We would be happy to personally answer any questions regarding our practice or your specific needs. Before contacting us, however, you may find our Question & Answer section by selecting below given categories.
Medicare is a government sponsored insurance program for the elderly and disabled. To qualify for Medicare you must:
Medicare covers certain basic services, including:
Medicaid is a health care program financed by both the state and federal governments. Unlike Medicare, which is an entitlement, Medicaid is a form of welfare available only to impoverished persons.
To be eligible for Medicaid nursing home assistance in Missouri, the applicant must be a U S citizen or resident alien, age 65 or older, or disabled or blind, a resident of the state for at least 30 days, have less than $5,000 in non-exempt assets, and require full time skilled nursing home care.
When applying for Medicaid nursing home assistance, you must disclose all transfers of your assets for the five year period preceding the application. A transfer penalty will be imposed on all transfers made within five years before applying for benefits (termed the “look-back period”). For each $6,894 you have given away in the applicable look-back period, you will be ineligible for nursing home assistance for one month. Without proper planning and legal advice, you should never give away your assets in anticipation of applying for Medicaid.
Your home is considered an exempt asset when you apply for Medicaid nursing home assistance, meaning it will not prevent you from being approved for Medicaid. However, when you die the state of Missouri has a lien against your property for up to the full amount of Medicaid assistance paid on your behalf.
With regards to the home, the Medicaid recipient may transfer the home, with approval of the state, to a child who is disabled or under age 21, to a sibling who has lived in the home at least one year prior to the recipient’s institutionalization who already has an equity interest in the home, or to the recipient’s caretaker child (adult child of the applicant who has lived in the applicant’s home at least two years prior to institutionalization and who, during that time period, provided a level of care that, but for the adult caretaker child, the applicant would have been institutionalized).
Under the Medicaid “spousal impoverishment” rules, when one spouse enters a nursing home, the at home or “community” spouse is entitled to one-half of the couple’s assets, up to a maximum of $148,620 in Missouri. Without proper planning and legal advice, the couple will be required to spend down all of their assets in excess of $148,620 before the institutionalized spouse can be eligible for nursing home assistance.
When one spouse is eligible for Medicaid nursing home assistance, the at home or community spouse is guaranteed under the Medicaid rules a minimum monthly income of $2,289 in Missouri. If the community spouse’s income is below $2,289 per month, part of the income of the institutionalized spouse will be allocated to the community spouse to insure a monthly income of $2,289. To the extent that the income of the community spouse is still below the minimum after transferring the income of the institutionalized spouse, additional assets may be transferred to the community spouse to make up the shortfall.
Applying for Medicaid is cumbersome and tedious. Every fact asserted in the application must be verified by documentation. The process can drag on for several months. If you have made any transfers of assets, you must take great care in timing the application for Medicaid benefits or be faced with a transfer penalty far in excess of the five year look-back period. Legal assistance in this process is not mandatory, but highly recommended.
A will is a written declaration of how an individual wants property titled in his or her name only distributed after death, and who the individual wants to administer his or her estate. A will also nominates a guardian if there are any minor children.
You should review your will every three to five years, to make sure it still accomplishes your desires; however, it may be necessary to review it even more frequently if:
A will can be changed, revoked or replaced by a new will at any time, so long as you are competent and you follow the formalities of signing a valid will. To be considered competent, you must understand the nature of your act.
You can also change your will through the use of a codicil, which is an amendment or supplement to a will.
A personal representative is a person named in a will who is responsible for overseeing the distribution of property and for paying valid debts of the estate.
People usually choose to appoint a spouse, a close family member or a close friend as their personal representative. However, if you have a particularly complex estate, you may want to choose a professional, such as a bank or an attorney. Either way, you should choose someone who is trustworthy and competent.
A durable power of attorney is a document that you execute to give another person (known as the agent) the right to act on your behalf regarding your financial affairs in the event that you become incapacitated.
A health care proxy is a document that you execute to give another person (known as the agent) the right to act on your behalf regarding your health care decisions in the even that you become incapacitated.
People usually choose to appoint a spouse, a close family member or a close friend as their agents in their health care proxies and durable powers of attorney. However, some people prefer to appoint a professional, such as a lawyer. Either way, you should choose somebody who is trustworthy and competent.
A living will is a set of instructions that memorializes your wishes in the event you are diagnosed with a terminal illness. In Missouri, you cannot instruct in a living will that you do not want artificial water or feeding tubes only your health care proxy can direct your health care providers in this regard.
A trust is a device for holding property. There are generally three parties to a trust: the settlor, the trustee and the beneficiary. The settlor is the original property owner who transfers the property into a trust. The trustee is the legal owner of the property who holds and manages the property for the benefit of the beneficiary (or beneficiaries). The trustee is under a legal obligation to act fairly towards the beneficiaries.
