Via Quentin Fottrell https://www.marketwatch.com/story/my-stepmother-inherited-my-fathers-estate-when-he-died-what-can-i-do-2016-11-18
My dad passed away five years ago. He did leave a will on how he wanted his estate to be dispersed, but only if his current wife was also deceased. She was not, so she got everything. My question is: When she passes, is she required to honor our dad’s will? She has remarried, which is fine and I’m glad she’s happy. My dad has four biological children from his first two wives, and had none with the third wife, his widow when he passed away. We don’t want to take anything from our stepmother, we would just like our dad’s will honored when she passes. Is this even possible? Thank you for your time. They resided in South Carolina at the time of my dad’s passing.
Daughter Left Out in the Cold
When it comes to inheritance, children usually fare better than stepchildren.
Your father’s wishes were honored, I’m afraid to say. He wanted everything to go to his wife and, in the event that she predeceased him, wanted his estate divided between his four children. But she didn’t and she inherited the whole kit and caboodle. You could talk to your stepmother about anything of special sentimental (or monetary) value, but if she chose to leave you anything that belonged to your father in her will it would be out of goodwill rather than legal necessity.
It may be that your father had meant to write a will that divided his estate more evenly between his wife and children, but that’s not what happened here. In this case, any non-probate assets — jointly owned bank accounts between your stepmother and late father, and any life insurance policies or brokerage accounts where your stepmother was named as beneficiary — will go to her. Anything that goes through probate (that is, the court process) will also go to her.
In 2018, Social Security recipients will get their largest cost of living increase in benefits since 2012, but the additional income will likely be largely eaten up by higher Medicare Part B premiums.
Cost of living increases are tied to the consumer price index, and an upturn in inflation rates and gas prices means recipients get a small boost in 2018, amounting to $27 a month for the typical retiree. The 2 percent increase is higher than last year’s .3 percent rise and the lack of any increase at all in 2016. The cost of living change also affects the maximum amount of earnings subject to the Social Security tax, which will grow from $127,200 to $128,700.
The increase in benefits will likely be consumed by higher Medicare premiums, however. Most elderly and disabled people have their Medicare Part B premiums deducted from their monthly Social Security checks. For these individuals, if Social Security benefits don’t rise, Medicare premiums can’t either. This “hold harmless” provision does not apply to about 30 percent of Medicare beneficiaries: those enrolled in Medicare but who are not yet receiving Social Security, new Medicare beneficiaries, seniors earning more than $85,000 a year, and “dual eligibles” who get both Medicare and Medicaid benefits. In the past few years, Medicare beneficiaries not subject to the hold harmless provision have been paying higher Medicare premiums while Medicare premiums for those in the hold harmless group remained more or less the same. Now that seniors will be getting an increase in Social Security payments, Medicare will likely hike premiums for the seniors in the hold harmless group. And that increase may eat up the entire raise, at least for some beneficiaries.
For 2018, the monthly federal Supplemental Security Income (SSI) payment standard will be $750 for an individual and $1,125 for a couple.
For more on the 2018 Social Security benefit levels, click here.
You may have never used Equifax yourself — or even heard of it — but the credit reporting agency could still have a treasure trove of your personal information.
Equifax said Thursday that 143 million people could be affected by a recent data breach in which cybercriminals stole information including names, Social Security numbers, birth dates, addresses, and the numbers of some driver’s licenses.
Additionally, credit card numbers for about 209,000 people were exposed, as was “personal identifying information” on roughly 182,000 customers involved in credit report disputes.
Equifax is one of three nationwide credit-reporting companies that track and rate the financial history of U.S. consumers. It gets its data — without you even knowing — from credit card companies, banks, retailers, and lenders.
Equifax will not be contacting everyone who was affected, but will send direct mail notices to those whose credit card numbers or dispute records were accessed.
The company suggests you sign up for credit file monitoring and identity theft protection. It is providing free service for one year through TrustedID Premier — whether or not you’ve been affected by the breach.
To enroll, go to www.equifaxsecurity2017.com and click on the Check Potential Impact tab. You must submit your last name and last six digits of your Social Security number there. At that point you’ll be given a date when you can return to the site and sign up for the service.
The site says once you’ve submitted your information you will receive a message indicating whether you’ve been affected. But it’s unclear when or how you will receive that message.
The company also recommends that you review account statements and credit reports yourself to check for incidents of fraud. You can request a copy of your credit report online at www.annualcreditreport.com. You are allowed a free copy once a year from each of the three credit reporting agencies: Equifax, Experian, and TransUnion.
