Mar
12
2018
0

What Are The Intestate Rights Of Inheritance In Probate Upon The Death Of A Married Person?

The rights of inheritance from a person who died intestate, and who was married at the time of death, will depend upon the nature of the particular asset being probated. Assets of the decedent who is a married person can be community property, quasi-community property or separate property.  Quasi-community property is property acquired in another state that would have been community property if it had been acquired in California. Basically, all community property and quasi-community property will pass to the surviving spouse. The separate property of the decedent will be distributed to the surviving spouse and to other relatives, depending upon who survives. So for instance, if there is a surviving spouse and surviving children, one-half will go to the surviving spouse and one-half will go to one child, if there is only one child. If there is more than one child, one-third will go to the surviving spouse, and two-thirds will go to the children in equal shares. Other rules will apply if there are no children or grandchildren.

This information is not to be taken as legal advice, is general in nature, and you are encouraged to see your Walnut Creek Probate Attorney.

Michael J. Young

Walnut Creek, CA Probate Attorney

1931 San Miguel Dr. Ste., 220

Walnut Creek, CA 94596

925-256-0298

www.WalnutCreekElderLaw.com

Jun
19
2017
0

Durable Powers Of Attorney For Young Adults

We usually don’t think estate planning documents are necessary for younger adults. But consider the potential need for financial and health care powers of attorney for them. We received a recent call from a client whose 23 year old daughter, Jenny, was in a severe automobile accident. Jenny suffered traumatic brain injury in the accident. After two weeks in the hospital, she was transferred to a skilled nursing facility for rehabilitation. Jenny has not been cognizant enough to make medical or health care decisions for herself.

Our client called us because Jenny does not have financial or medical powers of attorney, or a HIPAA statement for access to her medical records. Our client and her husband are running into problems making medical and financial decisions on behalf of Jenny. They are also having difficulty gaining access to Jenny’s medical records. If Jenny’s incapacity continues, a conservatorship proceeding in probate court may be the only resolution to this problem. In a conservatorhip proceeding, the probate court judge appoints another person, the “conservator” to care for and make decisions on behalf of another adult, the “conservatee. A probate court conservatorship proceeding is time consuming, intrusive to the family and expensive. This dilemma could have been avoided if Jenny already had these basic estate planning documents. After all, we never know what may happen to any of us at any time.

Please feel free to contact our office should you need help with estate planning, asset protection, and qualifying for and applying for Medi-Cal. This information is not to be taken as legal advice, and you are encouraged to see your elder law attorney. At the Law Offices of Michael J. Young, at 1931 San Miguel Dr., Ste. 220, Walnut Creek, CA www.WalnutCreekElderLaw, 925-256-0298, lawyoung1@gmail.com, we practice Elder Law and we help Baby Boomers, Seniors and families through their Elder Care Journey. We help families with long-term care planning, asset-protection plans, comprehensive estate planning, wills, trusts and powers of attorney. We also help the older client and their families get their “Ducks in a Row” in order help them qualify for Medi-Cal and the VA Aid & Attendance Improved Pension benefit.

Jun
01
2017
0

Medi-Cal Qualification and Joint Accounts

If you are applying for Medi-Cal, you will be required to disclose all of your assets in your application package. Medi-Cal wants to see evidence of all of your accounts, even joint accounts that you may have with someone else. Joint accounts will be considered by Medi-Cal, at least initially, to belong to you alone. So for instance, if you have a joint savings account with your daughter, Medi-Cal will view that account as belonging to you alone. As a result, the value of the account may disqualify you for Medi-Cal.

You may be able to remedy the situation if you can prove to Medi-Cal that all or a portion of the fund does not belong to you. You can also spend the money in the account on yourself, make repairs to your home, pay down your mortgage, etc. You may also be able to gift the money, or a portion of it from the account. As we have explained in previous blogs however, gifting can create periods of ineligibility for Medi-Cal if it is not done correctly.

