Tag Archives: Estate Planning

Can my step children inherit from me equally as my children?

Q: In my Will I have included both my children and my step children and I called them all “my children”. Is it permissible to include both natural children and step children as children in my will without further specifying? My intent is to treat them all equally.

A: As long as you make this clear in your will, they will inherit equally. You could state something specific in paragraph like, “It is my intent for the purposes of this my Last Will and Testament, that my step-children inherit from my estate as if they were my natural children.”

If there is a beneficiary listed, does the money go to the estate?

Q: What are my rights as beneficiary on deceased brother beneficiary designation form? My brother died without a will, but I am listed as one of his beneficiary on his employment form, the lawyers are stating that this goes money goes into the estate and is to be shared by everyone, is this correct? There are stock certificates, life insurance etc. that he marked and the lawyers won’t hand over the original certificates so that we can transfer them to our names. I am also one of the co-administrators. Please answer asap. Thank You.

A: I really would need to examine the documents to be certain with my advice. However, generally, if you are listed as a beneficiary on employee benefits like 401 Ks or pension or insurance, that is your money and not estate money. Generally, if you are a beneficiary, the company will prefer to talk to you and will not want to deal with the estate attorney. Call the company and ask if you are the beneficiary. They won’t lie to you. As to the other problems, estate issues, I am not sure why you are having a problem with the attorney as the executor/administrator generally can hire and fire an attorney for the estate. Maybe this is perhaps because you are not getting along with the other attorney. I highly advise you to see an independent lawyer versed in estate matters.

How do I keep a young girl away from taking advantage of my 87 year old father?

Q: While in a rehabilitation hospital, my father was getting taken care of by a young 29 something girl. After he left there, she managed to get his address and phone number. She has been to the house and calls him every day. This has been going on for seven months now. My mother has passed away so we moved my father to an assisted living facility 4 hours away from this girl. He is telling my sister and I that he loves her and is in love. She has got him convinced that he needs to go back to his house. There is money and property missing from the house and he keeps telling us that she is his friend. We are just so afraid that she is taking advantage of him but we don’t know what to do. He cannot live in the house alone. Any advice or direction would be go greatly appreciated

A: If he is mentally clear, there is little you can do except this. If you are sure money is missing, you can see if a police officer will take a report and at least talk to this girl. Not all police departments will do this, but some will. This may shake her up a bit. Dad should have a Power of Attorney at this point in his life so you need to talk to him and see if you can get him to a local attorney in order to address this. If you or someone in the family can serve as his Agent on a POA, you can file the POA with all the financial institutions where he has money on deposit and inform them to notify the Agent if any large or suspicious withdrawals are attempted. If your father is not clear headed and you cannot get him to sign a POA, then your only option besides letting this girl know she is being watched and hoping she will get the message and go away is to file for a Guardianship of your father in court. This is somewhat expensive and requires the assistance of a lawyer. I would sit down with a lawyer and discuss all of the facts before you decide what to do.

What holds more ground a will or a deed?

Q: My mom passed and left her house to me in her will. My niece and nephew are listed on the deed along with me. Her will only names me as sole heir. Do they own any of the house?

A: If the deed is joint tenants with right of survivorship, the property upon death passes to the surviving tenants. So in this case, your mom’s share passes to your niece and nephew. If the deed is tenants in common, the deceased tenant’s share goes into their estate. In this case, one third of the house would pass through your mom’s will to you as a sole heir in the will. Don’t do anything until you have a local attorney review the will and deed for you.

What happens if I relinquish my rights as an executor of my father’s will?

Q: My two sisters and I were named co-executors of my father’s will. Both my sisters have asked if I would relinquish my rights as an executor since they were named joint powers of attorney for my mother who has Alzheimer’s. If I relinquish my rights how will this affect future decisions for my mother and the handling of the estate in my father’s will?

A: I am not sure what the connection is with your mother’s POA and you being tri-executor of your father’s will. By renouncing your right to be executor of your father’s will, you do not lose any right of inheritance, you just give up your right to administer the estate and charge a fee for your services, which could be 5% of the gross estate. Being executor requires a great deal of work sometimes and can be time consuming and stressful. If the fee is an issue, ask your sisters to split the 5% three ways. You would also be giving up the right to make decisions of how the estate is administered. However, unless there are unusual issues with the estate, most are pretty straightforward, especially if a lawyer is involved.

Can grandmother give money away after she is in a nursing home?

Q: How much can an independent senior (84 years old) gift money without getting penalized if admitted to a nursing home shortly after? How much money can be gifted to children each without penalization? How much money may be gifted to grandchildren?

