8 Frequently Asked Questions on Last Wills and Testaments

Starting an estate plan can be overwhelming, and you probably have many questions. You are not alone. Below are eight questions people often ask about last wills and testaments as they begin to think about estate planning.

1. Aren’t Wills Only for Wealthy People?

This is a common myth. Last wills and testaments (also known simply as wills) are not just for the wealthy. In a will, you can outline who you want to receive your possessions when you die; this might include your money, your real estate, and items of sentimental value.

If you have children who have not yet reached adulthood, you also would be well advised to have a prepared a valid will in which you name a guardian. Even if you think you do not own enough property to justify a last will, it is important to create one expressing your wishes about how – and to whom – you want your property distributed at your death.

2. How Long Do Wills Last?

After taking the time to create a will, doing it again is probably the last thing you want to do. Fortunately, a last will does not expire.

However, your estate documents should always reflect your most recent property and life changes. For example, if you marry, divorce, have children, or acquire or lose property, reviewing and updating your last will and testament is prudent. Consider revisiting your will and other estate planning documents with an attorney at least every decade.

3. Is My Will Valid?

You should ensure that your last will and testament is valid based on your state’s law. Each state has specific requirements for wills, but generally, a person must be at least 18 years old to create a last will, and the document should be in writing, signed, witnessed, and notarized. This is why it is crucial to involve an experienced estate planning attorney in preparing these documents.

If you move to another state, a last will that satisfies the legal requirements in your current state may transfer to a new state. However, you should always consult with an experienced in-state estate planning attorney to review and update your will as needed.

4. Does All My Property Pass Through My Last Will?

Any property you own solely in your name can pass through your last will. However, you must list the property you wish to have passed to your heirs via your last will. If you leave property out of your will, it may pass on to your heirs, which can happen in several ways. If you have other estate planning documents (e.g., an irrevocable trust), the terms of those documents will govern how the property subject to it passes to your heirs.

If you die without a will, state law governs the disposition of your property through a body of law called intestate succession. Learn more about intestate succession below.

If you have children who are minors, you can appoint in your will the person you want serving as their guardian in the event of your death. Not having a will could mean that administering your estate incurs additional costs, diminishing any inheritance your kids may have otherwise had received. You may also consider detailing in your will any plans you have in place for your pets.

5. Does the Law Require Me to Have a Will?

No, although laws may vary from state to state; generally, the law does not require you to create a last will. However, if you die without a valid will, your state’s intestacy laws will govern who received your property. This means that any wishes you may have had for giving away certain assets to specific people in your life or to a charity you wanted to support will not be taken into consideration.

Dying without a will is called dying intestate. Intestate succession is a legal process under which a state’s intestacy laws dispose of an intestate person’s property. Intestacy laws vary depending on the state, but typically close relatives receive a share of an intestate person’s property. Your immediate family (i.e., your spouse, children, parents, and siblings) will often inherit first. If you do not have immediate family members, more remote relatives, like grandparents, may inherit your property through intestate succession.

6. Even if I Don’t Have a Will, Won’t My Spouse Automatically Get Everything if I Die First?

No, your spouse may not immediately inherit your property if you die without a last will. Usually, if your property passes through intestate succession and you are married with children, your spouse receives a spousal share of your estate. The amount of a spousal share can vary depending on your state’s laws.

7. What’s Wrong With a DIY Will?

Over the past several years, do-it-yourself last wills have become popular. However, you should be cautious about adding a DIY last will to your estate plan, as laws regarding estate planning are complex and can vary widely by state. Some common issues with DIY last wills include:

• A licensed attorney does not usually review them.
• They may not comply with legal requirements for creating a valid will that are specific to your state.
• It may not dispose of your entire estate.
• If you have a blended family or children who are not yet legal adults, or you own a second home or a business, a DIY will may not address all of your unique needs.

