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Estate and Trust planning is the process of anticipating and arranging, during a person’s life, for the management and disposal of that person’s estate during the person’s life and after death, while minimizing gift, estate, generation skipping transfer, and income tax. Estate planning includes planning for incapacity as well as a process of reducing or eliminating uncertainties over the administration of a probate and maximizing the value of the estate by reducing taxes and other expenses. The ultimate goal of estate planning can be determined by the specific goals of the client, and may be as simple or complex as the client’s needs dictate.
Estate Administration is the first step in the legal process of administering the estate of a deceased person, resolving all claims and distributing the deceased person’s property
under a will. A probate court decides the legal validity of a testator’s (deceased person’s) will and grants its approval, also known as granting probate, to the executor. The probated will then becomes a legal instrument that may be enforced by the executor in the law courts if necessary. A probate also officially appoints the executor (or personal representative), generally named in the will, as having legal power to dispose of the testator’s assets in the manner specified in the testator’s will.
A guardianship for an incapacitated senior will typically arise when someone determines that a senior has become unable to care for their own person and/or property. In some cases, there may be a belief that the senior is being financially exploited or about to be exploited. In other cases, the person may be unable to care for him or herself and is not able to properly engage in the activities of daily living without assistance. There will typically be a precipitating incident that causes a professional, family member, health care worker or clergyman to initiate guardianship proceedings.
Medicaid is the state program that helps with medical costs for some people with limited income and resources. Medicaid also offers benefits not normally covered by Medicare, including nursing home care and personal care services. Planning for long term care events takes time and effort if you want to protect and/or preserve your assets from long term care facilities and Medicaid estate recovery.
Special Needs Planning pertains to protecting the financial future of a disabled individual by establishing a trust so that a loved one can continue to receive governmental benefits. There are three basic types of special needs trusts: a third-party trust, a pooled fund trust and a d4A trust. A third-party trust is often created by a parent or grandparent of a special needs individual. A pooled trust is commonly established with the assistance of a non-profit organization. And, a d4A trust may be established by a disabled individual, parent, grandparent, guardian or court.
Probate and Trust Litigation most commonly involves will and trust contest proceedings, contested guardianships, breaches of trust, will and trust construction, and power of attorney abuses. These disputes can be very technical and specific and often times are associated with elder abuse, neglect, or exploitation.