Tip: If you have a Revocable Living Trust, don’t forget to fund it.

A Revocable Living Trust is one way to transfer property at your death. To avoid probate is one of the primary reasons people set up a revocable living trust. Another good reason to set up a trust, is if you own property in multiple states. By having a trust, it is not necessary to probate in each state.

But  creating the trust is only the first step; the next step is to fund the trust. To fund the trust means you  must transfer your property into the trust. How you transfer property into the trust depends on what type of property it is. For example, if you want to transfer your home into the trust, you must sign and record a deed.

You don’t just fund the trust once, but every time you procure additional property or accounts—during your entire lifetime—you must take the steps to put them into your trust. Twenty years down the road, if you sell your house and buy a new one, you must deed the new house into the trust. Often, lives get busy, and people simply forget to put newly acquired property into the trust.

And therein lies the problem. Sometimes people will set up a trust, but for some reason, they never transfer their property, or they forget to transfer newly acquired property into the trust; so, at their death, their estates end up being probated anyway.

Most people who create a revocable living trust will also write a pour over will. These wills provide if the person failed to transfer property into the trust, the property is transferred into the trust by their will at their death.

I recently saw a case where a couple set up a revocable living trust, but never put their property into the trust and then passed away. This couple only had one son, and everything went to him. However, they had a pour over will that accompanied the trust, which said their property had to first be transferred into the trust, and then the trust said their property went to the son. This created an expensive, absurd result that was caused by not properly funding the trust.

In conclusion, managing a trust properly can be complicated. If you are going to
have a trust, seek competent legal advice, make sure to put your property into the trust, and then review it with your attorney periodically to make sure
everything is in order.

View our “Senior’s Guide to a Well-Planned Future” on our website! Packer Elder Care Law – with you for life!

Tom Packer is an Elder Law Attorney serving all Southeast Idaho. As part of his law practice, Tom offers Life Care Planning to deal with the challenges created by long-term illness, disability and incapacity. If you have a question about a Senior’s legal, financial or healthcare needs, please call us.

February 2022

Tip: Gifting your home and other real property to your children can create several problems that you should be aware of.

I frequently have clients who want to gift their home, recreational property, farm ground or other real property to their children. I always try to understand why they want to gift their property and review with them if there is a better way to accomplish their objective. I then explain to them that gifting property can create several problems. Here is a list of things you would want to consider if you are contemplating gifting your home or other real property to you children:

1. As of 2022 under IRS rules, if you gift property with a value of over $16,000, you are required to file a gift tax return.
2. If you gift your home to you children, but you continue to live in your home, you will lose the homeowner’s exemption on your home and your property taxes will increase dramatically. You can, however, deed your home to your children and retain a life estate. By retaining a life estate, you will continue to receive the homeowner’s exemption, and you can stay in your home until you pass away, and then it goes to your children.
3. If you gift property while you are alive that has appreciated since you bought it, your children will lose the step-up in basis that is available to them if you had waited and given the property to them at your death. This could result in your children paying capital gains tax on the proceeds if they sell the property.
4. If you need to apply to Medicaid to help pay for your care, you will have a period of ineligibility for the Medicaid Program.
5. And perhaps the most obvious reason to not gift your home to your children is that once you have deeded your home or property to them, it is no longer yours. Consider what would happen to your property if you have given it to a child and they take out bankruptcy, get a divorce, or die and the property is passed down to their children.

Persons who are gifting their home to their children to simplify their lives, often find out that they have complicated things instead. If you are contemplating gifting your property to your children, be careful and talk with an attorney who can help you understand all the ramifications of making a gift.

View our “Senior’s Guide to a Well-Planned Future” on our website! Packer Elder Care Law – with you for life!

Tom Packer is an Elder Law Attorney serving all Southeast Idaho. As part of his law practice, Tom offers Life Care Planning to deal with the challenges created by long-term illness, disability and incapacity. If you have a question about a Senior’s legal, financial or healthcare needs, please call us.

January 2022

In some cases where the total value of an estate is less than $100,000, you may claim property with an Affidavit and not file for probate.          

Once in a while, a client will come to my office because their parent has passed away. My client explains that their parent had a checking and savings account and a car that was titled only in the parent’s name.

They tell me that they have gone to the bank and the bank won’t give them access to the bank accounts even though they presented them with a death certificate and sometimes with a Will nominating the child to be the personal representative. Then when they went to the assessor’s office, the clerk told them that they would have to probate before they could transfer the car title. My client complains that they do not want to probate the estate and asks if there is some alternative to access the money in the bank and get a new title to the car.