If you see any unauthorized activity, immediately report it to your bank and/or credit card company. If you believe you’ve been a victim of identity theft, you should also contact law enforcement.
Another way to protect yourself is by immediately placing fraud alerts on your credit reports, according to credit expert John Ulzheimer, who previously worked at FICO and Equifax. This means that a lender must contact you to verify your identity before it issues credit in your name. You can place an alert on your report for free by contacting one of the credit agencies, which is required to notify the other two. It will last for 90 days and can be renewed.
Since cybercriminals may have accessed what Ulzheimer calls the “crown jewels of information” at Equifax, he also suggests putting a long term freeze on your credit.
A freeze takes your credit report out of circulation. If someone else goes to take out a loan in your name, the lender will not be able to pull your report and therefore cannot extend the credit. If you want to take out a loan yourself, you’ll have to contact the reporting agency to temporarily lift the freeze. Fees to freeze your account vary by state, but commonly range from $5 to $10.
“It’s a pretty extreme measure, but when 143 million people have been exposed like this, I think you have to take it,” Ulzheimer said.
The Federal Trade Commission’s website, www.ftc.gov/idtheft, also offers information about how to protect yourself against fraud.
If you have more questions for Equifax, the company has set up a designated call center at 866-447-7559.
Reservation of Power of Appointment in Deed Does Not Conflict With Conveyance of Property to Children
A Massachusetts appeals court rules that as part of Medicaid planning, a woman could reserve a power of appointment in a deed conveying property to her children while reserving a life estate for herself. Skye v. Hession (Mass. App. Ct., No. 16-P-282, Apr. 28, 2017).
Margaret Hession sought legal assistance to protect her house in the event she might need Medicaid benefits. As part of the Medicaid planning, she executed a deed transferring her house to her children. The deed reserved a life estate for her and granted her a special power of appointment that allowed her to appoint the property to any person except herself, her creditors, her estate, or her estate’s creditors. Ms. Hession decided her daughter Deaven Skye should inherit less than her other children. She wrote a will that exercised her power of appointment and reduced Ms. Skye’s interest in the property from one-third to 5 percent.
After Ms. Hession died, Ms. Skye objected to the will and argued that the power of appointment was void. The trial court dismissed Ms. Skye’s objection and admitted the will to probate. Ms. Skye appealed, arguing that the provisions in the deed granting the remainder interests and reserving a power of appointment are irreconcilably repugnant to each other.
The Massachusetts Court of Appeals, rules that the reservation of the power of appointment is consistent with the other provisions of the deed. According to the court, “because of the reservation of the life estate, the deed conveyed not present possessory estates but rather remainder interests; and, because of the reservation of the power, the remainder interests were defined, in part, by this limitation.” The court specifically does not express a “view on the effect of the reserved power of appointment on [Ms. Hession’s] strategy of avoiding MassHealth look-back period regulations.”
A New Jersey appeals court rules that an ugly dispute between two brothers over their mother’s placement in a nursing home did not amount to domestic violence. R.G. v. R.G.(N.J. Super. Ct., App. Div., No. A-0945-15T3, March 14, 2017).
R.G was the attorney-in-fact and primary caregiver for his parents. After R.G.’s mother fell ill, R.G. wanted to place his mother in a nursing home. R.G’s brother objected to this plan, but R.G. went ahead and had his mother admitted to a nursing home without his brother’s consent. R.G.’s brother sent angry and threatening texts and emails to R.G. as well as emails expressing his desire to find a way to care for their parents in their home. Eventually the men got into a physical altercation in which R.G.’s brother shoved R.G.
R.G. filed for a restraining order against his brother under the Prevention of Domestic Violence Act. The trial judge ruled that R.G. was harassed and assaulted and issued the restraining order. R.G.’s brother appealed, arguing that R.G. did not meet the definition of a victim of domestic violence.
The New Jersey Superior Court, Appellate Division, reverses, holding that R.G.’s brother’s actions did not amount to domestic violence. The court finds that there was insufficient evidence that R.G.’s brother purposely acted to harass R.G., ruling that “a mere expression of anger between persons in a requisite relationship is not an act of harassment.”
For the full text of this decision, go to: http://www.judiciary.state.nj.us/opinions/a0945-15.pdf
A North Carolina appeals court dismisses a breach of contract lawsuit against a nursing home resident’s daughter even though the daughter signed the admission agreement because the resident was named as representative in the agreement. Wrightsville Health Holdings, LLC v. Buckner (N.C. Ct. App., No. COA16-726, Feb. 21, 2017).
