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Special Needs Trusts and Estate Planning

in Articles by Greg McIntyre Leave a comment

We routinely assist families with relatives who may have a disability or special need to deal with passing money and property and caring for that loved one. That is only one aspect of special needs planning. Another aspect comes into play regularly when a disabled person receives a backpay of social security benefits which can be in the range of tens of thousands of dollars or receives a personal injury settlement. These lump sum influxes of money can adversely affect Social Security Income, Medicaid or other benefits. Below we will address both these scenarios.

Leaving Assets to Disabled Child:

Special considerations should be made when leaving assets to a disabled child who is on a benefit like Social Security Income (SSI) benefits which comes with a Medicaid healthcare component for individuals who many times have elevated healthcare costs. SSI benefits are subject to means testing which has strict limits on how much money and property you may have in your name. Special needs planning can help with this situation. Your will may be structured to provide for the disabled child or other disabled family member by leaving them money and property through the will. This can, however, cause problems for the disabled individual receiving that inherited property by placing them over-resourced for their benefits. Being over-resourced can cause those benefits to be interrupted or discontinued. A parent, grandparent or guardian may consider setting up a Special Needs Trust for the disabled child, grandchild or relative. A Special Needs Trust allows for money to be kept in the trust and spent on the disabled relative without being a countable asset to that disabled person which would endanger their benefits. The money kept in the special needs trust may be spent on the needs of the disabled relative to improve their life.

What if as disabled person receives Social Security Back-Pay or a Personal Injury Settlement?

It happens more often than you may think. Someone with a disability receives social security backpay because of a change in rules or being inadvertently shortchanged on their social security benefits for years. When a disabled individual dependent on benefits like SSI and Medicaid receive lump sum cash payments the blessing can quickly turn into a curse. The money coming in can place that individual in a financial situation where they are over-resourced for the benefits they depend on for shelter and healthcare. A Special Needs Trust can be created to house the lump sum incoming funds and allow for the trustee to provide for the additional needs of the disabled person.

Special needs planning can be complicated and Special Needs Trusts can be tricky to set up so we strongly suggest consulting a professional familiar with special needs trusts and special needs planning to weigh your options and develop the best plan for your family. We at McIntyre Elder Law regularly help families and individuals with special needs and these types of situations. We can help craft a strategy that is right for you and your family. Have a question for us? Want to set up a FREE CONSULT? Contact us today at 704-749-9244 or online at mcelderlaw.com/freeconsult.

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Greg McIntyre Elder Law Attorney

Greg McIntyre Elder Law Attorney

written by:

Greg McIntyre

Elder Law Attorney

704-749-9244

greg@mcelderlaw.com

CHARLOTTE TODAY SHOW! Magazine: Elder Law Report

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Greg & Eugene discuss estate planning and make available a FREE digital version of the Magazine, the Elder Law Report . 2020 . Digital Edition. Get the magazine now at mcelderlaw.com/magazine.

Get the NEW MAGAZINE NOW! Click Here!Schedule Free Consult

 

Is a Trust Right for You?

in Articles by Greg McIntyre Leave a comment

            Trusts are amazing tools that most people don’t really understand. That’s okay. There’s not a lot of info out there that explain them in terms that make sense. So, before you can determine whether a trust is right for you, let’s look at what a trust is.

The Trust

            I always find it best to explain “the trust” by way of analogy. Imagine that you have a bunch of coins. Each coin represents something that you own—one of your assets. Let’s say that you have a bunch of coins and nowhere in particular to put them. So, these coins are strewn about and difficult to find. Not only are they hard to locate but their value and who they’re supposed to go when you pass away is not readily clear. You pass away with all these wayward coins and someone has to come in and find them all and also go through the process of finding the person they’re supposed to go to.  We call that someone your “executor” and that process “probate.”

Now Imagine that all of those coins are in one place, like a treasure chest. In that chest, sitting neatly on top of the coins are a list of the coins and who they are supposed to go to. Further, a trusted individual has the key to the chest and they can pass out each coin to whomever it goes to immediately with no process necessary. We call that trusted person the “Trustee” and the lack of process “probate avoidance”.

