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Quick Answers

in Articles by Greg McIntyre Leave a comment

Attorney, Brenton S. Begley, wanted to build a quick answer section onto our website which we are sure will quickly become one of our most frequented pages. We thought it also important to put out this important information to our readers and clients as it is a great summary to some of the most frequently asked legal questions in our estate planning and elder law practice.


Quick Answers:

What is a Ladybird Deed?

A ladybird deed is designed to protect your home and surrounding property. It’s quite simply a new deed for your property that allows you to protect the property from Medicaid Estate Recovery and avoid probate without violating the lookback period. The ladybird deed does this by allowing you to assign beneficiaries to your property. You get the protection without giving up control or ability to sell your property all with one special tool, the ladybird deed.

Can Medicaid take my property?

Yes. Medicaid can take property through a process called Medicaid Estate Recovery. This means that Medicaid can recover whatever they’ve paid out for long term from a Medicaid Recipient’s estate. Luckily, Medicaid is limited to recovering from people’s estate ONLY if their estate goes through probate. Avoid probate and avoid Medicaid recovery.

What is the Lookback Period and why does it matter?

The lookback period is the period in which Medicaid will retroactively review of the financial activity of a long-term care applicant. Specifically, Medicaid is “looking back” at whether or not the applicant gave anything away to either lower their asset threshold (a gift) or remove an asset from possible estate recovery. If a gift has been given within the lookback period, and cannot be cured, then the applicant is penalized—meaning, they will not qualify for Medicaid until they’ve paid the facility an amount roughly commensurate with the value of the gift. The lookback period is three years for assisted living and five years for skilled nursing level care.

How can I pay for Long Term Care?

There are a few options: 1. You can pay out of pocket; 2. You can utilize long-term care insurance; or 3. You can qualify for a benefit through Medicaid or the VA to pay the cost of care. Out of pocket pay is the most costly for you and your family because of the incredible cost of long term care ($5k to $10k per month on average). Long term care insurance may be a good investment. However, you’d have to qualify for it long before the need for long term care. Additionally, some long term care insurance policies have expensive and impractical premiums. Lastly, you can utilize Medicaid or VA benefits to pay for long term care. These benefits can cover the cost of long-term care with little to no money out of pocket.

What is a trust?

The best way to think about a trust is that it’s essentially a pot where you can put your assets. Putting your assets into a trust consolidates your assets into one place. This allows you to quickly protect your assets if needed and also allows you to avoid probate in the future. Trusts are flexible tools that can be set up in many ways. Their basic function is to hold assets and determine what happen to those assets when the maker of the trust dies (just like a last will and testament).

What’s the difference between Guardianship and Power of Attorney?

Power of Attorney is a power granted by an individual (the “Principal”) to appoint an agent to act on the Principal’s behalf. The agent’s powers are governed by the power of attorney document. The agent can only act as the principal wishes and must not act against their wishes. An individual must be competent to execute a power of attorney.

Guardianship is only available if an individual is incompetent and, therefore, unable to make decisions on their own behalf. The Guardian is appointed by the court to act on behalf of the incompetent individual (the “Ward”) only after the court has found by clear and convincing evidence that the person in question is, in fact, incompetent. A Guardian can act against the wishes of the Ward as long as they act in the Ward’s best interest.

What is probate and why should I avoid it?

Probate is the default process by which title to a decedent’s assets pass to his or her heirs. The probate process is monitored by and handled through the court. The court requires filings such as an inventory of the decedent’s assets and an accounting of the estate, which are regulated by rigid and strict laws.  As such, the process can be complicated and can take anywhere from six months to two years to finish.  Moreover, all the creditors of the decedent must be notified through the probate process e.g.  medical creditors, the nursing home, and Medicaid. Probate is the creditors’ opportunity to go after the assets of the estate before the heirs get their share.

If you avoid probate, you avoid the long, tedious, and expensive hassle. You also avoid the chance for creditors to deplete the estate and take your loved ones’ inheritance.

What is the difference between a revocable trust and irrevocable trust?

The difference comes down to protection and control.

Control: in a revocable trust, the person who makes the trust is the person who controls the trust (the trustee). For a trust to truly be irrevocable, the person or persons who created the trust cannot be the trustee. An individual creating an irrevocable trust must pick someone other than themselves or their spouse to be trustee. The best way to think about an irrevocable trust is: the person who makes the trust sets the rules of the game but once the game begins, the rules cannot be changed.

Protection: a revocable trust provides protection for assets by allowing the trust maker to. avoid the probate process entirely. An irrevocable trust provides a larger measure of protection by also removing the assets from the trust maker’s name. This can help individuals qualify for benefits like Medicaid, preserve assets, and avoid taxes.


