Attorneys at Cohen & Oalican, LLP serving Boston, Andover and Raynham discuss the Probate Process
1. What is the probate process?
Probate is the process supervised by the probate court by which a deceased person's property, known as the "estate," is passed to his or her heirs and legatees (people named in the will). The entire process usually takes about a year. However, substantial distributions from the estate can be made in the interim.
2. What property is subject to the probate process?
The probate estate includes all property held in the decedent's name. Certain kinds of property, such as property owned jointly by the deceased and another person, life insurance, and property held in trust, are not part of the probate estate and are not subject to the probate process. For example jointly owned bank accounts pass automatically to the surviving joint owners upon the death of one of the owners without going through probate. The non-probate property, however, is part of the decedent's taxable estate (see below).
3. How is the probate process started?
First, a petition for probate of the will must be filed with the probate court, along with the original will and a certified copy of the death certificate. Notice must be mailed to all of the decedent's heirs at law (usually the surviving spouse, children and children of any deceased children), to those named as beneficiaries in the will, and, if a charity is involved or there are no heirs at law, to the Attorney General. Notice must be also published in a local newspaper. If no one objects by a deadline set by the court, the executor named in the will is appointed by the court.
4. What does the executor do?
The executor is responsible for collecting the probate property and for paying any debts of the estate. The executor must file with the probate court an itemized list, known as an "inventory," of the probate property, including the value of each item. The executor must file an estate tax return within nine months of the date of death. This is true even if no estate tax is owed, if the decedent owned real estate or the executor wants his or her final accounting (see below) allowed by the probate court. Creditors of the estate have one year to bring claims against the estate. Executors generally wait until this claim period has expired to complete distribution of the estate according to the terms of the will. As his or her final responsibility, the executor must file an accounting with the probate court showing the income and expenditures of the estate administration.
If you would like to pursue this further, contact an attorney at Cohen & Oalcian, LLP who is skilled and experienced in this area; practicing only elder law and disability law
Friday, April 23, 2010
Monday, April 19, 2010
Durable Power of Attorney and Health Care Proxy - FAQ Part 3
12. When does a health care proxy take effect?
A health care proxy takes effect only when you require medical treatment and are unable to communicate your wishes concerning your treatment.
13. What if I become able to communicate my own decisions?
If you become able to express your wishes at any time, you will be listened to and the health care proxy will have no effect.
14. Who should have a copy of my health care proxy?
Your agent should have the original document. You should have a copy and your physician should have a copy with your medical records.
15. How can I get a health care proxy?
Contact an attorney at Cohen & Oalican, LLP who is skilled and experienced in this area.
A health care proxy takes effect only when you require medical treatment and are unable to communicate your wishes concerning your treatment.
13. What if I become able to communicate my own decisions?
If you become able to express your wishes at any time, you will be listened to and the health care proxy will have no effect.
14. Who should have a copy of my health care proxy?
Your agent should have the original document. You should have a copy and your physician should have a copy with your medical records.
15. How can I get a health care proxy?
Contact an attorney at Cohen & Oalican, LLP who is skilled and experienced in this area.
Tuesday, April 13, 2010
Durable Power of Attorney and Health Care Proxy - FAQ Part 2
Durable Power of Attorney and Health Care Proxy - Part 2
6. What kind of records should I keep?
It is very important that you keep good records of your actions under the power of attorney. That is the best way to be able to answer any questions anyone may raise. The most important rule to keep in mind is not to commingle the funds you are managing with your own money. Keep the accounts separate. The easiest way to keep records is to run all funds through a checking account. The checks will act as receipts and the checkbook register as a running account.
7. Can I be compensated for my work as attorney-in-fact?
Yes, if the principal has agreed to pay you. In general, the attorney-in-fact is entitled to “reasonable” compensation for his or her services. However, in most cases, the attorney- in-fact is a family member and does not expect to be paid. If you would like to be paid, it is best that you discuss this with the principal, agree on a reasonable rate of payment, and out that agreement in writing. That is the only way to avoid misunderstanding in the future.
8. What is a health care proxy?
A health care proxy is a document executed by a competent person (the principal) giving another person (the agent) the authority to make health care decisions for you if you are unable to communicate such decisions yourself.
9. Why have a health care proxy?
In case you ever become incapacitated, it is important that someone has the legal authority to communicate your wishes concerning medical treatment. This is true especially if you were to disagree with family members about your treatment. By executing a health care proxy, you ensure that the direction that you have given your agent will be carried out in the event of such disagreement.
