Estate Planning FAQs
- I just need a power of attorney and nothing else. Can you help me out?
- Our current will is from another state; do I need it redone in Georgia?
- My brother is the executor of my mother’s estate. How do I know if he is handling the estate properly?
- I would like to set up a trust. What are the first steps that I need to take?
- What should I bring to the initial meeting?
- I just need a simple will. It will not be complicated. What is the cost?
- What is the cost to set up a trust?
- I received a letter from the IRS stating that I owe back taxes for prior years. What should I do?
- I want to change the executor named in my will. Can I do this with a codicil?
- There are online services I can use to create a will for much less than what you charge. Why do you cost so much?
Elder Law FAQs
- What is Medicare?
- How does Medicaid differ from Medicare?
- Is it illegal to transfer assets for the purpose of obtaining Medicaid benefits?
- What is a Power of Attorney?
- What is the difference between a Power of Attorney and a Guardianship? If I have my mother’s power of attorney, do I need to get a guardianship as well?
- My sibling has power of attorney over our parent who was diagnosed with dementia, and the sibling is not allowing me to talk to or visit with my parent. What can I do?
- I just need a power of attorney and nothing else. Can you help me out? A power of attorney allows you to have someone assist you with your financial and property affairs when and if you become unable to do it yourself. It is intended to avoid the need for court intervention.Sometimes people come to us looking for help with someone else’s estate planning, so before we can answer this question, we would need to understand whether the power of attorney is for you or for someone else.In addition, whether or not a power of attorney is really all you need is something we could help you determine with an estate planning consultation. The estate planning consultation is designed to help us help potential clients figure out where they are in their estate planning process and what needs they really might have.If after completing the estate planning consultation we determine that all you really need is a power of attorney then we may well be able to help you. If you need more than just a power of attorney, we may be able to help you with that, as well.
- Our current will is from another state; do I need it redone in Georgia? Wills created and signed in another state may be legally effective under Georgia law; however, they may not be drafted in a manner which takes maximum advantage of the provisions of Georgia law. Therefore, we generally recommend that you update your Will after you move from another state to Georgia. This can help ensure that you minimize the hassles and costs related to the probate process and that your documents will work as well as possible under Georgia law. You should also have your documents reviewed periodically to make sure they still reflect your current intent. If you have made a major life change, such as move to a new state, that is often a good time to revisit your estate planning desires as well as updating your plan to reflect the laws of the new state.
- My brother is the executor of my mother’s estate. How do I know if he is handling the estate properly? Proper handling of an estate is a common concern for loved ones and beneficiaries of an estate, especially when they lack information as to what is going on. Normally the best way to feel comfortable that things are being handled properly is to request that the executor be very open and honest about what is going on. Issues arise when the executor doesn’t want to be open.If you are concerned that that the executor may not be properly handling the estate, you should directly confront the executor and ask questions. If you don’t get satisfactory answers, you should seek legal counsel to get help in making sure things are handled properly.Executors often believe that the fact that a Will waives the normal requirement that they file an inventory and periodic reports with the court also waives any requirement that they provide information regarding the estate to its beneficiaries. However, this is a misconception. In addition, even if the Will waives the requirement for an inventory and reports, the beneficiaries of the estate still have the right to ask the appropriate probate court to force the executor to provide an accounting if the executor fails to provide the beneficiaries with appropriate information upon their request.