8. Do I Need More Than a Will?

A last will is an important part of your estate plan. It’s a good start, but it does not convey certain powers. You may want to consider supplementing it with other key estate planning documents. For example, suppose you become unexpectedly impaired during your lifetime and can no longer handle your own affairs or communicate your wishes. You would benefit from a health care directive that expresses your desires for any medical treatment you receive. With a durable power of attorney in place, you also can ensure that an individual you trust handles decision making regarding such matters as your financial, legal, and medical needs.

Despite the fact that everyone would benefit from having a will, the majority of Americans have not yet put together any type of estate plan. Consult your estate planning attorney to discuss how to get the most out of your estate plan.

Contact us

Questions? Contact us at Elise Lampert, Attorney at Law

   

Elise Lampert, Esq.

Law Office of Elise Lampert

9595 Wilshire Blvd. | Suite 900 | Beverly Hills , CA 90212

Phone: (818) 905-0601 / Email: elise@elampertlaw.com

https://www.eliselampert.com

 

Medicare Extra Help Program Set to Expand in 2024

Seniors and disabled citizens will receive more access to the Medicare Extra Help Program as of the beginning of 2024, the federal government announced. This expansion of benefits could enable up to 3 million people to reduce their prescription drug costs.

What Is the Medicare Extra Help Program?

The Medicare Extra Help Program assists older adults and people with disabilities who have trouble paying their Medicare Part D premiums. Note that you are automatically eligible for Extra Help if you:

• receive Medicaid coverage,
• are enrolled in a Medicare Savings Program, or
• receive Supplemental Security Income.

The program was expanded through the Inflation Reduction Act, which President Biden signed in August 2022, by increasing the income limit to 150 percent of the poverty level ($21,870 for an individual and $45,000 for a family of four). When the program expands at the beginning of 2024, 300,000 participants will go from partial to full benefits. That means they will not have to pay a premium or deductible, and they will have lower, fixed co-payments on certain medications.

Expanding Access to the Program

The government estimates that nearly 3 million people who could benefit from the program are not currently enrolled. The Department of Health and Human Services will activate government agencies to increase participation. The Administration for Community Living will reach out to underserved and rural communities, while the Centers for Medicare and Medicaid Services will provide an outreach toolkit for community organizations and beneficiary advocates.

Those who participate in the Medicare Extra Help Program could save nearly $300 per year.

Where Do I Apply for Extra Help?

To apply for Extra Help, you can visit the Social Security Administration’s dedicated webpage for more information, support, and an online application.

Contact us

Questions? Contact us at Elise Lampert, Attorney at Law

   

Elise Lampert, Esq.

Law Office of Elise Lampert

9595 Wilshire Blvd. | Suite 900 | Beverly Hills , CA 90212

Phone: (818) 905-0601 / Email: elise@elampertlaw.com

https://www.eliselampert.com

 

Lady Bird Deeds: A Different Kind of Life Estate

Life estates are ways for you to transfer property to another party while retaining the right to live there until you pass away, or some other event occurs. As the grantor of the life estate deed, you become a life tenant of the property.

What Is a Lady Bird Deed?

Lady Bird Deeds, technically known as enhanced life estate deeds, are life estates for which the grantor retains much greater control over the property. If you are a property holder, you may use a Lady Bird Deed to transfer real property to a specific beneficiary while retaining certain rights to the property. These rights include selling your interest, mortgaging the property, and applying for property tax exemptions. Upon your death, these rights end, and the beneficiary you’ve named solely takes control of the property without court involvement.

There are, however, only a few states that allow this arrangement – Florida, Texas, Michigan, Vermont, and West Virginia.

6 Reasons to Set Up a Lady Bird Deed

So why might someone consider a Lady Bird Deed, if permitted by state law?

1. First and foremost for many is the desire to avoid a court making decisions about the property as well as the costs of having to go to court.
    
2. It may also allow your heirs to expedite any probate process that remains for the rest of your assets; this is because with a large asset like your home out of the probate picture, your estate may qualify for an expedited process.
    
3. Perhaps you own properties in multiple states. Instead of having to deal with several state courts, you may be able to simplify things for your loved ones with this type of deed, at least in one state.
    
