Jan Neal Law Firm LLC

Alabama Elder and Special Needs Law


Leave a comment

Wills and Beneficiary Designations Work Together to Distribute Your Estate

will and gavelWhile a will is an important document to have in any estate plan, the reality is that most property passes to heirs through other, less formal means.  Failure to recognize this fact can result in some unintended consequences in estate distributions.

Many bank and investment accounts, as well as real estate, can be titled to joint owners who take ownership automatically at your death.  Other banks and investment companies offer “payable on death” accounts that permit owners to name the person or people who will receive the account funds when the owner dies. Life insurance, of course, permits the owner to name beneficiaries.  Some real property is titled to joint owners with rights of survivorship so that when one owner dies, the other takes full ownership of the property.  A future interest in property can be transferred during a person’s life, subject to a life estate held by the transferor, so that when the life estate holder dies, the property is owned by the person/s to whom the future interest was given.  No probate would be necessary.

All of these types of ownership and beneficiary designations permit these accounts and types of property to avoid probate, meaning that they will not be governed by the terms of a will. When taking advantage of these simplified procedures, owners need to be sure that the decisions they make are consistent with their overall estate plan.  It is  not unusual for a will to direct that an estate be equally divided among the decedent’s children, only to find that because of joint accounts or beneficiary designations, the estate is distributed unequally, or even to non-family members, such as new or old boyfriends and girlfriends.

It is also important to review beneficiary designations every few years to make sure that they still reflect your wishes. An out-of-date designation may leave property to an ex-spouse, to children who disappeared from you life while other children provided care, to ex-girlfriends or ex-boyfriends, to relatives who are on means tested public benefits who will  lose those benefits by inheriting, and to people who died before the owner. All of these failures to make proper designations can thoroughly undermine an estate plan and leave a legacy of resentment that most people would prefer to avoid.

These concerns are heightened when dealing with retirement plans, whether IRAs, SEPs or 401(k) plans, because the choice of beneficiary can have significant tax implications. These types of retirement plans benefit from deferred taxation in that the income deposited into them, as well as the earnings on the investments, are not taxed until the funds are withdrawn. In addition, owners may withdraw funds based more or less on their life expectancy, so the younger the owner, the smaller the annual required distribution.  Further, in most cases, withdrawals do not have to begin until after the owner reaches age 70 1/2. However, this is not always the case for inherited IRAs.  To further complicate matters, the spouse has a right to funds in a 401(k) that must be disclaimed by waiver after marriage to prevent their having rights to those funds even if you named someone else as your 401(k) beneficiary.

Following are some of the rules and concerns when designating retirement account beneficiaries:

  • Name your spouse, usually. Surviving husbands and wives may roll over retirement plans inherited from their spouses into their own plans. This means that they can defer withdrawals until after they reach age 70 1/2 and take minimum distributions based on their age. Non-spouses of retirement plans must begin taking distributions immediately, but they can base them on their own presumably younger ages.
  • But not always. There are a few reasons you might not want to name your spouse, including the following:
    • He or she is incapacitated and can’t manage the account
    • Doing so would add to his or her taxable estate
    • You are in a second marriage and want the investments to benefit your first family
    • Your children need the money more than your spouse
  • Consider a trust. In some circumstances, a trust would be appropriate, providing for management in the case of an incapacitated spouse, permitting assets to benefit a surviving spouse while being preserved for the next generation. Those in first marriages may want to name their spouse as the primary beneficiary and a trust as the secondary, or contingent, beneficiary. Transferring assets to a trust can also be used to plan for long-term care expenses if planning is done early enough (five years before you or your spouse need nursing home care).
  • But check the trust. Most trusts are not designed to accept retirement fund assets. If they are missing key provisions, they might not be treated as “designated beneficiaries” for retirement plan purposes. In such cases, rather than being able to stretch out distributions during the beneficiary’s lifetime, the IRA or 401(k) will have to be liquidated within five years of the decedent’s death, resulting in accelerated taxation.
  • Be careful with charities. While there are some tax benefits to naming charities as beneficiaries of retirement plans, if a charity is a partial beneficiary of an account or of a trust, the other beneficiaries may not be able to stretch the distributions during their life expectancies and will have to withdraw the funds and pay the taxes within five years of the owner’s death. One solution is to dedicate some retirement plans exclusively to charities and others to family members.
  • Consider special needs planning. It can be unfortunate if retirement plans pass to individuals with special needs who cannot manage the accounts or who may lose vital public benefits as a result of receiving the funds. This can be resolved by naming a special needs trust as the beneficiary of the funds, although this gets a bit more complicated than most trusts designed to receive retirement funds. Another alternative is not to name the individual with special needs or his trust as beneficiary, but to make up the difference with other assets of the estate or through life insurance.
  • If probate will be necessary, leave an account jointly titled with your personal representative to provide expenses during probate.  If your home needs to be sold, funds will need to be available to pay property tax, insurance, utilities, etc.
  • Keep copies of your beneficiary designation forms. Don’t count on your retirement plan administrator to maintain records of your beneficiary designations, especially if the plan is connected with a company you worked for in the past, which may or may not still exist upon your death. Keep copies of all of your forms and provide your estate planning attorney with a copy to keep with your estate plan.
  • But do name beneficiaries! The biggest mistake many people make is not to name beneficiaries at all, or they end up in this position by not updating their plan after the originally-named beneficiary passes away. This means that the plan will have to go through probate at some expense and delay and that the funds will have to be withdrawn and taxes paid within five years of the owner’s death.