- I would like to set up a trust. What are the first steps that I need to take? A trust is a legal relationship under which a trustee (which can be either an individual or a corporation) holds and manages assets for the benefit of the trust’s beneficiaries (who can be individuals or organizations, such as charities). Generally, the terms under which this relationship operates are spelled out in writing, in a document usually referred to as the “trust agreement.”Trusts can be revocable or irrevocable. They can have significant gift tax, estate tax, generation-skipping transfer (“GST”) tax, and income tax consequences, or they can have no significant tax effects. Trusts can remain in effect for a short period of time or for many decades into the future. They can help reduce the potential for conflicts over an estate plan, and they can help reduce or avoid the need for a Will to be submitted to probate. Because trusts can be used in so many different ways, and because the terms of the trust agreement are critical to ensuring that a particular trust will work as intended and accomplish the desired results, it is highly important that you get good legal advice and assistance when considering whether to use a trust, deciding how the trust should be structured, and implementing the trust itself. In addition, you rarely ever need just a trust. Instead, a trust should be used as part of an overall estate plan, which usually also means that you need to have a Will, Power of Attorney, and Advance Directive for Health Care in addition to any trust(s).As part of an estate planning consultation, we help potential clients consider their situations. If we believe that the use of one or more trusts would be beneficial and appropriate for a particular situation, we will recommend that the potential client consider creating the appropriate trust(s). Therefore, the first step you should take is to attend an estate planning consultation, where we can help you determine whether you really need or want a trust, what type of trust, and how it should be designed to operate. We can then help you create and implement your trust(s), as well as any other estate planning documents which you may need.
- What should I bring to the initial meeting? Each new potential client is provided with a short estate planning checklist to complete in advance of our first meeting. The checklist asks for basic family information and financial information. It also includes a reminder that the potential client should bring us copies of any existing estate planning documents, prenuptial agreements, divorce settlement agreements, business-related buy-sell agreements, or other documents which might affect the potential client’s needs.
- I just need a simple will. It will not be complicated. What is the cost? It is difficult to provide an accurate cost estimate without having an estate planning consultation. That initial, complimentary consultation provides us with the information and details we need to determine what types of documents need to be prepared as part of your proposed plan. Please know that our clients are not those who are looking for the cheapest possible option, but instead are those looking for a solution which will carry out their intents with the least cost, hassle and taxes for their loved ones, as well as helping to avoid any post-death disputes. In other words, our clients are those who really care what happens to their loved ones after they are gone. If you really care about what happens to your loved ones after your death, it is important to carefully consider your options. It may be that all you need is a simple set of estate planning documents. However, without performing a complete evaluation of your situation and your actual needs, we cannot be sure what your needs are. After the proposed plan is developed, you will also be given a proposed fee for the documents to be prepared.
- What is the cost to set up a trust? The fees for setting up a trust depend on the type of trust, which in turn depends on what your needs and goals are and why the trust is being created. As with a Will, the fee has to be determined after an estate planning consultation, in which your situation, your needs, and your goals are carefully considered and a plan developed. The determined fees include the RLT, a pour-over will, power of attorney, advance directive for healthcare, an explanatory cover letter, and several explanatory memos.
- I received a letter from the IRS stating that I owe back taxes for prior years. What should I do? The two questions that need to be asked are how much do you properly owe and will you be able to pay it?Tax matters are fairly unique and must be dealt with on a case-by-case basis, since the facts and handling of your case will depend on your individual situation. In our experience, these can range from simple clarifications of information to highly complex and time sensitive proceedings. In all situations, prompt attention is important.
- I want to change the executor named in my will. Can I do this with a codicil? You may change the executor named in your Will with a codicil. However, anytime you make a change to your Will you should take the time to reconsider the rest of the Will, to ensure it still properly reflects your intent. In addition, your attorney should consider whether changes in the law may have occurred since the Will was originally prepared, so that it can be updated to deal with such changes as needed. Finally, it is often better to redo the entire Will, rather than preparing a codicil, even if the changes being made to the overall provisions of the Will are fairly minor. This is because a codicil must be read with the Will it modifies, creating a situation where multiple documents must be interpreted together and increasing the chance for confusion. Having all of the desired provisions reflected in a single Will can help avoid the chance of confusion or misinterpretation which a codicil (or multiple codicils) can create.Each time you make a change to your Will, you should also consider updating your financial power of attorney and Advance Directive for Health Care, since these documents tend to lose power as they age. In today’s litigious society, financial and healthcare institutions worry about getting caught in a dispute over the use of these documents, and they may be have even more concern where the document is older, and possibly outdated. Keeping these documents fresh can help to ensure third parties will accept them when they are needed.