When Sharon Buckner entered a nursing home, her daughter, Melissa, signed the admission agreement on her behalf. The agreement stated that Sharon was the “resident” and the “representative,” but Melissa signed the agreement and initialed the portion stating that the representative agreed to personally guarantee payment in the event the resident’s Medicaid application was denied. The nursing home demanded that Melissa pay Sharon’s unpaid bill.
After Melissa refused to pay, the nursing home sued her for breach of contract. Melissa filed a motion to dismiss, and the trial court granted the motion. The nursing home appealed.
The North Carolina Court of Appeals affirms, holding that Melissa was not liable for breach of contract. The court rules that because Sharon is named as resident and representative under the admission agreement, Melissa’s signature at the bottom of the document “must be read as” Melissa signing on behalf of Sharon and “her signature and initials on the document merely obligated her mother to comply with the terms of the Admission Agreement.”
For the full text of this decision, go to: https://appellate.nccourts.org/opinions/?c=2&pdf=34960
For more about Nursing Home legal issues, click here.
The beginning of a new year is a good time to take a look at your estate plan to make sure it is up to date. Less than half of people actually have any estate planning documents in place and many of those people may have outdated documents. Documents that were created when your children were born may need updating 20, 30, or 40 years later, after your family and financial situation have changed entirely.
Estate planning is all about five essential documents. Here they are in order of importance:
1. The Durable Power of Attorney
The most important estate planning instrument for taking care of you and your family during life, as opposed to after death, is the durable power of attorney. This appoints one or more people you trust to step in and handle your finances and legal matters in the event of your incapacity, whether through illness, dementia, or an accident, and whether the incapacity is temporary or permanent. In the absence of a durable power of attorney, family members often must resort to going to court to be appointed conservator. This causes delay and expensive and unnecessary legal fees. It can also cause infighting by family members since you have not chosen who should step in.
While the concept of the durable power of attorney is simple – I appoint you as my agent for financial and legal matters in the event of incapacity – the devil, as always, is in the details. You have to make decisions about how many agents to appoint, whether to have alternates, whether to allow gifting, when the power of attorney should take effect, and whether to grant trust powers. I can help you with these details if you need me. More POA info on my website here.
2. Health Care Proxy
Like the durable power of attorney, a health care agent steps in for you to make health care decisions when and if you become incapacitated. Unlike a durable power of attorney, it only takes effect when a doctor determines that you are unable to make decisions yourself and you can only appoint one individual to serve at a time. This is so that there will be a single point-person in dealing with medical professionals and no possibility of disagreement or stalemate between co-health care agents. You can and should name one or more alternates to the principal agent.
The main problem with health care proxies is that agents often have no idea or only a vague idea of what decision the patient would make in a particular circumstance. This can be addressed in one or more of these ways: a medical directive, a conversation between the potential patient and the agent, and a number of available workbooks (see below). A general medical directive can be included with the health care proxy that says either (1) pull the plug if I’m in a vegetative state or irreversible coma, (2) balance the potential benefit and discomfort of any proposed treatment, or (3) do whatever you can to keep me alive.
Part of the problem with giving guidance to one’s agent is that it’s hard to predict situations that may occur and treatments that may be available. A number of organizations have developed workbooks to provide more detailed guidance than simply “keep me alive at all costs” or “do nothing.” Check out: The Consumer’s Toolkit from the American Bar Association. Click here for a sample Health Care Proxy from my website.
3. HIPAA Release
In addition to a health care proxy, everyone needs a HIPAA release. The HIPAA law bars medical practitioners from releasing medical information to anyone, even to the spouse of a patient, without a release. You may well ask why a heath care proxy isn’t sufficient. There are a few answers: First, the health care proxy is “springing” in that it doesn’t get activated until or unless the patient is declared incapacitated. Second, while the health care proxy may only name one person at a time, you may well want a much broader group of people to communicate with medical providers. The agent may not always be available or may not be the first person on the scene.
All too often we have seen medical providers hide behind HIPAA to avoid having to deal with family members, sometimes to great harm to the patient. Especially in emergency situations, family members often have vital information about the patient, whether it’s the medications he is taking, allergies he may have, or his usual physical and mental health. HIPAA does not say that medical personnel cannot listen to this information, but it can be misconstrued in that fashion. It’s best to eliminate the whole issue by having a HIPAA release signed and available in case it’s ever needed.
4. Your Will
Your Will says who will get your stuff when you die and who will be in charge of paying your bills, filing your tax returns, gathering your stuff and distributing it according to your instructions.
