Frequently Asked Questions
Q. My Will was done about 6 years ago, but I want to change the name of the Executor. Can I just cross out the original and put the new name and initial it on my current Will?
Unfortunately, if you make any marks on your original Will, it is considered a revocation of the Will. It’s always a good idea to review your Will about every 5 years or if you have had significant changes in your life. Have your Will updated properly if you wish to make changes.
Q. My husband and I have 3 young children and we want to make Wills but we disagree over who should have custody of our children if something happens to us. How can we solve this problem?
Many people put off making Wills or updating documents because there are such difficult decisions to make. But the harder the decisions are for you to make, the more important it is for you to do so. If you can’t decide who will raise your children if something happens to you, what would happen if the need arises? Will your families be in Court fighting over custody and letting a judge who has no personal connection to your family make the most crucial decision for your children? You and your husband need to realize that no one will raise your children exactly as you would do but you at least know the people involved in your family’s life and you are in a better position to make that decision than a judge who knows no one in your family. Remember, too, that the choice is not irrevocable. You may feel comfortable with one person now but in five years, the situation could change and you would prefer someone else. If you are thinking of choosing a parent, please consider the impact on your parent’s life and the practicalities of raising young children at an advanced age.
Q. My wife and I each have children from our first marriage. Unfortunately, our grown children do not get along with each other. We thought we would choose one grown child from each family as Co-Executors so that we are fair to both sets of children. Is this a good solution?
If the families get along, this solution might work very well, but if there is animosity, you will likely be creating a situation where it will take a very long time to settle the estate. Getting hostile Co-Executors to agree and to act promptly is difficult at best. In a situation like this, you may wish to choose a neutral outsider, a friend, colleague or even attorney who will handle the estate professionally.
Q. My son just graduated from college – does he need to make a Will now?
Your son will need a Will if he owns assets in his name alone without a named beneficiary, i.e., your son buys a condominium or house or he opens an investment account other than an IRA or 401k. He should also have a Will when his first child is born even if he does not own any assets because a Will allows him to name a guardian for his child in the event of his death.
Q. I’m not sure if I have beneficiaries named on my annuity. Can I name one in my Will?
While you could distribute an annuity under the terms of your Will, there are tax advantages to naming a beneficiary on the annuity itself. Also, any assets which have named beneficiaries will pass directly to the beneficiary without a need to probate.
Q. My parents drew up their Wills many years ago. Is there any need to make changes?
A very old Will is accepted by the courts if it was properly drawn and witnessed and conforms to the State’s requirements. However, it is always good to review such a document. Often couples do a Will when children are still young and in need of guardians, usually selecting siblings or even parents as Executors, Trustees, Guardians. After the children are grown, most families wish to have their grown children serve as Executors and Trustees. Also older Wills often lack some of the important provisions such as minor’s trusts or what to do if a child has predeceased you. Sometimes, they lack a “self-proving affidavit” which means that the witnesses will actually have to be located and “testify” or send an affidavit to the probate court.
Q. My accountant tells me that I am allowed to gift $13,000 each year to my children. Should I do that?
What your accountant means is that if you gift that amount, it does not count against your lifetime gift tax/estate tax exemption ($1,000,000 for federal gift tax; $3,500,000 for Connecticut gift/estate tax). It does not mean that you can/should do that if you or your spouse could need Medicaid/Title 19 in the next 5 years. Such gifts would create a penalty making you ineligible for assistance. Before doing any gifting other than routine birthday, wedding, graduation gifts, it’s wise to check with your elder law/estate planning attorney.
Q. Will the State or nursing home take all of my mother's assets now that she is in a nursing home on a long term basis?
No, neither the State nor the nursing home "takes" a person's assets. Rather, if you are in a nursing home, you must pay the bill each month until such time as your money runs out. Then, if you have not given away assets recently, you will become eligible for Title 19. The State will not become involved in your affairs until you actually file a Title 19 application.
Q. My husband and I are in our early 70s and our children think we should add their names to our house so that the State won’t take it if one of us goes into a nursing home. Is this a good idea?
While some couples have done this and all works out well for them, it is important to understand the risks you are taking. Life presents risks for all of us daily. We may have a catastrophic accident, lose a job, become ill, have creditor problems, get divorced or even suffer premature death. If you are contemplating such a transfer, you must scrutinize your children’s lives to determine if you would rather substitute their risks for your own. How likely is it you and your spouse will divorce now? Suffer job loss? Have creditor problems? The primary risk to older couples is the need for chronic long term care. Even if that occurred for one spouse, the “well” spouse would keep the house. It is always available for you as long as at least one of you is able to live there. Sometimes the house also represents your primary “nest egg” which would help you pay for at home care or even assisted living. Please consult a certified elder law attorney to help you weigh the pros and cons before you make such an important decision.
Q. Will the State pay for Assisted Living or a Live In caregiver if my money runs out?
While Medicaid is available in some states to pay such expenses, in Connecticut, we still do not have such a program. It is counter-intuitive to think that the State will require you to move to an expensive nursing home rather than pay less money to allow you to obtain care in the community. The Connecticut Commission on Aging has reported that the cost of community care is $41,735 less per year than institutional care. In this election year, it is important that you listen to what the candidates say about their ideas for funding of community based choices and options and let them know that the choice to stay in the community is important to you.
Q. I've paid taxes all my life and I've paid into social security - why shouldn't I use Title 19 to pay for my long term care needs?
There are reasons to avoid having the State pay for your nursing home care. First, being on Medicaid means that you have less than $1,600 in total assets! Next, you must go through a difficult and lengthy application process where essentially an audit is made of your personal finances for the previous 3 to 5 years. The Medicaid rules are complex and subject to change during the qualification process. You cannot have a private room. Finally, not all nursing homes accept Medicaid patients.
