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Out of State Wills

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I am frequently asked the following question: “I have a will that was drafted for me out of state. Is it valid in North Carolina?” The answer? It depends.

   If the will was drafted by an attorney in another state, then it will likely be valid and probated-able in NC. If it was a fillable form or something you got off a website, then you’re rolling the dice as to whether it’s valid in ANY state.

   Even if you had your will drafted by an attorney, different states have different laws. While the requirements for a valid will are pretty consistent among the states, there are some differences of which to be wary.

   The general requirements for wills are as follows. Wills must be signed, witnessed, and attested. The testator (creator of the will) must be of legal age, have intent to create the will, and be of sound mind. Most states have similar definitions of these requirements, but they can differ. For example, legal age for most states is 18. However, in Louisiana, a person as young as 14 can create a will. Another example is the witness requirements. Most states require a minimum of 2 witnesses be present and observe the testator signing the will. However, good ol’ Vermont requires a minimum of three witnesses (which is surprising for a state with such a small population).

   There is also the fact that the will itself might be valid but certain provisions in the will may not be. This is especially true if you are moving from a community property state to a state that does not have community property laws. Furthermore, in some states you can disinherit your spouse. In NC, for example, there are laws that protect surviving spouses.

   Beyond validity, the will might need to be updated for practical purposes. Let’s say you moved from New York to North Carolina. You had a will drafted in NY and you named your sister who also lives in NY as your executor. Now that you have moved to NC, your will may still be valid, but your executor now lives more than twelve hours away from you.

           Moreover, when you move, you make changes. Typically, you buy or sell real or personal property, you make new relationships, you become a part of new groups, etc. Your will should be able to account for these changes. If it does not, then it should be updated to fit your new life.

           The best thing to do, if you are moving to a different state, is to have an attorney evaluate your estate plan and make sure it works for you.


Brenton S. Begley, JD, LLM Taxation

Elder Law Attorney

McIntyre Elder Law

“We help seniors maintain their lifestyle and preserve their legacies.”

Phone: 704-998-5800

Fax: 866-908-1278

401 N. Tryon St. , 10th Floor

Charlotte, NC 28202


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We’re talking about Guardianships in this elder law report, because much of this week I’ve been involved in Guardianship hearings. Guardianships can be very contentious. The situations that surround Guardianships can tear families apart.

The hearings I was involved in this week were almost cathartic. Getting some of the bad blood out during the hearing, allowed for some healing to take place, but the hearings were still stressful. They’re not just stressful for me, they’re stressful for the family involved. It’s best that you avoid Guardianships, but this is about clarifying the Guardianship process for you.

There are three types of Guardianship.

  • Guardian of the Estate. This is Guardianship over money and legal matters.
  • Guardian of the Person. This is Guardianship over healthcare decisions.
  • General Guardianship. This is for both legal, financial and personal decisions such as healthcare.


In a Guardianship hearing, with someone in the family who is incompetent or incapacitated, the money is frozen and healthcare decisions cannot be made until someone is appointed to oversee those matters.

You can avoid Guardianships by appointing a trusted family member or someone else you trust to be your Attorney-In-Fact, an Agent of you, through a document called a General Durable Power of Attorney. This document is general because it covers everything from real estate to bank accounts, and any legal or financial matters where someone else takes care of that for you.

With personal healthcare matters, you are appointing a healthcare agent through a document called a Healthcare Power of Attorney.

You want to be prepared

Having someone on the bench ready to take over if you become incompetent or incapacitated is essential for peace of mind. You can appoint a primary and a secondary in case the primary becomes unable to act on your behalf.

Powers of Attorney can also be set up so that two or more people can:

  • Act together
  • Separately, or
  • You can make them act together so they both know what each other is doing, for example, with mom and dad’s money.


Powers of Attorney are powerful if you want to avoid those contentious, gut-wrenching, family destroying situations surrounding Guardianships and Guardianship hearings.

Now, I don’t want to diminish the importance of Guardianships. They are very important. There are situations where a Guardian needs to be appointed, even a public Guardian. They will come in and take control of assets and healthcare decisions because a family member (or someone else) is taking advantage of an incompetent or incapacitated family member. The court system is there to provide an avenue where a Guardian can be appointed and clamp down and stop that.

A clerk or a judge can put a stop to that by appointing a Guardian and enforce penalties to put a stop to any form of abuse, such as elder abuse or financial abuse.