Planning for asset protection and Medi-Cal with your estate planning and asset protection attorney at an early stage, can be very beneficial. Your revocable living trust and financial durable powers of attorney can also be amended to have the required gifting and asset protection provisions for Medi-Cal qualification, should you become incapable at some point of handling these matters on your own.

Please feel free to contact our office should you need help with estate planning, applying for Medi-Cal and asset protection. This information is not to be taken as legal advice, and you are encouraged to see your elder law attorney. At the Law Offices of Michael J. Young, at 1931 San Miguel Dr., Ste. 220, Walnut Creek, CA www.WalnutCreekElderLaw, 925-256-0298, lawyoung1@gmail.com, we practice Elder Law and we help Baby Boomers, Seniors and families through their Elder Care Journey. We help families with long-term care planning, asset-protection plans, comprehensive estate planning, wills, trusts and powers of attorney. We also help the older client and their families get their “Ducks in a Row” in order help them qualify for Medi-Cal and the VA Aid & Attendance Improved Pension benefit.

May
31
2017
0

California Still Has A 30 Month Look Back for Gifting

California still has the 30 Month Look Back Penalty Period for Gifting. There is a federal law known as the Deficit Reduction Act (DRA), which has a 60 month look back penalty period. However, California has not to date implemented that law. Medi-Cal eligibility workers are required to use the 30 month look back period.

When you apply for Medi-Cal, the application asks whether you have given away any countable, or non-exempt assets within the last 30 months. If you have made such a gift without consideration, or for less than fair market value within the 30 months prior to making the application, a penalty period of ineligibility may be imposed. Transfers of any kind between spouses are exempt and do not create any periods of ineligibility.

The penalty transfer amount, which is also known as the monthly average nursing home private pay rate, is presently $8,515. The penalty period starts when the transfer is made, as opposed to when you make the Medi-Cal application. To calculate the penalty period, first check to see if it was made more than 30 months prior to making the Medi-Cal application. If more than 30 months have passed, there is no penalty.

Lets assume however that you have gifted $50,000 to your grandchild on October 1, 2016, and that you are applying for Medi-Cal on January 1, 2017. The gift was made 3 months prior to the application, so the 30 month look back penalty rule applies. You then divide $50,000 by $8,515, which reflects 5.87, which is rounded down to 5 months of ineligibility, starting from the date of the transfer. As a result, you would be ineligible for Medi-Cal during the months of October, when the gift was made, November, December, January and February, but you would be eligible March 1, 2017. There are of course other rules to consider, which may be to your benefit, which your elder law attorney can help you with.

Please feel free to contact our office should you need help with applying for Medi-Cal, and asset protection. This information is not to be taken as legal advice, and you are encouraged to see your elder law attorney. At the Law Offices of Michael J. Young, at 1931 San Miguel Dr., Ste. 220, Walnut Creek, CA www.WalnutCreekElderLaw, 925-256-0298, lawyoung1@gmail.com, we practice Elder Law and we help Baby Boomers, Seniors and families through their Elder Care Journey. We help families with long-term care planning, asset-protection plans, comprehensive estate planning, wills, trusts and powers of attorney. We also help the older client and their families get their “Ducks in a Row” in order help them qualify for Medi-Cal and the VA Aid & Attendance Improved Pension benefit.

Apr
11
2017
0

How Much Are Probate Fees?

In California, Probate Code section 10810 statutorily sets the maximum amounts that executors and attorneys may be paid for their fees. The amount of attorney fees and executor fees are ordered by the court at the end of case. If the case is complicated, for instance where litigation is involved, the attorney can request that the court allow additional fees for the attorney’s extraordinary services.

The formula for calculating statutory fees for the attorney and for the executor are as follows: (1) Four percent for the first $100,000 of the estate; (2) Three percent for the next $100,000; (3) Two percent on the next eight hundred thousand dollars; (4) One percent on the next nine million dollars.

