One of the more complicated areas of legal practice today is the
area of estate planning. Estate Planning covers everything from the drafting of
simple wills to planning for disabled family members to the complicated estate
plan which may dispose of millions of dollars.
Whether or not you own real
estate, whether your assets are joint with your spouse or others or held
individually, you should have some method for ascertaining that your assets are
disposed of in the manner in which you desire at your death. If you do not
decide for yourself, the Commonwealth or other jurisdiction in which you are
domiciled will decide for you.
Other issues dealt with in the
estate planning area are those of Medicaid Planning, Health Care Proxies,
commonly known as "Living Wills" and Powers of Attorney.
Medicaid Planning is the area in
which Wills, Trusts, transfers of property both real and personal can be used to
avoid assessment of Medicaid liens. Unfortunately, in December 1996, the federal
laws were amended, making transfers with the specific intent to avoid Medicaid
assessments illegal.
Health Care Proxies -
"Living Wills" allow an individual to nominate a person to make
medical decisions when the principal is incapacitated to the point where he or
she cannot make informed medical decisions on his or her own. The Living Will
can be drafted broadly to allow termination of any and all extraordinary means,
or more narrowly so that the Proxy can assent to only certain procedures.
Powers of Attorney allow the
principal to nominate another to conduct the everyday business of the principal
as to negotiating checks, maintaining lawsuits, collecting debts, paying bills,
depositing and withdrawing from accounts. Be aware that the Power of Attorney is
not an infallible document. Some banks and other institutions will desire their
own form, and if the Power is too old it may not be accepted. Conveyancers are
particularly skeptical of the use of Powers of Attorney in order to transfer
real property. Generally a conveyancer will require a deed or mortgage to be
signed by the principal and will allow all other closing documents to be signed
by the Attorney in fact.
Wills are the documents used to
transfer property after death. They can be as complex or simple as needed. They
can be amended or changed until the individual loses testamentary capacity or
dies.
Trusts are documents which will
hold property to be used by the Trustee for specific purposes, such as support,
maintenance and education of children, maintenance of an incapacitated spouse,
child, or other relative. Complex trusts provide a vehicle to shift assets for
estate tax purposes.
Both will and trusts as well s
the other documents described above should be reviewed on a regular basis, and
should there be a death of a spouse or child, birth of a new child, marriage,
divorce or remarriage, your Will and other estate planning documents should be
reviewed.
Estate Administration is the
process by which the Will is offered for probate and the assets of the estate
are distributed. Estate Administration also encompasses preparation and filing
of the Estate Tax Return and obtaining a Release of Estate Tax Lien for any real
estate in which the decedent had an interest at death. Both Attorneys Balas and
Morin have extensive experience in estate administration and planning.
