If you have made the decision to finally sit down and create your estate plan, then you are off to a great start. Whether you simply want a roadmap for the distribution of your assets upon your death or are trying to ensure that your family will be provided for upon your death, decisions that are part of your estate plan are some of the most important decisions you will make during your lifetime. Given that, it makes sense to also seek the advice and assistance of an experienced estate planning attorney to help you make those decisions and then use them to create your estate plan. Finding the right estate planning attorney for your needs is the key to creating your estate plan.

Before you even start looking for an attorney, take the time to sit down and create a brief, general summary of what your estate planning goals are. Along with your goals summary, provide a list of your estate assets. Make sure that you bring both of these with you when you consult with any prospective attorneys. In addition, make a list of questions that you want to ask during your meeting. People often forget even the most important questions if they are not written down.

Once you have your notes ready, ask friends, family and co-workers for a referral to an estate planning attorney. You may also wish to call the local bar association and spend some time on the internet researching attorneys. Choose three or four to meet with in person. Once you have spent some time with each attorney, you should be in a position to decide which one you believe has the ability and experience to help you put your estate plan into practice.

John Rogers Burk, A Law Corporation is a member of the American Academy of Estate Planning Attorneys.

When it functions correctly, long-term care insurance, or LTCI, helps cover the rising costs associated with long-term care. People in the United States are living much longer than we were even 50 years ago with the average expected life span of a female at 85 years. Although advances in medicine have allowed us to live longer, as many as half of all Americans will still require long-term care at some point. With an average bill for a year of long-term care topping $100,000, many people elect to purchase a LTCI policy to help defray those costs when the time comes. As with many services aimed at the elderly, fraud is not uncommon with LTCI policies. Make sure you consult your estate planning attorney prior to purchasing an LTCI policy. Also consider the following tips:

• Compare policies. Do a thorough comparison of at least three policies before making a decision.
• Read all the fine print. As with any contract, some of the most important information may be buried in the policy among the fine print.
• Understand the conditions. One of the most important conditions to check is when does the coverage kick in. In other words, what constitutes the need for long-term care under the policy.
• Be truthful on the application. Just as with any other type of insurance policy, coverage could be denied when it is actually needed if you were less than truthful on the application.
• Research the company. Check with the state Department of Insurance regarding complaints. Also, research the company’s financial health and longevity in the business.
• Keep records. Create a file that includes the policy itself, any correspondence and all of your payment receipts in case they are needed later.

John Rogers Burk, A Law Corporation is a member of the American Academy of Estate Planning Attorneys.

A special needs trust, or SNT, is a specific type of trust aimed at providing financial assistance above and beyond that which the government provides to individuals who are physically or mentally disabled or who suffer from a chronic illness. If you have a family member or loved one who fits one of these categories, discuss creating a SNT with your estate planning attorney. In the meantime, here are some things you should know about SNTs:

When drafted correctly, a SNT will not disqualify your family member or loved one from government programs such as SSI, public housing or Medicare.

The assets you place in an SNT will be used to pay for care and services over and above what government funds and services provide.

There are specific rules about what an SNT can be used to pay for so be sure you go over these with your estate planning attorney, and the trustee if it is currently operating.

You will be able to appoint the trustee or your trust as well as make other decisions such as who you wish to be his or her guardian and what education and other special need  expenses can be paid for out of the trust.

The trust assets will be protected from claims by creditors or from judgments as a result of lawsuits.

An SNT eliminates the need to depend on other family members to care for the beneficiary. Even with the best of intentions, a family member can mismanage funds intended for the beneficiary.

A SNT can survive your death, ensuring that your loved one will continue to be cared for if you predecease him or her.

John Rogers Burk, A Law Corporation is a member of the American Academy of Estate Planning Attorneys.

In the 21^st century, blended families are the norm in America. If you have recently re-married and created a blended family, there are a number of estate planning concerns that you should be aware of, yet many people fail to consider after re-marrying.