These are very important and it’s something we deal with at Guardianship hearings. However, in most cases, you can prevent those from occurring by simply having your foundational documents (General Durable Power of Attorney and Healthcare Power of Attorney) in place ahead of time.

I often see people come to my office in dire straits. They’re willing to do some planning to activate a healthcare benefit, they may need to activate a Medicaid benefit to pay for nursing home care, or a veteran’s benefit, such as Aid and Attendance Pension benefit to pay for assisted living care. But if you don’t have these Powers of Attorney in place, it can be near impossible, or very difficult to get those benefits to pay for long-term care.

It is so simple and important to have these documents in place.

With Guardianships, sometimes those options can still be explored, but to do that, you must make a petition to the courts. This is usually done through an attorney, but you must do that every time you need something. You must explain and sell to the court that it’s a good idea to use this benefit or change the assets. The courts are reluctant to use those assets when someone needs them for their care.

Guardianship can be avoided.

If you want to avoid Guardianships, protect your assets and plan ahead, contact me, Greg McIntyre at 704-259-7040 and set up a General Durable Power of Attorney and Healthcare Power of Attorney.

The elder law report can be seen every week on Friday at 10am. Next week we will be talking about Deed Planning, so tune in.

If you have questions about Guardianships, call me, Greg McIntyre and schedule a consult at 704-998-5800 for Charlotte, or 704-259-7040 for Shelby, or visit our website and we will do what we can to help you.


Greg Mcintyre

Elder Law Attorney


The Untold Benefits of Estate Planning REAL TALK WARNING!

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Most of the benefits of estate planning are pretty obvious. People go to an estate planning attorney because they want to determine how their property will pass after their death. What is not obvious, however, is the residual benefits of the estate planning process. Namely, the reflection on one’s life, the consideration of one’s death, and the contemplation of the future.


Someone once told me a story about their estate planning process that resonated with me. She and her husband worked hard, earned a decent living, and achieved a ripe age. Up to that point, they had never put anything into place, no powers of attorney, no living will, not even a will. They finally decided to have an attorney help them with their plan and they got all the necessary documents in place. Sadly, not long after, the husband suddenly passed away. The unexpected illness and abrupt death of her husband was, no doubt, very difficult for the wife as she made decisions for her husband. However, she was able to make these decisions with peace of mind because they had sat down and made their plan beforehand.


The main thing I took from this story was the fact that the planning process arms you with an important tool, knowledge. The thing about estate planning is that it forces you to confront your own mortality. It makes you consider what you value, who you value, and how you want to be remembered. In turn, your loved ones will have the necessary knowledge to make the appropriate decisions without struggling with ambivalence while mourning your death.


For example, the woman above was presented with the difficult choice of determining whether to take her husband off of life support. This is the sort of choice that is not ever easy to make no matter how much you plan ahead. Nonetheless, she made her choice and her mind is at peace because they had the opportunity to have the difficult conversation and convey their wishes to each other anything happened.


The lesson I have learned from her story and stories like hers is that planning is important and there is no time like the present. Death is inevitable but seldom predictable. You can be healthy one day and struggling for life the next. The only guarantee is that one day you will meet your end, you just don’t get to know when that will be. So, have the difficult conversation, face the void –if only for a bit—and make a plan so that your loved ones don’t have to bear the burden themselves.


Brenton S. Begley, JD, LLM Taxation
Attorney with McIntyre Elder Law

Who Do You Trust?

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Who Do You Trust?

A common theme that permeates estate planning is the need to have a clear idea of who you unconditionally trust. When you create a will, you must appoint an executor; when you create a trust, you must appoint a trustee; and when you create a power of attorney, you must appoint an attorney in fact. It is important to give thought to whom you think can ethically carry out their fiduciary duty in the manner that closely mirrors your wishes.

The Who

Trust is only one of the considerations that must be weighed in choosing a fiduciary. Another important consideration is capability, namely whether the person appointed has the skills to effectively carryout their responsibilities. This is especially poignant if you have a complex estate plan, a large estate, a large amount of debt, or a large number of heirs.

Many of us would automatically defer to appointing our spouses. This is a reasonable approach, considering they have intimate knowledge of your wishes, and have likely intertwined their estate plan with yours. But you must consider that many of the fiduciary duties that spring from an estate plan arise from the death of the planner. Thus, the process of acting as a fiduciary can be made extremely difficult for those who were close to the decedent.

