Robert Whitt assists in Estate Planning
What is Estate Planning?
Estate Planning deals with the preparation of Wills, Financial Powers of Attorney, Living Wills, Health Care Powers of Attorney and Trusts.
- It is important to make sure that Wills properly transfer assets as intended by the client. Wills are never recorded until after the client’s death. One of the most common errors made is when an individual uses a Will off the Internet or attempts to prepare a Will in his own hand-writing. Many times, this type of approach will cause some provisions of a Will to conflict with others and that will require court intervention to help interpret the Will document. A properly drawn Will can provide direction for your family and assist in the orderly transfer of assets at the time of your death.
- A Financial Power of Attorney aka Durable Power of Attorney can be a vital document in the Estate Planning process. All Powers of Attorney are not created equally. The Financial Power of Attorney statute was completely rewritten in North Carolina and became effective in 2018. This new statute makes it more difficult for a Power of Attorney to be drawn with proper gifting language so that your agent would be able to remove assets from your name even at the last minute if you are headed into a long-term care facility. If you are desirous of your loved ones and family using the Financial Power of Attorney to try to protect your assets in the event you were ever placed into a long-term care facility, the document needs to have special provisions for gifting assets out of your name. Just stating that your agent has the power to make gifts of your property is not usually sufficient under the new statute. Many Financial Powers of Attorney, even those prepared by Attorneys, do not contain broad enough gifting provisions. This means that you may have a valid Power of Attorney but you are not able to use it to protect assets if you need to be placed into a nursing home. Having an attorney who deals in elder law prepare your Financial Power of Attorney is vital in your estate planning process.
- Living Wills and Health Care Powers of Attorney go hand in hand. A Living Will is simply your desire that you do not want to be artificially kept alive in certain circumstances and you initial those circumstances on the document. This is your statement to the world as to what you desire. The Health Care Power of Attorney allows you to name a Health Care Agent who then, in your absence of being able to make such decisions, would be able to protect your wishes and to maintain your intent in your last illness. The Living Will often serves as a psychological boost to the person you have named to serve as your Health Care Agent in the Health Care Power of Attorney document.
- Trusts can be revocable or irrevocable. An Irrevocable Trust is used in doing early (not crisis) Medicaid Planning. The importance of doing pre-planning is to gift assets out of your name more than five years before you apply for Medicaid when being admitted to a skilled nursing home. The Irrevocable Medicaid Asset Trust which Robert Whitt prepares has been used on many occasions as a pre-planning document to protect assets. This document is constantly updated to reflect most recent legislation and court decisions across the country. This document is far more protective of your assets than simply conveying assets directly to your children because the client then loses control over what happens to the asset after the gift takes place. A child could die before the client, become divorced, have a medical need that requires long term care, or have a judgment placed against them while they have the property in their name. Holding the assets in this Irrevocable Trust is far more protective so that nothing comes out of the trust to the ultimate beneficiaries until the client dies and the document contains contingencies if any of the beneficiaries are not living at that time. Even though you may not have a pre-plan in effect, your financial Power of Attorney (also known as a Durable Power of Attorney) can be used in a crisis, at the last minute, to try to protect as much of your assets as possible in the event you are placed into a nursing home. Revocable Trusts on the other hand are usually designed to avoid the probate process after your death for the assets that are placed into the trust. Revocable Trust assets are 100% available to you and countable in the event you should go into a nursing home. The Irrevocable Trust makes the assets not countable.
Contact Robert Whitt to help with your Estate Planning. Robert C. Whitt is a Gaston County attorney, servicing the areas of Mount Holly, Gastonia, Charlotte and Mecklenburg County, Lincoln County, and surrounding communities.
