Multi-State Estates

  • By 7016324482
  • 25 Jul, 2017

A client recently came to our office with the following situation. The client’s mother had passed away owning a house in Mississippi plus a house, other land and mineral interests in another state. Though the woman was a native of Mississippi, most of her life was spent in the other state. She also left a Will leaving her estate to her husband and if husband predeceased, then to a daughter. The Will, however, was never signed and therefore is invalid.

Without a Will, her estate must be administered in the county where she lived at the time of her death. Her assets must be inventoried, creditors notified through publication in a newspaper and in letters to the creditors, and heirs at law must be determined by publishing a Notice to Unknown Heirs in the newspaper and then, at a hearing, the Court must rule who her heirs at law are. In this case, there is only one child. However, this does not end the problem. A similar administration must be filed in all other states where real property or mineral interests are owned. Although there are differences in each state’s laws,  the handling probate and administration of estates is somewhat similar everywhere and the same matters must be attended to according to the laws of the other state.

If the deceased had the foresight to create, fund and administer a Revocable Living Trust, the dual expense, months delay and long-distance administration would have been avoided. The Trust could be created in any state where the Grantor owned real property. The Trust would then be funded by transferring (deeding) the ownership of all real property and mineral interests to the Trust once and for all. The cost to administer estates in two states is at least four or five times the cost of creating a Trust and transferring property in each state.

Whether property is owned in just Mississippi, whether single or multiple tracts, or in several states, a wise consideration is to create a Revocable Living Trust and save your beneficiaries much delay, frustration, and money.

The Elder Law Firm Blog

By 7016324482 07 Nov, 2017

The following was posted on social media by Rev. John Sharp of Lena, Mississippi:

The attorney gathered the entire family for the reading of the will. Relatives came from near and far, to see if they were included in the bequests. The lawyer somberly opened the will and began to read:
       
 "To my cousin Ed, I leave my ranch.
       
 "To my brother Jim, I leave my money market accounts.
       
 "To my neighbor and good friend, Fred, I leave my stocks.

 "And finally, to my cousin George, who always sat around and never did anything, but wanted to be mentioned in my will, I say, 'Hi, George.'”

This funny story illustrates an important fact in creating Wills. The person creating a Will is called a “testator.” The main purpose of a Will is for the testator to choose who receives assets and how much they receive. The only individual who may contest being left out of a Will is a spouse. Children have no right to contest a Will based solely on the fact that the testator omitted them. Mississippi law allows an omitted spouse to “renounce the Will.”  In this case, the spouse receives the share of the estate that would have been received if there was not a Will, less the spouse’s separate estate. This can get into some interesting calculations in an estate.

 We have seen several instances where the relationship between the parents and the children is so bad that the parents choose to leave the entire estate to various and sundry charities. In drafting Wills, it is not important to our office to know why children are or are not included. There are many instances where the testator will divide the assets in unequal amounts to children, usually based upon the need of the child or how attentive the child is to the parents.  In planning your Will, take into consideration all of the factors and let your conscience guide you in distributing your assets to whom and in what amount you desire.

By 7016324482 07 Nov, 2017

A text, written by a 55 year old Australian man, was found in the draft folder of his phone. It contained information on how to access his bank account as well as directions for what to do with his ashes and ended with “My will.” The unsent text was addressed to his brother and indicated that the brother and a nephew would be the recipients of his house and funds, and excluded his wife, stating, “…[wife] will take her stuff only she’s ok gone back to her ex AGAIN I’m beaten…”.

 The Court in Australia ruled that this is a valid will in a case brought by the wife where she attempted to gain control over his estate. Australia law states that a Will must be signed in front of two witnesses over the age of 18 who are not included as beneficiaries in the Will. The “text will” clearly did not comply with that law, but Australia amended its law in 2006 to allow for special cases with less formal documentation.

 In Mississippi, to quote one of my rules, “that dog won’t hunt!” Mississippi Code Section 91-5-1 controls execution of wills in Mississippi and provides that the person executing the will (testator) must be 18 years of age or older, be of sound and disposing mind, not under undue influence of anyone, and the will must be attested by two or more credible witnesses. The witnesses must be independent people who are in the presence of the testator when the will is signed. The signature of the testator is not notarized, but the signatures of the witnesses are. If a witness is not present and does not observe the testator signing the will, but signs as a witness anyway, the will is invalidated. If a will is ruled invalid, the estate must be administered with the decedent’s heirs at law being the beneficiaries in the estate. Witnesses are not required if the testator wrote a holographic will which handwritten, not typed, wholly in the hand of the testator which is then signed and dated.


By 7016324482 07 Nov, 2017

In our last article, I discussed the importance of the term “per stirpes” in a Last Will and Testament. “Per stirpes” is a Latin term meaning “by roots” or in estate planning terms, “by blood or blood relatives.”  “Per capita” is Latin meaning “by heads” or “for each head.” It is used in Wills to indicate that each of the beneficiaries shall receive equal shares of the estate.