- There are online services I can use to create a will for much less than what you charge. Why do you cost so much? Online services provide you with a form document to enable you to provide self-help services. They are not providing legal services or consultation as to what you may or may not need. They are not able to provide a document customized for your current situation, or even to tell you whether what you believe you need is actually appropriate for your situation. In addition, these documents often leave out desirable provisions.At Morgan & DiSalvo, we help you plan and carry out your wishes for you and your loved ones. We will provide you options that you likely will not have without the advice of competent estate planning counsel. For example, do you care if the assets you pass to your children could end up in the hands of a child’s spouse if the child gets divorced after you are gone? With proper planning by you, this result could be prevented. We provide extensive summaries, to help our clients both understand the plans before the final legal documents are signed and also to give them something easy to read which they can review in the future if they have a question about the structure of their plans. We also provide our clients with specific recommendations designed to ensure that the plans they put in place will actually work as intended. Our recommendations include not only advice on how assets should be owned, but also on how beneficiary designations should be set up for tax-deferred retirement accounts and life insurance. In other words, an online service will generally provide a legal document. We provide a wholistic, big picture view of your entire situation, help you understand how all of your assets fit together, and help you make certain that your wishes are carried out.
- What is Medicare? Medicare is public benefit programs designed to pay for health care and related services. If you work enough “quarters” (as defined by Social Security) and pay your payroll taxes, you are entitled to receive this benefit at either age 65 or two years after receiving disability benefits. Because you have paid into the system and are entitled to receive the benefit, it is known as an “entitlement” benefit.
Originally, Medicare was designed to pay medical expenses associated with a “spell of illness.” You got sick and went to the doctor, and Medicare would pay for the doctor’s bills and other costs associated with that “spell of illness.” Over the last 20 years, Medicare’s function has changed, and it now covers preventative care costs as well, including annual well visits, vaccinations and a variety of cancer screenings. Medicare is not free healthcare, however; most people pay monthly premiums for doctor visits and prescription health care. Additionally, most Medicare recipients pay copayments for the care they receive.
- How does Medicaid differ from Medicare? Like Medicare, Medicaid is a federal program that provides health care. Unlike Medicare, it is a needs-based program (welfare program) driven in large part by state law and funded by both the state and federal government. It is designed for individuals who are aged, blind or disabled who have both limited income and limited resources. There are also Medicaid benefits available for families with children who do not have access to health care. Generally, services covered by Medicaid are offered either for no charge or for a minimal copayment.
Believe it or not, Georgia offers 36 different types of Medicaid. Most of the clients in our office are interested in one of three types of Medicaid:
- Nursing Home Medicaid. In Nursing Home Medicaid, the Medicaid subsidizes the cost of nursing home care. At the risk of over-simplifying the process, the recipient pays his or her monthly income to the nursing home, and Medicaid pays whatever the recipient cannot afford.
- Q-Track Medicaid. This program pays the recipient’s monthly premiums for Medicare and sometimes the co-payments as well. Individuals eligible for Q-Track Medicaid may also be eligible for the Low Income Subsidy Medicaid, which subsidizes the cost of prescription drugs under a Medicare Prescription Drug plan.
- Medicaid Waiver Programs. Medicaid waiver programs provide services in addition to health care. Depending on the program, they can provide physical or occupational therapy, transportation services, residential support, vocational support, house cleaning services, and even funds for home modification. Medicaid waiver programs are designed primarily to support the elderly and people with developmental disabilities who qualify to live in a nursing home but who can live in the community if they receive appropriate support services.