4. A Lady Bird Deed can reduce disputes between your heirs. When an asset is deeded to a specific beneficiary and does not pass through probate, an inheritance dispute can be avoided if the deed is drafted and executed correctly. If a grantor changes their mind later, they may also be able to void or cancel the deed.
    
5. If your state permits a Lady Bird Deed, you still retain a great deal of control over the real estate while you are alive.
    
6. A Lady Bird Deed offers tax advantages similar to the "step-up" your heirs would receive if the property was passed to them through probate.
   
   The beneficiary of a Lady Bird Deed also receives a "step-up" in basis. Therefore, any tax liabilities arising from the sale of the property will be determined by the value of the property at the time you became the owner, not the grantor. In many cases, this saves the beneficiary a significant amount of capital gains tax. However, the property may still be included in your estate tax calculation.

Are There Any Downsides to Lady Bird Deeds?

Lady Bird Deeds do have a few potential drawbacks. One of the biggest disadvantages of this arrangement is that it does not protect the property from the creditors or a divorce of the grantor.

Additionally, in some states, this type of life estate deed can create issues if the grantor wishes to qualify for Medicaid, specifically with restrictions against transfers of property within a specified look back period.

A person’s rights are still restricted while the Lady Bird Deed is in effect even though they have “enhanced” rights over a regular life estate. Property decisions can still be influenced by the deeded beneficiary, who still has an interest in the property. Beneficiaries may have the right to sue the grantor in some cases – for instance, if the grantor does not take care of the property or fails to pay property taxes.

Connect With Your Estate Planning Attorney

If you are interested in an enhanced life estate deed and an alternative way to transfer property to loved ones, speak to your estate planning attorney.

Contact us

Questions? Contact us at Elise Lampert, Attorney at Law

   

Elise Lampert, Esq.

Law Office of Elise Lampert

9595 Wilshire Blvd. | Suite 900 | Beverly Hills , CA 90212

Phone: (818) 905-0601 / Email: elise@elampertlaw.com

https://www.eliselampert.com

When Does Someone Need Financial Conservatorship?

When individuals cannot manage their finances, courts can appoint guardians. Financial Conservatorship is for those who need help handling money.

Depending on the jurisdiction, financial Conservatorship may also be called Conservatorship of the estate or conservatorship.

In cases where individuals need help with personal and financial decisions, the court can order Conservatorship of the person and estate. The guardian makes both personal and financial decisions for the protected person.

What Financial Conservatorship Entails

Financial Conservatorship gives the guardian the authority to oversee the protected person’s finances and access money to pay bills. In many cases, the terms of the arrangement require the guardian to seek court approval before making financial actions on behalf of the ward, such as spending money and selling assets.

The ward’s money goes into a blocked account. The guardian can only access such an account with a court order, according to the Family Law Self Help Center.

When Do Courts Order Financial Conservatorship of an Adult?

Courts appoint financial guardians when people demonstrate that they cannot handle their finances on their own.

• Individuals who frequently forget to pay bills might need help with finances. For instance, a person might need help remembering to pay bills and handling money.

• Those who are vulnerable to financial exploitation might also need guardians. For example, suppose a person makes significant payments to an online scammer. In that case, a loved one might petition the court to become the person’s guardian to protect them.

• Individuals with diseases and disabilities that prevent them from understanding money may also need the help of a trusted person. For instance, dementia can cause people to have executive functioning difficulties that impact their ability to handle money.

When a person has significant assets but needs help managing them, courts will order financial Conservatorship. Individuals with limited income and assets might not need financial guardians.

Alternatives to Financial Conservatorship

While providing protection and support, Conservatorship limits autonomy. Many states require courts to explore less restrictive alternatives to Conservatorship before appointing a guardian. Those facing challenges with financial decisions should, along with their loved ones, first consider other options.

Financial Power of Attorney

Conservatorship is appropriate when a person is impaired and cannot make their own decisions. Suppose an individual still can make decisions and understand the consequences of their choices. In that case, the person can execute a power of attorney for property. This gives a trusted individual the ability to handle their assets.