10. Who should I appoint as my agent?
Since your agent is going to have the authority to make medical decisions for you in the event you are unable to make such decisions yourself, it should be a family member or friend that you trust will follow your wishes. Before executing a health care proxy, you should talk to the person that you want to name as your agent about your wishes concerning medical decisions, especially life sustaining treatment.
11. Should I have a medical directive (Living Will)?
A medical directive provides your agent with instructions on what type of care you would like. If you wish, you may include a medical directive in your health care proxy. It may include specific instructions concerning the initiation or termination of life sustaining treatment or a more broad statement granting general authority for all medical decisions that are important to you.
Please contact Cohen & Oalican, LLP Boston, Andover and Raynham, for further information.
6. What kind of records should I keep?
It is very important that you keep good records of your actions under the power of attorney. That is the best way to be able to answer any questions anyone may raise. The most important rule to keep in mind is not to commingle the funds you are managing with your own money. Keep the accounts separate. The easiest way to keep records is to run all funds through a checking account. The checks will act as receipts and the checkbook register as a running account.
7. Can I be compensated for my work as attorney-in-fact?
Yes, if the principal has agreed to pay you. In general, the attorney-in-fact is entitled to “reasonable” compensation for his or her services. However, in most cases, the attorney- in-fact is a family member and does not expect to be paid. If you would like to be paid, it is best that you discuss this with the principal, agree on a reasonable rate of payment, and out that agreement in writing. That is the only way to avoid misunderstanding in the future.
8. What is a health care proxy?
A health care proxy is a document executed by a competent person (the principal) giving another person (the agent) the authority to make health care decisions for you if you are unable to communicate such decisions yourself.
9. Why have a health care proxy?
In case you ever become incapacitated, it is important that someone has the legal authority to communicate your wishes concerning medical treatment. This is true especially if you were to disagree with family members about your treatment. By executing a health care proxy, you ensure that the direction that you have given your agent will be carried out in the event of such disagreement.
10. Who should I appoint as my agent?
Since your agent is going to have the authority to make medical decisions for you in the event you are unable to make such decisions yourself, it should be a family member or friend that you trust will follow your wishes. Before executing a health care proxy, you should talk to the person that you want to name as your agent about your wishes concerning medical decisions, especially life sustaining treatment.
11. Should I have a medical directive (Living Will)?
A medical directive provides your agent with instructions on what type of care you would like. If you wish, you may include a medical directive in your health care proxy. It may include specific instructions concerning the initiation or termination of life sustaining treatment or a more broad statement granting general authority for all medical decisions that are important to you.
Please contact Cohen & Oalican, LLP Boston, Andover and Raynham, for further information.
Sunday, April 11, 2010
Durable Power of Attorney and Health Care Proxy - FAQ Part 1
Durable Power of Attorney and Health Care Proxy
1. Does everyone need a power of attorney and health care proxy?
Absolutely.
These documents allow you to designate who will make decisions for you should you become incapacitated. Without them, it may be necessary for your family to become your legal guardian to the probate court which can be time consuming and expensive.
2. Could I be held liable for my actions as attorney-in-fact?
Yes, but only if you act with willful misconduct or gross negligence such as stealing money from your principal. If you do your best and keep your principal’s interest in mind as the basis of all your actions, you will not incur any liability.
3. When does the power of attorney take effect?
Unless the power of attorney is “springing”, it takes effect as soon as it is signed by the principal. A “springing” power of attorney takes effect only when the event described in the instrument itself takes place. Typically, this is the incapacity of the principal as certified by one or more physicians. Section III of your power of attorney indicates whether it is effective immediately or is springing. In most cases, even when the power of attorney is immediately effective, the principal does not intend for it to be used until he or she becomes incapacitated. You should discuss this with the principal so that you know his or her wishes.
4. What if there is more than one attorney-in-fact?
Depending on the wording of the power of attorney, you may or may not have to act together on all transactions. In most cases, when there are multiple attorneys-in-fact they are appointed “severally”, meaning that they can each act independently of one another. Nevertheless, it is important for them to communicate with one another to make certain that their actions are consistent.
5. Can I be fired?
Certainly. The principal may revoke the power of attorney at any time. All he or she needs to do is send you a letter to this effect. The appointment of a conservator or guardian does not immediately revoke the power of attorney. But the conservator or guardian, like the principal, has the power to revoke the power of attorney.