This is how a trust works. Trusts also have other attributes where they can protect assets other than probate avoidance (think shutting the lid on that treasure chest and locking it); and leaving behind a legacy that the trust creator can control (think leaving each coin in a separate mini chest for each beneficiary). 

Is a Trust Right for You?

            The answer is one of my favorites to give: it depends. There are other ways to avoid probate than trusts, but they’re asset specific. For example, you can avoid probate with a bank account by adding a beneficiary. But that only applies to your bank account. A trust is a great tool to ensure all of your assets avoid probate.

            There are also other ways to protect property but none so efficient and effective as the trust. Some people do not need trusts because they will simply not benefit. Maybe they have limited assets. However, most individuals can, in some way, utilize a trust to protect assets and ensure a retirement or inheritance is preserved. If you have significant money or property that you wish to protect, a trust is probably right for you.

If you have more questions about wether a trust is right for you give us a call at (704) 259-7040 or visit our website at www.mcelderlaw.com.

IN PERSON . VIDEO CONSULT . PHONE CONSULT

We are offering FREE CONSULTS during this crisis. Let us help you and your family today!

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Brenton S. Begley
Elder Law Attorney

Regards,

Brenton S. Begley

Elder Law Attorney

McIntyre Elder Law

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

www.mcelderlaw.com

Phone: 704-259-7040

Elder Law Report . Digital Edition . 2020

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Elder Law Report . Digital Edition . 2020

📖 READ IT NOW! mcelderlaw.com/magazine

✅ The ELDER LAW REPORT . DIGITAL EDITION . 2020 Magazine is out!!! I have created a DIGITAL version of our MAGAZINE just for you. Go to mcelderlaw.com/magazine. We spent the last few months writing and editing this magazine just for you. The Elder Law Report Magazine is packed with great updates on the laws governing estate planning over the last year. We think you will love it! Enjoy your digital copy today.

✅ FEATURED CONTENT:
– Build a Firm Foundation.
– Is Your Trust Convertible?
– 2020 Update! The Secure Act.

📖 READ IT NOW! mcelderlaw.com/magazine

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What in the World is a Ladybird Deed?

in Articles by Greg McIntyre Leave a comment

IF YOU’RE FAMILIAR WITH THE LADYBIRD DEED BUT WANT MORE INFO, SKIP DOWN TO THE FREQUENTLY ASKED QUESTIONS SECTION.

            “I don’t want my home to get taken.” That’s a phrase I, as an elder law attorney, hear every day. Understandably, most of my clients are concerned about what may happen to their home if they were to need some type of long-term care. Many folks tend to think that they cannot avoid being taken for all their worth.  Luckily, that’s not the case. 

            To protect the home, you have to know what the risks to your home are. Principally, they are (1) paying for long-term care and (2) probate. Long-term care can be expensive, and most people will need to qualify for some type of benefit like Medicaid to avoid their assets being taken. Probate is the process where, after you pass away, your assets pass to your heirs. It’s also the opportunity for creditors, including Medicaid, to attach liens to property.

What’s the alternative?

Giving Your Home Away

            A rather prevalent misconception is the notion that you should give your home away after you reach a certain age. The reasoning behind this notion is to avoid the home being taken. And, while this is a strategy that is sometimes used, it’s not a good strategy at all. First, if you give your home away, then you just GAVE YOUR HOME AWAY! Traditionally not cool. You should be able to keep control over your home and still keep it protected.

            Second, giving your home away triggers a lookback period—three years for assisted living, five years for skilled nursing care. This means that you won’t qualify for perhaps much needed benefits like Medicaid to pay for long-term care.

Life Estate Deed

            Life estate deeds are awesome.  But they are “plan ahead tools.” Life estate deeds protect the home or any other property and pass the property outside of probate. However, they need to be put in place outside the lookback period.  Thus, they are great tools if you may not be in need of care within the next three to five years. Finally, you give up some control over the property to whoever you name as beneficiary.  You don’t have the freedom to. Do whatever you want with the property.