Compared to financial Conservatorship, an economic power of attorney can protect individuals’ rights while allowing someone to step in and help with monetary decisions. Under financial Conservatorship, it is more difficult for the protected person to change the arrangement if disagreements with the guardian arise. The person subject to the arrangement must petition the court to terminate it.

Revoking a power of attorney is, by comparison, straightforward. As long as the individual who made a power of attorney retains capacity, they can withdraw their power of attorney at any time for any reason. They can also appoint a new agent without judicial oversight.

Supported Decision Making

Another option for those with money difficulties is supported decision-making. Under a supportive decision-making arrangement, a person can have a trusted individual or multiple people help with financial decisions.

Supportive decision-making is less restrictive than Conservatorship, as individuals get help with decisions while retaining autonomy. Unlike a ward in a Conservatorship, the individual keeps the final decision-making power.

If you are wondering whether a loved one needs help with their finances, consider speaking with your elder law attorney about this.

Elise Lampert, Esq.

Law Office of Elise Lampert

9595 Wilshire Blvd. | Suite 900 | Beverly Hills , CA 90212

Phone: (818) 905-0601 / Email: elise@elampertlaw.com

https://www.eliselampert.com

 

6 Facets of Estate Planning That LGBTQ+ Couples Should Know

Estate planning is an important consideration for all couples. However, for LGBTQ+ couples (or former couples), it may be more important than they realize to review their circumstances and see whether they have an estate plan that accurately reflects their wishes.

In 2015, the U.S. Supreme Court ruled that same-sex couples may exercise the fundamental right to marry in all states and have their marriage recognized by other states. This case also invalidated state laws that excluded same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.

Before this ruling, LGBTQ+ couples could provide for their partner through wills or insurance policies, but often not to the extent they would have been able to if their partner was a legal spouse. This is because many state and federal laws give preference to biological relatives and descendants over an unmarried partner or significant other.

After this ruling, many estate planning options that were not previously available to LGBTQ+ couples have become a possibility well worth exploring.

Tax Benefits: Marital Exemption and Portability

One of the benefits of being legally married is that under U.S. Federal Estate and Gift Tax laws, a person may transfer an unrestricted amount of assets to their spouse at any time, including at their death, tax-free (assuming they are a U.S. citizen).

This estate preservation tool was unavailable to LGBTQ+ couples until same-sex marriage became legal. As a result, each partner had to use up their own lifetime federal gift and estate tax exemptions before they could transfer assets to their significant other.

These exemptions still apply if a couple is not married and may be a good reason to formalize a partnership through marriage. In 2023, if an unmarried couple wishes to gift one another assets, they would be limited to:

• An annual gifting limit of $17,000 per recipient; and
• The lifetime federal gift tax exclusion for U.S. citizens of $12.92 million per recipient.

However, upon the marriage of two individuals, any assets left to a U.S. citizen spouse is entitled to the unlimited marital deduction.

Another tax benefit of being legally married is that the surviving U.S. citizen LGBTQ+ spouse may also elect portability of their deceased spouse’s unused federal estate and gift exclusion amount for their benefit. This can be a critical tax-saving device where the surviving spouse has an estate value that exceeds the federal exclusion amount.

Social Security Benefits

LGBTQ+ couples may also wish to consider getting married to reap potential Social Security benefits. The Social Security Administration (SSA) now recognizes all marriages in all states, as well as some civil unions and domestic partnerships. As a result, the SSA will use this to determine whether a person is entitled to Social Security benefits, Medicare, survivor benefits, and more.

A person or their spouse may be entitled to benefits or a higher benefit amount based on their marital relationship. In addition, their children or stepchildren could also be entitled to benefits based on their relationship with you or your spouse.

Married LGBTQ+ partners may also now qualify for Social Security survivor benefits. For example, if you were married to a person who passed away, your marriage may qualify you for Social Security survivor benefits based on your partner’s work record. This is also true even if you could have been married at the time of your partner’s death if state laws hadn’t prevented you from doing so, or you would have been married longer if not for unconstitutional state laws that prevented you from marrying earlier.

