Revocable Living Trusts

A trust is a contract between the Grantor (the person who creates the trust), the Trustee (one who controls the trust) and the beneficiaries (those entitled to benefit from the trust). You, as Grantor, determine how the trust will be operated by the Trustee and who benefits, how and when. You can create a trust that permits you to be Trustee and give you the right to receive full benefits from it. This type of trust is typically referred to as a Revocable Living Trust and is often used as a substitute to your Will. It permits you to keep total control and access to all your assets during your life, and provides for the distribution of your assets to your beneficiaries at your death. We often refer to a revocable living trust as your ABook of Instructions. A well established advantage to Revocable Living Trusts is the avoidance of probate, which is required if you use a will to distribute your assets after death. Other advantages of Revocable Trusts, when property drafted, can include:

• Asset protection for your spouse after your death.

• Special needs planning for disabled beneficiaries.

• Asset management and protection for children who are not proficient with handling money.

• Protection of assets from a spouse=s subsequent marriage after your death.

• Disability planning in case you become disabled prior to death.

• Asset protection for your children if in bad marriages or to ensure your assets don’t go to the in-laws.

• Keeping your affairs private (as opposed to open for public review in probate).

• No court intervention required (handled entirely by Trustee you name in accordance with your detailed instructions).

• Plan for proper management of your business in your absence.

Very few revocable living trusts provide these benefits. Only a qualified estate planning attorney will know how to incorporate these protections into your plan. While a Revocable Living Trust has many advantages, it does not protect your assets from a nursing home, lawsuits, divorce bankruptcy or other creditors.

What is Probate?

It is the legal process of presenting your Will to the Court, after your death to authenticate it, and appoint your Executor. Your Executor must be appointed by the Court in order to collect and distribute your assets as stated in your Will. However, because it is a legal process, there are many steps that must be followed before your Executor can be appointed.


• The attorneys must obtain signatures from your heirs signifying they agree the Will is yours, and they will not contest it. Your heirs are your spouse and children and all must agree not to contest your Will before your Executor can be appointed. If you don't have a spouse or child, probate becomes even more complicated. Even if your heir is not a beneficiary, his waiver is still required. This can be very different in second-marriage situations, if you have minor children or if you have a child you lost contact with. If a child dies before you, then, all of your deceased child’s children will have to agree not to contest your Will, but if they are under 18, the Court will need to appoint a separate attorney to represent them. The same is true if any of your heirs are legally incapacitated, such as a retarded child or spouse with Alzheimers.

• The Executor will have to submit a family tree, filing fees, a petition, a death certificate and affidavits from the individuals who witnessed your Will. Upon receipt of all of the appropriate information (if no heirs contest it), the Court will appoint the Executor.

• After your Executor is appointed, estate administration begins. It is a period of time the law permits the Executor to accumulate the assets and report to the Court how he/she intends to distribute them. This period is a minimum of seven months after the Executor is appointed. However, in most cases, it takes a year or more. If you die without a will, the process is similar, but the State decides who gets your assets, not you.

• Unfortunately, probate is unpredictable. That's why many people chose to avoid it, but if all of your heirs agree and your assets are centralized, it can go smoothly.

Who Needs Estate Planning?

Estate planning isn’t about how much money you have, it's about protecting what you have for you, during your life and for those you love, after you’re gone. It ensures what you have gets to the people you love, the way you want, when you want.

If you were to die today, are you comfortable everything will be taken care of the way you wanted? Estate planning is legally ensuring things will be handled the way you want by providing sufficient instructions.

Estate Planning really is for everyone. It doesn’t matter if you have $40,000 or $400,000. You still have to plan for the future. Whether it’s to name a guardian for your minor children or ensure your children don’t blow through your assets if you unexpectedly die or become disabled (Terri Schiavo case).

Estate planning can only be done by attorneys, and it can be as simple as a Will, Health Care Proxy, Living Will and Power of Attorney. It can also include a revocable, probate-avoidance trust, asset protection trusts, multi-generational tax-saving trusts, tax-saving charitable trusts, private family foundations, and many other fact-specific strategies.


Keeping your Estate Plan Current...

Once completed, your estate plan should be reviewed and kept current with life events such as birth, death, marriage or divorce of anyone included in your plan. In addition, you should review your plan if there is a significant increase or decrease in your finances or if the laws related to your estate plan change.

How do I remain independent in my home without being a burden on my loved ones or having to get assistance?

For reasons ranging from acute illness to long-term health conditions, more than 7.6 million Americans receive in-home care, according to the U.S. Census Bureau. But that number is far greater if you include care given by family members. Informal care is given to an adult family member in 1 in 5 American households, according to the 2004 survey Caregiving in the U.S. The typical caregiver is a 46-year-old woman, who spends about 20 hours a week taking care of her mother, according to the survey, which was paid for by the National Alliance for Caregiving and AARP.