 The “per stirpes” phrase in a Will may read something like this: “In the event my spouse predeceases me, I give, devise and bequeath my property…to my children in equal shares, share and share alike, or to their descendants, per stirpes.” In this example, if the spouse is deceased and there are four children, each child would receive one-fourth of the estate. However, one of those children, Tom, has three children, and has predeceased the parents. These three grandchildren will receive Tom’s one-fourth share in equal parts, or one-twelfth each, and the remaining children would receive one-fourth each. If Tom had no children, his share would be distributed equally among the remaining children, who would receive one-third each.

 An example of “per capita” may be where the testator decided to skip his children and go directly to his grandchildren. This Will could read something like this: “I give devise and bequeath my property to my grandchildren, then living at the time of my death, equally, share and share alike.” In this case, if there are 10 grandchildren, the estate will be divided into ten shares. If four grandchildren have died, leaving six children, it will be divided into six equal shares. No descendants of the deceased grandchildren will inherit anything. With per capita, it does not make any difference how many grandchildren there are or how many children they have. The living grandchildren receive the estate equally.

 In drafting a Will, it is very important to be sure that the testator understands how the distribution is to occur and to review the Will periodically to ensure it accomplishes the purpose of the testator.

By 7016324482 07 Nov, 2017

In reviewing your Last Will & Testament you may have noticed an unusual little phrase “per stirpes.” What in the world does this phrase mean and why did your lawyer put it in your Will?

“Per Stirpes” is a Latin term meaning “by roots” or in estate planning terms, “by blood or blood relatives.”  Beneficiaries take from your estate by right of representation, which means that they will inherit in a share equal to that of the individual they are representing.

For example, you have three children and they each have children. The phrase might appear in your Will something like this, “I leave my estate to my children, Tom, Dick and Harry, equally, share and share alike, per stirpes.” Written like this, each child will receive one-third of your estate. If all three children are living at the time of your death, your grandchildren receive nothing. However, if Tom dies before you, his share will go to his two children, Jerry and Mary.  Tom’s children will divide his share equally between them. In this example, your grandchildren would each receive one-sixth of the total estate, while your living children, Dick and Harry, each receive one-third.

This sounds simple and easy, but many times it is not. Let’s take it a step further, suppose one of Tom’s children, Mary, predeceased both you and Tom. Mary had two children, Jane and June.  In this situation, your great-grandchildren, Jane and June, will receive equally the share your deceased grandchild (Mary) would have received, or one-twelfth (1/12th) interest in the estate.  Sometimes, a parent outlives multiple children and grandchildren. Distribution can get confusing in these situations.

Using “per stirpes” in Wills covers the typical family situation so that your Will doesn’t have to be changed every time a beneficiary predeceases you. However, if someone predeceases you and you no longer want this typical pattern to apply, then changes will need to be made. Regular reviews of estate plans help make sure your Will is written the way you want it.

By 7016324482 23 Aug, 2017

When a person’s estate must be probated or administered through the Chancery Court, the Decedent’s life can be opened up for the world to see. The basic purpose of probate is to: (1) gather assets; (2) locate beneficiaries or heirs; (3) notify creditors; (4) pay creditors; and (5) distribute assets to heirs. This is the legal side of an estate.

There is another part of an estate that is more spiritual, or personal, in nature. This aspect reveals the more intimate facets of the Decedent’s life. The personal side must be handled with great care, reverence and love.

Through the probate process, the positives and victories in the person’s life are seen along with the negatives, failures and problems. Next to domestic cases, such as divorce and custody matters, estates generate the most emotion among participants. During this time, the best in families will shine through and, sadly, the worst shows as well. For example, a Decedent may own a bank account jointly with one child expecting that the funds will be divided equally among all the children. By law, the joint account goes to the surviving owner and is that person’s separate property. The joint owner is not under a legal duty to share it with anyone. The best is when they do, and the worst is when they refuse.

Old wounds, long buried, may now rise to the top. The sibling rivalries, wrongs of the past—real or imagined—and old disagreements resurface and may have to be resolved in the estate. Many of the problems relate to sentimental value placed upon various assets, usually not of high monetary value, but of deep, personal value to the Decedent and children. Heated arguments may arise over who gets Mama’s rocking chair.

If the Decedent had prepared a Personal Property Memorandum listing items and their recipients, many of these fights could have been avoided. Often in estates, feelings get hurt which may negatively affect their family relationships forever. A detailed Personal Property Memorandum can reduce the chances of family arguments.

In an estate, the most emphasis is on the legal issues of the estate, but the personal aspect may have the greatest impact on the families and this should be handled with great care and reverence for the deceased.