Rolling Over Retirement Assets

Before the 2015 Supreme Court ruling, LGBTQ+ couples could not roll over assets from their retirement accounts to a surviving partner’s account. However, now all married couples have this ability.

A spouse beneficiary may roll over or transfer an inherited IRA from their deceased spouse into their own IRA for their benefit and use. However, nonspouse beneficiaries do not have this option. This may be another estate planning benefit that makes marriage a good choice.

Gift Splitting

Married LGBTQ+ spouses, like heterosexual couples, can take advantage of “gift splitting” to reduce the size of their taxable estate. What this means is that one spouse, with the consent of their spouse, can gift the annual gifting tax exemption amount ($17,000 x 2 in 2023) from their assets to a recipient and treat it as if each spouse contributed half the amount.

Allowing the combination of individual allowances permits many couples to use the gift tax exclusion in a way that works best for them. However, before you do so, it is best to consult with a tax professional to ensure gift splitting makes sense for you.

Children of LGBTQ+ Relationships

Many LGBTQ+ couples will be concerned about providing for their children upon their passing or cementing their parental rights over those of biological relatives especially where only one parent is a biological parent. In these instances, if the nonbiological parent formally adopts the children, then all of the traditional estate planning options open up and are available to them when planning to provide for children after death. In addition, concerns about who would be a child’s legal guardian should be resolved before legal issues arise.

If a couple is not married and considering marriage, there may be tax advantages to planning the adoption before the marriage. This tax benefit is referred to as the adoption tax credit. An LGBTQ+ couple considering this should consult with a tax professional before making any decisions.

Untangling Prior Relationships

A less frequently discussed issue that many LGBTQ+ individuals may face is the impact of their prior civil unions, domestic partnerships, or other relationships on their future estate plan. This is especially true for couples who are no longer together.

For example, a couple who moved to a state that first recognized same-sex domestic partnerships or unions but is no longer together may not realize that their prior partner could have a claim against their future estate. Some states that allowed the earliest unions ultimately upgraded these nonmarital unions to marriages after laws changed.

As a result, people who are no longer together may be legally married and not realize this. These unions would need to be undone in order to engage in proper estate planning that carries out your wishes.

You may have realized from reading this article that estate planning can be more complex for LGBTQ+ persons. Obtaining the counsel and advice of your attorney can make a world of difference. 

Contact us

Questions? Contact us at Elise Lampert, Attorney at Law

   

Elise Lampert, Esq.

Law Office of Elise Lampert

9595 Wilshire Blvd. | Suite 900 | Beverly Hills , CA 90212

Phone: (818) 905-0601 / Email: elise@elampertlaw.com

https://www.eliselampert.com

 

Do You Need a HIPAA Release?

If you are in the hospital, you may want your loved ones to be able to access information about your prognosis. However, if you have not authorized them to receive specifics regarding your medical condition, they could be denied these details.           

What Is HIPAA?

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) is a federal law that protects patients’ privacy. The law limits how health plans, including Medicare and Medicaid, health care providers, and other entities share protected health information (PHI). Your PHI may include personal details such as your Social Security number, billing records, address, lab test results, or prescriptions.

HIPAA authorizes the release of medical information to the patient and the person(s) designated as their personal representative. It also has some flexibility that allows medical providers to disclose information to a person who is involved in a patient’s care. (The HIPAA rules allow disclosure only of information that is relevant to the caregiver’s involvement in the patient’s care.)

While this caregiver policy usually works well, “usually” is the operative word. This is why it can be important to sign what is known as a HIPAA release form. It gives specific written authorization to all people who may be involved in a patient’s care. This can be particularly key if, for example, there is more than one caregiver for the patient.

Under HIPAA, covered health care entities can only share PHI for treatment, payment, and health care operations. In other cases, an entity such as a hospital must obtain the patient’s consent to share information with others.