After you are officially re-married, you should sit down with your estate planning attorney and review and revise some of the most important documents in your estate plan. Your Last Will and Testament is a good place to start. Many people leave their ex-spouse on estate planning documents simply because they have children in common and are comfortable leaving assets to the ex-spouse for the care of the children. Although you may still wish to leave some of your estate assets to your ex-spouse, you will likely wish to include your new spouse as well in your Will. The same logic applies to other components of your estate plan such as life insurance and retirement accounts. If your ex-spouse is currently the only beneficiary, you may wish to add your new spouse as well. Note that your divorce decree may require you to keep your ex-spouse as the beneficiary which could require you to purchase additional life insurance.

Along with changing your Will and beneficiaries, you may also wish to convert accounts and/or titles to “pay on death” or another similar type of account. Failure to add your new spouse could result in his or her inability to access those accounts for a significant period of time after your death.

John Rogers Burk, A Law Corporation is a member of the American Academy of Estate Planning Attorneys.

Millions of Americans struggle with the rising costs of healthcare every year. Sadly, many of those are elderly Americans who are also living on fixed incomes. If you are one of those people, and you do not have the benefit of private healthcare coverage, either the Medicare or Medicaid  (Medi-Cal in California) program may be the answer. If you are like most people, you have heard of both programs, but may not know the details of either or may not realize that you could qualify for one or the other.

Medicare is fully funded by the federal government. It is also administered by the federal government which means that the guidelines for acceptance as well as the benefits provided by the program are the same regardless of what state you live in. Anyone over the age of 65, as well as some disabled individuals under 65, qualifies for Medicare without regard to income or assets. Medicare typically provides less by way of benefits than Medicaid and requires a monthly premium.

Medicaid is funded by the federal government with additional funding by the individual states. Because Medicaid is administered by the states, there will be differences in both eligibility and benefit guidelines. As a general rule, more services are covered and no monthly premiums apply, although small co-pays could be required for some services. Both income and asset limits are critical in determining whether or not you will qualify. If your income and/or assets may put you over the limits for eligibility, be sure to talk to your estate planning attorney prior to applying. You may be able to take advantage of some estate planning tools that will help you qualify for the program.

John Rogers Burk, A Law Corporation is a member of the American Academy of Estate Planning Attorneys.

If you are in charge of handling the estate of a loved one or family member after his or her death, you may be confused about where to start. Although you have likely heard the term “probate” before, you may not understand exactly what it refers to or whether or not your loved one’s estate must go through the process. Although there is not a universal answer to the question, there are some common factors that go into determining whether or not probate is required.

State laws govern wills, trusts and estate matters. If your loved one died a resident of California, then California law determines whether or not probate is required. If your loved one was legally considered to be a resident of another state at the time of death, then the laws of that state apply and the estate must be probated in that state.

If a Last Will and Testament was not executed prior to death, State Law  determines who the legal heirs are to the estate.

The size and/or value of the estate as well as the type of assets owned by the estate are often important factors in determining which type of probate is required.

Most states offer a simplified probate process when estate assets are minimal and uncomplicated.

Formal probate can take a significant amount of time to complete and can be both complicated and costly., plus it is public.

If you are in doubt about whether or not probate is required, and if so which type is available, consult with an estate planning attorney.

John Rogers Burk, A Law Corporation is a member of the American Academy of Estate Planning Attorneys.

If you are fortunate enough to have a moderate to large estate then one of your estate planning goals is to eliminate, or at least minimize, the estate taxes that will be due upon your death. One estate planning tool that may help with that goal is the conservation easement. Although easements have been around for decades, the conservation easement in particular has become popular in recent years because of the wide variety of goals that can be accomplished by using one. Some things you should know about conservation easements:

Most people think of an easement in terms of a utility easement that allows a utility company to enter or cross your property. A conservation easement is similar but typically prevents improvement or development on the property in question.

Unproductive property, or property that is not being used, is often ideal for the creation of a conservation easement.

Both government and private environmental groups may be interested in a conservation easement.

You may sell or donate the easement.

If you sell the easement the funds can be used to develop other land or for any other immediate use. If you donate the land, the donation may qualify for a charitable deduction for income or estate tax purposes.

By granting a conservation easement, you are contributing to environmental efforts that will benefit future generations.

The estate planning benefit comes in upon your death. The land upon which the easement has been created has now decreased in value as a result of the easement and, therefore, is subject to less estate taxes.