But here’s the irony: although the will gets all the recognition and there’s a whole set of laws governing the so-called “probate” process, these days most assets pass outside of probate. What the will says does not apply in many situations, including: joint accounts that pass to the other joint owners, retirement plans and life insurance policies that go to designated beneficiaries, and property in trust that passes to the beneficiaries named in the trust document. Only what you own in your own name alone passes under the will. In addition, while the will requires a lot of formality – two witnesses and a notary all signing at the same time – these other forms of passing on property usually require only the signature of the owner, or sometimes simply filling out a form online.
That said, wills are important in terms of distributing your tangible personal property – stuff you can touch, such as furniture, jewelry, tools, clothing, boats, and cars. Your will appoints your executor or personal representative who is in charge of carrying out your wishes. This can be very important in avoiding squabbling among children. And your will can be used to appoint guardians for minor children. A will permits you to make charitable or other specific bequests. Finally your will can serve as a failsafe in case other means of passing on property fail.
5. Revocable Trust
The documents listed above may be enough, but you may also want a revocable trust, sometimes called a “living” trust. A trust is a construct under which one or more people, the trustees, manage property or investments for the benefit of one or more people, the beneficiaries. In a revocable trust, typically at the start the same person acts as the creator of the trust, the grantor or donor, as trustee and as beneficiary. Not much changes in their lives after they set up the trust. But it avoids probate by naming successor beneficiaries after the initial beneficiary passes away. While probate is not the worst thing that can happen to people, avoiding it can save heirs time and trouble.
But more importantly, a trust is a terrific tool for intervening in the event of incapacity. Financial institutions that are resistant to accepting durable powers of attorney appear to be more comfortable with trusts when a successor trustee is named. But it works even better when a parent names one or more adult children as co-trustees. The parent then does not give up any rights or autonomy, but permits the child to begin participating in financial management. Even if the child does nothing, he or she can view accounts and step in immediately if a problem arises. This can be especially important in the event of dementia or scams. Seniors are the primary victims of scams and having a trusted family member with access to accounts can help identify scams and permit intervention to limit their effect.
In addition to probate avoidance and incapacity protection, trusts are infinitely flexible in terms of how they are drafted. They can state any number of specifics on who receives property when, for instance, permitting its distribution over time to children and grandchildren. The options and opportunities for creativity are limitless
As you can see, most of these documents are about life not death. Of course, they’re still about planning for an unwanted event – incapacity of some sort. It’s like insurance to make sure that you and your family are taken care of if an unfortunate accident occurs.
Additional Estate Planning articles from my ElderLawNews blog>
Finding love later in life may be unexpected and exciting, but should it lead to marriage? The considerations are much different for an older couple with adult children and retirement plans than for a young couple just starting out. Before deciding whether to get married or just live together, you need to look at your estate plan, your Social Security benefits, and your potential long-term care needs, among other things. Whatever you decide to do, you may want to consult with your lawyer to make sure your wishes will be carried out.
Here are some things to think about:
- Estate Planning. Getting married can have a big effect on your estate plan. Even if you don’t include a new spouse in your will, in most states spouses are automatically entitled to a share of your estate (usually one-third to one-half). One way to prevent a spouse from taking his or her share is to enter into a prenuptial agreement in which both spouses agree not to take anything from the other’s estate. If you want to leave something to your spouse and ensure your heirs receive their inheritance, a trust may be the best option.
- Long-Term Care. Trusts and prenuptial agreements, however, won’t necessarily keep a spouse from being responsible for your long-term care costs or vice versa. In addition, getting married can have an effect on your or your spouse’s Medicaid eligibility. If you can afford it, a long-term care insurance policy may be a good investment once you remarry.
- The Family Home. Whether you are getting married or just living together, before combining households you will need to think about what will happen to the house once the owner of the house dies. If the owner wants to keep the house within his or her family, putting the house in both spouse’s names is not an option. On the other hand, the owner may also not want his or her heirs to evict the surviving spouse once the owner dies. One solution is for the owner of the house to give the surviving spouse a life estate. Once the surviving spouse dies, the house will pass to the original owner’s heirs.
- Social Security. Many divorced or widowed seniors receive Social Security from their former spouses, and remarriage can affect benefits. If you are divorced after at least 10 years of marriage, you can collect retirement benefits on your former spouse’s Social Security record if you are at least age 62 and if your former spouse is entitled to or receiving benefits. If you remarry, you generally cannot collect benefits on your former spouse’s record unless your later marriage ends (whether by death, divorce, or annulment). However, if your are a widow, widower or surviving divorced spouse who remarries after age 60, you are entitled to benefits on your prior deceased spouse’s Social Security earnings record.