Richard Young

By 7016324482 22 Aug, 2017

If you are a caregiver managing your senior loved one’s care from afar, you know better than anyone how difficult it can be for a person with limited mobility or symptoms of early-stage dementia to live independently. Her challenges multiply when she lives in a large family home that is too much for her to clean and maintain. Both of you worry about her climbing the stairs, getting in and out of the bathtub, and reaching high cabinets. If these concerns weigh on you, it is time for you to help your senior loved one downsize. We offer some advice to help you through the process.

  1. Downsizing Helps a Senior Loved One Remain Safe

 Large houses with two or more stories are dangerous for seniors with limited mobility because they have to climb stairs to get to the most-used areas of the home several times a day. Downsizing to a single-story, ranch-style home ensures that seniors do not attempt to climb stairs. And, most ranch-style homes do not have a step onto porches or into garages, so you won’t have to worry about your loved one climbing any stairs at all. Long-distance caregivers gain peace of mind knowing that their senior loved one is not risking a fall or harming her knees or hips by navigating staircases.

  2. Downsizing Often Results in Having Extra Money for Home Modifications

 The majority of seniors live in family homes in which they raised their children. These homes often are too large for one person. Downsizing to a smaller home is a way for a senior to make some money because he can sell a larger home for more money than the cost of a smaller home. Seniors then use this extra money to make home modifications to ensure their safety.

 In many cases, smaller ranches are easier to modify to enable your senior loved one to age in place. Rather than spending a great deal of money installing a chairlift in a home that is too large for your loved one, you can put money into widening doorways, installing no-slip flooring, or installing a walk-in tub or shower. Smaller ranches also have open floor plans, which makes them easier to clean and navigate for seniors.

   3. Downsizing Results in Decluttering

 If you worry that your loved one will trip and fall and you won’t be aware of her injury right away, you need to help her declutter. Downsizing does not just mean moving to a smaller home; it also means sorting through belongings and keeping items that are most useful and most sentimental in order to move to a smaller home. When you declutter your loved one’s home, you ensure that all of her belongings have a spot in which to fit, so you decrease the likelihood that she will trip over something on the floor or out of place. Everyday Health shares some helpful tips for preventing falls at home if you want some more information.

 Of course, the challenge with decluttering is determining what to keep and what to donate, sell, give away, or trash. This process should not happen overnight. Your loved one will need time to reminisce, make decisions, and come to terms with parting with some belongings. You can begin by encouraging her to go room by room and make a yes pile and a no pile. Once she narrows down what she wants to keep, she can further downsize by asking direct questions about each item in the yes pile. Looking at each item as objectively as possible will help her decide what to move to her new home.

 If you are a long-distance caregiver, you want to ensure your loved one is managing as well as possible independently. Living in a large home with stairs, too many rooms, and too much clutter is not an ideal situation for seniors who have mobility issues or who are in the early stages of dementia. That’s why you should help your loved one downsize to a ranch home with modifications that is safer and easier to navigate and maintain. It’s also important to help her declutter in preparation for the move to her smaller home.

 

Marie Villeza

Elderimpact.org | info@elderimpact.org

 

By 7016324482 22 Aug, 2017

No…not Roy Roger’s horse. A trigger is a mechanism or an event that initiates another event or series of events, generally more significant. A specific event can initiate or trigger the powers in a certain type of Power of Attorney (“POA”).

 A POA is a document wherein a person, or “Principal,” designates specific authority to an agent to perform responsibilities on behalf of the Principal. The powers granted can be general or very specific. The better drafted POA specifies in detail the duties of the agent. An agent must use the powers granted in the POA and the Principal’s assets for and on behalf of the Principal and not for the benefit of the agent. The Agent has a fiduciary duty, a legal obligation, to protect the Principal.

 There are two ways for a POA to give powers to an agent. In one, the POA becomes effective immediately upon the Principal signing the document. The other is sometimes called a “Springing Power of Attorney” and empowers the agent to act only after the Principal becomes incompetent as defined by the document. To establish incompetency of the Principal, the POA usually requires an examination and certificate of one or two physicians. This certificate triggers, or springs, the powers of the agent.

 The decision to empower the agent upon execution of the document or to delay the trigger until the Principal is declared incompetent depends upon the condition of the Principal at the time the POA is signed. A person in poor health should allow the powers to be effective immediately. Those who are healthy should sign a POA for protection, if needed, to start at a later date and triggered by incompetence.

 A Durable Power of Attorney is one that continues the power of the agent on behalf of the Principal during the period of incapacity and/or disappearance. A POA terminates upon the death of the Principal.


 “Happy trails to you till we meet again.”

