Please join attorney, Kara Daley, for her Spring 2017 Legal Savvy Seminars at the Corvallis Senior Center.
How to Avoid Probate Have you heard a horror story about probate? To find out what’s really involved and how to protect yourself, bring your questions to this brief, funny and insightful class. Th, May 11 12:15 – 1:15 pm Fee: $1.50
Understanding Estate Planning Has Suze Orman or other experts led you to believe you need a will or a trust? Find out what’s actually necessary in Oregon and how to get started. Th, May 18 12:15 – 1:15 pm Fee: $1.50
Care Contracts – Your Obligations Have you or a loved one signed an arbitration contract with a Care Provider? Do you wonder what you’ve signed, or how it works? This is the course for you! Th, May 25 12:15 – 1:15 pm Fee: $1.50
For more information or to register please click here: http://www.corvallisoregon.gov/index.aspx?page=257
Please accept our sympathy even as we recognize your need for plan language. Although this is a difficult time, it is mom’s last chance to straighten out her affairs and there are some things that she may need to do.
During mom’s remaining lifetime, she may need other people to help her with her affairs. Legal authority to act on behalf of another is conveyed through a durable power of attorney. If mom still has legal capacity, she can give power of attorney to a trustworthy family member or friend. A power of attorney can be used to sign contracts, pay bills and manage assets. A power of attorney can be best obtained from mom’s lawyer; however, a Steven-Ness Durable Power of Attorney Form can be a reasonable alternative under some circumstances. If mom does not have capacity and authority to act is needed, a guardianship or conservatorship may be required.
Second, mom should consider formalizing her medical wishes in an advanced directive and possibly a POLST form. An advanced directive is an Oregon statewide form which names a person to make healthcare decisions only when mom is unable to communicate with her doctor. This person is mom’s healthcare agent. The advanced directive also states mom’s wishes regarding life support. The advanced directive is usually obtained at a doctor’s or lawyer’s office or can be found at the secretary of state’s website https://www.oregon.gov/DCBS/shiba/Documents/advance_directive_form.pdf.
A POLST is a physician’s order for life sustaining treatment- colloquially referred to as a DNR, a ‘do not resuscitate order’. This is obtain directly from mom’s doctor and is typically used only when there is a serious illness.
Mom may also wish to understand what will happen to her assets when she is gone. It is a good idea to check in with mom’s attorney soon to make sure her estate plan is functioning properly. If mom has named a joint owner on her bank account, has made a pay-on-death (POD) designation on a bank account, or has named a beneficiary on an IRA or life insurance policy, then it is important to know that the asset will go to the person named regardless of what mom’s will or trust may say. Only assets without such designations will pass according to mom’s will or trust. If mom does not have a will and dies with assets in her name alone with no beneficiary, then those assets will pass to the beneficiaries via probate. Similarly, keep in mind, all wills also go through probate. If mom wants to avoid probate, she may want to consider a trust.
Please keep I mind that this is very general advise only. To understand the specifics of mom’s situation, it is a good idea to speak with an attorney and identify issues before they become problems.
Have you seen, “Manchester by the Sea?” This sad, cinematic depiction of a father’s death, highlights the need for parents to plan, realistically for their minor children. In the film, the father presumes his brother will act as guardian and trustee for his minor son and executes a well thought out Will but for one central flaw. The father had failed to discuss the plan with his brother who (spoiler alert) ultimately declines to serve as guardian or trustee. This begs the question:
If you have children under 18, have you made plans for them if the unthinkable occurs?
Have you discussed these plans with the people you hope will fulfill them?
If you have not made plans or you have questions about their fulfillment, take a few minutes to speak with an attorney. Properly planning for your children’s future can save them a life time of regrets.
How to Avoid Probate: Have you heard a horror story about probate? To find out what’s really involved and how to protect yourself- bring your questions to this brief, funny and insightful class. Thursday, December 1, 2016 at 12:15
Understanding Estate Planning: Has Suzy Oreman or others lead you to believe you need a will or a trust? Find out what’s actually necessary in Oregon and how to get started. Thursday, December 8, 2016 at 12:15
Location: Chintimini Senior & Community Center Fee: $1.50
The bereaved are often concerned about immediate duties after the passing of a loved one and before their appointment with an attorney. Here are a few items that the personal representative can start work on:
- Complete and pay for funeral arrangements (If a person other than the deceased pays for this expense they are allowed to be reimbursement later in probate, but only if there are enough funds to pay other senior creditors first.)
- Secure the home
- Check on valuables
- See to the well-being of any pets
- If personal property is taken by others after the deceased dies, the personal representative should obtain a receipt from the person holding the property and make sure to let them know that it is not legally their property until authorized in probate proceeding.
- Exercise due diligence but remember probate takes time, be kind to yourself.
Probate does not begin until paperwork is filed and accepted by the appropriate court. The paperwork is typically filed by the person named as personal representative. If there is no will, then the paperwork is typically filed by the person seeking appointment as personal representative*. The type of paperwork filed, depends upon the value of the assets being probated. If the value is small, then a Small Estate Affidavit may be used. If the value is average or above, then a formal Petition is filed. (See my upcoming blogs for more information on the differences). A Small Estate Affidavit is intended to be prepared without an attorney, though I often find that legal counsel is needed. A formal probate petition is normally prepared by an attorney.
