Elder Law

My husband and I were both married before and both have children from prior marriages. How do I protect my children and make sure they get my assets should I die first?

While estate planning can be complex for all families, it can be especially challenging for those in other than a first marriage. Ensuring that everyone is treated fairly can be a challenge, but these five steps can help.

1) Sit down with your spouse and discuss both of your desires. Make a list of the assets you both brought into the marriage as well as those obtained during the marriage. Discuss how you want them distributed after your death.
2) Determine if trusts are needed to protect your children’s inheritance. When assets are left outright to your spouse, your spouse controls the ultimate disposition of the assets. When you use a trust in your estate planning, you can decide the ultimate distribution of your assets.
3) Review beneficiary designations on life insurance. It’s not unusual to forget to update the beneficiary designations for retirement accounts and life insurance. These assets will pass directly to the named beneficiaries regardless of your estate planning documents.

For more information feel free to contact us at Herzog Law Firm at 518-465-7581.


What is the difference between a Health Care Proxy and a Living Will?

A Health Care Proxy is a document in which you appoint other individuals to make health care decisions for you, if you are unable to make them yourself.  It is usually triggered by being unconscious, under sedation, heavily medicated, or lacking in capacity to make decisions due to dementia or mental illness. In other states this document is sometimes called a Durable Power of Attorney for Health Care.

A Living Will is a document in which you provide specific directions to medical professionals or agents as to what types of end of life treatments you may want and what types of treatment you might not want. We often describe it as the road map your agent under your Health Care Proxy should follow in making decisions for you.

Sometimes Living Will language is placed right in the Health Care Proxy document and sometimes they are separate documents. Both are fine. It is more a preference of the drafting attorney.

For more information feel free to contact us at Herzog Law Firm at 518-465-7581.


Can I give my children the family home and still qualify for Medicaid?

Your home is probably one of your biggest assets.  You may be concerned about losing it if you need nursing home care in the future.  In some cases, you may be able to transfer the property to your children, continue living there and qualify for Medicaid.

If you transfer your home to your child and reserve a “life estate” in the deed, you will still qualify for all of your exemptions (star, senior star, VA etc), but as great as that sounds there is a down side.  The home must be transferred at least 5 years before you are looking to have Medicaid pay for your care. If you transfer the house to your child and the child gets divorced, are sued, file bankruptcy or worse yet die, they own your house and your home would be subject to the problems they have in their life.  Additionally, if you want to sell your house you have to ask for permission to sell your house and your child will have to pay capital gains on the sale as your home is not their primary residence.

A trust is an effective tool for safeguarding assets during your life as well as after you die.  An Irrevocable Trust will protect your home from the cost of future nursing home care as well as avoid probate should you pass away owning the home.  You can change the trustee and the beneficiaries at any time so you are in full control of the trust even though it is irrevocable.

For more information feel free to contact us at Herzog Law Firm at 518-465-7581.

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