- Is it illegal to transfer assets for the purpose of obtaining Medicaid benefits? At this point, I need to give the standard attorney answer: yes and no. In 1996, Congress passed a law prohibiting people from transferring assets to qualify for Medicaid benefits. Amendments to the statute adopted in 1997 removed the criminal liability from the individual to the attorney who counseled or advised the client about qualifying for Medicaid benefits. Dubbing the statute as the “Granny Goes to Jail” law, attorneys resoundingly rejected this statute as a violation of their Constitutional right to free speech. On March 11, 1998, Attorney General Janet Reno advised that the statute was a violation of the right of free speech and that her office would not enforce this statute. An opinion of a New York state court that year affirmed the unconstitutionality of that provision. So while the statute technically exists, it is unenforceable and should not deter anyone from seeking help from an Elder Law attorney.
- What is a Power of Attorney? A power of attorney gives you the right to act as an agent (also called an attorney-in-fact) on behalf of your mother (called the principal or grantor). Typically, these powers of attorney allow an agent to conduct financial transactions on behalf of the principal. For example, the agent may be able to write checks, open banking or investment accounts, hire attorneys or accountants or even apply for public benefits, such as Medicaid, on behalf of the principal.
The agent’s ability to act is limited by the document. For example, if the document says that you can act on her behalf on months that end with a “y,” you cannot act on her behalf in March. Also, the principal retains the right to overrule any decision made under the Power of Attorney, as well as the right to revoke the power of attorney. In Georgia, powers of attorney are durable, meaning that they continue to be effective if a person becomes incompetent and can no longer communicate her wishes.
- What is the difference between a Power of Attorney and a Guardianship? If I have my mother’s power of attorney, do I need to get a guardianship as well? Unfortunately, despite the best planning, the powers of attorney are not always enough. Elders may write strangers checks for large sums of money. They may change their will because their loving caregiver told them to. While every citizen has the right to make bad decisions, due to injury or illness, people may face a time where they lack the ability to make decisions on their own. This is when guardianship or conservatorship is appropriate.
Guardianship and conservatorship are the opposite of your 18th birthday. When you turn 18, you obtain all of the rights of an adult. Under guardianship or conservatorship, the court removes those rights from you. Broadly speaking, guardianship deals with personal rights, including the right to consent to medical treatment, the right to determine where you live, and the right to marry. Conservatorship deals with rights to contract and handle money – the right to open bank accounts, make purchases, and enter into business or other contracts. A guardianship or conservatorship (which I will collectively call Guardianship) can remove all or merely some of the individual’s rights.
Guardianships are involved processes. Not only does someone need to petition the court for a Guardianship, but then the Court sends a doctor to evaluate the individual, an attorney to represent the individual, and possibly a guardian ad litem to conduct an investigation into any unanswered concerns the court may have. Once granted, the guardian must file initial and annual reports on the status of the ward, and the guardian must seek the Court’s permission for making changes to the ward’s status, such as moving the ward or selling the ward’s property.
- My sibling has power of attorney over our parent who was diagnosed with dementia, and the sibling is not allowing me to talk to or visit with my parent. What can I do? Unfortunately, I am encountering this problem all too frequently in my practice. This is also a situation that judges and police officers have to deal with more frequently now than in the past. The short answer is that, absent a court order, no one is allowed to prevent you or another family member or friend from visiting your parent. In Georgia, this means that the sibling must obtain a guardianship over the parent and either file a restraining order against you or obtain an order from the Probate Court to keep you away. A power of attorney is simply not enough.
These cases are complicated and often involve intersections between civil and criminal law. They involve breaches of fiduciary duty owed to the parent under the power of attorney, criminal elder abuse, and often financial exploitation of an elder. If the parent is in an assisted living facility or nursing home, it may also constitute a violation of that parent’s state and federal rights. Additionally, it is common that one or more siblings have a mental health diagnosis that contributes to the problem. You do not want to try to resolve this matter through self-help. Please seek the counsel of an experienced elder law attorney who can help you gain access to your parent and help you protect your parent from the well-meaning (or not-so-well-meaning) sibling.