Property in a trust is non-probate property, meaning it does not go through the probate process when the settlor dies.
A living trust is merely a trust that was established during the settlor’s lifetime.
A guardian is a representative who oversees the personal affairs of a person who is unable to do so, as in the case of a child or an incapacitated person. A conservator is a representative who oversees the finances of a child, or disabled person. Guardianships & Conservatorships are established by court order.
When a person dies, their assets get transferred to his/her heirs. The federal government imposes a tax on these after-death transfers if their combined value is equal to or greater than the applicable exclusion amount ($11,200,000 for 2018).
It depends. The federal government imposes an estate tax at your death only if your property is worth more than a certain amount, and that amount depends on the year of death. But, because of the unlimited marital deduction, all property left to a U.S. citizen spouse is not subject to tax. Estate tax is also not assessed on any property you leave to a qualified tax-exempt charity.
Your estate may also have to pay income taxes after your death.
It depends. If you give away your property during life, you may be subject to a gift tax. While making smaller gifts which are not taxable during life can yield substantial estate tax savings, you should be wary of giving away all your possessions during your lifetime, as you may run the risk of needing the assets for your care later in life.
When you give away assets before you die, such as stock or cash, for less than the assets are worth, you have made a gift. The federal government may impose a gift tax on this type of transfer.
No. Each year, you can gift a certain amount (known as the “annual exclusion”) gift tax free. Presently, you can give up to $16,000 per recipient to as many recipients as you would like. If you are married, each spouse can give each recipient up to $16,000 for a total of $32,000 per recipient.
Other types of gifts that are not taxed include: charitable gifts, gifts made to a spouse, and gifts in the form of direct tuition payments or medical expense payments made on behalf of another.
The unlimited marital deduction is a provision of federal tax law which allows a married individual to transfer as many assets during life or at death to his or her spouse (as long as the spouse is a US citizen), without any gift or estate tax consequences.
Probate can be a relatively expensive and time-consuming process. It can be a useful process if you anticipate your estate having complicated problems, such as numerous debts that canï¿½t easily be paid from the property you leave.
Deciding whether to avoid probate depends on a number of factors, most notably your age, health and financial status. A younger person with fewer assets may be better off with a simple will, and in that situation, adopting a sophisticated probate-avoidance plan now may mean youï¿½ll have to re-do it as your life situation changes. But if you are older, or in poor health or own a significant amount of property, you will probably want to do some estate planning to avoid probate.
Probate can be avoided in a number of ways. Assets that avoid probate are called non-probate property. Perhaps the most popular method is the use of trusts. Because the terms of the trust dictate how the property will be distributed, there is no need for trust property to pass through probate.
The same is true for life insurance policies; because the beneficiary is explicitly named in the policy, there is no question as to who gets the property at the ownerï¿½s death, and thus probate is avoided.
Property held by joint tenancy also passes outside of the probate process. Joint tenancy is a form of ownership in which two (or more) persons share undivided ownership of property during life. When one owner dies, his or her share automatically passes to the other owner(s).
Call us to schedule an initial appointment with one of our attorneys at no cost to get the estate planning process on its way.
Probate is the court supervised process that takes place after someone dies to settle his or her estate. The two main functions of probate are 1) transferring title of certain assets (known as probate property) from the decedent to the appropriate beneficiaries; and 2) ensuring that the decedent’s debts are paid. Probate generally occurs in the state where the decedent lived at the time of death, even if he or she has only lived there a short time. One exception is for real estate, which is always probated in the state in which it is located.
When a person dies without a will, it is called “dying intestate.” The distribution of property is governed by Missouri law, under which the decedent’s next of kin usually inherit the property. The major pitfalls of dying without a will are: 1) the decedent’s personal wishes regarding who receives particular property may not be fulfilled, and 2) the decedent did not take maximum advantage of tax-saving mechanisms.
The same results can apply when someone has left an invalid will.
In order to probate the estate of a relative who died intestate, you must generally obtain authority from the Probate Court to distribute the decedent’s property, depending on the type of property left in the estate.
No. Certain property is held in a way that the very terms of ownership control where the property will go after you die. Such property is called non-probate property. An example of non-probate property is a life insurance policy; you specifically state in the policy who will be paid after your death, so it is not controlled by your will. Other assets, such as bank accounts which contain POD or “pay on death” designations, also avoid probate.
Property that is subject to the probate process is called probate property. Probate property includes assets that the deceased owned individually at death and that have no expressly named beneficiaries.
Property that is not subject to the probate process is called non-probate property. Non-probate property includes assets that are held in a way that the very terms of ownership dictates where the property will go after you die. In other words, the document that establishes ownership includes a provision that designates who will receive the property after the owner’s death. Examples include:
If there is a will, the personal representative named by the decedent in the will is responsible for probating the estate. If there is no will, or the will fails to name an executor, the probate court will appoint someone to handle the process. The personal representative is usually a close adult relative or surviving spouse.