In short, while wills are important, in large part because they name a personal representative to take charge of your estate and they name guardians for minor children and disabled spouses, they are only a small part of the picture. A comprehensive plan needs to include consideration of beneficiary designations, especially those for retirement plans.


Leave a comment

Planning for the Rising Cost of Long-Term Care

Physiotherapist Holding Senior Patient's Hand On WheelchairPlanning for long-term care is an important issue to tackle, and the latest forecast shows that the associated costs of care are reaching well beyond the average person’s means.  This makes planning to save an estate an important proposition, and the earlier the planning, the greater the options.

The median cost of a private nursing home room in the United States has increased to $97,455 a year, up 5.5 percent from 2016, according to Genworth’s 2017 Cost of Care Survey.  Genworth, an insurer, surveys and publishes long-term care prices across the country annually and provides a benchmark for what caregivers will need to finance long-term care.  The company reports that the median cost of a semi-private room in a nursing home is $85,775, up 4.44 percent from 2016.

The price rise was slightly less for assisted living facilities, where the median rate rose 3.36 percent, to $3,750 a month. The national median rate for the services of a home health aide was $22 an hour, up from $20 in 2016, and the cost of adult day care, which provides support services in a protective setting during part of the day, rose from $68 to $70 a day.

For Alabama, the Genworth survey reports that the average semi-private nursing home room in 2017 was $72,996 per year/$6,083 per month (up from $71,172 per year/$5931 per month from 2016), and the average private nursing home room was $77,568 per year /$6,464 per month (up from $75,192 per year/$6,266 per month in 2016).  The average assisted living facility was $36,684 per year/$3,057 per month (up from $34,800 per year/$2,900 per month in 2016).

Alaska continues to be the costliest state for nursing home care, with the median annual cost of a private nursing home room totaling $292,000. Oklahoma again was found to be the most affordable state, with a median annual cost of a private room of $63,510.

The 2017 survey was based on responses from more than 15,000 nursing homes, assisted living facilities, adult day health facilities and home care providers. The survey was conducted by phone during May and June of 2017.


Leave a comment

Deeding Property with a Reserved Life Estate

agreementThe term “life estate” often comes up in discussions of estate and Medicaid planning, but what exactly does it mean? A life estate is a form of joint ownership that allows one person to remain in a house until his or her death, at which time it passes to the other owner, referred to as the person with the remainder interest. Life estates can be used to avoid probate while giving a house to children without losing the ability to live in the home, remaining responsible for property tax – with the benefit of homestead and age related tax exemptions, remaining responsible for homeowner insurance, yet creating ownership in the children at the death of the parent.   This type of deed can play an important role in Medicaid planning since Medicaid does not assign any value to a life estate when the parent applies for Medicaid to pay for nursing home care.  If the transfer occurred prior to five years before application, there will be no penalty for the transfer.