Ladybird Deed

            The Ladybird deed are the best of both worlds. They keep you in control over your home and allow you to avoid probate with the property; thus, protecting the property from estate recovery. We advocate that our clients should be able to qualify for benefits like Medicaid, protect their homes, and avoid. Probate all while keeping control. The Ladybird deed is the tool to accomplish that goal.

Frequently Asked Questions

1.         Can I still sell my home?

            Yes. You do not give up your rights to sell your home with the Ladybird deed.

2.         Can my children/beneficiaries sell my home?

            No. They cannot sell your home without your authority.

3.         Can I put a Ladybird deed on my home if it has a mortgage, homestead exemption, or land use exemption?

            Yes. The Ladybird deed does not affect a mortgage, home equity line, or tax exemption on the home.

4.         If I am in a nursing home, is it too late to put a Ladybird deed on the home?

            No. It’s not too late. Thankfully, you can put a Ladybird deed on the property at any point in your life.

5.         Does the Ladybird deed need to be put on within three to five years of going into long-term care?

            No. This is a common misconception. The Ladybird deed does not affect the lookback period. You can utilize it at any time.

6.         Will I still be liable for the taxes on the property?

            Yes. Since you’re not giving away any interest in the property, you’re still liable for all expenses with regard to the home.

If you have more questions about the Ladybird deed give us a call at (704) 259-7040 or visit our website at www.mcelderlaw.com.

IN PERSON . VIDEO CONSULT . PHONE CONSULT

We are offering FREE CONSULTS during this crisis. Let us help you and your family today!

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Brenton S. Begley
Elder Law Attorney

Regards,

Brenton S. Begley

Elder Law Attorney

McIntyre Elder Law

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

www.mcelderlaw.com

Phone: 704-259-7040

Save Your Money & Property

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Elder Law Attorneys, Greg and Brenton, lay out how you can get your affairs in order and save your hard earned money and property.

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LIVE Estate Planning Seminar

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ARE YOU READY? ARE YOUR AFFAIRS IN ORDER? Find out in this LIVE Estate Planning Seminar where Greg, Brenton and Hayden discuss all your FOUNDATIONAL DOCS that you need as well as Trusts and Lady Bird Deeds. Great FREE CONSULT offer within this seminar. Take advantage by calling: 704-749-9244 or online at mcelderlaw.com/estateplanning.

Schedule Free Consult

What is Your Thousand Year Goal?

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Carpe Diem!

Carpe diem.” The phrase made famous by the Roman poet Horus has been uttered as advice for centuries. We have long been told to seize the day and give little thought to the future. This is great motivational advice, but a meaningful life needs something more than motivation. It needs purpose.

That’s all well and good but how do we find purpose? Well, I am no guru, but I find looking toward the future as a useful exercise. Specifically, I like to imagine far into the future, even a thousand years, and think about the type of impact I would like to make today that will affect the next millennium.

This seems like a rather lofty goal. That’s the point. We all have an opportunity in this life to positively change the future forever. And change is not a rare instance. Think about all the people in history, or in your family, that have shaped the world you live in today.

Your impact doesn’t need to be something that will be enshrined in the history books. In fact, most of the impactful actions of our ancestors have been lost to history, but have an impact, nonetheless.

Think about how you want your family to look centuries from now. What type of effect would you like to have on those people who share your blood, your genes, your family history? Would you want them to remember you as someone who helped define their ancestral history? Maybe your name will eventually be forgotten over the years, but your choices, your, plans, and your actions will determine how those peoples’ world looks—whether or not they’re good choices by the way.

That’s purpose. Looking toward the future with the intent to shape it for the better is purpose. Many folks want to have this sort of “impact” I’m talking about. However, many don’t know how to begin.

It all starts with a plan. To have a legacy, you must protect your legacy, and to have choices that impact the future, you must make your wishes not only known but also set in stone. That’s what estate planning is all about.  We focus not only on protecting you during your life, but also ensuring your legacy, your, wishes, and the loftiest of your goals.

We are in the business of protection for the person and posterity. Let us help you fulfill your purpose.  If you have questions about protecting your assets and legacy, give McIntyre Elder Law a call at (704) 259-7040 or visit our website at www.mcelderlaw.com.