That is not to say that you should avoid appointing a spouse or loved one. Many times, they can more than adequately fulfill the role. You simply must consider the gravity of what you are asking these individuals to do. Before appointing a fiduciary, you should speak with your loved ones to determine whether they are up for the task.

The What

            What are these fiduciary powers that you are granting? How do they affect your estate plan?

  • Executor: this individual carries out or executes the wishes set forth in your will. This process starts by filing the will at the courthouse, which begins the probate process. They will then pay off debts of the estate, distribute property of the estate, and provide an inventory and accounting of the estate.
  • Trustee: trusts can have many different functions; however, the role of the trustee remains essentially the same. It is the person who is trusted to manage the assets in the trust, to make decisions in the best interest of the trust, and to ensure that the directions set forth in the trust instrument are carried out.
  • Attorney-in-fact: this could either be your fiduciary for financial and legal purposes or for medical purposes. This individual will act as youand carry out your wishes when you are unable or incapable of doing so on your own accord.


These individuals could all be the same or separate people. However you chose, the appointed fiduciaries play a critical role in ensuring that your wishes come to fruition.

The How

Not only should you consider who you will appoint as your fiduciary, you need to consider how. Specifically, you should consider who will be the primary and who will be the backup.

There are many reasons why you should consider appointing a backup or secondary. It may be that the primary is unable to carry out their duties because of death, incompetency, or physical inability. It also may be that the primary is in a compromising emotional state resulting from the death of a loved one. Either way, it is important to have someone that can step into their shoes and fulfill the role.

The Conclusion        

You should take some time to consider who you want to be your fiduciary. They should be trusted and capable individuals who are up for the task. You should also consider who you would like to appoint as an alternate, they should know that there is a significant likelihood that they may be called upon to fulfill the role as fiduciary, for whatever reason.

If you would like to appoint a primary or secondary fiduciary, you should contact a qualified Estate Planning Attorney to assist you in drafting or updating your estate plan

Brenton S. Begley, JD, LLM Taxation

                                                                    Attorney with McIntyre Elder Law

What Happens if You Die Without a Will?

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What Happens if You Die Without a Will?

 “The responsible thing to do is to make sure you have a will in place before you pass.” I am sure just about every adult in the US has been told that statement. But why is it important to have a will? What happens if you do not have a will executed before your death?

Testate vs Intestate

If you have spent enough time around attorneys, you have probably heard these terms before. But these terms are not frequently thrown around in common parlance and can be confusing those without the letters “JD” by their name. If a person dies testate, it simply means that a valid will has been executed. Of course, dying intestate—as the prefix would suggest—is the inverse, meaning that the person has died without executing a valid will. Either way, when a person passes the assets and belongings left behind becomes their “estate”.


An individual who executes a will is called a “testator”. If an individual or testator dies testate, their property will pass according to the provisions set forth in their will. This will allow individuals to preplan and make general and specific devises of their assets to their heirs upon their death. The will, if validly executed, will be recognized by the jurisdiction in which the testator resided before their passing.

After the testator has passed away, the executor of the estate—which the testator named in the will—will file the will with the clerk of court. This will begin the legal process of fulfilling the testator’s wishes as set forth in his or her will, called “probate”.

During the probate process, the executor will distribute the assets of the estate to the beneficiaries named in the will. They also have fiduciary duties to pay debts of the estate and to provide an accounting of the expenses, income, distribution, and payments of the estate.

The defining characteristic of dying testate is having a say in where your property goes, having a trusted individual execute your wishes, and having the ability to protect your heirs.


The estate of a decedent who passes away without a will passes through “intestate succession”. Intestate succession is determined by the intestacy statutes of the applicable jurisdiction. The statutes will pass a percentage of the estate to lineal descendants based on their position in the family tree.

In North Carolina, property that passes through intestate succession goes “per capita at each generation”. This means that the property goes in equal shares to each surviving descendant in the nearest degree of kinship. Depending on the structure of the family tree, the estate can pass to one or two descendants or splinter into many fractional shares. If there are no takers of the decedent’s assets, the property will “escheat” or pass to the state.

Upon the passing of the decedent an estate administrator will be named. Just about anyone can apply to be the estate administrator. The administrator will act in a fiduciary capacity and will distribute the property in the estate based on the intestacy statutes.