HIPAA Release Form

A hospital may obtain consent to release your PHI through a HIPAA release form. Signing a HIPAA authorization form allows the hospital to disclose protected health information that HIPAA would otherwise shield. The form typically states who can have access to the information.

Note that if a physician suspects abuse, neglect, or domestic violence by your personal representative, they have the right to refuse to disclose to them your PHI, in order to support your best interests.

Reasons to Sign a HIPAA Release

While signing a release abridges your privacy, it can help ensure that designated individuals in your life can receive information about your health.

A release lets your provider give your health information to a specified third party, such as:

• A family member assisting with health care decision-making and care
• An attorney helping you with a personal injury or workers’ compensation claim

The minimum necessary standard applies even after the release. Under this standard, health care providers can only share the information required to accomplish a specific goal.

What Does the HIPAA Authorization Form Include?

The law requires HIPAA consent forms to specify the following:

• The information that will be disclosed
• Those who may make the disclosure
• The individuals who may access the information
• The reason for the disclosure
• An end of the disclosure period (This can be either an expiration date or an expiration “event.” For instance, this event could be the patient’s discharge from the hospital.)
• The signature of the patient or their representative

Individuals generally have the right to revoke authorization.

Disclosure to Personal Representatives and Family Members

According to the U.S. Department of Health and Human Services (DHHS), your personal representative may inspect and receive a copy of your protected health information from a HIPAA-covered health care provider or health plan.

Your personal representative is someone you legally authorize to act on your behalf in making health care decisions. Parents are typically personal representatives of minor children. If you have named an agent under a health care power of attorney in your estate plan, that individual may be your personal representative.

A Note on Terminology and Federal vs. State Law

The terms used for these types of documents and individuals can vary depending on where you live. Health care agents may be more commonly referred to as health care proxies in some states. Likewise, a health care power of attorney may be called an advance directive or a medical power of attorney.

To make matters more complicated, HIPAA rules, which are governed by federal law, may in some instances conflict with state laws. As the DHHS explains, whether a person “has a right to access the individual’s PHI … generally depends on whether that person has the authority under state law to act on behalf of the individual.” With certain exceptions, HIPAA regulations typically take precedence unless state law is more stringent.

Under HIPAA, a valid health care power of attorney should be sufficient to authorize a loved one to access your health information. You may also use a HIPAA release to share information with a loved one.

HIPAA and a Health Care Power of Attorney in Your Estate Plan

A power of attorney for health care is a legal document. When you execute a health care power of attorney as part of your estate plan, you appoint a trusted individual as your health care agent. You can also name a successor.

When you create a health care power of attorney, you can determine your agent’s level of authority and information access.

Compared to relying on HIPAA authorization forms alone, having a valid health care power of attorney in place can be beneficial for several reasons:

• While HIPAA authorization forms limit information sharing only to what is necessary, you can give your loved one broader access to information with a health care power of attorney, or provide specific limitations.
• Having a health care power of attorney prepares you for future unforeseen health events. You might be unable to communicate or make decisions if you become severely ill. When you have appointed a health care agent, this person can step in, make decisions, and receive information about your health.
• You can detail your wishes for medical decisions in a health care power of attorney.

When drafting a health care power of attorney, consider including HIPAA authorization. The document should include a provision about access to medical information. It will outline to whom in your life a health care entity is permitted to disclose your PHI.

You could give your agent broad access. Or, you could restrict their access to specific protected health information. You can also put limits on when the agent can have access to your information.

Consult With Your Attorney

If you are considering signing a HIPAA release to share health information with a loved one, consider also having a health care power of attorney. Your attorney can help you create a power of attorney that gives your loved one access to HIPAA-protected information and protects your interests.

Contact us

Questions? Contact us at Elise Lampert, Attorney at Law

   

Elise Lampert, Esq.

Law Office of Elise Lampert

9595 Wilshire Blvd. | Suite 900 | Beverly Hills , CA 90212

Phone: (818) 905-0601 / Email: elise@elampertlaw.com

https://www.eliselampert.com