The good news is that there is an alternate way. Idaho Code § 15-3-1201 establishes a procedure whereby property can be collected by an Affidavit. A person claiming to be the successor of the decedent may present an Affidavit, containing the information listed below, to any person or financial institution owing the decedent money or having possession of tangible personal property belonging to the decedent. Once they have been presented with an Affidavit, the bank is required to turn over the money in the accounts and any person holding tangible personal property must deliver it to the successor.

An Affidavit is a sworn statement signed before a Notary. Idaho Code                § 15-3-1201 provides that the Affidavit must state the following:

• The fair market value of the entire estate of the decedent, which is subject to probate, less encumbrances, does not exceed $100,000;
• That thirty days have elapsed since the death of the decedent;
• No application for the appointment of a personal representative is pending or has been granted in any jurisdiction; and
• That the claiming successor is entitled to payment or delivery of the property.

If you need to transfer the title of a vehicle, an Affidavit form for vehicles can be found on the Idaho Department of Transportation’s website.

The successor—any person to whom payment has been made or to whom property has been transferred—is accountable to any creditor of the decedent and to any other persons with a right to the money or property.

This section of the Idaho Code provides an easy method for the collection of property for small estates without having to file for probate with the court. However, in some cases going through probate may be less troublesome than trying to collect property with a small estate Affidavit. For example, sometimes financial institutions are reluctant to give money to a person solely on an Affidavit and prefer to give it to a Personal Representative appointed by the probate court.

If you have questions about when it would be appropriate to use an Affidavit, we would be happy to answer them.

View our “Senior’s Guide to a Well-Planned Future” on our website! Packer Elder Care Law – with you for life!

Tom Packer is an Elder Law Attorney serving all Southeast Idaho. As part of his law practice, Tom offers Life Care Planning to deal with the challenges created by long-term illness, disability and incapacity. If you have a question about a Senior’s legal, financial or healthcare needs, please call us.

November 2021

Not understanding how the law works can lead to confusion and frustration.         

Often people have misconceptions about how the law and estate planning documents work. Here are some common misconceptions I run into:

• Fiction: I have a financial power of attorney for my father. After he passes away, the bank will let me access his account to settle his affairs.

Fact: If you have a financial power of attorney for someone, when they die, the POA is terminated. It is no longer valid, and you cannot use it to have access to bank accounts.

• Fiction: I am nominated in my mother’s Will to be her Personal Representative, so when she passes, I can settle her affairs.

Fact: When someone nominates another person to serve as their Personal Representative in their Will, that’s all that it is—a nomination. They are not authorized to act in that capacity until they file an application with the court and are appointed by the court to be the Personal Representative.

• Fiction: I have a Will, so my kids won’t need to probate my estate.

Fact: The probate process is to determine if the Will is valid. To probate the estate and be appointed the personal representative, you must file an application with the court along with the original Will. The court reviews the application and Will and determines if they are in order. It then approves the application and issues Letters Testamentary. With the Letters, you can take whatever actions are needed to administer the estate of the deceased person.

• Fiction: Here is one from Medicaid Law: If I am eligible for Medicaid, Medicaid will pay all the costs of my care.

Fact: When you qualify for Medicaid, Medicaid requires that all your monthly income—social security, pension, etc.—is paid to the facility for your care except for $109 for personal needs. Medicaid will make up the difference between what the facility charges for your care and what you must pay. If you are married, some of your income can be diverted to your spouse who remains at home to meet his or her needs.

• Fiction:I need to put my property in a Trust to avoid paying inheritance tax.

Fact: An estate tax at the federal level is charged to all decedent’s estates when their assets pass on to their beneficiaries, whether they have a will or a trust. However, most estates won’t encounter the federal estate tax since it only applies to estates worth more than $11.7 million for 2021. Therefore, doing any kind of planning to avoid estate taxes for most people is unnecessary.

• Fiction: When I pass away, my house automatically transfers to my spouse.

Fact: In many cases, your car and bank account automatically transfer to your spouse after you pass away, but your house is a different story. To have your house transfer to your spouse after you pass away you need a Deed that includes these 5 words: “with the right of survivorship.”

Understanding how the law and legal documents work can help you make better decisions—with less angst.

View our “Senior’s Guide to a Well-Planned Future” on our website! Packer Elder Care Law – with you for life!

Tom Packer is an Elder Law Attorney serving all Southeast Idaho. As part of his law practice, Tom offers Life Care Planning to deal with the challenges created by long-term illness, disability and incapacity. If you have a question about a Senior’s legal, financial or healthcare needs, please call us.

October 2021

There now is a maximum 10-year post death payout for most retirement funds.