So for instance, if the amount probated is $100,000, the executor and the attorney can each be awarded $4,000 for their fees. If the amount probated is $200,000, the executor and the attorney can each be awarded $7,000 for their fees. The following chart reflects the statutory fees for the attorney and the executor for an estate with a value up to $5,000,000.

PROBATE ESTATE VALUES TOTAL ATTORNEY AND EXECUTOR FEES*
$100,000 $8,000
200,000 14,000
300,000 18,000
400,000 22,000
500,000 26,000
600,000 30,000
700,000 34,000
800,000 38,000
900,000 42,000
1,000,000 46,000
2,000,000 66,000
3,000,000 86,000
4,000,000 106,000
5,000,000 126,000

Please feel free to contact our office should you need help with a probate. This information is not to be taken as legal advice, and you are encouraged to see your elder law attorney. At the Law Offices of Michael J. Young, at 1931 San Miguel Dr., Ste. 220, Walnut Creek, CA www.WalnutCreekElderLaw, 925-256-0298, lawyoung1@gmail.com, we practice Elder Law and we help Baby Boomers, Seniors and families through their Elder Care Journey. We help families with long-term care planning, asset-protection plans, comprehensive estate planning, wills, trusts and powers of attorney. We also help the older client and their families get their “Ducks in a Row” in order help them qualify for Medi-Cal and the VA Aid & Attendance Improved Pension benefit.

Feb
13
2017
0

Using An Annuity For Medi-Cal Eligibility For Spouses

In previous blogs, we have discussed various techniques, within the regulations, for obtaining Medi-Cal qualification for an ill spouse, when the couple has excess assets. These techniques include “spending down,” gifting and filing a court petition to obtain an order that allows the couple to keep all of their assets. In certain circumstances, especially between spouses, an annuity can be a useful tool to consider for Medi-Cal qualification.

As discussed in previous blogs, the ill spouse (Medi-Cal applicant) and the well spouse, can keep all of their qualified funds, like IRAs and 401(k)s, in any amounts, and still qualify for Medi-Cal. Then, the ill spouse cannot have more than $2,000 in non-qualified funds, like a savings or brokerage account in his name. The well spouse can have up to $120,900 in non-qualified funds in her name. So for instance, if the couple has $300,000 in non-qualified funds, they would have $177,100 too much for the ill spouse to qualify for Medi-Cal.

To use an annuity for qualification, the ill spouse would transfer his non-qualified assets to the well spouse. There is no Medi-Cal penalty for inter-spousal transfers. Then the well spouse would purchase an annuity with that money in her name, and name someone other than her ill spouse as the pay on death beneficiary of the annuity. Distributions would be made periodically from the annuity to the well spouse in payments scheduled to be exhausted during her life expectancy, pursuant to social security life expectancy tables. The well spouse can keep all of her income from the annuity, without penalty. In addition, as of January 1, 2017, there can be no recoupment by Medi-Cal against the annuity after the ill spouse passes away, because a pay on death beneficiary has been named in the annuity. This technique is not appropriate in all situations, and may be discussed with your elder law attorney along with other options.

This information is not to be taken as legal advice, and you are encouraged to see your elder law attorney. At the Law Offices of Michael J. Young, at 1931 San Miguel Dr., Ste. 220, Walnut Creek, CA www.WalnutCreekElderLaw, 925-256-0298, lawyoung1@gmail.com, we practice Elder Law and we help Baby Boomers, Seniors and families through their Elder Care Journey. We help families with long-term care planning, asset-protection plans, comprehensive estate planning, wills, trusts and powers of attorney. We also help the older client and their families get their “Ducks in a Row” in order help them qualify for Medi-Cal and the VA Aid & Attendance Improved Pension benefit.