If you or your loved one has questions we would be glad to extend a FREE CONSULT to answer those estate planning and elder law questions and get your affairs in order. Let the experienced attorneys at McIntyre Elder Law help. Call (704) 259-7040.

Schedule Free Consult

IN PERSON . VIDEO CONSULT . PHONE CONSULT

Brenton S. Begley, Elder Law Attorney

Book Your FREE CONSULT Today!

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

The Tangled Web We Weave Behind

in Articles by Greg McIntyre Leave a comment

Yes, you read that title right. The late Elmer Fudd would be proud. While Elmer would certainly urge your silence, I would offer that your voice should not go unheard!

So, how do you ensure your voice is heard? One very straight forward way is to execute a Last Will and Testament.

A Last Will and Testament is a legal document that communicates a person’s final wishes. A person can direct how their real and personal property is to be distributed in the event of their untimely demise. For those of us with minor children, a Will is also a place where you can name another person (or people) to act as guardian in the event that both parents pass away before the children reach the age of majority.

Well, what happens if I don’t make a Will? Great question and I’m glad you asked. In the event that a person passes away without a Will, otherwise known as dying “intestate,” that person’s property will be distributed in accordance with the laws of intestate succession. These are a set of laws, established by the State Legislature, that act as a default set of rules in the absence of a Will. Both real and personal property will be distributed in accordance with the relevant statutes that fit the factual circumstances surrounding the decedent’s estate.

I have always learned best by example. Let’s take a closer look at a common situation where the absence of a will has a significant effect on property interests.

Example

Betty and Margaret are two lifelong friends. Betty is married with two adult children. Margaret is widowed and has five adult children. Betty and Margaret are co-owners, each with a 50% ownership interest as tenants in common, of a small piece of real estate that they bought together. Margaret dies suddenly without a will, leaving only her five adult children behind. What happens to that small piece of real estate that Betty and Margaret bought together?

Analysis

In short, Betty’s interest remains unaffected. She retains the same 50% interest in the property that she had prior to Margaret’s death. However, Margaret’s interest, in the absence of a Will, is distributed to her heirs at law. In this case, Margaret’s 50% property interest would be divided evenly between her five adult children. In other words, each adult child would acquire a 1/5 interest of Margaret’s original 50% interest, in the real property as tenants in common. As a result, there would now be six co-owners of the small piece of real estate originally purchased by Betty and Margaret.

Afterthoughts

Was this the intended outcome?  Now that there are considerably more owners, what happens if there is a disagreement between the co-owners on what to do with the property? What if one of the five adult children want to sell the lot or build a house on the property contrary to everyone else’s position? What if one or more of the adult children predeceased Margaret? Furthermore, if one or more of Margaret’s children predecease her, how did their respective estate plans direct their assets, if at all? If Betty files for divorce from her husband, would her interest be subject to equitable distribution? Who is responsible for paying annual taxes, necessary upkeep, and maintenance? How easy is it to identify the current owners?

There are countless “what-if” scenarios that could apply and it is easy to see how easily things can spiral out of control. Ultimately, the question remains: Could this all have been avoided?

The answer is YES. If Margaret had executed a valid Last Will and Testament during her lifetime, she could have directed the property to pass according to her wishes. For instance, she could have directed her ownership to a single person of her choosing. Alternatively, she could have granted Betty what is called a “right of first refusal,” giving Betty a choice on whether to buy out Margaret’s interest upon her death. There are a multitude of ways that Margaret could have simplified the process. Nevertheless, absent a valid Will, distribution of Margaret’s property interest was out of her control.

The following are some other common scenarios that can prove to be problematic when someone passes away without a Will:

  • The decedent was separated from a spouse but not divorced
  • There is an illegitimate child of a deceased father
  • The decedent owned an interest in a functioning business with another non-family member
  • Assets going to a special-needs individual
  • Situations involving minor children

Related Articles:


Let us help you avoid leaving a tangled web. The professionals at McIntyre Elder Law can assist not only with drafting a Last Will and Testament but with all your estate planning needs. Call us at 704-749-9244 or visit us at mcelderlaw.com and book your free consult today!

Schedule Free Consult

IN PERSON . VIDEO CONSULT . PHONE CONSULT

Book Your FREE CONSULT Today!

Therron Causey

Estate Planning & Elder Law Attorney

704-749-9244

therron@mcelderlaw.com

mcelderlaw.com

Dirty Richard’s Estate Plan

in Articles by Greg McIntyre Leave a comment

Dirty Richard’s Estate Plan. Let us know if we can help you with your estate plan: mcelderlaw.com. Schedule your FREE consultation today!

