The Strange Case of Real Estate and Probate

One of the biggest talking points in estate planning and estate administration conferences is what assets do and do not pass via probate.  To answer the basic question of what probate is, which is a topic in and of itself, probate is the court-supervised procedure by which assets pass from a decedent to devisee in the case of testate decedents (those who die with a Will) or from decedent to intestate heirs in the case of intestate decedents (those who die without a Will).   The probate procedure in North Carolina, also sometimes referred to as estate administration, is outlined in … Continue reading

SIMPLE SUMMARY OF THE “FREE” STEP-UP IN BASIS FOR ESTATE ASSETS AND POSSIBLE CHANGES WITH THE PROPOSED AMERICAN FAMILIES PLAN

Most of my clients do not have to deal with estate taxes due to the current 11.7-million-dollar exemption per spouse.   Despite this, there are still many important conversations involving taxation that may come up in the initial estate conference at the death of a loved one from deferred income tax with inherited IRAs, fiduciary tax returns, taxation of income earned by irrevocable trusts, and the big one that always comes up and which is the focus of this blog, capital gains taxes.  Capital gains tax is not an estate tax or related to death at all, but it is still … Continue reading

Miscellaneous Long-Term Care Planning Info and Options

In prior blogs, I have discussed Medicaid options for skilled nursing and the Special Assistance Medicaid program for an assisted living facility. In this blog, I will address some miscellaneous items to ponder when long-term care planning. Assistance for Elderly Veterans First, is your elderly loved one a Veteran? If so, Veteran’s Aid and Attendance may provide a small amount of assistance with long-term care cost. For a wartime veteran that meets the income and asset tests (or for a surviving spouse of a wartime veteran), the VA Aid and Attendance program may help pay for some of the costs … Continue reading

Who is the “Community Spouse” in Long-Term Care Planning and What Can They Expect?

When one of two spouses goes to a long-term care facility and applies for benefits, there is important lingo to be aware of when speaking with an elder law attorney and/or applying for benefits.  The spouse in the long-term care facility is called the “Institutionalized Spouse” and the other spouse is referred to as the “Community Spouse.”  In this blog, I discuss the asset and income allowances for the “Community Spouse.” There is a Community Spouse Resource Allowance (CSA) to preserve assets for the community spouse.  This is the amount of countable assets the Community Spouse will not have to … Continue reading

Clarity on the difference between an Assisted Living facility and a Skilled Nursing facility: Special Assistance Eligibility

In this blog, I attempt to give some insight on a critical point of confusion in elder law which is the difference between assisted living and skilled nursing and the governmental programs available for financial assistance in each type of facility.  Despite what you may have been told, traditional long-term care Medicaid does not pay for a stay in an assisted living facility.  However, Special Assistance Medicaid, a subset of the Medicaid program, is another needs-based governmental program that can help pay for care in assisted living facilities.  The rules of the two programs have some similarities but also many stark … Continue reading

If I Ask if Your Will Has “Per Stirpes,” It’s Not a Personal Question

As I recently went through my estate planning 101 routine to a pair of prospective clients , I happened to drop in the phrase “per stirpes.”  I try to avoid legalese in my initial client conferences, but some terms are unconscious and unavoidable for estate practitioners who spend a significant time parsing through complex legal scenarios facing their clients.  One of the prospective clients abruptly interrupted me and said, “Whoa now, I thought we just came to talk about doing a Will.”  In jest, I assured him that he could not catch anything and there was no need to get … Continue reading

Update on Emergency Authorization of Remote Notarizations

The saga continues in this third entry of the three-part series (so far) on North Carolina’s authorization of emergency video notarizations during the pandemic.  As of March 12, 2021, Governor Roy Cooper signed House Bill 196 into law, which allows video notarization to continue through December 31, 2021.   The Bill acts to amend the previous authorization which expired on March 1, 2021, and appears to have retroactive effect to save any brave soul who continued remote notarizations after the Bill’s expiration date. At this time, there is still no indication that permanent authorization of remote notarizations is in the works … Continue reading

Remote Notarizations to Sunset on March 1

As the sunset date approaches for remote notarizations under the temporary emergency authorization, it is now apparent that the legislature will not agree on a bill authorizing a further extension before the expiration. Therefore, we will revert to the notarial requirement of “close physical proximity” on March 1, 2021 at 12:01 a.m.   Folks in the know believe that there is legislative support for either an extension of the emergency statute or its permanent authorization and codification. However, other non-related budget aspects of the bill are causing a delay (insert your cynical political comment here).  Additionally, it is speculated that when … Continue reading

Estate Planning in a Pandemic: Remote Document Signings are the Now and Hopefully the Future

A global pandemic will certainly induce one to consider his or her own mortality and, as such, initiate a revisit or beginning of their estate plan.  But paradoxically, the pandemic has also made it more difficult for us to venture out to ensure these matters are in order.  Many nursing homes across the state of North Carolina are on lock down due to the pandemic, making it more difficult to discuss any loose ends of an estate plan with a distressed loved one residing in a care facility.  Despite the increased difficulty during the pandemic, with the emergence of Zoom … Continue reading

North Carolina Medicaid Planning: The Basics

In general, everyone is entitled to enroll in Medicare when they turn 65, which acts as their health insurance for general health care, hospital or doctor visits.  However, while Medicare and supplemental plans may pay for rehab for the first 20 days and a portion up to the 100th day in some cases, Medicare does not pay for long-term care in a skilled nursing or assisted living facility.  The average monthly cost of a skilled nursing facility is around $9,500.  This means you could easily spend through a lifetime of savings in only a short couple of years in a … Continue reading

The Fundamentals of Trusts: Broad Terminology for a Nuanced Field of Study

Trusts are a topic that seem to be often discussed but seldom understood among the general public.  This is not an indictment of a misinformed public, but a commentary on the wealth of information and various channels through which it flows.  Your Google search results, your local banker or even a co-worker may claim to have all the insight on how to plan your estate and “get your affairs in order.”  Clients often tell me they “need a living trust.”  When I ask why they need one, they are unsure how to answer.  I do not ask the question to … Continue reading