Dec
21
2016
0

Medi-Cal Recovery Will Be Limited to Probate Estates after January 1, 2017

We have recently blogged about the new legislation Governor Brown signed, effective January 1, 2017, which changes the rules regarding recovery by the state for payments it has made to nursing homes for Medi-Cal recipients. Under the old law, the only way we could avoid recovery was to ensure that there was nothing in the Medi-Cal recipient’s name at the date of his death. Under the new law, for Medi-Cal recipients who die after January 1, 2017, recovery will be limited to those estates that are subject to probate under California Probate Law. Assets transferred from a revocable living trust of the Medi-Cal recipient will not be subject to recovery under California Law, because assets in a revocable living trust are not be subject to probate.

For example, if Mary the Medi-Cal recipient leaves her home to her son in her will, the home will be subject to a probate. If the state paid $30,000 to a nursing home for Mary, the state will be able to recover the $30,000 from the probate of the home. If the home was in Mary’s revocable living trust at the time of her death, the state will not be able to recover against the home, because the home will transfer from the trust to Mary’s son, and will not be probated.

The new rules, effective for Medi-Cal recipients who die after January 1, 2017, also exempt certain assets from state recovery. For example, property transferred prior to death, that are no longer in the beneficiary’s name, are not subject to recovery. However, any transfers must be made within the Medi-Cal regulations in order to avoid periods of ineligibility when applying for Medi-Cal. Also, the state cannot recover against your life insurance policy as long as you name one or more beneficiaries under your policy. If you do not name a beneficiary, or if the beneficiary you have named dies before you do, there will be a probate to determine who the beneficiary is. The state will be able to recover against the probate.

This information is not to be taken as legal advice, and you are encouraged to see your elder law attorney. At the Law Offices of Michael J. Young, at 1931 San Miguel Dr., Ste. 220, Walnut Creek, CA www.WalnutCreekElderLaw, 925-256-0298, lawyoung1@gmail.com, we practice Elder Law and we help Baby Boomers, Seniors and families through their Elder Care Journey. We help families with long-term care planning, asset-protection plans, comprehensive estate planning, wills, trusts and powers of attorney. We also help the older client and their families get their “Ducks in a Row” in order help them qualify for Medi-Cal and the VA Aid & Attendance Improved Pension benefit.

May
12
2016
0

The New Transfer On Death Deed (TOD)

On January 1, 2016, a new California law became effective which creates a Revocable Transfer on Death Deed. (“TOD Deed”). The deed is designed to transfer residential property to named beneficiaries upon the death of the grantor. There is no transfer of title during the life of the grantor. The legislative purpose of the TOD Deed was to hopefully create an inexpensive way to transfer property, without the use of revocable living trusts, and without subjecting the title to probate.

Please be sure to contact your attorney before you use such a deed, as there are definite downsides to the use of the TOD. One big downside is that there is a three year statute of limitations which allows secured and unsecured liens to attach to the title of the home after the death of the grantor. As a result, the title will become uninsurable by title insurance companies for three years from the date of death of the grantor. So for instance, if the home passes from mother to son on July 1, 2016, a transfer of the home or a loan on the home from the son will be uninsurable until July 1, 2019. In California, lenders and purchasers almost always require title insurance to insure a title transfer and to insure a loan. The practical result may be that the son will not be able to sell the home or put a loan on it for the three year statutory period.

We do Medi-Cal and asset protection planning in our firm. If the home is in the estate of the Medi-Cal applicant at the time of his or her death, the State will pursue a lien against the property for the amount they have paid to the nursing home for the Medi-Cal applicant.  By using the TOD deed, Medi-Cal will be able to attach a lien to the subject real property, because it was in the estate of Medi-Cal applicant upon death. As a result, the use of the TOD is inappropriate for long term care and asset protection planning.  Your elder law attorney will advise you of the available techniques under the regulations to properly protect the home from a Medi-Cal lien.

If your grantee does not intend to sell the property or take a loan out on the property for three years from your death, and if you as the grantor are not concerned about Medi-Cal recovery against the home, then the TOD deed may be appropriate. Please be aware also that a class description of beneficiaries such as “children” cannot be created on the TOD deed. If a named beneficiary predeceases the grantor, and there are no other specifically named beneficiaries who take title immediately and jointly, a probate of the home will be required.

