There are many ways to transfer property after death.

Estate planning consists of preparing for incapacity during lifetime and transferring property after death to loved ones. Most people think of a Will or a Trust when transferring property. However, there are many ways that property can be transferred:

1. Will – a document that names a Personal Representative and directs the disposition of property at death. Wills are probated, but in Idaho, this is usually a simple process.
2. Trust – an arrangement to hold property and assets in trust. A Trust avoids probate, but is more complicated and more expensive than a Will, and it requires maintenance as property is sold or bought during one’s lifetime.
3. Community Spouse Deed – Most couples in Idaho hold title to their homes as community property. When one spouse passes away his or her name does not automatically come off the title. By changing the title to Community Property with a Right of Survivorship, all that the surviving spouse has to do is record a death certificate to take the deceased spouse’s name off the title.
4. Joint Tenancy – Most bank accounts with two people are examples of Joint Tenancy. If there are two people on the account and one dies, the survivor gets the account. However, when parents put their adult children on their bank accounts to help pay bills, they make them a joint-tenant, with the right to the money in the account when the parent dies. This often was not the parent’s intention.
5. Pay-On-Death Accounts (POD) – Most financial institutions will set up a Pay-On-Death account, at no extra cost so that at death, the balance in the account is paid to the persons, in the percentage indicated.
6. Affidavit of Heirship – Three years after a person’s death, if their estate has not been probated, the person’s heirs may record an Affidavit of Heirship, with the County Recorder, which transfers the title of property to them.
7. Give it away! – If one doesn’t foresee needing Medicaid within 5 years, he or she may give away property without affecting his or her eligibility for Medicaid; however, by giving property away during one’s lifetime the individuals receiving the property will lose a step-up in basis and may have to pay capital gains tax.
8. Deed retaining a Life-Estate – One may deed property and retain a life estate. This means that one keeps the property for the rest of their life, and at their death the property passes to the grantee named in the deed.

The decision of which method to use depends on the size of the estate, the type of property held, family dynamics and the goals of the person making the Estate Plan. Care should be taken when implementing any strategy, to make sure it is plainly understood and that it achieves the desired results.

Tom Packer is an Elder Law Attorney serving all of 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.

Who decides what happens to your remains after you have died?

After a loved one has passed away, the last thing families want is a dispute over what should be done with his or her remains. Occasionally this happens, when there are differing opinions and there are no documents in place that express the loved one’s wishes.

In Idaho Code Section 54-1142, it states: If the decedent did not make a prearranged funeral plan, the right to control the disposition of his or her remains vests in the following persons in the order listed:

• the person designated in a written document executed by the decedent and acknowledged. (“Authorization for Final Disposition”);
• the person designated under a durable power of attorney for healthcare executed by the decedent;
• the person designated in a durable power of attorney (for property) executed by the decedent, if it contains express and clear language granting such right to the agent named in such power of attorney;
• the competent surviving spouse;
• a majority of the competent surviving adult children of the decedent;
• the competent surviving parent.

Any question about an individual’s intent is easily resolved if they have executed an Authorization for Final Disposition. This names a Representative and gives him or her the authority to carry out the decedent’s wishes.

As with other decisions, by making your desires clear, it is much more likely that they will be carried out.

Tom Packer is an Elder Law Attorney serving all of 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.

In some situations, naming an individual as a Beneficiary does make sense.

Last month, we discussed the reason for naming your Estate as the beneficiary on IRA’s, life insurance policies, mutual funds, bank accounts, and annuities. Naming your estate as the beneficiary of these accounts provides funds to pay your debts and final expenses. Your Personal Representative will then transfer the remaining property in your estate to those persons or charities you have named in your Will.

However, in some situations designating an individual instead of your Estate, as your Beneficiary, does make sense. If you have a small estate consisting only of insurance and a bank account, naming an individual as the beneficiary of the insurance and setting up a Pay-on-Death on the bank account, avoids the need to probate. Payments from the insurance company and the bank are made directly to the individuals that you have designated.

In another example, if you receive Medicaid to pay for your care in an assisted-living facility, when you pass away, Estate Recovery will file a claim against your estate for the cost of your care that was paid for by Medicaid. Insurance proceeds are not subject to Estate Recovery, so you would want to designate an individual, not your Estate, as the beneficiary of your insurance policy.