The defining characteristic of intestate succession is that the decedent has no say in who will carry out his or her wishes, has no say in where his or her property goes after their death, and has no ability to insulate their heirs from the possible legal downsides of inheritance.

What does this mean for you?

The biggest factor for individuals determining whether to execute a will is whether they want to dictate how their property will pass after they are gone. If you have any desire to have a say in who gets your property after your death, then you should consider creating a will.

It is also important to review your will if you have one to make sure it is valid and covers all the property you own. In North Carolina, if you have property that is not covered by your will it will pass through the intestate succession statutes. A common mistake among individuals is thinking that a fillable will, that they print from the internet, will be a sufficient means of passing their property and protecting their heirs. There are legal requirements that are necessary to executing a will and there is no guarantee that a pre-filled form will satisfy those requirements.

Lastly, it is important to have a detailed and comprehensive will with provisions that anticipate future events. Here at McIntyre Elder Law, we do our best to put safeguards in place to protect whomever may be taking under the will. That’s why all of our wills include protections for heirs who qualify for means tested benefits from the government. We want to make sure that those heirs can receive their inheritance without it disqualifying them from their benefits.

In Conclusion

A will is important because it gives you control over your assets and property and allows you to adequately plan for the future of your loved ones. Not only does it give you the opportunity to plan ahead, it also relieves your loved ones of most of the stress and frustration of settling your affairs after your passing.

If you are thinking about creating or modifying a will, find a qualified Estate Planning or Elder Law attorney to assist you.


Brenton S. Begley, JD, LLM Taxation

Attorney with McIntyre Elder Law

Look Back Period

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Elder Law Report

Look Back Periods

     Medicaid can be a scary time for families. If someone needs Medicaid it’s likely they’re searching for help with Long Term Care, Nursing Home or Assisted Living Care and how to save their hard-earned money and property while doing so. They are hoping Medicaid will step in and help pay for these things.

There are a lot of rules surrounding this process. One area of concern is look back periods.

What are look back periods?

      Let’s say you are applying for benefits today.

A look back period is the area of time Medicaid will examine all your financial history. For VA and Assisted Living Facilities they’re going to look back three years into your financial history. For Nursing Homes, Skilled Nursing Facilities or Long-Term Care Medicaid it will be a five year look back.

If we put in a Medicaid application today, Medicaid will look back at all your bank statements, all property (real estate) transfers (for the three to five year period) and make sure all the transactions were done correctly under the spend down rules.

Let’s say, (within a three year look back), you put a Ladybird Deed on your home one year ago, that would be acceptable because under Medicaid policy they allow you to do that. It is also okay under VA Pension Benefits because they allow you to have a home and two acres before they start to count value.

They are going to see this and say, we’re okay with that because that’s our policy. So, you can protect that home, get the benefit and they know they cannot back collect that home. (Ladybird Deeds protect the home and surrounding property up to about $550,000).

If you had transferred out-right (that is deeded your house to another person or a trust) three and half years ago, (and we were going for Assisted Living Medicaid with a three look back period), you would also be okay because it’s outside the look back period. This could also have been a money or wealth transfer.

However, Nursing Home Care has a five year look back period. If we stick with the above example and you transferred your house within the five year look back period, it must conform with the spend down rules, otherwise it will be flagged.

Remember, if you don’t transfer things correctly according to the spend down rules, you can find yourself in a lot of trouble and heartache. The penalty for working outside the rules can be either a penalty period, so within that time frame you would need to put the money back, or sacrifice the home when that person passes away because of the Medicaid lien, or you would have the person in need denied the benefits altogether.

We can help you in this process using Medicaid Planning and Asset Protection, Medicaid Activation and also Veteran’s Pension Benefits and Disability.

If you have questions about Spend Downs, call me, Greg McIntyre and schedule a consult at 704-998-5800 for Charlotte, or 704-259-7040 for Shelby, or visit our website and we will do what we can to help you.


Greg Mcintyre

Elder Law Attorney

In-Home Care with Helping Hands

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Elder Law Report

In-Home Care with Helping Hands


In the Limelight: Sarah Callahan Dixon from the Gastonia branch of Helping Hands.

Can you tell me about Helping Hands?

SDHelping Hands Nursing Referral Service has a main office in Shelby and we opened the Gastonia location this past July. The company was started in 1975 and Ruth Huffstetler has owned it for the past twenty-four years. Most people don’t realize how long we’ve been around. I have worked in the senior industry for about thirteen years, mostly in communities and I found myself convincing seniors to stay at home, which wasn’t my job.

