Questions We are Frequently Asked:
By law, the dispositive provisions of a Will can only be carried out according to a set of detailed legal procedures collectively referred to as probate. So if property must pass under the terms of a Will, it actually guarantees probate will be required as opposed to avoiding it. According to probate procedure, the court must approve and accept the Will, and it must then be administered through specific actions including filing documents, giving notice to interested parties, filing and serving a list of the decedent’s property and debts, distributing the net assets of the estate according to a prescribed priority, and providing an accounting to beneficiaries, all within strict deadlines.
Probate is not necessarily a bad thing. In fact, the structure and easy accessibility to the resources of the court that it affords can sometimes be advantageous. However, probate tends to be more time consuming, expensive and tedious than many people would prefer. As a consequence, there is often a motivation to avoid it, and there are options which can be used to do so effectively.
We refer to the person creating a trust as the “trustmaker.” The party who agrees to accept control of the property is known as the “trustee.” The person or persons designated to benefit from the trust property are known as trust “beneficiaries.”
Trusts are a very old and well established legal tool, and have actually been part of the law longer than wills. Under the right circumstances, they can provide numerous significant benefits and are therefore often included as part of an estate plan.
Most people in creating their basic or “core” estate plan will be presented with the fundamental decision of whether to use a will or a trust as the primary tool for passing property to beneficiaries. There are a number of other objectives which must be addressed as part of a complete estate plan, but this choice is of central importance in determining how the plan overall will be structured.
A will-centered approach will generally be less expensive in terms of the initial cost, but may result in probate being required and will prevent many of the other benefits of trust planning. While we have options both above and below this amount, the base price for our most popular will-centered planning package is $995 for a single person, or $1,395 for a married couple. A trust-centered approach involves a somewhat higher up-front cost, but likely a lower cost over the entire life of the plan, and provides nearly unlimited flexibility and other significant advantages including probate avoidance, privacy, and enhanced protection for beneficiaries, among other things. The base price for our most popular trust-centered planning package is $2,495 for a single person, or $2,995 for a married couple.
We are not able to quote an actual price, of course, until we have a clear idea of your specific circumstances and are able to agree on what specific kind of plan you want to create. We offer an initial consultation at no cost, and with no obligation, in part so that we can help to recommend what we believe would be best for your needs, the components which would be included and their benefits, and how much the planning involved would cost.
For example, in the event of onset of disability or incapacity, conferring authority on someone to act on behalf of the incapacitated person will require the commencement of a legal proceeding known as a guardianship. The incapacitated person’s assets will be used to pay the costs of that legal proceeding, and the court will be the one to decide who is appointed as his or her guardian. Furthermore, the guardian’s powers will be limited to only those the court chooses to confer, and those powers may be inadequate to take the actions which would provide the best outcome for that person and his or her family.
If instead something were to happen to the person without planning, and he or she has any significant assets, probate will be required to resolve the person’s financial affairs and pass on the assets to his or her heirs. Further, the assets will be distributed to the persons defined to be so entitled under state law, without regard to the decedent’s actual wishes. Finally, the expenses associated with the probate proceeding will again be drawn from that person’s estate, reducing the amount available for distribution to loved ones.
In the event of an unexpected or untimely event, the effects of a lack of planning may be more or less serious depending on the circumstances. However, catastrophic consequences can often result for both the person involved and his or her family, and that outcome can be easily avoided with a complete and up to date estate plan. For that reason, one of the biggest benefits of an estate plan is that it provides the peace of mind that you and your family are protected.
While there is no universally accepted definition, the subject of elder law is often thought to include matters such as estate planning, planning to protect against the possible onset of disability or incapacity, methods to maintain control over health care and related decision-making, guidance concerning tax and regulatory issues primarily affecting seniors, measures to provide protection to older persons against the risk of loss of their assets, advice and assistance concerning eligibility for, and successful collection of, various kinds of private and public benefits, representation involving age discrimination in employment and other contexts, and the prevention and pursuit of remedies for elder abuse.
The aspects of our practice which we would consider to be part of “elder law” are summarized on our Elder Law page.
The only widely available form of government funding for the cost of LTC is Medicaid (a/k/a Medical Assistance or Title XIX). However, Medicaid is a means-tested or “welfare” program, meaning that a person will not become eligible for it unless that person and his or her spouse (if any) qualify by meeting both income and asset limits to show that they are impoverished according to government criteria.
The point is that without effective planning, an individual (and his or her spouse, if applicable) may later be compelled to face rules intended to require that the vast majority of the person’s (or couple’s) assets be depleted before Medicaid coverage will be available. For more information, see our Medicaid (Nursing Home/LTC) Planning page.
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