that credit consolidation agencies may offer solutions. It has been my experience that consolidation of debt for seniors is not a solution, and that waiting too long to file causes some people to continue to pay minimum payments for debt that could be completely discharged.

Chapter 7 Personal Bankruptcy

Chapter 7 bankruptcy is the type of bankruptcy most people think of when they hear the term “bankruptcy.” It is sometimes referred to as straight bankruptcy or a no-asset case. In its simplest form, a Chapter 7 bankruptcy filing will eliminate almost all of your debts, but may require you to forfeit some of your non-exempt assets to pay creditors. But, since all states and the federal bankruptcy laws allow a person to protect (exempt) assets, the reality is that in the majority of Chapter 7 cases, the debtor is able to keep all of their assets. The summary of the Chapter 7 Bankruptcy process below is not intended to be a “how to” guide. Please consult with your bankruptcy attorney, or if you are not using an attorney, check with the federal bankruptcy court on how to proceed with out an attorney. Information from the U.S. Bankruptcy Court, District of Massachusetts on Filing for Bankruptcy Without a Lawyer.

Eligibility to File for Chapter 7 Personal Bankruptcy:

Two methods to qualify for Chapter 7

Income is under the amount allowed

To be able to file for Chapter 7 bankruptcy, the person or household filing must have an income below the median income established for each state. To determine your income, add up all of your income for the last six months. Then add any other income sources from any other members of your household for the same six month period. NOTE: Do not include income received from social security, unemployment compensation, or transitional assistance.

After you have the total income number for the last six months, divide by six. This will give you the monthly income for the household. Then multiply the monthly number by 12 for the yearly income figure. To determine if that yearly income is below the amount that allows for filing a Chapter 7 bankruptcy in your state, click on this link: 2010 Median Income Levels:

The current income figures in Massachusetts are:

For a family of:

1 $53,315

2 $69,204

3 $82,297

4 $99,293

(Add $7,500 for each person over 4)

If the household income is below these amounts, eligibility for filing a Chapter 7 bankruptcy is established. If the income is over the amount allowed, there is a second step that may still provide for a Chapter 7 filing.

Income is over the amount allowed

If the income amount from the first step is more than the amount allowed, the second step is to deduct certain expenses from your income figure. This process is called taking the “Means Test.” Some of the amounts you are allowed to deduct are set by the IRS and local standards, and can be found here: National Means Test Deductions: Scroll down to section II, numbers 2, 3, and 4.

Massachusetts Housing and Utility Standard Deductions:

Northeast (including Massachusetts) Transportation Standard Deductions:

If after deducting the expenses, your net income (total income minus the allowed deductions) falls below the allowed income amount, there is one final step to determine if a Chapter 7 filing is possible. This is the budget analysis. If your monthly net income is greater that your expenses by $100.00 or more, a Chapter 7 filing is not possible. Instead, filing for relief under Chapter 13 is the option.