Providing Comprehensive Answers to Your Questions
If you are beginning the process of creating an estate plan, or receiving Medicaid benefits, you probably have a lot of questions about wills and trusts, taxes, eligibility, and the list goes on. Thankfully, Robert Burke Law Firm in La Plata, MD has the answers you need to make informed decisions.
We encourage you to review some of the frequently asked questions we have received from clients. If you have a question that’s not listed below, please do not hesitate to call us at 240-349-2775!
Frequently Asked Questions About Estate Planning
What Is a Will?
A will is a legal document that ensures your money and estate, owned solely by you at the time of your death, is inherited by the people who you want to benefit. A will does not govern assets that pass outside of probate – jointly owned property, life insurance, brokerage accounts, retirement accounts, and IRAs. In a will you can designate a guardian for a minor child (if the other parent does not survive you), exercise powers of appointment, authorize the payment of funeral expenses, name your Personal Representative, and eliminate the need for a bond. Without a will, Maryland state law dictates the distribution of your property.
What Happens If I Die Without a Will?
A person who has died without a will has died “intestate.” The Maryland laws of intestacy will determine how your property is distributed upon your death. The surviving spouse will receive one-half of the residuary estate and the children will receive the other half of the residue, or the decedent’s surviving parents. If the decedent has no surviving spouse, children, or parents, the residuary estate will be distributed to the decedent’s closest living relatives.
What Are Revocable Living Trusts? What Do They Do?
A Revocable Living Trust is a trust created during your lifetime to hold property that you transfer to it, which can be modified or revoked during your lifetime. Once the trust grantor becomes incapacitated or dies, his or her revocable trust is now irrevocable, meaning that generally the terms of the trust cannot be changed or revoked going forward. A Living Trust has a current serving trustee who manages the property for your benefit while protecting assets in case of incapacity. Upon your death, the trust may direct that the property be continued in trust or distributed outright to beneficiaries. A Revocable Living Trust is a very good tool for preparing for disability. In a Revocable Living Trust, you can name a successor or co-trustee who can manage the property for your benefit if you become incapacitated. A Revocable Living Trust also avoids probate.
What Are Special Needs Trusts?
A Special Needs Trust is used to hold the assets of a person with disabilities. The Special Needs Trust can provide for distributions to enhance the life of a person with disabilities and at the same time protect the assets in the trust from being considered a “resource” (which would disqualify the person with disabilities for state or federal benefits).
Frequently Asked Questions About Estate Administration
If a Person Dies With Assets in Their Individual Name, Should an Estate Be Opened?
Yes, the estate should be opened in the county where the decedent’s primary residence was located.
Who Is Responsible for Opening an Estate?
The Personal Representative under the decedent’s will opens the estate. If the decedent left no will, then Maryland law will determine who has the highest priority to be appointed Personal Representative.
What Happens to Property That Is Subject to Probate?
Assets that are solely in the decedent’s name are subject to probate. The Personal Representative is responsible for identifying probate assets, filing the necessary forms and tax returns required by law, paying from the estate assets administration expenses, valid creditor claims and taxes, and making distribution of the remaining assets to the proper beneficiaries under the will. If there is no will distribution, the remaining assets will go to the decedent’s legal heirs under Maryland law.
How Long Does an Estate Stay Opened?
A regular estate proceeding may be closed after the period for filing creditor claims, which expires six months from the date of death. If there is a will, a regular estate may close after the time for challenging the will is up. That time expires six months from the appointment of the Personal Representative. If the estate includes real property which needs to be sold, requires a filling for the U.S. Estate Tax Return, or is tied up in litigation – the time frame will be extended. Many regular estates are closed, and final distributions made within one year of death.
Should I Retain a Probate Attorney?
The administration of an estate can be very complex and detail oriented. An attorney can help throughout the entire probate process and address any specific questions and concerns. When a decedent dies without a will in place, the estate will need to be settled in accordance with the intestacy rules set out by state law. With the proper guidance from an experienced probate attorney, any complex issues can be handled with ease.
Learn More About Our Estate Planning & Administration Services
Frequently Asked Questions About Medicaid
What is Medicaid?
Medicaid is the Federal-State health benefits program which provides health coverage to millions of Americans, including eligible low-income adults, children, pregnant women, elderly adults, and people with disabilities. The most important feature for most people, is that Medicaid pays for long term nursing home care for the elderly and disabled.
Do I Qualify For Medicaid Eligibility?
Medical eligibility for long-term care is determined on a case-by-case basis. An applicant must qualify medically and financially. To be eligible medically, the applicant must meet certain non-financial eligibility criteria. They will also be assessed by the nursing home facility or social services office. To be financially eligible, the applicant must meet the eligibility rules regarding income and resources. Income is considered funds that are received by the applicant monthly such as Social Security payments. Resources are considered anything owned by the applicant such as real property, bank accounts, and life insurance.
Can I protect My Children’s Inheritance?
Yes, with the expertise of a Medicaid attorney there are ways you can protect your children’s inheritance from Medicaid. Our firm will develop an asset protection plan that may enable you to preserve your assets and obtain eligibility for Medicaid.
What Is a Medicaid Penalty?
A penalty is a period of ineligibility for Medicaid, based on an amount of transfer of a gift.
What Is a Gift?
A gift is an asset such as money and real property that were “gifted” to an individual in the last five years from the date of the application.
Can I Give All of My Assets Away and Be Eligible?
The answer is yes, but only if handled in the proper way. If your assets are given away at the wrong time or amount, then you could receive a penalty.
If My Assets Are in a Trust, Are They Protected?
Not necessarily. Assets owned by a living trust are still vulnerable to nursing homes costs and are counted when determining financial eligibility. The look back period is five years from the date of the application. If the assets were titled into the trust period to the look back period they are protected. However, other types of trusts may be used to protect assets.
Learn More About Our Medicaid & Asset Protection Services