Is a Living Trust better than a Will?

Some people think that a living trust saves taxes. Not so. The tax man is not dumb. Both probate and non-probate assets (controlled by the decedent) are subject to taxation if they exceed applicable tax thresholds ($5M, federal; $1M, Maryland).

A living trust is a lengthy and complicated document which is expensive to prepare, certainly, much more than the typical will. In contrast, probate fees are paid after one’s death; attorney’s fees for preparation of a living trust are paid up front. Further, a living trust is of no use unless an individual goes to the trouble and expense of changing the names on real estate and car titles as well as various bank and other financial institution holdings.

WARNING:  Many people incur the expense of having a living trust prepared and then do not follow through in changing the title (ownership) of their assets. Without the follow through, the trust in that situation is worthless. A trust without assets is like an empty glass -- there is nothing in it to pour out.

Who Makes a Decision When the End is Near?

A living will, or advance directive, is a document that allows you to specify what treatment you want and don’t want if your health condition is considered terminal or you are in some permanent irreversible condition and are, in essential respects, unconscious. You can direct that doctors do certain things or withhold certain treatment if you are in those conditions. That means that the doctors will be given authority to act independently of what your loved ones might wish – that might be good or that might be bad. On the other hand, you can leave the final decision to your loved ones through a Health Care Power of Attorney you have granted to them to make such decisions.

As a practical matter, the decisions made are not likely to be made known to you or matter when the time comes. The fact the final decisions were made by your loved ones rather than by your doctors might be very important to them.

How Will I Pay for a Nursing Home?

Medicaid (government welfare) was long-used as the preferred way by many of preserving family assets while also receiving necessary care. This was accomplished by what is known as Medicaid planning.  Because of recent changes in federal law designed to tighten eligibility requirements, the advantages of such planning have been greatly reduced. As a consequence, long term health care insurance has become a much more desirable option for serving the same the purpose.

What Makes a Will Valid?

A will, more formally known as a Last Will and Testament, is required (in Maryland) to be in writing and signed by the maker as well as two witnesses. A notary public is not required to sign the will, but it doesn’t hurt. A warning, however: a professionally prepared will would have what is known as an “attestation clause” which is a recitation of language that the witnesses were present when the will was signed by the maker and confirm that the maker knew what he was doing when he signed the will. If this is missing, it may be necessary for the witnesses to be found and present proof that the maker of the will did, indeed, know what he was doing.

Is Your Loved One Receiving Appropriate Nursing Home Care?

I think it is safe to say that no one wishes to spend the last stages of his or her life in a nursing home. Unfortunately, though, sometimes the individual’s need for skilled nursing care leaves no other option. Simply put, the person’s physical and/or mental condition does not permit adequate care to be provided at home or an assisted living facility.

But the fact that an individual is in a nursing home does not mean that they can or should be ignored. 

It is a sad commentary on human nature that some staff members in some facilities will treat their patients in such a fashion as to minimize the inconvenience and care required by the aide or nurse who is charged with providing appropriate care.

As a practical matter, some facilities will use physical restraints such as vests or belts to confine a resident to a wheelchair or bed. Such restraints may be appropriate for the safety of patients or others. But far too often they’re used for the convenience of the caregiver who, therefore, no longer has to give the same level of personal attention to the patient that would be required if such restraints were not used.

Other techniques of serving the convenience of the staff as opposed to the needs of the patients are the use of sedative and anti-psychotic drugs. Feeding tubes are also used to avoid the necessity of helping a patient eat.

If a loved one of yours is receiving such “treatment”, it may or may not be appropriate but you should insist on questioning staff members as to whether it is necessary for the patient’s benefit.

REMINDER: Have You Checked Your Credit Report Recently?

Don't forget how important it is for you to check your credit history on a regular basis to be sure that it’s accurate and does not contain false or fraudulent information.

You can obtain FREE credit reports from each of the 3 major credit bureaus, Equifax, Experian and TransUnion. These three nationwide consumer reporting companies have set up a central website, a toll-free telephone number, and a mailing address through which you can order your free annual report. 

To order, visit annualcreditreport.com, call 1-877-322-8228, or complete the Annual Credit Report Request Form and mail it to: Annual Credit Report Request Service, P.O. Box 105281, Atlanta, GA 30348-5281. Visit http://www.consumer.ftc.gov/articles/0155-free-credit-reports for more information and important warnings about “imposter” websites to avoid.

Since the law allows you to order one free copy of your report from each of the nationwide consumer reporting companies every 12 months, staggering your requests allows you to monitor your credit every 4 months.

Over 80% of the general public does not request credit reports. Don’t allow yourself to fall victim to credit fraud because you failed to regularly check your credit history.

Make A List of “Need To Know” Information for Your Loved Ones

When the time comes, alas, as it does for all of us, to leave this earth for our eternal reward, the ones left behind often don’t have a clue as to what to do next. Don’t put your family in that bind.

Compile a binder or make a list of where your assets are with account numbers and addresses, including bank and brokerage accounts. Provide information on your life insurance. Indicate whether you have a safe deposit box and where the key is located. Make note of any special assets such as coin and stamp collections, and the like, which may be hidden somewhere in your house. List names, addresses, and contact information for your lawyer, accountant or financial planner.

In other words, don’t leave your loved ones in the dark. Don’t compound the grief your loved ones will feel by leaving them in a quandary about what to do.