 

Richard Young


By 7016324482 25 Jul, 2017

A client recently came to our office with the following situation. The client’s mother had passed away owning a house in Mississippi plus a house, other land and mineral interests in another state. Though the woman was a native of Mississippi, most of her life was spent in the other state. She also left a Will leaving her estate to her husband and if husband predeceased, then to a daughter. The Will, however, was never signed and therefore is invalid.

Without a Will, her estate must be administered in the county where she lived at the time of her death. Her assets must be inventoried, creditors notified through publication in a newspaper and in letters to the creditors, and heirs at law must be determined by publishing a Notice to Unknown Heirs in the newspaper and then, at a hearing, the Court must rule who her heirs at law are. In this case, there is only one child. However, this does not end the problem. A similar administration must be filed in all other states where real property or mineral interests are owned. Although there are differences in each state’s laws,  the handling probate and administration of estates is somewhat similar everywhere and the same matters must be attended to according to the laws of the other state.

If the deceased had the foresight to create, fund and administer a Revocable Living Trust, the dual expense, months delay and long-distance administration would have been avoided. The Trust could be created in any state where the Grantor owned real property. The Trust would then be funded by transferring (deeding) the ownership of all real property and mineral interests to the Trust once and for all. The cost to administer estates in two states is at least four or five times the cost of creating a Trust and transferring property in each state.

Whether property is owned in just Mississippi, whether single or multiple tracts, or in several states, a wise consideration is to create a Revocable Living Trust and save your beneficiaries much delay, frustration, and money.

By 7016324482 11 Jul, 2017

Many clients have received erroneous information from others regarding Medicaid and acting on this information often delays Medicaid eligibility. Several of the mistakes made are as follows: 

  1. Thinking it’s too late to plan. It's almost never too late to take planning steps, even after a senior has moved to a nursing home.
  2. Giving away assets. Medicaid sets limits on the amount of money and types of assets a person can own and still receive Medicaid. Many people think that giving these things to their children or others will solve that. However, transfers to others can delay Medicaid eligibility.
  3. Ignoring allowable transfer options created by Congress. Certain transfers can be made without jeopardizing Medicaid eligibility. These include: transfers to disabled children (even adult children who are not dependent on the Medicaid applicant), certain caretaker children, certain siblings and the purchase of an annuity which will then be “non-countable” yet will allow a supplement of income for the spouse who remains at home.
  4. Applying for Medicaid too early. This can result in a longer ineligibility period in some instances.
  5. Applying for Medicaid too late. This can mean the loss of many months of eligibility.
  6. Not getting qualified help. This is a complicated field that most people deal with only once in their lives. Tens of thousands of dollars are at stake. It is penny wise and pound foolish not to consult with people who make their living guiding others through the process.
  7. Confusion about the myth of Medicaid “taking my home.” Educate yourself about the rules and policy of estate recovery for Medicaid recipients. Medicaid does not “take your home.” In certain cases there may be no estate recovery at all. When there is estate recovery, Medicaid places a lien against the home so that some of the money they spent on the Medicaid recipient can be recouped from the proceeds when the home is sold.

  Get all the facts from reputable sources and professionals who know and understand the rules.


By 7016324482 17 May, 2017

To qualify for long-term care under the Medicaid program, there are two general qualification criteria: (1) monthly income; and (2) resources. Some of the specific eligibility requirements can change annually and a prior article covered the changes for 2017. The current income limit is $2,205 per month. However, there is an avenue available to qualify for Medicaid when the resource criterion is met, but the monthly income is too high. The Division of Medicaid designed a mechanism called a “Medicaid Income Trust,” or sometimes "Qualified Income Trust."  This Medicaid Income Trust is not to be confused with a Revocable Living Trust or a Medicaid Asset Protection Trust which are often topics in this column. 

The Medicaid Income Trust is a short document that is signed by the applicant or representative of the applicant and commences the month that the applicant first receives Medicaid benefits for long-term care. The concept of the trust is that the applicant’s monthly income in excess of $2,205 is held in the Medicaid Income Trust. It is then periodically audited and the monies held there are paid to Medicaid to defray the amount Medicaid has paid to the nursing home. Using this approach, a Medicaid applicant who otherwise qualifies for benefits can qualify for Medicaid even with a monthly income greater than the current amount allowed. 

The income of the applicant’s spouse does not affect the applicant’s eligibility. The spouse’s income is not used in calculations for Medicaid eligibility if the spouse is not also applying. This allows the spouse to live at home and have sufficient resources to pay expenses. 

The income limit for long-term Medicaid care is not necessarily applicable for all Medicaid services. There are different criteria for each program, including the Medicaid waiver program known as Home and Community Based Services. This program provides assistance for qualifying persons needing care but who are remaining at home. To qualify for this program, the applicant either receives Supplemental Security Income (SSI) or meets the income and resource eligibility requirements for income level up to 300% of the SSI federal benefit rate and meets certain medical criteria.
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