A: The Federal Gift Tax Exclusion allows you to give $14,000 in cash or other assets each year to each of as many individuals as you want without dipping into the basic exclusion. However, if grandmother may need to apply for Medicaid funding in order to afford her nursing care in the next five years, these gifts may not be advisable. Medicaid eligibility rules have a five year look back on all such gifts or transfers made without consideration. Therefore, any gift made in the previous five (5) years of the Medicaid application and eligibility, can result in her being ineligible, or her being excluded from funding to the extent of the dollar amount of monetary gifts made without consideration. If you believe that Medicaid may be in her future, it would be wise to have grandmother consult with a lawyer versed in Medicaid law, now. There are ways of excluding some of her estate from a Medicaid claim. There are exclusions and exceptions, trusts can be created and there are allowable purchases that can be made in the Medicaid spend down process.

Q: Should my parents put their house in my name?

Q: My parents are in their early 70s and in fair health and want to put their house in my name now to protect it. Is this a good idea for both of us.

A: This is something you should sit down with a local estate/elder lawyer and discuss. There are pros and cons. Pros-it reduces inheritance tax. 1) If they transfer title to you, there is no need to have the house part of the estate when the surviving parent dies. 2) You may avoid a Medicaid lien if the surviving parent never needs to apply for Medicaid within 5 years of the transfer. Cons-inheritance tax is not much for children (4.5%) so depending on the size of the estate it may not be that big of a savings. If the surviving parent needs to apply for Medicaid within 5 years of the transfer of the house for no consideration, this can give rise to Medicaid eligibility problems. Also, the parent loses control of what is often their most valuable asset which they may need to liquidate for money in order to afford a better nursing home. If the home is transferred totally out of the parent’s names, in Allegheny County, they will lose senior citizen real estate tax discounts. Just putting you on the deed with them will not result in a loss of senior citizen’s discounts. In addition, if title is transferred to you, and you subsequently sell this home, you will lose the benefit of the stepped up value you would have had if the transfer came from the estate to the buyer and you will have a full capital gains tax minus allowable deductions. There is more to this than you think, so I advise your parent to seek a legal opinion.

How do we get the hospital to follow dad’s request and consult with us?

Q: Dad had two leg surgeries in the last 5 days. He signed a living will and Durable Power of a Attorney. I am his health care agent. He is on pain meds and little sleep. He does not remember what doctors are telling him. He thinks he is being given pills to medicate himself, which he is not. He thinks he is signing paperwork when they have not given him any. He is clearly confused and cannot make clear decisions for himself. He requested that the hospital call me every time they discuss his treatment. Surgeons are talking to him at midnight and not calling me. They are pushing him to leg amputation. How do we get hospital to follow Dad’s request to have me present for each consultation? We both feel his rights are being violated.

A: Relationships between hospital employees and family members of patients can be stressful, for both sides. However, you have to let them know your concerns, but do it in a professional and tactful way and be persistent. Send the administrator a letter along with a copy of the POA. Clearly state what you want in the letter. You can also request a sit down with the administrator. Let your requests be known. Maybe you are telling staff and the message isn’t getting up to the top. If this does not work, have your lawyer write a letter. However, try everything you can on your own as a concern for a loved one, at first. If he has a personal doctor or PCP that knows his history, can you have him or her communicate with the hospital doctors?

Cousin gave us money. Will we have to give it back to cousin’s nursing home?

Q: Pa and NJ nursing home 5 year look back. My wife and I each received $10,000 from her cousin in February of 2010. Can nursing take money back? We reside in NJ and PA. Wife’s cousin will have to go into nursing home prior to the 5 years in February 2015. The cousin currently receives PA Medicaid for health coverage. Will the nursing home make us give the money back? (which has been spent) Will there be a penalty term?

A: There is some confusion in your question so I strongly urge you to sit down with an attorney with all of your information. Simply put, a nursing home cannot make a donee who did nothing wrong return a gift. However, most gifts within the look back period trigger Medicaid penalties. It would be well worth an elder law attorney consult to determine gift ramifications and Medicaid planning options. It is the Medicaid look back, which is 5 years back from the date of eligibility, which matters. The transfer may be questioned. If you are alleging it was payment for caretaker services, you better have such services documented.

Will my Aunt lose her home to Medicare?

Q: My aunt might need nursing home care. I have been giving care at her house. Will she lose her house? She is single and owns her home. I am her executor when she dies. My aunt is on Medicare and I have lived there for 5 years.

A: Receiving Medicare benefits will not result in a claim on her home. I will assume for the purposes of this question, you mean, will she lose her home to a Medicaid claim if she should enter a nursing home. You really need to talk this over with a local elder law or estate planning attorney versed in Medicaid law. Generally, Medicaid requires the value of all property owned by the applicant in the last 5 years to be considered in the look back period, relating to their potential claim. So, if your aunt applies for Medicaid assistance in the next five years, the house may be subject to a Medicaid claim if it is still in her name. There are exceptions to this claim that may allow you to shelter the home completely or at least a portion of its value. For example, if you have been her primary caretaker and living in the home for a period of two years prior to her admittance to a nursing care facility, you may qualify for an undue hardship exception under the PA Department of Public Welfare rules. An attorney may also be able to create a trust for you that shelters a portion of her estate. This is a gross simplification of the issue, so once again, please consult with an attorney.