Finally, if your spouse’s care is being paid for by Medicaid, you don’t want to name your spouse as the beneficiary of your insurance policy. If your spouse receives insurance proceeds while on Medicaid, it may jeopardize his or her eligibility for Medicaid—if your spouse’s assets at the end of any given month exceed $2,000, he or she will become ineligible for Medicaid.

In conclusion, each individual circumstance is unique, making it difficult for a one-size-fits all answer as to whom you should name as a beneficiary. If you have questions, it may be worthwhile to review your specific situation with an attorney.

Tom Packer is an Elder Law Attorney serving all of 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.

It is a good idea to review your beneficiaries and POD designations regularly.

Ringing in the New Year for many people includes setting goals and getting organized. As a result of this, my law practice has been busy the last couple of months helping our clients with estate planning.

One often overlooked area of estate planning is that of reviewing the beneficiaries of your life insurance policies and annuities, and the Pay-on-Death (POD) designations on IRAs, mutual funds and bank accounts. If your designations are out-of-date, when you pass away your assets could go to an unintended person, such as a former spouse, for example, no matter what your Will says. As your life changes, it is wise to periodically review all your designations and bring them up-to-date.

Knowing who to name as a beneficiary or POD designee depends on your circumstances and objectives. If your objective is to fund your Estate and make sure there are sufficient assets to pay creditors and carry out your estate plan, naming your Estate as your beneficiary insures that the proceeds are used to pay funeral expenses and debts, with the balance passing to your heirs as directed in your Will.

When naming individuals as beneficiaries or POD designees, some parents make the mistake of naming their oldest child as the sole recipient, with the idea that the oldest child will settle their affairs and share the wealth with their siblings. These same parents often direct in their Will that their estate is to be divided equally among all of their children. If the life insurance proceeds and financial accounts represent the bulk of the estate, and the oldest child does not share the proceeds with their other siblings, the parents may have unwittingly disinherited their other children.

Having said this, there are situations where designating individuals to receive the proceeds of a financial account or life insurance policy does make sense. This will be the subject of our next Senior Tip.

In conclusion, a good time to review your beneficiary designations is in March, as you receive your 1099 Tax Forms from the financial institutions holding your assets. Give your financial institutions and insurance policy holders a call and make sure your beneficiary designations are current and in keeping with your wishes.

Tom Packer is an Elder Law Attorney serving all of 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.

Use a tangible personal property list to clearly specify who you want to receive your personal property.

Idaho Code Section 15-2-513 expressly permits the use of a statement separate from your Will to dispose of non-business, tangible personal property upon your death. If you want to use such a separate written statement rather than itemize the disposition of tangible personal property in your Will, you should know and follow the requirements set forth below:

1. No duplication. The separate written statement should not include items already specifically disposed of by you in your Will.
2. Assets that may be disposed of by written statement. Common examples of property that may be disposed of include personal effects, jewelry, family heirlooms, furniture, antiques, art work, books, household items, sporting equipment, automobiles, etc.
3. Assets that may not be disposed of by written statement. A separate written statement cannot be used to dispose of money, evidence of indebtedness, documents of title, interests in real property, securities or property used in a trade or business.
4. Date and sign written statement. Each page of the statement should be dated and must be signed by you.
5. Clearly describe each item. Clearly describe each item so that it is easily identified and not confused with another similar item.
6. Designation of beneficiary (devisee). Each beneficiary (also referred to as a “devisee”) should be identified by his or her proper name and relationship to you. The address of the beneficiary should be added if the beneficiary is not closely related to you so that proper identification is assured.
7. Alternate Beneficiary. You may wish to consider providing for an alternative beneficiary if the first-named beneficiary does not survive you, although this is not necessary.
8. Change in designation of beneficiary or property. You may change the devisees or property designated in the separate written statement from time to time or revise or revoke the entire statement. Changes should be made only by preparing a new statement patterned after the original form. The old statement should be destroyed. Changes should never be made by alternation on the face of an executed statement; your intent will inevitably be unclear.
9. Retain written statement in safe place. The separate written statement should be kept in a safe place where it can be easily found, preferable with your original Will.
10. Notice to Personal Representative. We recommend that you notify the personal representative named in your Will regarding the location of the written statement.
11. Periodic review. The written statement should be reviewed periodically and kept current.

Families often fight more over mom’s wedding ring or dad’s hunting rifle than they do over the distribution of a 401K. A tangible personal property list is often overlooked, but is an important document to prevent disputes between family members when settling an estate.