Can we help protect your future?

 FREE CONSULT
1. Let’s look at saving assets.
2. Let’s look at protecting family.
3. Let’s plan for the future.
704-749-9244
 Book online: mcelderlaw.com/freeconsult

Schedule Free Consult

IN PERSON . VIDEO CONSULT . PHONE CONSULT

I Will Not Fail!!!

in Articles by Greg McIntyre Leave a comment

So I’m writing an article on being a dad, on one day; being a grandfather. I’m getting a little choked up. I’m getting a little in my feelings because I’m not always the best dad, father or husband. I don’t know that I’ll be the best grandfather. I mean, I love my children. I have one in college. He’s doing well. He’s going to go to law school. I love my little girls. But I work too much. There’s too much to pay for. There’s too much to do. There’s too little time. But I bet you one thing, I have a binder in front of me labelled the McIntyre Estate Plan and I will leave a legacy for my children and grandchildren. I will not leave them to pick up the pieces of my mess and my life.

I’ve seen properties that, when people passed away, that were splintered into a million pieces among heirs because the person neglected to direct where their home went. So it went to their brothers, their sisters, and people who had already passed away. It leaves a mess. I’m too busy in my life right now, I promise you, and I miss my kids and I love them, and I wish I could stay at home with them more, but I will not leave them a mess to clean up because I was negligent and I didn’t do my duty as a father or as a grandfather or as a parent or grandparent and get my affairs in order.

My wife sat me down a few years ago and made me slow down and stop. She said, “Greg, the cobbler has no shoes. You have to sit down and you have to help. You have to slow down and plan. Let’s sit down with one of our attorneys  and let’s do an estate plan.” So, Brenton Begley, he’s a really, really sharp guy, sat down with me and Stef and we did our estate plan, we got our affairs in order. That’s where this binder comes from, it holds the deeds to properties, it holds our foundation, our work, our general durable power of attorney healthcare, power of attorney living will, and will. It holds trusts for the kids, testamentary trusts, that makes sure that a trustee is appointed even if something happened to Stef and me both at the same time. And the kids can still go to school, can still go to college, and that they don’t get cursed with a large amount of money at a young age.

Yeah, I might work too much, I might not be home as much as I should, I might not get to spend as much time with my kids as I would like, but I bet you I won’t leave them in a mess. I’ll do my duty to plan and to take care of my legacy for my children and grandchildren because those things matter, and they matter to me. If they matter to you, give us a call (704) 749-9244. I’m offering free consults right now to sit down and help you plan your legacy and take care of your family. Or you can go online and schedule your free consultation today at mcelderlaw.com. Thank you so much. Have a great day. I’m going to get back to it. I’m going to call my wife.

Can we help protect your future?

 FREE CONSULT
1. Let’s look at saving assets.
2. Let’s look at protecting family.
3. Let’s plan for the future.
704-749-9244
 Book online: mcelderlaw.com/freeconsult

Schedule Free Consult

IN PERSON . VIDEO CONSULT . PHONE CONSULT

Book Your FREE CONSULT Today!

Greg McIntyre Elder Law Attorney

Greg McIntyre Elder Law Attorney

written by:

Greg McIntyre

Elder Law Attorney

704-749-9244

greg@mcelderlaw.com


Estate Planning & Elder Law Attorney, Greg McIntyre, discusses the main psychological reason why people don’t plan.

Can we help protect your future?

 FREE CONSULT
1. Let’s look at saving assets.
2. Let’s look at protecting family.
3. Let’s plan for the future.
704-749-9244
 Book online: mcelderlaw.com/freeconsult

Schedule Free Consult

IN PERSON . VIDEO CONSULT . PHONE CONSULT

2021 Planning Gift!!!

in Articles by Greg McIntyre Leave a comment

I am so committed to planning for the new year, what may come, life and long term legacy building that I am offering $200 off our planning services.

Get $200 Coupon for Estate Planning

Services!mcelderlaw.com/2021planning

CLICK FOR COUPON!!!

Get $200 Coupon for Estate Planning

Services!mcelderlaw.com/2021planning

CLICK FOR COUPON!!!

Why People Don’t Plan?

in Articles by Greg McIntyre Leave a comment

Ego… People don’t plan because their egos get in the way. The dictionary definition of ego is a person’s sense of self-esteem or importance. It’s the part of us that we build up over time to protect us from fears and dangers that our true selves don’t deal with directly. So we develop this ego. The ego doesn’t think. It runs on autopilot. It can take over and run you if you let it.