In a life estate, two or more people each have an ownership interest in a property, but for different periods of time. The person holding the life estate — the life tenant — possesses the property during his or her life. The other owner — the remainderman — has a current ownership interest but cannot take possession until the death of the life estate holder. The life tenant has full control of the property during his or her lifetime and has the legal responsibility to maintain the property as well as the right to use it, rent it out, and make improvements to it.

Another example of use of life estates is when a spouse who owns property in only his or her name wants to leave that property to his or her children from a former marriage but wants the later in life spouse to be protected and have a place to live.  That person might write a will leaving a life estate to the spouse with the remainder to his or her children on the death of the spouse.  This comes up not infrequently when individuals want to protect property passed to them by family and who want to keep that property in their blood line while protecting the spouse as well.

When the life tenant dies, the house will not go through probate, since at the life tenant’s death the ownership will pass automatically to the holders of the remainder interest. Because the property is not included in the life tenant’s probate estate, it can avoid Medicaid estate recovery in states that have not expanded the definition of estate recovery to include non-probate assets, which includes Alabama at the time this is being written.

Although the property will not be included in the probate estate, it will be included in the taxable estate. Depending on the size of the estate and the state’s estate tax threshold, the property may be subject to estate taxation.  However, the joint federal lifetime estate tax exemption and gift tax exclusion is $5,490,000, so few people are actually subject to estate tax.

The life tenant cannot sell or mortgage the property without the agreement of the remaindermen. If the property is sold, the proceeds are divided up between the life tenant and the remaindermen. The shares are determined based on the life tenant’s age at the time — the older the life tenant, the smaller his or her share and the larger the share of the remaindermen.

Be aware that transferring your property and retaining a life estate can trigger a Medicaid ineligibility period if Medicaid application is made within five years of the transfer. Further, purchasing a life estate should not result in a transfer penalty if you buy a life estate in someone else’s home, pay an appropriate amount for the property and live in the house for more than a year.

For example, an elderly man who can no longer live in his home might sell the home and use the proceeds to buy a home for himself and his son and daughter-in-law, with the father holding a life estate and the younger couple as the remaindermen. Alternatively, the father could purchase a life estate interest in the children’s existing home. Assuming the father lives in the home for more than a year and he paid a fair amount for the life estate, the purchase of the life estate should not be a disqualifying transfer for Medicaid.  Just be aware that there may be some local variations on how this is applied, so get good advice before finalizing arrangements involving a life estate if long term care could be a future concern.


Leave a comment

Quarterly Newsletter Available

shutterstock_63936919Our quarterly newsletter, Elder Law Bookmarks, was sent today.  Articles included in the newsletter are:

  • People with Disabilities Can Now Create Their Own Special Needs Trusts
  • Is it Better to Remarry or Just Live Together?
  • Repealing Obamacare Will Have Consequences for Medicare
  • For Better or Worse, States Are Turning to Managed Care for Medicaid Long-Term-Care
  • Make Reviewing Your Estate Plan One of Your New Year’s Resolutions

If you want to be added to the mail list, send an email to neal@janneallaw.com.

 


Leave a comment

Appointing an Agent for Disposal of Remains in Alabama

It is interesting that people create wills routinely to dispose of their property after death, but seldom consider documenting their desires for burial, cremation or other ceremonial issues.  When prepaid burial plans are not purchased, next of kin usually make those decisions.  But what about the blended family situation where there are children, step-children and later in life spouses?  Each person needs to ask who he or she would want making those arrangements.

Often a later in life marriage is entered with an understanding between the parties that each will be buried beside their first spouse.  Usually that presents no problem, but sometimes over time the wishes of individual members of the blended family change.  Documentation of individual choices is useful in those situations to prevent disputes among the surviving family members.

Alabama law allows the inclusion of burial or cremation wishes in a last will and testament, but such arrangements have limited practical value when considering the immediate need to make arrangements for disposition.  Sometimes the will is not located until weeks or months following death.

Of perhaps more use is an affidavit permitted by Alabama Code § 34-13-11 which allows a person to appoint an adult to be the authorizing agent who can control the location and manner of disposition.  That document will control unless a person dies while on active duty in any branch of the United States Armed Forces, United States Reserve Forces, or National Guard, whereupon the person listed on the emergency data for the Department of Defense will have authority to control the disposition of remains.