You were caring for seniors but thinking, it would be great if you could stay in the comfort of your own home andreceive amazing care, right?

SDExactly. Communities are perfect for some people, but I think staying home is a better option for most. So, I found myself convincing families to instead of moving into a community to stay home and call companies like Helping Hands.

When I give seminars, I often ask the audience, ‘please raise your hand if, when you need care, you want to go into institutional care?’ Nobody raises their hand.  If it came to it, most would prefer to stay at home and have in-home care.

SDWhere Helping Hands stand apart, is we’re a little different from most in-home care companies. Most in-home care companies charge from anywhere between nineteen to twenty-five ($19 – $25) dollars an hour or more, but because we are a referral service we offer our services at a much lower cost for families. Our starting rate here in Gastonia is thirteen ($13) dollars an hour. The only time we have an increase is when someone needs total assistance or we’re driving long distance, maybe to Charlotte. Otherwise it’s thirteen dollars across the board, so we’re saving families approximately ten dollars an hour to care for their loved ones.

So, over the course of a forty-hour work week, that’s a savings of four hundred dollars, every week. That’s sixteen hundred dollars a month.

SDYes. One of the biggest questions I get from families is, how can we get it at that cost? This relates directly to our referral service. We have over one hundred and fifty caregivers that are contractors with us. They are screened, reference checked and interviewed. They are professional caregivers. Some are CNA’s (Certified Nursing Assistants), or PCA’s (Personal Care Assistants), and some are people who have cared for their parents and then want to help care for seniors and be their companion.

Let’s talk about the screening process because that’s an important part of bringing people you trust into your home. Helping Hands takes care of that?

SDRight. Most people when they have a private caregiver, they’re paying them between ten and fifteen dollars an hour. They choose that because it’s cheaper than an agency. We can provide both a lower cost and a screened individual.

So, you go through background checks?

SDYes, we go through background checks. If a person is going into a community, for instance we have several caregivers who are in assisted living and skilled nursing facilities, they then must have a TB skin test because that’s a requirement for those facilities, and possibly a drug screening for those facilities as well. We try to abide by any state regulations. We also sit with people in the hospital, so whatever the hospital requires, we then require for the caregiver as well.

Who would benefit the most from Helping Hands? Who would be a good client in your experience?

SDAnyone who needs assistance at home, Helping Hands would be a great fit for them. We have people in their forties and fifties who have a disability that requires a caregiver. There’s not an age criterion, we’ve taken care of children. Some of the best referrals for us is a person who is lonely at home and maybe cannot monitor their own medications or is out of rehab but isn’t quite ready to be on their own. We can place someone within twenty-four hours. If someone calls me, I can make sure they have a caregiver sometimes on the same day, but it will be within twenty-four hours.

How do people reach you in the Gastonia area?

SDThey can reach us through referrals from the hospital system, that is our biggest referral source right now, and from skilled nursing facilities. Our number is 704-874-1804 and we’re off Remount Rd in Gastonia. Most of the time I’ll go to the client’s home to meet them and get information.

People are so concerned with cost and how they’re going to pay for care. There are always different ways of paying. You can pay cash of course, but what other ways are there to pay for Helping Hands?

SDThere is Long Term Care Insurance and Veteran’s benefits.

That’s Veteran’s Aid and Attendance benefits?

SDYes. With our company, the families pay the caregivers themselves, so they can pay using cash, long term care insurance or veteran’s aid and attendance. Long term care reaches out to us, that’s how they get reimbursed.

You work with the insurance company to help make that happen?


I think the whole idea of staying at home is less final, in comparison to moving to a facility. Being at home equals longevity because you are more comfortable and happier.

SDI read an article that said approximately eighty six percent of people would prefer to stay at home, and sixty percent lived longer by staying at home. I would like to see the numbers on isolation because I think it would be very different being at home on your own and being at home with someone. When people are isolated they tend to get very depressed. Having someone there whether a caregiver or family is huge.

Do the caregivers in-home stay with the same people?

SDYes, and this is one of the biggest benefits. We strive to have the same caregiver stay with the client. It’s important to build that relationship. With twenty-four-hour needs, we do need several caregivers to rotate but it is the same two or three caregivers. It is especially important for the elderly and those with dementia to have a familiar face and someone you trust. It also gives comfort to the children of clients because they know their loved one is not alone, and someone is there caring for them and helping them with medications and cooking. That’s one of the biggest reasons to get a caregiver in-home is to cook, clean and help with care. This is something that comes up in the interview process, that the caregiver is capable of cooking, really cooking for a client.