Planning requires introspection. It requires taking a look at ourselves, our lives, our families. Planning requires us to look at the good, bad and the ugly of our lives. Many of us are protected too much by our egos to get that vulnerable. To take a realistic look at your life takes courage. To get vulnerable and discuss financial wealth with an attorney would require a removal of that protective ego to lay everything out on the table. True planning works that way, though. The best planning comes from a total honest and reflective look at the person, their desires, their savings and their family. It requires one to get in touch with their feelings. What do you feel? What do you want? This can be hard for some people. This can be hard for most people. When we drop the ego we become vulnerable and can engage in true planning because we see ourselves and others through an unclouded lense. We hear our true selves.

The planning I do, like in depth estate planning, works best when my clients trust me. Really, that is the only way it works. The more real and vulnerable I am, the more real and vulnerable they are willing to be and the better, more true and real plans we can create. I have worked for years to plan my life, my business, my family and I fail miserably lots of the time. It is from these failures that I learn. That I apply those lessons to my own life and convey those lessons to my clients. There was one time I thought it would be a brilliant idea to create a virtual estate planning platform. I spent tens of thousands of dollars on it. The project sits unfinished and I realized the platform would compete against our brick and mortar offices. I did, however, learn a ton from that project. I still use bits and pieces of that project in other ways today at our firm. It is through trial and error and learning and growing that we make progress. I share all my failures with client if appropriate and relates to the subject at hand so the clients won’t have to make the same mistakes. I have seen what works and doesn’t work with thousands of clients through handling their estate plans and probate estates. Ultimately, I (…and my ego) take pride in the fact we have saved literally hundreds of millions of dollars for clients over the years. I have experience with being vulnerable. I have sobbed my eyes out reading a poem on Facebook to all of our followers before. Talk about setting aside your ego. It would satisfy my soul if at the end of my journey a crowd of people might gather and say, “Greg was a great guide.” That is what I want to be, a guide… a guide that helps you navigate life and your estate planning journey for the betterment of you and your legacy. Call me if I can help at 704-749-9244 or reach us online at mcelderlaw.com.

Can we help protect your future?

 FREE CONSULT
1. Let’s look at saving assets.
2. Let’s look at protecting family.
3. Let’s plan for the future.
704-749-9244
 Book online: mcelderlaw.com/freeconsult

Schedule Free Consult

IN PERSON . VIDEO CONSULT . PHONE CONSULT

Book Your FREE CONSULT Today!

Greg McIntyre Elder Law Attorney

Greg McIntyre Elder Law Attorney

written by:

Greg McIntyre

Elder Law Attorney

704-749-9244

greg@mcelderlaw.com


Estate Planning & Elder Law Attorney, Greg McIntyre, discusses the main psychological reason why people don’t plan.

Can we help protect your future?

 FREE CONSULT
1. Let’s look at saving assets.
2. Let’s look at protecting family.
3. Let’s plan for the future.
704-749-9244
 Book online: mcelderlaw.com/freeconsult

Schedule Free Consult

IN PERSON . VIDEO CONSULT . PHONE CONSULT

What if You Want to Sell Real Estate but the Other Owners Refuse?

in Articles by Greg McIntyre Leave a comment

What if You Want to Sell Real Estate but the Other Owners Refuse?

So, you’ve inherited some property and want to sell. Unfortunately, there’s at least one other owner and they either refuse to let go of the property or they are dragging their feet. If you and the other owner or owners cannot agree, there’s a solution: partition. 

People have been fighting over what to do with property as long as people have owned property. Because of people’s inherit propensity to disagree, the legal remedy of partition has been utilized for generations as a resolution to disputes among owners. Essentially a partition is simply one or more of the owners exercising their right to hold the interest separate from the other owners.

            What is a Partition?

There are two types of partitions partition in kind and sale in lieu of partition. Courts favor a partition in kind if it is available. A partition in kind means that the property in question is physically split into multiple parts and distributed to each co-owner. For example, let’s say there’s a 100-acre tract of land owned by person A and Person B. Person A wants to sell but person B refuses. So, person A petitions the court for a partition. The court would likely split the land into two 50-acre tracts and give them to person A and B respectively. Now person A is free to sell her part.

Even though a partition in kind is favored, there are many instances where this type of partition could materially injure one or more of the owners. For example, if the land cannot be split equally because of the physical nature of the property or if the property in question is just a house on a less than 1-acre lot. In these situations, a sale in lieu of partition is more appropriate.

If the property is sold in lieu of actual partition, the proceeds of the sale of the property are split among the owners of the property based on their ownership interest. So, if someone owns 10% of property, they will be entitled to 10% of the proceeds of the sale, with one small caveat.