Tom Packer is an Elder Law Attorney serving all of 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.

“I like pigs. Dogs look up to us. Cats look down on us. Pigs treat us as equals”. Winston Churchill

If you have ever loved a pet, you understand the question that many of my clients ask: when I pass away, who will care for my pet? Pets offer companionship and bring joy into our lives, and in return we want to make sure they go to a good home.

There are several options for the placing of pets, including family members, friends and adoption programs with organizations like the Idaho Humane Society. If you plan to leave your pet with an individual, you should discuss with the prospective caretaker if they are willing to care for your pet. If they accept, you can leave your pet in your Will to that person. You may also want to leave some money or other pet care items to that person, asking the person to use the money and items to care for your pet. Your request gives guidance to the caretaker, but is nonbinding. You cannot leave money or other property directly to an animal.

A more complex and expensive method to provide for your pet is to set up a Pet Trust. Idaho Code § 15-7-601 allows for a Trust to be set up for a pet. Funds can be put into the Trust with instructions that are binding, as to how the money is to be used and how your pet is to be cared for.

If providing for your pet’s future when you are gone is important to you, consider leaving specific instructions in your Will concerning with whom you want your pet placed. This brings peace of mind, knowing your pet will be in a good home.

Tom Packer is an Elder Law Attorney serving all of 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.

For your family’s sake, have a Will.

I have a brother-in-law who comes up to me each year at our family reunion and says: “I have never been to an attorney’s office, and I am never going to go to one.” Finally, after hearing his chide for several years, I replied: “That’s great for you, but you’re going to leave your children a big mess.”

It is a common scenario for a parent to pass away without doing any planning. They may have one child on their bank account and another on the title to their car. They haven’t designated anyone to act as their personal representative, and they haven’t indicated to whom they want items of personal property to go to. Frequently, they have a mortgage on their house, credit card bills and have not done anything to pay for a funeral, leaving the burden on their children to figure all of this out.

When a person dies without a Will, it is known as intestate succession. If he or she is the last surviving parent, each of the children has an equal right to serve as the personal representative of their parent’s estate. The personal representative has the duty to inventory their parent’s property, to pay all creditors and to divide the remaining estate—according to the intestate laws, not the person’s wishes—equally among the heirs.

In this process, things do not always go smoothly. For example, children frequently say that Mom had verbally told them they could have an item of personal property. However, since it was not written in the Will in the Tangible Personal Property List, Mom’s verbal commitment is unenforceable. The children are left trying to negotiate what is a fair division of family heirlooms and other items of personal property.

Additionally, the daughter with her name on the bank account can withdraw the money in the account since she was a joint tenant on the account with a right of survivorship. A son, with his name on the car title can transfer the title to himself. Was that the parent’s intent?

Finally, are there sufficient assets in the estate to pay off Mom’s debts and are the kids, who may be struggling financially themselves, able to pay for the funeral? All this leads to unnecessary argument between the siblings. Perhaps one sibling is overbearing, making it difficult for each to receive things that were intended for him or her.

Having a Will does not mean you don’t have to probate your estate, but in Idaho, it is usually quick and painless. With a Will you have named your personal representative, you have indicated in writing to whom personal property items go and you have indicated how you want your estate to be divided.

Having peace in families is a desirable goal. A little planning can make life much easier for those left to settle your affairs.

Tom Packer is an Elder Law Attorney serving all of 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.

Living Trusts are a Growing Area of Consumer Fraud.

The Idaho State Bar has put out a publication about Living Trusts that is very informative, called “Do You Really Need a Living Trust?” This Senior Tip comes from that publication.

It states that every year Idahoans lose thousands of dollars through the purchase of unnecessary trusts. Often families face greater costs dealing with problems caused by the trusts. There are some situations when a living trust is appropriate, but often people could achieve their purposes by far less expensive means.