I wanted to touch on one other thing because I think it’s important and impactful. I looked at the statistical data on the life span of family caregivers, like a wife caring for her husband or husband caring for his wife. I work with seniors and know from experience that a spouse feels the obligation to be the caregiver. They do it out of love and respect, but they do it to their own detriment. They don’t take vacations or get respite care, which is having someone come in so the caregiver (the spouse) can take a rest. Do you provide that also?

SDWe do provide respite care. Many times, it turns from respite care to full or part-time care because the spouse suddenly realizes the stress they were under and the break they needed, and they want to continue that on.

If you look at the numbers for what it does to a family member who gives care, the stress takes a huge toll. Having a professional to come in and take some of that stress away, it lengthens the live of the family caregiver as well as the person needing the care.

SDEven in facilities, I have seen the spouse pass away before the patient.

Many times, the family caregiver will pre-decease the patient because of that huge burden of stress.

SDIt is something that all professionals in this line of work know about, but when we try to explain this to the family caregiver it doesn’t sink in until its too late.

I’m Greg McIntyre of McIntyre Elder Law. To contact Helping Hands call 704-874-1804.

Greg McIntyre

Elder Law Attorney


Do You Need to Worry about Estate Taxes?

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Do You Need to Worry About Estate Taxes?


Here at McIntyre Elder Law we handle a lot of testamentary gifts, be it through a will or trust. And, a question we get all the time is “will I or my heirs have to pay estate or gift taxes?” The answer is usually “no”. To be honest, there are currently very few individuals who walk through the door who will have to worry about estate or gift taxes. But that will likely change in the near future.

The Estate Tax

The estate tax has deep and ancient roots. The concept of taxing the transfer of property at death can date itself back to ancient Egypt. Thus, our American forefathers were not creating anything new when they enacted the first estate tax in the US through the Stamp Act of 1797.

Since that time, the estate tax has had a tumultuous history. After the repeal of the Stamp Act in 1802, the US did not see an estate tax until 1862, when Congress enacted the 1862 Tax Act to help fund the Civil War. But, the estate tax provision of the act was soon repealed after the war. Finally, the modern estate tax was enacted in 1916. Since then, the estate tax base—the amount subject to tax—and rates—the amount of the tax itself—have fluctuated widely.

Fast forward to the new millennium, Congress enacts the Economic Growth and Tax Relief Reconciliation Act of 2001. This bill phased out the estate tax over the period of 10 years and included a provision that would end the estate tax after that 10-year period. However, this provision was subject to a one-year sunset. Congress did not renew the provision in 2011 and the estate tax came back.

Who is Subject to the Estate Tax?

Today the estate tax is still alive and kicking. But, the 2016 Tax Cuts and Jobs Act (TCJA) significantly altered who will be affected by the tax. Before the TCJA, estates valued above $ 5.6 million would be subject to the tax. The TCJA raised that rate to $11.18 million for individuals and $22.36 million for married couples. Thus, under the current law, if an estate is valued less than the threshold amount, they will not owe federal estate taxes.

While the new threshold amount seems out of reach for most, that amount is set to sunset Jan 1, 2026. After that it will revert back to the $5.56 million amount. Although, there has been a push among some politicians to lower the threshold amount even further. Thus, there is a significant likelihood that we could see the estate tax creep into the lives of the middle class before the 2026 sunset date.

What About Gift Taxes?

Estate and gift taxes work in tandem, meaning that the threshold amount includes both gifts during life and the value of the estate (less applicable deductions and exclusions). This means that an individual will not be taxed on the transfer of a gift during their lives unless the gift puts them over the threshold amount. In other words, an individual can give away up to the threshold amount during their lives and not be subject to the gift tax.

But, What About the Gift Exclusion Amount?

This is the issue that confuses most people. The best answer is that the exclusion amount (currently $15,000 per person, per year) determines whether or not the gifts given should be reported to the IRS. The IRS keeps a running tally of how much is given during a person’s life time. If at the end of that person’s life they have gifted above the threshold amount, they will be subject to estate taxes. But, if an individual does not make gifts above the exclusion amount, those gifts are not required to be reported and they do not count toward the threshold amount.