Contact an attorney at Cohen & Oalican, LLP who is skilled and experienced in this area.
1. Does everyone need a power of attorney and health care proxy?
Absolutely.
These documents allow you to designate who will make decisions for you should you become incapacitated. Without them, it may be necessary for your family to become your legal guardian to the probate court which can be time consuming and expensive.
2. Could I be held liable for my actions as attorney-in-fact?
Yes, but only if you act with willful misconduct or gross negligence such as stealing money from your principal. If you do your best and keep your principal’s interest in mind as the basis of all your actions, you will not incur any liability.
3. When does the power of attorney take effect?
Unless the power of attorney is “springing”, it takes effect as soon as it is signed by the principal. A “springing” power of attorney takes effect only when the event described in the instrument itself takes place. Typically, this is the incapacity of the principal as certified by one or more physicians. Section III of your power of attorney indicates whether it is effective immediately or is springing. In most cases, even when the power of attorney is immediately effective, the principal does not intend for it to be used until he or she becomes incapacitated. You should discuss this with the principal so that you know his or her wishes.
4. What if there is more than one attorney-in-fact?
Depending on the wording of the power of attorney, you may or may not have to act together on all transactions. In most cases, when there are multiple attorneys-in-fact they are appointed “severally”, meaning that they can each act independently of one another. Nevertheless, it is important for them to communicate with one another to make certain that their actions are consistent.
5. Can I be fired?
Certainly. The principal may revoke the power of attorney at any time. All he or she needs to do is send you a letter to this effect. The appointment of a conservator or guardian does not immediately revoke the power of attorney. But the conservator or guardian, like the principal, has the power to revoke the power of attorney.
Contact an attorney at Cohen & Oalican, LLP who is skilled and experienced in this area.
Wednesday, April 7, 2010
Financing Nursing Home Care - FAQ
1. Will Medicare pay for the cost of my care if I need nursing home care?
No.
Medicare will only pay for a maximum of 100 days in the skilled nursing facility if you meet certain requirements. You must have moved to the nursing home within 30 days of the hospital discharge and the hospital stay must have lasted at least three (3) days. Also, if you receive a skilled level of care, Medicare will pay completely for the first twenty (20) days. For days twenty-one (21) through 100, they will pay less a co-payment, which is set each year. In most situations, people receive less than the full 100 days of benefits. After that point, you either have to pay privately with your own funds or obtain Medicaid eligibility.
2. If my spouse requires Medicaid, will I lose all of my assets?
No.
Medicaid will allow a spouse living in the community to keep their home and a modest amount of the couple’s savings. However, Medicaid does cap the amount of assets the spouse in the community can keep regardless of whose name the assets were in when the couple first applied. For this reason, it is critically important for a couple to speak with an elder law attorney to ensure that the assets are protected.
3. Will my homestead declaration protect my house if my spouse or I need Medicaid benefits?
No.
A homestead declaration filed with the Registry of Deeds offers no protection in the Medicaid context.
4. If I give away my assets, will this make ineligible for five (5) years?
Perhaps.
With careful planning, it is possible to shorten the ineligibility period so that it is less than five (5) years. In addition, there are many exceptions to the Medicaid rules. Where there is no transfer penalty imposed by Medicaid, however, you need to work with a qualified elder law attorney to identify these planning opportunities.
For further information call one of our attorneys at Cohen & Oalican, LLP Boston, Andover or Raynham.
No.
Medicare will only pay for a maximum of 100 days in the skilled nursing facility if you meet certain requirements. You must have moved to the nursing home within 30 days of the hospital discharge and the hospital stay must have lasted at least three (3) days. Also, if you receive a skilled level of care, Medicare will pay completely for the first twenty (20) days. For days twenty-one (21) through 100, they will pay less a co-payment, which is set each year. In most situations, people receive less than the full 100 days of benefits. After that point, you either have to pay privately with your own funds or obtain Medicaid eligibility.
2. If my spouse requires Medicaid, will I lose all of my assets?
No.
Medicaid will allow a spouse living in the community to keep their home and a modest amount of the couple’s savings. However, Medicaid does cap the amount of assets the spouse in the community can keep regardless of whose name the assets were in when the couple first applied. For this reason, it is critically important for a couple to speak with an elder law attorney to ensure that the assets are protected.
3. Will my homestead declaration protect my house if my spouse or I need Medicaid benefits?
No.
A homestead declaration filed with the Registry of Deeds offers no protection in the Medicaid context.