This paperwork is then filed in the county where the deceased person lived, owned property, or had assets at the time of death. A formal Petition requests that the court ‘open probate’ or start the probate process and appoint a personal representative. Once the personal representative is appointed or the Affidavit is accepted, authority is established for the Personal Representative or Affiant to begin the process of dealing with the deceased’s assets and debts.
*(Note: that the term “personal representative” and “executor” are used interchangeably).
Many of my clients come to me with deep concerns about probate. They wish to either avoid probate having heard many a horror story or they now find themselves enmeshed in probate as the result of a loved one’s passing. But what they all have in common is the need to understand what probate is so that they can make informed decisions.
In response to this concern, I will be publishing a mini-series of short, easy to read blog posts for the non-lawyer on probate. For a more in-depth look at probate, please join me for my annual Legal Savvy Seminars offered at the Corvallis Senior Center through Parks and Rec. The first class will start November 3, 2016 at 12:15. To register or see more class details please go to:
What is Probate?
Probate is itself a legal process with a number of different and sometimes complex steps. However, a short-cut to understanding probate is to recognize that the goal of probate is to change title on assets from the name of the deceased into the names of the beneficiaries. In order to achieve this goal, a court provides authority to the personal representative (formally called the executor or executrix) to manage and distribute the deceased person’s property. This is where probate begins.
With the recent news its hard not to wonder how some one so famous could have neglected something so important. But really, its easy to understand, do you have a will? Do your parents? The inherit pessimism involved in estate planning seems to create its own form of optimism that estate planning can be put off for tomorrow. But as we all know there are two certainties in life- and although we know the due date for taxes we don’t know the due date for death.
In my Blog I have previously detailed a number of reasons to create an estate plan but still, its hard for people to start the process. So, I will tell you a secret- a will is easy to write. In my office we have one free consult, then the next appointment is to review and often sign your documents. A will is also relatively inexpensive at $150-$175 per person for most of our clients.
Of course there are lots of other planning tools you can use,(which I will tell you about during our appointment) but if you can’t quite make it over that hurdle, at least make a will. Although most of us will not experience the drama and litigation that is likely to unfold over Prince’s estate, most of us value the estate we have worked to save. Make sure your money is not wasted and your family is protected by taking the next step – make a plan.
(See; 10 Reasons to Create an Estate Plan Now. Posted on March 6, 2015 by Kara Daley, On Planning for Minor Children, Posted on March 27, 2015 by Kara Daley, Why Do I Need a Stand Alone IRA Trust?, Posted on February 18, 2016 by Kara Daley)
“I already have an revocable living trust, why do I want yet another trust? ” This is a common response I hear from clients and professionals at mention of these trusts. However, there are two very good reasons for this trust: Protection and Stretch-out.
PROTECTION: Clients may be unaware that although an IRA is a protected asset when the client is the owner, those protections evaporate once the IRA passes to a child or other individual beneficiary and can also be eroded upon inheritance by a spouse. The lack of protection leaves the IRA vulnerable to a child’s spouse in a divorce, makes the IRA available to be taken by a child’s creditors or bankruptcy court, allows the child themselves to cash in the IRA for their immediate (and often unwise) use, and can create eligibility issues for disabled or elderly beneficiaries who rely on government benefits such as Medicaid or Social Security.
STRETCH-OUT: An IRA trust ensures that the asset will be stretched out and payments made in the proper time ensuring allowing the IRA to continue to accumulate interest and grow in value. Many of today’s IRA are only one facet of a clients current retirement plan but in the future often become a child’s only source of retirement funds making it more important than ever to conserve the growth potential.
For more information on these trusts, please view the detailed description set out under our estate planning page.
When a special needs planner meets with the family of a person with special needs, the planner will often ask the family what federal disability benefit their loved one receives. In many cases, the family will tell the planner that their relative receives some kind of cash benefit, but they frequently don’t know if that benefit is a Supplemental Security Income (SSI) benefit or a Social Security Disability Insurance (SSDI) benefit. In some cases, even the person receiving the benefit might not know what type of benefit it is. But there are a couple of tricks for determining the type of disability benefit, short of finding the disability award letter or contacting the Social Security Administration directly.
First, the amount of the benefit is a clue. The federal SSI benefit is capped at $733 per month (in 2016), with some states supplementing this with an additional smaller payment. So if the beneficiary is receiving a monthly distribution of $1,000 or more, you know for sure that the beneficiary is receiving SSDI, which can have higher cash payments, not SSI.
Often, the beneficiary’s cash award is not higher than the maximum SSI benefit, so this first method won’t work. In this case, the family needs to look at the date of the benefit payment in order to determine the type of benefit being received. If the benefit is deposited on the first of the month (or on the banking day before the first of the month if the first of the month falls on a Saturday, Sunday or holiday), then the beneficiary is receiving SSI. If the benefit is deposited on the third day of the month, then the beneficiary is receiving SSI and SSDI. Finally, if the benefit is deposited on the second, third or fourth Wednesday of the month, then the beneficiary is receiving SSDI.
Although these tricks will help your special needs planner with an initial evaluation of your family member’s needs, please keep in mind they do not define the benefits with certainty. It is always important to get your hands on the Social Security Administration’s actual award letter in order to give the planner an accurate picture of how the disability benefit is calculated.