As a result of all of the above, it would appear to this elder law attorney with some 39 years of experience, that the use of TOD deed may very well be “penny wide and pound foolish.”

This information is not to be taken as legal advice, and you are encouraged to see your elder law attorney. At the Law Offices of Michael J. Young, at 1931 San Miguel Dr., Ste. 220, Walnut Creek, CA www.WalnutCreekElderLaw, 925-256-0298, lawyoung1@gmail.com we practice Elder Law and we help Baby Boomers, Seniors and families through their Elder Care Journey. We help families with long-term care planning, asset-protection plans, comprehensive estate planning, wills, trusts and powers of attorney. We also help Baby Boomers and families get their “Ducks in a Row” in order help them qualify for Medi-Cal and the VA Aid & Attendance Improved Pension benefit.

Mar
15
2016
0

Medi-Cal and Life Insurance Recovery

If you die after having been on Medi-Cal, the state can only recover what is left in your estate at the time of your death. Whatever is in your revocable living trust when you die, is recoverable by Medi-Cal because that is part of your estate. That is why we reserve powers in the revocable living trust and financial powers of attorney to transfer assets out of your trust during your life in order to avoid state recovery.

If you have life insurance and you die, your beneficiary, such as your spouse or a child, will receive the death benefit. This death benefit to your spouse or child is not recoverable by Medi-Cal. However, if you name your revocable living trust as the beneficiary of your life insurance policy, the death benefit will be funded into your revocable living trust when you die. This death benefit will be “in your estate” when you die, and therefore recoverable by Medi-Cal. As a result, if you think you may be applying for Medi-Cal at some date in the future, you should name a person or persons to be the beneficiary of your life insurance policy.

This information is not to be taken as legal advice, and you are encouraged to see your elder law attorney. At the Law Offices of Michael J. Young, at 1931 San Miguel Dr., Ste. 220, Walnut Creek, CA www.WalnutCreekElderLaw, 925-256-0298, lawyoung1@gmail.com we practice Elder Law and we help Baby Boomers, Seniors and families through their Elder Care Journey. We help families with long-term care planning, asset-protection plans, comprehensive estate planning, wills, trusts and powers of attorney. We also help Baby Boomers and families get their “Ducks in a Row” in order help them qualify for Medi-Cal and the VA Aid & Attendance Improved Pension benefit.

Nov
25
2015
0

Governor Brown Signs The End Of Life Options Bill

Governor Edmund G. Brown Jr. signed into law the AB-15 End of Life Options bill on October 5, 2015.  This is landmark legislation which allows patients who are terminally ill to receive lethal medications to end their lives at a time they choose. The law will become effective at a date to be announced during 2016. The bill ends with a sunset date of January 1, 2026, unless extended.

The bill states in part that “… an adult who meets certain qualifications, and who has been determined by his or her attending physician to be suffering from a terminal disease, as defined, to make a request for a drug prescribed pursuant to these provisions for the purpose of ending his or her life. The bill would establish the procedures for making these requests.”

In his signing statement, Governor Brown lamented that, “I do not know what I would do if I were dying in prolonged and excruciating pain. I am certain, however, that it would be a comfort to be able to consider the options afforded by this bill. And I won’t deny that right to others.”

For additional information please feel free to contact our office. This information is not to be taken as legal advice, and you are encouraged to see your elder law attorney. At the Law Offices of Michael J. Young, at 1931 San Miguel Dr., Ste. 220, Walnut Creek, CA www.WalnutCreekElderLaw, 925-256-0298, lawyoung1@gmail.com we practice Elder Law and we help Baby Boomers, Seniors and families through their Elder Care Journey. We help families with long-term care planning, asset-protection plans, comprehensive estate planning, wills, trusts and powers of attorney. We also help Baby Boomers and families get their “Ducks in a Row” in order help them qualify for Medi-Cal and the VA Aid & Attendance Improved Pension benefit.

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