Following are some myths and misleading statements about Living Trusts:

1. Your estate can be destroyed by the death tax: This is misleading because in 2016, the federal estate tax only affects estates of more than 5.43 million in value.
2. Living Trusts save taxes: A revocable living trust saves no more estate taxes than a properly drafted will.
3. Living Trusts help you avoid contested wills: Living Trusts are contested on the same grounds that wills are contested.
4. Living Trusts help you avoid creditors: During your lifetime andafter your death, your assets are subject to the claims of creditors.
5. Assets in a Living Trust don’t count for Medicaid Eligibility: Only assets in certain irrevocable trusts may be excluded in determining Medicaid eligibility 60 months (5 years) after the assets are transferred to the trust. Having your home in a revocable trust makes a Medicaid application more problematic.
6. Living Trusts avoid the expense of a Conservatorship: It can only avoid the cost in some circumstances.
7. Attorneys charge from 3% to 10% or more to probate your estate: Attorney’s fees will be an agreed upon amount, usually based on an hourly charge.
8. Probate takes years to complete: In Idaho, in most cases the administration of a living trust is no more expeditious than the administration of a will in probate.
9. Probate requires court hearings: Idaho provides a simplified probate process, which involves no court hearing and may not require the filing of an inventory.
10. Everyone should have a Living Trust: The costs of creating and maintaining living trusts outweigh the benefits for many Idahoans.

If your goal is to avoid probate, there are several other ways to do so besides having a trust: Pay on Death (POD) accounts, Transfer on Death (TOD) designations of securities and joint tenancy on real property are inexpensive ways of avoiding probate.

If you are considering a Revocable Living trust, you should consult an attorney who is not promoting and selling Living Trusts when making your decision.

Tom Packer is an Elder Law Attorney serving all of 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.

Ease the burden on your spouse.

Frequently when I meet with individuals to do their estate planning, I discover their spouse has passed away and the title to their house is still in both of their names. With the title in both of their names, the surviving spouse cannot sell, deed, or take out a loan against the house. To remedy this problem, I will file for Probate, Summary Administration or record an Affidavit of Heirship to get the deceased spouse’s name off of the title.

In 2008, the Idaho Legislature added Idaho Code § 15-6-401 to Idaho’s Uniform Probate Code. This Section states that “any estate in real property held by a husband and wife as community property with right of survivorships shall upon the death of one spouse, transfer and belong to the surviving spouse.”  To accomplish this, a couple must record a deed with the county recorder that expressly states that the real property is being transferred to them to be held as community property with a right of survivorship. By doing this, all the surviving spouse has to do is record a death certificate to transfer the title into his or her name.

For couples with modest estates—a home, car and  bank account—with proper planning there is no need for them to go through probate when one of them passes away.

Tom Packer is an Elder Law Attorney serving all of 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.

Older Drivers, when is the right time to hang up the keys?

When we were teenagers, getting a driver’s license was the beginning of our independence. It is no wonder that we as older adults resist any suggestion to give up our driver’s license and discontinue driving. We feel the loss of independence to come and go as we please. Unfortunately, physical and mental issues may interfere with an older adults’ ability to drive. (Elder Law Essential 22-1)

There are many warning signs that an older adult should stop driving. Among them are the following: failing to yield, mistaking the gas pedal for the brake, hitting curbs, scrapes and dents on their car, difficulty maintaining lane position and delayed responses. (We Need To Talk…Family Conversations with Older Drivers, The Hartford)

Earlier in my legal career, I represented a number of older adults who had been involved in fatal car crashes. Because they were at fault in causing the accident, they were charged with vehicular manslaughter. Two seniors I represented had failed to yield and turned in front of an oncoming vehicle. In both cases, the driver of the oncoming vehicle was killed. Another senior was looking for an address and drifted out of his lane. The driver of a motorcycle in the other lane hit my client’s car, lost control of his motorcycle and was killed.

Under Idaho Code §18-4006, vehicular manslaughter is the killing of a human being in which the operation of a motor vehicle was a significant cause, without gross negligence. The maximum punishment for vehicular manslaughter is a fine of up to $2,000.00 and a jail sentence of up to 1 year. In addition, the court can suspend the driver’s license of the older adult. The maximum penalty usually is not imposed by the court in these cases; however, the bigger penalty may be the knowledge that your mistake resulted in the death of another individual.

Idaho Code § 49-326 (1)(c)(1) allows the Department of Transportation to revoke or restrict any person’s license upon the statement of the person’s personal physician that the person has a mental or physical disability, which prevents him from safely driving a motor vehicle.

A helpful and informative booklet has been put out by The Hartford, entitled, “We Need To Talk. Family Conversations with Older Drivers.” You can Google the title and get the internet version of the booklet. It aids in the discussion with older adults, who need to make decisions about safe driving. If you have a concern, please have a conversation as a family, for everyone’s safety.

Tom Packer is an Elder Law Attorney serving all of 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.