Q. Is there an alternative to Title 19?
Yes, there are several. One is to investigate long term care insurance. If you are in your 50's or early 60's, this may be your best choice. Again, having the ability to pay gives you the most choices in meeting your care needs. You may be determined to stay at home. Having long term care insurance which pays for in-home care can certainly go a long way to helping you stay home. Although many of us initially believe it is too expensive and therefore not affordable, it must be viewed as a means of protecting your assets, just as car insurance and fire insurance. Purchasing long term care insurance is a complex undertaking and should only be done after thoroughly educating yourself on the subject.
Q. I have Medicare and I have AARP which pays what Medicare does not. Won't these pay for my nursing home or at home care needs?
Many people think that Medicare pays for all or part of nursing home care. Unfortunately, this is not so. Medicare pays for only a short period of time (up to 100 days) in a skilled nursing facility after being released from a hospital stay.
Q. How do I find someone to help me sort through these complicated issues - getting sick is a nightmare!
A consultation with an elder law attorney may be all you need to review and understand the choices available to you and your family. You can then begin to develop a plan for the long term. The more knowledge you have of the various options and the effectiveness or impact of such options, the better able you are to plan for the long term. Not thinking about or planning for difficult decisions does not mean your family won't face them. Don't leave your children or loved ones scrambling in a crisis to make choices you avoided!
Q. I feel very strongly about not being put on life support and being allowed to die a natural death. I have 3 children, one of whom does not agree with me. Shall I just name the other 2 to act as my health care decision makers?
While it’s always good to put your wishes in writing and to choose health care representatives who share your health care treatment philosophies, there is no guarantee that your wishes will be honored if one child is protesting. Our living Will statute does not give you an absolute right to not be placed or remain on life support but it does let others know where you stand. When there is controversy, hospital ethics committees become involved and the outcome may be out of your personal representative’s hands. Try to speak to your children about respecting your choices even if different from their own.
Q. My spouse just passed away and I don’t know who to make Power of Attorney. I have 3 children and I thought I would name my oldest son who lives in South Carolina (his wife handles all of their finances). My second child is married to an accountant in Hartford and I live near my younger daughter who is a teacher. I don’t want to upset them, but which should I choose?
Try to step back and imagine what would happen if you should have a car accident. Which child would be there immediately and think about paying your bills and helping you take care of things? People often think they “must” choose in birth order. It is far more important to choose in terms of which will actually know what to do, not procrastinate and will put your best interests in front of his or her own. This is more important than geographic location too. If children get along well, you may wish to name 2 children or even all 3 to act “severally” meaning they can decide among themselves who does what for you. If they don’t get along, this could be a disaster as each could go in a different direction. Again, depending upon their relationship or how busy and stressful their lives are, you may wish to choose a neutral outsider whose job it is to take care of your finances properly.
Q. My son wants me to make him Power of Attorney but I can still take care of my own finances and I don’t need his help so why should I do that?
Having signed a Power of Attorney does not take away your ability to handle your own finances and legal matters. It’s always a good idea to sign one, but not give it to your son until you are ready for him to help you. Let him know you’ve done one and if there is an emergency, where he can access the document to act on your behalf.
Q. My parents live in another state and their health and assets are both declining. My spouse and I are thinking about bringing them here to live with us. Is this a good idea?
From an elder law attorney perspective, this question raises many other questions which need to be addressed by all involved before moving forward. First, how do your parents feel about relocation? Will you need to renovate or add on to your current home to have an appropriate living space for your parents? If so, who will pay what for this? Do your parents need assistance with activities of daily living? If so, who will provide? Who will pay? What about social activities for your parents? How will they make friends? What will they do with their days? What about new doctors? Travel to appointments, church, Senior Center? Are your siblings on board with this plan? Will they be willing to help out? To give you respite? What if your job changes? Or you wish to move? Or your own immediate family situation changes (illness, divorce?)? I recommend that you and your parents and even your siblings consult with an elder law attorney before committing so that you can explore the possibilities and make appropriate financial and legal decisions and so that all parties have a clear understanding from the very beginning. The more carefully you prepare for such a move, the more likely it will be beneficial for all involved.
Q. My wife finally convinced me to make an appointment with an elder law attorney but now the attorney wants all kinds of information about our assets, income, children. Why does she need all this?
Each person’s situation is different. What happens to your neighbors or your relatives is not necessarily what will happen to you. In order to effectively and intelligently give advice to you and your wife, an attorney must know the details of your situation. Are your current documents appropriate for you? What kind of plan do you have for illness or incapacity? Is it realistic, practical, right for your situation? How will you meet the financial demands of chronic long term care needs should they arise? Should you consider making any transfers of assets now? These are all issues that you should expect will arise in a consultation with an elder law attorney. In order to get the best advice, prepare properly.
Q. What are the important questions I should ask when determining the need for an elder law attorney?
Have I experienced a major change in my life, i.e. marriage, birth, death of family member, divorce or change in financial circumstances? Am I prepared for catastrophic illness or long term care needs? Are my children properly protected in the event of my death? Do I have a Living Will with a Designation of Health Care Agent and a Durable Power of Attorney? Have I designated beneficiaries on my retirement accounts and insurance policies and have I discussed the designations with my attorney as part of my overall estate plan? How do I choose an Executor? Should I give my house to my children? How can I protect my assets? What are my duties as an Executor?
Call us today for a consultation to discuss these important issues. (860) 350-0055