If you are named as a personal representative, it is your choice to serve or decline to serve. If you decline to serve and there is no alternative personal representatives named in the will, the court will appoint someone else. If you choose to serve, you should contact an attorney, who can help you file the appropriate petition papers in Probate Court. You will then have to wait until you are approved by the Probate Court before you can officially act as personal representative.
Generally, assets the decedent owned individually at death are subject to creditors’ claims. However, even non-probate transfers may be subject, on a pro-rata basis, to claims of creditors.
There are five grounds that a will can be held invalid on:
If you think someone’s will is invalid, you may have the right to challenge the will. In order to challenge a will, you must have “standing.” To have standing, you must have a legal interest in the will being probated; individuals such as spouses, parents, children and other family members have standing in a person’s will.
If you have standing, you should seek out the advice of an attorney with litigation experience to help you assert your rights.
If someone challenges a will being probated, you may have the right to defend the will. In order to defend a will, you must have “standing.” To have standing, you must have a legal interest in the will being probated.
If you have standing, you should seek out the advice of an attorney with litigation experience to help you assert your rights.
A fiduciary duty refers to the obligation of individuals in certain capacities to treat others equitably and honestly, and to act in their best interest. Such a duty is imposed on individuals such as: trustees, personal representatives of an estate, and guardians.
A number of different acts can be considered a breach a fiduciary duty, including: negligence, fraud, commingling of assets, or failure to perform.
Civil litigation is a lawsuit between two or more people or entities that does not seek criminal sanctions. The remedy sought in civil litigation is usually money or a judgment that requires one party to do something or to stop doing something. Civil litigation encompasses many different kinds of cases, such as personal injury, breach of contract, discrimination, medical malpractice, will contests and real estate disputes.
The first thing that you need to do is to determine what you are being sued for, and when your answer to the complaint is due. The best way to understand your rights and the ramifications to you is to contact an attorney. If you are being accused of causing personal injuries as a result of a car accident, and if you have automobile liability insurance, you should contact your insurance company right away.
Where to file a lawsuit depends on the type of suit you need to file. Different courts have power to hear different kinds of cases. Most civil cases can be filed in civil court. Small claims court may be appropriate if you are seeking money damages of less than $5,000. Associate Civil Courts can handle cases in which the possibility of monetary recovery to the Plaintiff is less than $25,000. The state’s civil courts can generally handle all other state court matters.
There is no requirement that you have an attorney at anytime during a civil suit. You always have the absolute right to represent yourself. No one else, other than a lawyer, may represent you in a court of law.
The Plaintiff or Petitioner can be identified as the person or entity that starts the action. The Defendant or Respondent is the person or entity that defends or responds to the action. Different jurisdictions use the terms for different actions. In Missouri, the term “Plaintiff” is most often used for the person who starts the action.
Again, that depends upon the type of case. With regard to the filing of an action, there are time limits called “Statutes of Limitation” which determine the time frame within which certain actions must be filed. Different actions are governed by different Statutes of Limitation.
The timeframe to respond to a civil action is generally within thirty days. However, you should seek the advice of counsel immediately before filing any answers. There may be grounds for motions that could be filed to put an end to the suit before your answer is due. By answering without raising your rights at the onset, you could lose your opportunity to end the suit before it starts.
Personal injury is a physical or mental injury to a person caused by negligence or a harmful act. Personal injury is also known as bodily injury.
Compensation, or damages, awarded in personal injury claims vary based upon the type of injury and cause. The most common forms of compensation include payment for:
An appeal is a legal proceeding that takes place when a party to a case feels the judgment made by the court was erroneous. That party can ask a higher court to review and possibly reverse the lower court decision or the grant a new trial.
The Veterans Administration offers a special pension program for needy war veterans and their widows, which is increased for Veterans or widows who are confined to a nursing home, and need the “Aid and Attendance” of others to perform the activities of daily living.
The Aid and Attendance benefit is available when the Veteran (or the Veteran’s widow) is “permanently and totally disabled,” and living in an assisted living or skilled nursing facility, or requiring in-home nursing care. A certification from a medical doctor is required, showing that the Veteran (or widow) needs assistance with at least two activities of daily living.
The maximum monthly pension with Aid and Attendance is as follows:
Married Veteran (Veteran needing aid and attendance):
Surviving Spouse of deceased veteran:
To be eligible, the Veteran must have served 90 days or more of active military service, with at least one of those days during a period of war. Veterans who entered active duty on or after September 8, 1980, or officers who entered active duty on or after October 16, 1981, may have to meet a longer minimum period of active duty. The Veteran’s discharge must have been under conditions other than dishonorable.