Let me start with a Happy Children’s Fairytale: “Once upon a time, estate planners had a wonderful surprise gift for their clients. When the client showed up with a large IRA asset, an “ugly duckling” that came laden with indebtedness for unpaid income taxes, the planner could turn the ugly duckling into a swan called the “Stretch IRA”— deferring those taxes for decades after the client’s demise, with a life expectancy payout to the client’s children or grandchildren.”

And the client, the family, and the estate planner lived happily ever after!

Disappointingly, the rest of this Tip contains the story of how the happy ending was taken away by the SECURE (Secure Every Community Up for Retirement) Act. When this law passed in December 2019, it radically changed the estate planning client’s ability to effectively use his or her retirement benefits for their posterity long term. Except for a few types of beneficiaries, (listed below) the life expectancy payout is “gone with the wind,” replaced by a maximum 10-year post death payout period. (This information comes from Estate Planning for Retirement Benefits in a Post-SECURE Act World, by Natalie B. Choate. Esq.)

There are five categories of eligible designated beneficiaries who are exempt from the 10-year SECURE ACT rule:

• A surviving spouse
• A minor child until he is 18
• A disabled person
• A chronically ill person
• A person who is not more than 10 years younger than the plan participant

The options for leaving benefits to the persons listed above vary, but there still may be the ability to do lifetime payouts for some of these beneficiaries. It is incumbent, then, when designating beneficiaries for IRAs, to understand the different payout rules for the different categories.

So what can you do? If you have an IRA, all pre-2020 plans need to be reviewed in light of the SECURE Act’s changes. Many of those plans will not work as intended.

In addition, it is recommended that you check your beneficiaries from your financial institutions annually, or if any significant life changes occur.

View our “Senior’s Guide to a Well-Planned Future” on our website! Packer Elder Care Law – with you for life!

Tom Packer is an Elder Law Attorney serving all Southeast Idaho. As part of his law practice, Tom offers Life Care Planning to deal with the challenges created by long-term illness, disability and incapacity. If you have a question about a Senior’s legal, financial or healthcare needs, please call us.

September 2021

Consider getting your financial and healthcare powers of attorney in place. 

Many people are proactive and execute durable powers of attorney well before incapacity becomes an issue. In most cases, having these documents in place will make it unnecessary for the court to appoint a guardian or conservator (a court-supervised person to administer an individual’s affairs).

Sometimes, a conservatorship or guardianship is necessary even when there are durable powers of attorney in place. For example, the agent appointed, or the attorney-in-fact, may be unable or unwilling to act or is disqualified from acting due to wrong-doing; the person who has become incapacitated may be a threat to himself or others; or the incapacitated person’s family may not be able to agree on who should be making decisions, or may not agree with the decisions that are being made. In situations such as these, the appointment of a conservator or guardian by the court may be appropriate. (A Guide to Elder Law Practice, 2007 Timothy L Takacs.)

If the court determines that a conservator is needed, Idaho Code § 15-5-410 for conservators list the persons entitled for consideration in the following order:

• an individual nominated by the incapacitated person in a financial power of attorney;
• the spouse of the incapacitated person;
• an adult child of the incapacitated person;
• a parent of the incapacitated person; or
• any relative of the incapacitated person with whom he or she has resided six months prior to the filing of the petition.

The court may disregard this order of priority or designate any other person, if it determines it is in the best interest of the incapacitated person.

There are advantages and disadvantages to having a court-appointed conservator or guardian:

1. Advantage: Guardians and conservators are supervised by the court. Annual accountings must be turned into the court by the guardian and conservator.
2. Disadvantages: Guardianships and conservatorships are expensive—with court costs, visitor, and attorney’s fees.

In conclusion, planning allows you to have a say in the important decisions affecting your life. In our website listed below, you can view our booklet called; “A Senior’s Guide to a Well-Planned Future” or if you are interested, you could stop by our office and pick one up. This booklet details what you need to have in place to be prepared in case of incapacity.

Tom Packer is an Elder Law Attorney serving all Southeast Idaho. As part of his law practice, Tom offers Life Care Planning to deal with the challenges created by long-term illness, disability and incapacity. If you have a question about a Senior’s legal, financial or healthcare needs, please call us.

June 2021

If your estate is less than $100,000, it is unnecessary to probate it.

In Idaho, small estates that have a value of less than $100,000, do not need to be probated for the heirs to collect the property in the estate. Thirty days after a person has died, any heir of the decedent—on behalf of all the heirs—may present an affidavit to any individual holding property of the decedent to obtain the property.