Costs

When it comes to forcing the sale of property, the subject of cost will inevitably arise because, usually, one of the owners has kept up the property up to the point of the partition. For example, all owners of the property are liable for the property taxes. The property taxes must still be paid, even if one owner refuses to chip in their fair share. This, many times, results in one owner bearing the costs for the others. This unfairness tends to incentivize partition of the property, so that the responsible owner is not punished. The partition fixes the issue going forward, but what about the money that’s been paid up to that point?

Thankfully, the courts have recognized that one or more of the parties may have had to pay more than their share of costs for the property. Thus, the law in North Carolina allows for an owner to recover costs they’ve paid to maintain the property through the partition process. Although, the owner must be able to prove such payment through appropriate documentation.


Related Articles:


Conclusion

If you are in the position where you own property with another and you cannot come to an agreement on what to do with or how to pay for the property, a partition may be right for you. Let the experienced attorneys at McIntyre Elder Law help. Call (704) 259-7040.

Schedule Free Consult

IN PERSON . VIDEO CONSULT . PHONE CONSULT

Brenton S. Begley, Elder Law Attorney

Book Your FREE CONSULT Today!

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

Merry Christmas from The McIntyre’s!!!

in Articles by Greg McIntyre Leave a comment

We are in the middle of as house move and trying to put together a great Christmas for the kids and each other. In the end we are blessed to have each other and Christmas turned out great! Please share our Christmas with us.

I have saved HUNDREDS OF MILLIONS $$$ for clients and their families!!!

in Articles by Greg McIntyre Leave a comment

I have saved HUNDREDS OF MILLIONS $$$ for clients and their families!!! Who I am and how I can help you. Schedule your FREE consult today: mcelderlaw.com/freeconsult.

Schedule Free Consult

IN PERSON . VIDEO CONSULT . PHONE CONSULT

Book Your FREE CONSULT Today!

The Season for Thanks And (Efficient) Giving

in Articles by Greg McIntyre Leave a comment

The holiday season brings many of us an annual reminder to share our love, our cooking, and our gifts with those around us.  I have been thinking specifically about what it means to give gifts during this time of year because of the unique position my role as an attorney provides for me to witness the power of giving on a daily basis. 

I see it when parents come in and do the hard work of planning ahead for future medical and financial decisions so that their children aren’t challenged with handling future crisis situations on their own.  I see it when someone comes in to take on the task of seeking guardianship for a parent that needs help with managing their affairs and receiving care later in life.  I see it when an individual takes the time to set up estate planning documents that benefit a charitable cause that they are passionate about.  I simply see continuous examples of how giving our clients can be and how powerful that giving is. 

I am also reflecting on what role we as attorneys have in that giving process.  There is a school of thought that I like to reference called efficient giving.  It typically refers to what is the most efficient way to donate your money to charitable organizations.  Some organizations believe that their charitable goals are best met if the donations they receive are used in broader ways, such as a focus on marketing to get new donors and grow their total number of gifts that they receive.  On the other side of that coin are organizations that focus on maintaining as little overhead costs as possible so that they maximize the extent to which every donation they receive goes directly to the cause that they are supporting. 

I bring this up not to argue for one position over the other, but to argue for the idea of efficient giving itself when it comes to caring for those that mean the most to you and how our firm fits into that ideal.

I see how our firm plays an important role in making sure that your giving is efficient.  We study these areas intensely and always look to better ourselves in this practice so that when you turn to us for help in giving to those that you care about, we know how to get you to your goal in the best possible way.  When documents are done poorly, when cases are handled incorrectly, or when actions are taken without the right advice it can be a recipe for a very inefficient way for you to give to your loved ones. 

Being in a position to minimize the stressful nature of these situations and allow you to efficiently give is something that I am proud of.  And you should be proud too, because the gift that you give by stepping up to difficult conversations and hard tasks for the benefit of someone that you care deeply about leaves a legacy that keeps on giving.  As we move towards a new year, this being my first with the team here at McIntyre Elder Law, I am rejuvenated knowing that our work at this firm carries on the ideals of giving and helping others to give.  If there is something in your life that comes to your mind as you read this, a gift that remains undelivered, we are here to work with you to achieve that.  Our goal is to make your gift to a loved one in the most efficient way possible, so that you get to give yourself less stress and peace of mind.

Schedule Free Consult

IN PERSON . VIDEO CONSULT . PHONE CONSULT

Book Your FREE CONSULT Today!

Jake Edwards

Estate Planning & Elder Law Attorney

mcelderlaw.com

Hendersonville Office

136 S. King St. Hendersonville, NC 28792

828-233-5991

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