The VA pension program was designed to assist Veterans or widows with low incomes and net worth in meeting their basic living and medical needs. It is not available to Veterans or widows whom VA feels have sufficient income and net worth to pay their own living and medical expenses. The maximum net worth to be eligible for this program is $150,538, excluding the individual’s home.
When considering income, VA reduces the income of the Veteran or widow on a dollar-for-dollar basis for unreimbursed medical expenses, which may include the ongoing cost of living in an assisted living or skilled nursing facility. Note, room and board at a retirement or independent living community is generally not considered an unreimbursed medical expense.
Currently, there are a few options for reducing excess assets, such as transferring them into an irrevocable or family trust, or purchasing a single premium immediate annuity which meets certain criteria established by VA. Any gifting or transfer of assets by the applicant in the last three years will create a period of ineligibility for benefits.
If the Veteran or widow is in a skilled nursing facility and Medicaid is paying the nursing home, the maximum VA pension is reduced to $90 per month.
If the trust is created with the disabled person’s funds, any funds deposited into a SNT after the disabled individual reaches age 65 can result in a loss in public benefits. However, funds can still be deposited into a “pooled trust” for a disabled individual who is 65 or older, and the disabled person will not lose Medicaid benefits. The Missouri legislature authorized such trusts, through a non-profit known as the Midwest Special Needs Trust (“MSNT”). MSNT will accept any size SNT (even very small amounts) to create a pooled trust account for the disabled individual, and its trustee fees are reasonable. A family member generally serves as co-trustee with MSNT in managing trust funds. There is no age restrictions if the trust is created and funded by a third party.
A Special Needs Trust, or Supplemental Needs Trust (“SNT”), is a discretionary, spendthrift trust created for a person who is disabled as a way to supplement, but not replace any public benefits which the disabled individual might otherwise be entitled. The SNT may be created by a third-party, if the trust is to be funded by the third party, or by the parents, grandparents, legal guardian or court if the trust will be funded with the disabled individual’s own funds.
Parents of a child with a disability have four options with respect to estate planning:
A Special Needs Trust can:
There are two key requirements:
This depends on who funded the trust. In a third-party (created by parent or any person other than the disabled individual) SNT, the individual who creates and funds the trust determines who to name as contingent beneficiaries of any remaining trust assets after the disabled person’s death. The state has no right to any of the remaining assets after the disabled person’s death.
If the trust is created with the disabled person’s own funds (i.e., funds received through an inheritance, personal injury settlement, lawsuit), the trust must include payback provisions to the state up to the amount of Medicaid benefits paid on the disabled person’s behalf.
Selecting a trustee for the SNT is one of the most important steps in the planning process. A special needs trustee should have these characteristics:
While family members often want to serve as trustee, they typically don’t have all of the requisite characteristics. It is usually recommended that a professional trustee be retained to oversee the SNT, with a family member named as co-trustee.
For some time attorneys have called themselves elder law attorneys. Until recently, there was no way for a consumer to determine the experience and qualifications of attorneys practicing elder law. The term meant different things to different attorneys and some attorneys used the phrase “elder law” just as a means to market their practice.
A Certified Elder Law Attorney (CELA) is certified in the field of Elder Law by the Board of Certification of the National Elder Law Foundation (NELF), a non-profit organization dedicated to the development and improvement of the professional competence of lawyers in the area of elder law. NELF is the only entity approved by the American Bar Association (ABA) to certify attorneys in the elder law field of specialization. The purpose of the certification program is to identify those lawyers who have the enhanced knowledge, skills, experience and proficiency to be properly identified to the public as certified elder law attorneys.
The Board’s expectations of an elder law attorney’s knowledge are expansive. To become certified, the attorney must possess a thorough knowledge of the following subjects:
In addition, attorneys certified in elder law must be capable of recognizing issues of concern that arise during counseling and representation with respect to:
Finally, the attorney must be familiar with professional and non-legal resources and services publicly and privately available to meet the needs of the older person, and must be capable of recognizing the professional conduct and ethical issues that arise during representation.
Certification is open to licensed attorneys who have been in practice five years or more. During the three years prior to application they must have spent at least 16 hours per week practicing elder law, must have handled at least 60 elder law matters in specified elder law subjects, and must have had at least 45 hours of continuing legal education in elder law. A certified attorney must be re-certified every five years, and has to meet similar recertification requirements.
Further, the attorney must pass a rigorous one-day examination which covers all of the 13 core elder law practice areas previously listed.
Certainly, there are lawyers who are not certified that are competent to handle most elder law matters. However, lawyers who are certified as specialists have been recognized by independent professional certifying organizations as having an enhanced level of skill, as well as substantial involvement in established legal specialty areas. Certifying organizations require lawyers to demonstrate special training, experience and knowledge to ensure that recognition as a certified specialist is meaningful and reliable. Don’t guess, use a certified specialist.