What Does This Mean for You?

Fortunately for individuals who want to preserve their assets and protect from depletion of their estate after their passing, we are in a short period of relief from the estate tax. Unless your reportable lifetime gifts exceed the threshold, the value of your estate exceeds the threshold, or both your reportable lifetime gifts and your estate exceed the threshold amount, your estate will not be subject to the federal estate tax.

However, it is important to remember the history of the estate tax, namely the frequency at which it has changed. It is important because the estate tax may currently be favorable for most, but history is doomed to repeat itself. That means that the estate tax can once again become a factor for a large percentage of the population.

With the recent midterm elections and the upcoming presidential election, there is a significant likelihood that the estate tax can, once again, come knocking at the door of middle-class Americans. If that is the case, there are options out there.

Putting assets in trust now, such as a credit shelter trust, will help insulate your assets from a change in the tax laws. Also, making lifetime gifts—under the exclusion amount—can help to spend down your estate below the applicable threshold level.

Planning ahead is especially important for seniors because of the three-year rule for gifts. For gifts, there is a three year look back period that begins at the date of death back three years. The three-year rule says that property gratuitously transferred within three years of the decedent’s death is included in the value of the decedent’s estate. Thus, in a quickly changing political climate it is imperative to plan ahead for the inevitable fluctuation in the estate tax threshold level.

If you have questions about your estate plan, or how you may be affected by federal or local estate taxes, contact a qualified Estate Planning Attorney to assist you.

Brenton S. Begley, JD, LLM Taxation

Attorney with McIntyre Elder Law

Stop Using a Power of Attorney Once Someone Has Passed Away

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Stop Using a Power of Attorney Once Someone Has Passed Away

     I’m talking about using a power of attorney after the person passes away. STOP DOING IT!

A power of attorney is a document where you appoint someone as your agent, called an attorney in-fact, to act as you.

A General Durable POA is for financial and legal purposes.

If it’s a Healthcare POA it’s to make healthcare decisions.

They are fantastic documents while the person in question is alive, BUT,

Stop using the Power of Attorney to access a bank account or do anything AFTER that person has passed away.

You cannot do it.

Plus, you make the Clerk of Court really mad. They are trying to make sure the estate is probated properly.

So, what document should you use after someone has passed away?

You should use The Will.

The Will is where someone qualifies to be the executor of the estate, this gives them the ability to access accounts, property and titles after the person has passed away.

The Power of Attorney however, ceases to exist after the person dies. You should stop using it at that time.

If there is no Will, you can qualify as the administrator of the estate, and do an estate administration.

I’m Greg McIntyre of McIntyre Elder Law. Call me if you have any concerns about Powers of Attorney or Wills and the use of them at 704-259-7040.


Greg McIntyre

Elder Law Attorney

WHY would you trust your life to a fill-in-the-blanks Document?

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I know I’m going to make some people mad about this but let me tell you why I think fill-in-the-blank         documents are absolutely horrible.

A Living Will for example, is a document that decides if you live or die. Whether you are terminal, incurable or brain death has occurred and you are being maintained by respirators, a Living Will determines whether you live or die. Why would you use a fill-in-the-blanks document for this? This document is about your life.

Anyone can fill in those blanks. What happens if you leave one or two of those blanks unfilled? Anyone can fill in those blank spaces. I would hate to think there would be foul play involved, but I feel there is a really good reason why you should draft sound legal documents, especially the ones that determine whether you live or die.

Why in the world would anyone trust their life to a haphazard fill-in-the-blanks document?

It makes no sense to me.

I think people and organizations who hand out fill-in-the-legal-blanks documents, including hospitals, are opening themselves up to so much liability, it’s ridiculous.

I have seriously thought about this and arrived at a conclusion: There is no common sense in using a fill-in-the-blanks document that decides life or death and how it happens, and it is a terrible legal decision to do so. Hospitals hand these out like candy. It’s a bad decision for the patient andfor the hospital.

As said earlier, some people will not agree with me, but I do this for a living and I have seen a multitude of problems with fill-in-the-blanks documents.

I’m Greg McIntyre of McIntyre Elder Law and we draft documents such as Living Wills. If you wish to have a professionally drafted document that may decide whether you live or die, give us a call at 704-259-7040 for the Shelby area and 704-998-5800 for Charlotte.

 Greg McIntyre

Elder Law Attorney

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