Failing to Plan

Long-term care is not high on the list for most people. It is difficult to imagine you or a loved one aging to the point where intervention is required. In fact, many people do not give it consideration until it happens.

But…I have a will.

Ironically, a will is not enough protection. Long-term planning is referred to as estate planning and it will not only protect you and your loved ones, but it will guide the process for situations that you may not want, or expect.

While in our profession it is difficult to understand why more people do not take the time to learn about estate planning and the benefits of it, is saddens us to see the crisis situations that could be avoided.


I do not want to ever be put in one of those “homes”

Today in the United States there are over 16,000 nursing homes. Nursing homes, also known as skilled nursing facilities, are for seniors who require constant medical care and need significant assistance with the activities of daily living. The goal of care in a nursing home is to help individuals meet their daily physical, medical, social, and psychological needs. Nursing homes are generally stand alone facilities, but some are operated within a hospital or an assisted living community.


Residents of nursing homes generally have high care needs and complex medical conditions that require routine skilled nursing services. Due to the constant care needs of its residents, nursing homes are required by federal law to have a licensed nurse on duty 24 hours a day. Residents typically share a room and are served meals in a central dining area. Residents should have the opportunity to be involved in activities that provide mental, physical, and social stimulation. Be sure to ask about activities offered when you tour the facility.

The average cost of care for nursing home care ranges on average $8000 per month. Cost is determined by the level of care needed, the setting where the care is provided, and the geographic location. Due to the high cost of care, many residents use supplemental funding from the government in the form of Medicare and/or Medicaid.

When Does Someone Need To Move From Assisted Living To Nursing Home Care?

The following story is not uncommon:
My 86-year-old mother has been in an assisted living community close to my home for the past two years. She has been declining slightly, almost imperceptibly, over the years. Most recently she fell while in her room and was unable to get up or reach out for the call cord. It wasn’t until later that day, when mom did not come to dinner, that a staff member finally found her on the floor. She had been there for hours.

Fortunately, she was only weak and did not suffer any serious injury but it was of major concern for both myself as well as the center’s administrator.

When I was called about the incident, I spoke in length with the administrator. She told me that it was “time” for mom to move to skilled care, that it was best for her own safety.

I was disheartened for mom. She never wanted to go into “one of those places”. She loves her apartment, her friends and was still mentally strong and even physically strong. I took the time to research nursing homes and spoke with her doctor. He said that with her age and the fact she fell and was unable to find the strength to get up, that it was an indication her health was declining. I was sick to stomach. I argued with him that she doesn’t seem forgetful and that this environment was so good for her mental and emotional state. Of course, I want her to be safe but how is she going to feel having to go into a nursing home? How in the world would I tell her? How could we afford 24 hour skilled care? Can this facility force her to move?

These concerns are complex and unfortunately common. In fact, these questions are the same that you may have when faced with a situation such as this.

Here are some others issues to consider:
What kind of contractual agreement does your mother have with the retirement community? Many assisted living facilities have month to month agreements. Often, when the facility needs more care, they can ask the resident to leave.

If it is a continuing care retirement community (CCRC), it is often stipulated in the contractual agreement that a nurse’s assessment will determine the location and level of care. It is more difficult for staff to provide services all over a large community and easier if all the people needing care such as medication and continence management are in the same building or on the same floor.

One other consideration is to think about how good your mother’s quality of life may be when in a different setting. This can be difficult to assess and often depends on both the individual and the setting. Consider the levels of attention she may receive in a nursing home: less privacy and perhaps more restrictions with less activity and social schedules. Also, the cognitive levels of the other residents may be less than your mother’s, therefore she may not be able to establish as many friendships.

Some possible interventions might postpone or preclude a move to nursing home care:
1.The option of physical therapy and exercise. Can her strength be regained with the appropriate guidance and strength training?

2.Outside assistance. Can you afford and will the facility allow an in-home care agency to provide assistance in her room?

3.Are you or other family/friends able to intervene more and see her on a more frequent basis?

Give all of the above serious consideration. Unfortunately, because we live in a litigious society, the facility may have liability concerns. If you are confident that it is best for your mother to stay where she is, you may want to inquire if the facility has a negotiated risk agreement or a “hold harmless” contract, where your family would basically promise not to sue if there is an adverse event.

This is an important decision and one that needs to be made carefully. Seeking the advice of an elder law attorney can help you review the emotional, financial and long term issues for your mother, while protecting both her, you and the future.