- Alimony. If you are receiving alimony from a divorced spouse, it will likely end once you remarry. Depending on the laws in your state and your divorce settlement, alimony may end even if you simply live with someone else.
- Survivor’s Annuities. Widows and widowers of public employees, such as police officers and firefighters, often receive survivor’s annuities. Many of these annuities end if the surviving spouse remarries. In addition widows and widowers of military personnel may lose their annuities if they remarry before age 57. Before getting married, check your annuity policy to see what the affect will be.
- College Financial Aid. Single parents with children in college may want to reconsider before getting married. A new spouse’s income could affect the amount of financial aid the college student receives. Some private colleges may even count the combined income of a couple that lives together if they commingle their expenses.
- If the patient was at a hospital first and then a nursing home which do we sue?It always depends on individual and medical circumstances but the possibility exists that both are liable. Often an injury begins in a hospital, may not be reported and/or is overlooked or neglected on intake at the second facility where it may get worse or lead to infection and other medical issues.
- Do I have a malpractice case?A case may be medical malpractice on behalf of a facility or doctor. There may be hospital negligence and nursing home liability as well. In unfortunate and sad circumstances it may be a wrongful death lawsuit, where a family member or loved one may have the right to recover losses. Our team of experts will help determine the best options for for your bedsore or pressure sore, decubitis ulcer lawsuit.
- What if the patient is too ill to appear in court?
This is not an issue and often the case with bedsore victims. For bedsore and pressure sore lawsuits there’s a legal team that includes experienced bedsore litigators, and medical professionals that can testify based on patient medical records and treatment or lack of and improper treatment. As well as other expert witnesses that look into hospital procedures, policy and practices and determine if any federal violations were evident or standards of procedure were not met. Medical records and pictures of wounds are used.
- How much does it cost to sue?There is no fee to you unless we win. When we accept a case we put in the resources and hours of our bedsores legal team because we are confident of a successful outcome based on the facts of the case. If we take on your case it’s because we see huge upside financial potential for the victim or family of the victim. We work on contingency—no upfront fee or time billed to you. When you win we get an agreed upon portion of the award.
- Will beginning a lawsuit get better care for the victim?Once a hospital or nursing home knows a bedsore lawsuit is possible, often the care and treatment of the patient improves. This is because now they know they are under scrutiny and may be even further liable legally if not giving the proper care and medical attention after the sores have been documented by family and bedsore lawyers. Additionally, our law firm will let you know the standards of care that is necessary for you or your loved one. We can even help guide you on the best way to discuss issues with the doctor or staff and get the desired results.
- I want to sue – does it take long? Does my dad have to appear in court?Timing of a case varies. With expertise and experience and a hands-on approach we move swiftly. The size of our firm allows us to focus on cases so they don’t get lost in the shuffle. Unlike some other law firms, our legal team of attorneys, paralegals, research assistants, medical experts and more, have the experience and knowledge to avoid time lags. Many times cases are seåttled before even going to court. Of course, the plaintiff has a say in this decision and we do what is best for our client.
- Do I need money to sue-what does contingency mean?You will not need to lay out any money. We handle all of our bedsore and pressure sore negligence or malpractice cases on a contingency fee basis. That means that we only charge a legal fee if we are successful and recover money for you. Our fee is typically 33 1/3% of the net recovery after the costs and disbursements that we advance are deducted. The contingency fee may be even lower depending on the facts of the case and the reason the sores happened. With a free consultation, a bedsore law firm that advances all of the necessary costs, and a contingency fee arrangement, you get our reputable law firm with no out of pocket expenses.
- How do I know if I have a good bedsore lawsuit? The nurse said the sores were caused by my father and existed?Don’t put much credence in the opinion of anyone that isn’t a legal expert. Even a medical professional or doctor doesn’t have the legal knowledge and they or facility administrator may even try to persuade you against a bedsore or pressure sore lawsuit. Such tactics aren’t new. Don’t be a victim twice. Consult with legal professionals when medical ones let you down. Then you can use your best judgement on how to proceed with your lawsuit.
- What happens if my case loses-will i have any fees to pay?Absoultely not. We will not charge you one dime if we lose. No matter how much time or money we invest in your case we only get paid when we win. We do not accept every case offered to us. We use our expertise and team approach for cases of value to the victim and the firm.
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