Consult with your estate planning attorney for additional information.

John Rogers Burk, A Law Corporation is a member of the American Academy of Estate Planning Attorneys.

If you have an elderly loved one who is cared for by people other than you, you must always be on the look out for signs of abuse, neglect and fraud. Financial fraud, even theft, from elderly victims happens every day across the country. One of the most commonly used tools by perpetrators of fraud or theft of the elderly is the power of attorney, or POA. A POA can be used for entirely legitimate purposes; however, there are a number or reasons why it is often the ‘weapon” of choice by those who commit fraud on the elderly.

A POA is one of the more simple legal documents to create. Locating a generic POA form takes only a few minutes of time on the internet, making it easy to create.

Most people have heard of a POA and consider it to be a common, legitimate, legal document. This familiarity with the form often makes an elderly victim less suspicious than he or she might otherwise be if the form was not familiar.

A POA can be created for a specific purpose, such as to give someone the legal authority to act on your behalf to purchase license plates for your car. A broad POA, on the other hand, can give someone access to all of your financial accounts. Many victims sign a POA under the impression that the authority they are granting is narrow, when in fact it is very broad.  A safeguard is to require the concurrence of a nominated alternate agent for dealing with  more than a certain amount of money within a calendar year or for dealing with real property.

Once a perpetrator has a signed POA in hand, he or she can wipe out an account or transfer property into his or her name in record time, making it a very easy and quick way to commit fraud or theft.

John Rogers Burk, A Law Corporation is a member of the American Academy of Estate Planning Attorneys.

We all hope to live a happy and productive life well into old age and be able to manage ourselves and our finances throughout our lifetime. Sometimes, however, an incapacity prevents us from being able to do so. You could become incapacitated temporarily or permanently as the result of an accident or illness, or you may become incapacitated because of the natural aging process. Who will manage your money if this happens? The answer to that question depends, in large part, on whether or not you took the time to consider the possibility before it happened.

People often fail to understand the legalities involved in accessing money and assets. You may, for example, think that your spouse will automatically be able to manage your money and assets just because he or she is your spouse. While your spouse may have access to some assets, others may not be accessible, especially retirement accounts.  A parent, child or other relative will likely not have access to any of your assets without appropriate documents created by you or a court order.

If you have not provided an automatic mechanism to shift control of your money to someone in the event of your incapacity, and alternatives for determining incapacity,  a petition will need to be filed with the court. The court will then need to decide first if you are incapacitated, and then if the petitioner is the proper person to have control of your money. This will take time and money that could have been saved by a little pre-planning.

Talk to your estate planning attorney now about creating a durable power of attorney, a revocable trust or other incapacity planning document that will allow you to decide now who should manage your money in the event of your incapacity.

John Rogers Burk, A Law Corporation is a member of the American Academy of Estate Planning Attorneys.

A shockingly high percentage of Americans die intestate, or without leaving behind a valid Last Will and Testament. If you are one of these people, your estate will automatically be handled pursuant to the “government estate plan.”  In most cases, the government estate plan includes decisions that are not what the decedent would have wanted, but by failing to take the time to execute at least a Last Will and Testament, the decedent gives up any say with regard to how the estate is handled.

Avoiding the legal process known as probate is generally lost by dying without a Trust. The probate process begins by inventorying and valuing your estate assets. Anything that you own may be held up in the probate process until it is complete, leaving those assets inaccessible for loved ones who may need them.

Another part of the probate process when you are part of the government plan is to legally determine your heirs. These are not necessarily the people you wanted to leave your assets to, but are the people who are your heirs pursuant to state laws of intestacy. A long time boyfriend, girlfriend,  or best friend is not an heir and, therefore, will receive nothing from your estate.

The government estate plan also allows the court to make decisions such as whether or not to sell an estate asset or who to appoint as the person who will oversee the probate process.

Finally, the government estate plan costs your estate money. Legal and administrative costs will be charged to your estate and can often be considerably more than you would have spent creating your own individuated estate plan.

You can easily avoid the government estate plan by creating your own plan prior to your death.

John Rogers Burk, A Law Corporation is a member of the American Academy of Estate Planning Attorneys.