Idaho Code § 15-3-1201 lays out the requirements for the affidavit, which must state the following:

• The fair market value of the entire estate of the decedent is less than $100,000.
• Thirty days have elapsed since the death of the decedent.
• No application for the appointment of a personal representative in a probate proceeding is pending in any jurisdiction.
• The person claiming the property is entitled to payment or delivery of the property.

The effect of the affidavit is that the individual who delivers the personal property to the heir is released from any liability. They are released to the same extent as if they had dealt with a personal representative in a probate proceeding.

A form entitled Idaho Small Estate Affidavit for Collection of Decedent’s Property, Possessions, & Accounts can be found online. However, if you need to transfer the title to a vehicle belonging to the decedent, you can find an Affidavit of Inheritance form on the Idaho Department of Transportation’s web site.

View our “Senior’s Guide to a Well-Planned Future” on our website! Packer Elder Care Law-with you for life!

Tom Packer is an Elder Law Attorney serving all Southeast Idaho. As part of his law practice, Tom offers Life Care Planning to deal with the challenges created by long-term illness, disability and incapacity. If you have a question about a Senior’s legal, financial or healthcare needs, please call us.

May 2021

Make sure if certain changes occur, that you update your policies!

Many people set up their beneficiary designations on their life insurance policies or financial investments and don’t think about it again. However, if significant life changes occur, such as a death or divorce, it’s a good idea to review your beneficiary designations to see if they are still the ones you want.

For example, what happens when someone gets a divorce and fails to take the ex-spouse’s name off their insurance policy? When they pass away, their ex-wife or ex-husband could receive their death benefit, instead of their children.

I had this question come up recently. A father passed away, and the children contacted the insurance company to claim their death benefit—only to discover that the beneficiary on their Dad’s policy was his ex-wife. Even though they had been divorced over 20 years ago, he had never changed the beneficiary designation so that it would go to his children. The children called me to find out if there was anything that could be done.

Luckily for them, Idaho is one of about half of the states that has a revocation-upon-divorce statute that automatically revokes an ex-spouse’s designation as a life insurance beneficiary upon divorce. Idaho code § 15-2-508 revokes a pre-divorce life insurance policy as well as a gift to an ex-spouse in a Will or gifts in a Living Trust.

In conclusion, it’s wise to review your beneficiary designations on life insurance policies or other financial investments to make sure they are consistent with your intentions and there are no surprises in the future.

View our “Senior’s Guide to a Well-Planned Future” on our website! Packer Elder Care Law-with you for life!

Tom Packer is an Elder Law Attorney serving all Southeast Idaho. As part of his law practice, Tom offers Life Care Planning to deal with the challenges created by long-term illness, disability and incapacity. If you have a question about a Senior’s legal, financial or healthcare needs, please call us.

April 2021

Did you know that a home can’t pass to your spouse with an ‘or’ clause?

Many people are not aware that their interest in their home—unlike their bank account—does not automatically transfer to their spouse when they pass away. Similarly, most of us know that if you title your car in your name “or” in your spouse’s name, then either spouse may transfer the title to the vehicle to another person, even after one of them has passed away. However, for your home, to automatically transfer to a surviving spouse, there are specific requirements that must be met.

Idaho is a community property state. Under the law, each spouse has a 50% ownership interest in their home. When a spouse dies, his or her interest in their home passes to their estate—not to the other spouse. However, in 2008, the Idaho Legislature passed Idaho Code Section § 15-6-401 (Community Property with Right of Survivorship in Real Property). To create a right of survivorship in real property, you must have a deed prepared that states that the transfer creates an estate in “community property with right of survivorship.” If a husband and wife already own real property, they may deed the property to themselves, to be an estate in community property with right of survivorship.

Real property is your home, farm, or land. When real property is held by a husband and wife as community property with right of survivorship, it will automatically transfer and belong to the surviving spouse, upon the death of one spouse.

The practical effect of doing this is that when the first spouse passes away, rather than having to go through probate to transfer the deceased spouse’s interest in the home to the surviving spouse, all that has to be done is to record a Death Certificate at the courthouse to transfer the interest to the surviving spouse.

It’s a good idea if a husband and wife own a home, to prepare a Community Spouse Deed, which deeds the property back to themselves as an estate in community property with right of survivorship.

Getting a Community Spouse Deed in place can be part of a well-planned future that will make your life simpler in the long run.

View our “Senior’s Guide to a Well-Planned Future” on our website! Packer Elder Care Law-with you for life!

Tom Packer is an Elder Law Attorney serving all Southeast Idaho. As part of his law practice, Tom offers Life Care Planning to deal with the challenges created by long-term illness, disability and incapacity. If you have a question about a Senior’s legal, financial or healthcare needs, please call us.

March 2021