While I do not normally provide form documents, the affidavit authorized under Code of Alabama § 34-13-11 is very simple and straightforward, and I am providing here a copy of the statutory form:

                                    Affidavit Concerning Disposition of my Remains

 

State of Alabama

County of _______________

I, (name) ____________________ designate (person selected) __________________ to control the disposition of my remains upon my death. I

__ have

__ have not

attached specific directions concerning the disposition of my remains. If specific directions are attached, the designee shall substantially comply with those directions, provided the directions are lawful and there are sufficient resources in my estate to carry out those directions.

Subscribed and sworn to before me this __ day of the month of ___________ in the year _______.

____________________________ (signature of person creating the affidavit)

______________________________ (signature of notary public)”

Without an affidavit the following surviving people, listed in priority, will have the authority to make burial arrangement:

  1. The spouse,
  2. A majority of the decedent’s children,
  3. The decedent’s parents,
  4. A majority of the decedent’s siblings,
  5. The decedent’s grandparents,
  6. The decedent’s legal guardian at the time of his or her death,
  7. The Personal Representative (executor) of the decedent’s estate,
  8. The next of kin for inheritance purposes,
  9. A public officer, administrator, or employee of the government; or
  10. Any person willing to assume the responsibility, in the absence of all of the people listed above.

It is not a bad idea to think about what you want, who you want to make arrangements and prepare an Affidavit Concerning Disposition of Remains as part of estate planning.  You can add additional instructions to the affidavit while designating an agent and rest assured your wishes will be followed.

 

 


Leave a comment

How Much Cash Will Your Estate Need?

shutterstock_279469625When an estate is being settled in Alabama, it will take six months or longer before the assets in the probate estate can be distributed.  I frequently advise people to plan for this and to designate a bank account jointly titled to themselves and the person they have named to be the personal representative (aka executor) of their will so that funds will be available for any immediate cash needs.  Another source of cash may be life insurance with the beneficiary designated as the person who will be responsible for the estate.

Historically, one main reason to buy life insurance as part of an estate plan was to have cash available to pay estate taxes. Now that the estate tax exemption is so large (in 2016, estates can exempt $5.45 million per individual from taxation), most estates don’t pay federal estate taxes.  If someone dies in Alabama with less than the $5,450,000 exemption amount, his or her estate will not owe federal estate tax, and there is no Alabama estate tax. The heirs and beneficiaries will inherit the property free of tax as it relates to the federal government and Alabama (but they may owe estate tax in another state). So the use of life insurance for estate tax reasons is greatly diminished, however, life insurance can still be helpful in a number of other ways.

Life insurance provides cash to use for the payment of home expenses for property held in the probate estate (such as utilities, mortgage payments, maintenance, insurance, property tax), debt, burial fees, or estate administration fees and expenses, replacement of income or assets lost to pay for long-term care, funds for a trust for a minor child or a child with special needs, buying out a business interest, funding charity, or balancing the interests between heirs to non-probate property (e.g. if one child is inheriting a certificate of deposit, a life insurance policy can ensure that the other child receives the same amount).

It is important to think through the property you own and determine what will be part of your probate estate and what will fall outside the probate estate and plan for enough liquidity to make the settling of your estate manageable for those charged with that responsibility.


Leave a comment

Elder Law at OLLI

Jan is teaching a two part course on Elder Law at Osher Lifelong Learning Institute at Auburn University (OLLI at Auburn).  See page 11 of the OLLI Spring 2016 catalog for the course description.  The first session is Wednesday, March 30, 2016, from 10:15 a.m. – 11:45 a.m., and the second will be on Wednesday, April 6, 2016, from 10:15 a.m. – 11:45 a.m.  Topics to be covered include Older Americans Act Legal Assistance, Authority Issues and Advance Directive Options, Long-Term Care Planning, Long-Term Care Payment Options Including Medicaid, Special Needs Planning, Probate, Administration of Estates and Funeral Planning.  If you aren’t a member of OLLI, check out all the benefits and learning opportunities here.

Materials for the training can be downloaded at elder-law-training-for-olli-at-auburn-033016-60244085 and will be posted at this site soon.