Articles Posted in Elder law estate planning

When titling property pertaining to estate planning, there are many considerations to make in order to properly distribute assets and property to your loved ones upon your death. Depending upon your estate planning measures, you make seek to title property in order to pass automatically to a lineal descendant, in order to avoid probate, or in order to allow your executor to sell, gift, or transfer your interest in property.

Ownership

Sole ownership, the title position in which you are the sole owner of the property, is the most common form of ownership for single individuals. They have full rights to property while alive and also to pass at death. This type of title will pass subject to probate, by the decedent’s will or if they fail to execute a will, by intestate, also known as the process by which a court will determine your estate execution.

When titling property pertaining to estate planning, there are many considerations to make in order to properly distribute assets and property to your loved ones upon your death. Depending upon your estate planning measures, you make seek to title property in order to pass automatically to a lineal descendant, in order to avoid probate, or in order to allow your executor to sell, gift, or transfer your interest in property.

Ownership

Sole ownership, the title position in which you are the sole owner of the property, is the most common form of ownership for single individuals. They have full rights to property while alive and also to pass at death. This type of title will pass subject to probate, by the decedent’s will or if they fail to execute a will, by intestate, also known as the process by which a court will determine your estate execution.

Dementia and Alzheimer’s Disease affects more than five million Americans today. While a large majority of those affected are over the age of 65, it is not just a disease for the elderly. Symptoms of Dementia and Alzheimer’s Disease can occur in individuals as young as 30 years old, and currently affects an estimated 200,000 people in America. The diagnosis can often be missed or misdiagnosed as another condition or an association with the changes both men and women go through during their 40s and 50s, however, a comprehensive medical examination is required in order to properly diagnose those with early onset dementia. While the cause of the disease is not yet known, it is important to look to your family history as a way to determine if you or your loved one should be monitoring specific behaviors and changes in personality.

The thought of losing your memories, ability to perform basic tasks, as well as ability to think clearly, remember the time, date, or place, is a very scary feeling for anyone. As these functions start to go, it is important that the loved person, either elderly or young, has in place a comprehensive medical and estate plan, when the day comes that he or she is no longer able to make decisions for themselves. The unfortunate reality of this disease is that it is not a question or if, but of when they will no longer be able to make their own decisions based on a lack of capacity.

First, the individual in question must have their legal capacity assessed to determine if they are able to understand and appreciate the consequences of their actions in signing documents that give specific power to named individuals. In doing so, you should also consult a medical professional if you have doubt as to their ability to understand and make decisions. Also, if the individual has previously executed any wills, trust, or power of attorney documents, those should be revised as necessary to accommodate their current condition while still respecting their wishes.

The legal rights of illegitimate children and their ability to take under the terms of a trust have for years been the subject of many litigation proceedings. Illegitimate children are traditionally known as children who are born out of wedlock or to unmarried parents, however, the most widely known cases are those children who were born as the result of an affair by either or both parents. When one parent is the beneficiary of the grantor of a trust, the other spouse of the child, when old enough, may try to assert claims that they are also entitled to access the trust due to blood relation.

How Does an Illegitimate Child Take?

While traditionally under common law, an illegitimate child was not seen as a legal child of either parent, with no right of parental support or right of inheritance, today the laws have changed to better reflect the rights of an illegitimate child. Although states differ regarding their laws on wills and trusts, many now favor giving children rights, under statutes such as The Status of the Children Act as well as the Equal Protection Act. Under the Status of the Children Act, there is a presumption that any reference to children not further defined in a will includes both legitimate and illegitimate children, regardless of their relationship to the father.  

Winter months are difficult on many of those who live in areas that experience great seasonal changes. The National Center for Health Services actually found that death rates are twice as high in the winter than the hottest part of summer. Not only do we have bundle up and face the chilling weather, there is also a major threat of seasonal illness.

Thus, it is not surprising that individuals have the highest risk of dying from natural causes in the end of December and beginning of January. In fact, one study showed that those who die from natural causes, circulatory problems, respiratory diseases, nutritional/metabolic problems, digestive diseases and cancer have a greater chance of dying between Christmas and New Years than any other time of year.