IN PERSON . VIDEO CONSULT . PHONE CONSULT

We are offering FREE CONSULTS during this crisis. Let us help you and your family today!

Image result for schedule now button
Brenton S. Begley
Elder Law Attorney

Regards,

Brenton S. Begley

Elder Law Attorney

McIntyre Elder Law

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

www.mcelderlaw.com

Phone: 704-259-7040

Fax: 866-908-1278

RIGHTS TALK! How does the shutdown effect your rights and your estate?

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Americans have fought for our rights for centuries. Now they are suspended. How could this shutdown affect your estate and your rights? Brenton and Greg discuss.

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Should NC Lift the Stay at Home Order?

in Articles by Greg McIntyre Leave a comment

            “You should seek balance in all things”. Someone important probably said that. Regardless of who did say it or what context they meant it, it’s a pretty good maxim. An extreme reaction tends to have extreme consequences. And, even if an extreme reaction is warranted, the it should be axiomatic that questioning an extreme reaction just comes with the territory.

            Case in point: “Shelter in Place”. Now, for whatever reason, this topic has become politicized.  That’s not necessarily bad because it means people care. But because it has become politicized, and I want people to keep reading this article, let me pose the real question with all assumptions included. The real question is not should we lift the Shelter in Place Order, but how do we open up the economy while protecting rights and those who are the most vulnerable?

            I read somewhere onetime that for every 1 percent the unemployment rate rises, 40,000 people die—direct correlation. That’s not to mention, that economic strife disproportionately affects minorities and the poor. Shutting down all non-essential businesses because of the COVID-19 pandemic, whatever your viewpoint, has certainty caused economic strife and we’ve seen unemployment skyrocket, which begs the question, what will make us sicker?

Hardworking people are out of work indefinitely. That not only means that they must struggle to provide basic necessities for their families, it also means that the economy loses their contribution i.e. taxes that supports our social safety net. The ripple effect of shutting down an economy will be sending waves long after this pandemic is over.

Let’s not forget, however, that this virus kills people, especially the more vulnerable among us. After all, the government is not just shutting down businesses for the heck of it. So, we need to find a balance. We need to ensure that we do not trade one bad situation for another. We may be out of the frying pan, but are we headed for the fire?

There’s also the question of individual rights. An executive order to shelter in place is, no matter which way you spin it, a suspension of individual rights—even fundamental rights afforded to us by the Constitution. Do we want a precedent? Do we want the government having grounds to prevent freedom of assembly, freedom of speech, freedom of religion?

Let’s look at where the rubber meets the road. We’ve had concerns about police overreach in this country for years. Luckily, police need probable cause to stop someone. Otherwise, anyone could be harassed by law enforcement. Probable cause means reasonable and articulable grounds that a crime is a foot. What about violation of a stay at home order? Does that mean that anyone not at home can possibly be violating the order, therefore providing probable cause for a lawful police stop? Can the stay at home order provide a pre-text for police to “lawfully” violate basic privacy rights?

I’m sure that the answers to the questions may vary. We’re in uncharted waters and no one really knows the answers. The important thing is that these questions be asked. I have learned that to solve a problem, you focus on the solution. The problem we’re facing is that we need to protect people from a pandemic, from infringement of individual rights, and not tank the economy. What’s the solution? Is there a solution?

Maybe an extreme reaction is warranted. Perhaps we should focus on “flattening the curve” and let the chips fall where they may. What you, the reader, need to remember is that whatever you may think, someone is making the decision for you. Your voice matters. Add to the conversation, contribute to the narrative, and help solve the problem. Ask your friends, your family, your congressman. Ask them what the answer should be. Ask the important questions and remain vigilant of the fact that this is a novel problem. Nobody has the answers, no matter how emphatically, how loudly, or how bluntly they declare they do.

Brenton S. Begley
Elder Law Attorney

Regards,

Brenton S. Begley

Elder Law Attorney

McIntyre Elder Law

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

www.mcelderlaw.com

Phone: 704-259-7040

Fax: 866-908-1278

Schedule Free Consult

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