4. If I give away my assets, will this make ineligible for five (5) years?
Perhaps.
With careful planning, it is possible to shorten the ineligibility period so that it is less than five (5) years. In addition, there are many exceptions to the Medicaid rules. Where there is no transfer penalty imposed by Medicaid, however, you need to work with a qualified elder law attorney to identify these planning opportunities.
For further information call one of our attorneys at Cohen & Oalican, LLP Boston, Andover or Raynham.
Friday, April 2, 2010
Cohen & Oalican discuss Choosing a Trustee
CHOOSING A TRUSTEE
Few legal restrictions exist for trustee selection. While some states may limit the ability of individuals or corporations to act as trustee without being licensed or registered by a bank or other appropriate agency, few other restrictions exist. The most obvious choices, along with some of the benefits and disadvantages of each, are listed below (Robert B. Fleming, Choosing a
Trustee, Special Needs Trusts, Stetson College of Law, October 22, 1999):
1. Parents. Parents are good choices from an economic perspective, in that they usually don’t charge a fee, unlike a professional trustee. If the plaintiff is a minor, his parents will know his needs better than anyone else and will be able to plan for his future needs.
But whether particular parents are the best choice depends on a number of factors. While they are very familiar with the daily needs of the beneficiary, they may not be able to view the entire picture objectively. They frequently suffer conflicts of interest given that the decisions they must make as trustee could potentially have a large effect on the household and the
parent/trustee’s decision may be influenced by that knowledge. The parent also may not have the necessary investment experience needed to manage the trust.
2. Other family members. Non parent family members may be appropriate to serve as trustees. They may be better able to manage the business, tax and administrative concerns of the trust. Additionally, the likelihood of self dealing may be reduced. Family members are also economically advantageous, since they will likely charge less than a professional trustee. The reduced costs and security offered by a non parent family member make then an attractive choice as trustee.
3. Family friends. A professional individual, a trusted advisor or a close friend may serve as trustee. A close friend may be willing to serve as trustee for lower fees. Additionally, a close friend may be more accessible in emergency situations and more willing to take on the social worker aspects associated with the trust than would a professional trustee. However, before
agreeing to a family friend, the attorney should do her best to make sure that the friend has sufficient experience and is sufficiently reliable to fill this important role.
Part 2 will discuss some other choices...
This series brought to you by Boston Attorneys Cohen & Oalican,LLP, specializing in Guardianship and Conservatorship.
Cohen & Oalican provide a full spectrum of services for the elderly, for disabled adults, and for the families.
Few legal restrictions exist for trustee selection. While some states may limit the ability of individuals or corporations to act as trustee without being licensed or registered by a bank or other appropriate agency, few other restrictions exist. The most obvious choices, along with some of the benefits and disadvantages of each, are listed below (Robert B. Fleming, Choosing a
Trustee, Special Needs Trusts, Stetson College of Law, October 22, 1999):
1. Parents. Parents are good choices from an economic perspective, in that they usually don’t charge a fee, unlike a professional trustee. If the plaintiff is a minor, his parents will know his needs better than anyone else and will be able to plan for his future needs.
But whether particular parents are the best choice depends on a number of factors. While they are very familiar with the daily needs of the beneficiary, they may not be able to view the entire picture objectively. They frequently suffer conflicts of interest given that the decisions they must make as trustee could potentially have a large effect on the household and the
parent/trustee’s decision may be influenced by that knowledge. The parent also may not have the necessary investment experience needed to manage the trust.
2. Other family members. Non parent family members may be appropriate to serve as trustees. They may be better able to manage the business, tax and administrative concerns of the trust. Additionally, the likelihood of self dealing may be reduced. Family members are also economically advantageous, since they will likely charge less than a professional trustee. The reduced costs and security offered by a non parent family member make then an attractive choice as trustee.
3. Family friends. A professional individual, a trusted advisor or a close friend may serve as trustee. A close friend may be willing to serve as trustee for lower fees. Additionally, a close friend may be more accessible in emergency situations and more willing to take on the social worker aspects associated with the trust than would a professional trustee. However, before
agreeing to a family friend, the attorney should do her best to make sure that the friend has sufficient experience and is sufficiently reliable to fill this important role.
Part 2 will discuss some other choices...
This series brought to you by Boston Attorneys Cohen & Oalican,LLP, specializing in Guardianship and Conservatorship.
Cohen & Oalican provide a full spectrum of services for the elderly, for disabled adults, and for the families.
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