Not Just in America

Physician assisted suicide has been a controversial topic across the world, however as the reasoning behind it becomes better understood, many countries have chosen to legalize the practice for reasons outside of terminal illness. In the United States, in the past few decades, the public began to take notice with news headlines such as those regarding Dr. Jack Kevorkian, the Michigan physician who helped assist numerous patients chose when they would die from terminal illnesses and subsequently served eight years for his acts.

Today, physician assistance in dying is legal in Washington, Vermont, Montana, Oregon, with California recently signing in their aid in dying legislation in June 2016, Colorado approving a ballot measure in the most recent November 2016 election by two thirds majority, as well as the District of Columbia signing in their version of the same aid in dying law in December 2016. With a not so surprising passage of these laws comes the realization that Americans as a whole see the reasoning or at least themselves would want the option, in the circumstance they were to become terminally ill.

What is different with the United States’ various aid in dying laws in place is that they are all for those patients that are terminally ill, requiring certain validation steps through physicians and therapists.

When we place our loved ones in the care of a nursing home we expect that they will be properly treated and cared for. Sadly, there are many instances where negligent care is given. In one recent case, a nursing home resident was seriously injured after being scaled by hot water that was spilled on her. The woman’s health declined and she died. A representative for the woman’s estate has filed a lawsuit in stating that they did not provide proper care to her.

Burns Can Be Serious

Burns to the skin can occur for a number of reasons. In this case, the woman suffered burns due to hot water that was spilled. The nursing home staff allegedly did not properly supervise the woman while under their care. The woman sustained severe physical injuries that contributed to her death. Burns are painful, and may become infected, causing other medical problems. In this instance, the lawsuit alleges that the burns were quite severe and indeed led to the woman’s decline in health, and subsequent death.

Probate and Contested Estates

When an individual dies, their transfer of property through the legal system is known as probate. During this process, the court determines the validity of a legally formed will or a how property will be distributed if it has not been designated to be inherited by another named party. When an estate enters probate, all of the debts and taxes owed by the deceased on the property are paid, any remaining income, dividends, stocks or investments are sold and the property is distributed or transferred out to the heirs of the deceased. While the deceased individual can leave property or assets to any party they wish, there are certain situations that call into question the validity of the transfer. If one of these suspicious situations arises, a party may raise a contested issue with the distribution.

Examples of Contested Estate Issues

David Bowie’s Estate

This year, we lost two music icons. While the death of Prince came as a surprise to the music community, David Bowie lost his battle with cancer. It was not surprising that David Bowie’s estate was left with almost $100 million dollars, a very large sum of money that was all properly distributed according to the terms of his will. Bowie outlined his wishes in his will, that was made over a decade ago, which even stating how he wanted to be cremated. The star died on January 10th, 2016, and in accordance with the terms of his will, his last wishes to be cremated were followed, on January, 12th. The will not only outlined how to distribute the estate, but also how and when funds set aside in trusts were to be distributed to his wife and children.

Additionally, the making of this will has provided a straightforward method to determine how future earnings from his music, past as well as unreleased, will be distributed. Bowie recorded a final few songs which are set for release at specific times in the future.

Claiming inheritance upon its distribution is something that many individuals welcome and conversely is the source of many family disputes. There are many reasons why someone may want to refuse their bequest however, in a process in estate planning referred to as disclaiming inheritance. Some beneficiaries seek to disclaim their inheritance due to their personal wealth, whether wealthy or poor, for tax reasons, or to pass the gift on. In estate planning, if you decide to disclaim your gift or bequest, you will be treated as if you died before the grantor did, and your share is redistributed according to the terms of the will.

Examples of Why You May Consider Disclaiming

Estate taxes can be particularly hefty and if disclaimed, the gift or bequest would pass to the next of kin, who may be more willing to take on the potential tax burden. In years past, disclaimers have been used a stopgap measure after the estate tax expired in which the first million in assets valued from an estate is exempt and assets thereafter is levied at 55%. Once the tax expires, there are sometimes unintended consequences which end up negatively impacting the estate of the beneficiaries.

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