Many clients are remarrying after divorce or loss of a loved one. With the increase in the number of remarriages, prenuptial agreements have moved from taboo to a critical estate planning tool.

If you are thinking of remarrying, remember thaat without a prenuptial agreement, your new spouse may have a claim to 50% of any property you “earn” together during your marriage, and will have a right to stay in your joint homestead for the remainder of his or her life, regardless of what your other estate planning said. If you have children from a previous marriage who you want to be cared for, then prior planning is of utmost importance.

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If you are considering remarriage, it is important for you and your betrothed to discuss the options to ensure your property goes how you wish. The goal of memories of a remarriage should allow the families to focus on the happiness you brought each other, not to foster hatred among the survivors because an inheritance was unjustly taken.

Just a reminder that we will be having a seminar today to talk about basic estate planning techniques and options for passing your estate when you pass away.

I will discuss wills, trusts, payable on death accounts, and joint tenancy and the pros and cons of each option. If you are not able to make this presentation, then you should look for one in the future as the items discussed will affect everyone at some point in their life (either when you pass away, or when you are administering an estate for a deceased loved one).
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This information is free to those in attendance and will be given by one of the most educated and dedicated attorneys in the Altus, Oklahoma area.  We hope to see you there!

Probate is the legal process of settling a deceased person’s (“Decedent”) last issues (debts owed, taxes due, who were his heirs, what property was solely his on death) and then distributing all remaing property to the heirs at law, or the persons named in the Decedent’s valid Last Will and Testament. The process is usually viewed as a necessary evil and takes anywhere from six months to two years to complete with the Court and attorneys usually in control throughout.

But probate can be avoided, all it takes is some planning while you are alive.

A revocable living trust is the most effective way for a family to avoid probate after death. An individual places assets in a trust, and all assets within the trust avoid probate. The trust passes on to the persons named by the creator or grantor. This technique, when properly maintained, allows all property to skip probate, and allows the grantor to ensure his guidelines or restrictions last well after he passes away.

Payable on death designations on banking and financial accounts (and now real estate in Oklahoma) allow a person to designate a beneficiary to receive the particular asset. This allows the property to go straight to the named beneficiaries without court involvement.
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Joint tenancy with rights of survivorship is perhaps the most commonly used estate planning technique. This involves naming another individual (or more) as a current owner on property, but also stating that if you die, your interest in the property automatically transfers to the other named joint owners. This is commonly used between husband and wife and works well, but it really is just a way to delay probate, not to avoid it.

Gifting property is another way to avoid probate. I met with a nice family just today that wanted to know what all they had to do to probate their mom’s estate. My first question to them was, “What property did she have in her name when she passed?” Their answer was only a checking account, but it was POD to the daughter. She had gifted all of her other property (house, land, other cash) to her children about a year before. They were happy to hear that a probate was not needed, because there wasn’t any estate to be administered.

All of these options have positives and negatives. Some of them, in my view, have way more positives (the revocable living trust), and some have way more negatives (joint accounts subject your property to other owners’ creditors). The best way to know what is best for you and your family is to come in and talk with a qualified estate planning attorney.

This is the third and final part on how to pay for long-term care for an individual. As discussed in the prior posts, there are three ways to pay for long-term care: 1. Self-pay, 2. Long-term care insurance, 3. Medicaid. We have discussed the first two previously. Today we will look at Medicaid.

What is Medicaid? Medicaid is a program implemented by the states, but essentially mandated by the federal goevernment. Medicaid is different than Medicare. The main difference with Medicaid is that you have to meet certain qualifications to be able to receive Medicaid. Medicare will not cover long-term care costs, but may cover certain expenses if less than 90 days and the care “rehabilitative” rather than just sustaining your standard of living.

What are the qualifications for Medicaid? To qualify for Medicaid, an individual has to meet three tests: 1. Medical qualification test, 2. Income qualification test, and 3. Resource qualification test. If the individual does not meet all three tests, he will not be qualified for any assistance through Medicaid.

The Medical Qualification Test is usually the simpliest to meet. To qualify a person must be at least 65 years of age, or blind or disabled and have a medical necessity to be in a nursing home. If you are not able to do the ordinary tasks of daily living (dressing yourself, preparing meals, etc.) without assistance, then you meet the medical qualification test. This usually isn’t an issue, because if someone is going into a nursing home, then they usually are going becuase of the need, rather than a “want”.

The Income Qualification Test is different for each state. For Oklahoma in 2012, the income qualification is $2,094 per month (or up to $3,000 if a special supplemental trust is created). The income that is considered is gross income, so deductions for Medicare or other health insurance and taxes from income are not considered. There are methods to legally avoid this cap, but you should seek advise from knowledgeable counsel about them.

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So, what are countable assets? About anything that can be accessed by the individual for his/her own use, like checking accounts, CDs, stocks, bonds, annuities, land, minerals, and notes recievable. As stated before, all of these assets, combined, must have a value less than $2,000 when the individual applies for assistance.

What qualifies as an exempt asset? If there is a spouse that can stay in the personal residence, then the home is usually exempt. If there is no spouse, then the residence will lose its exemption after one year. One automobile used for medical transportation is usually exempt. A life insurance policy with a face value less than $1,500 is exempt. A burial policy worth less than $10,000 is exempt. You can see, there are not many exempt assets.

In addition to having most assets as countable, there is also a transfer penalty for any asset that is transferred. This penalty, for Oklahoma, is $132.85 per day, meaning that for every $132.85 an individual transfers, her or she loses one day of Medicaid eligibility. The time for losing the elegibility starts at the time of the application for Medicaid and applies to any transfer within the previous five years.

Summary All of this is just to let you know that there is a governmental program that can cover an individual’s long-term care costs, but qualification is not something that is easy to obtain. But, you also should know that you may not need to deplete your life savings unnecessarily. If you seek advice from a qualified estate planning and elderlaw attorney, you can start planning to ensure a legacy will pass down generations. As with any planning, the sooner the better, because you do not know what tomorrow will hold.

The revised estimate on the Mega Millions lottery drawing scheduled for tomorrow, March 30, 2012 is now $540,000,000 (with a cash payout of about $390 Million). So what would you do if you suddenly became the owner of half a billion dollars?

I would hope that you would contact your local tax/estate planning attorney. If you took the cash payout, you would be subject to roughly $136,500,000 in U.S. income taxes, and if you’re an Oklahoma resident, an additional $21,450,000 in Oklahoma income taxes. I’m not claiming your tax attorney can reduce these taxes, but he could sure have a fun time trying some strategies.

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All of this is just to say, “Good luck, and good planning.”