Silver Planet™ Help Your Parents Age in Place.

Unlike the needs-based Medicaid program discussed in the previous blog, the Medicare program is an entitlement program. If you meet all of the eligibility requirements, you will be covered by the program, even if you’re a multimillionaire.

This statement is untrue, IF you know what you’re doing. All states have Medicaid programs. I emphasize the name only because most of my clients confuse Medicare with Medicaid. They are two completely different government programs—with one exception, which will be covered in my next blog.

The issue of creditor avoidance is very complicated, with federal law, state statutes, IRS rulings, and court rulings all weighing in about who gets what when there’s not enough to go around. Start reading the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, move on to your state’s statute of frauds, and then the Fraudulent Transfer Act, and you will be peeling only the first few layers of the onion.

Some people fear this will happen if they die without a will. Others have heard rumors about death taxes, and they think this is the “guvmint’s” final money grab as you’re taking your last breath. The latter concern—estate taxation—actually affects only about 1% of us, which is the topic for another blog. The first scenario could affect any of us, however.

Most spouses do own everything together, 50/50. But the real question is, how? Are they joint tenants with right of survivorship, or tenants in common? (See Misconception #1.)

If they’re joint tenants, then the property passes automatically to the surviving spouse, with no need for a probate. If they’re tenants in common, the property of the first spouse to die will pass to others according to that person’s will. If no will can be found, the property passes to others per state law, the subject for next week’s blog.

Please don’t do this to your children! I got a call just this week that shows the pitfalls of this approach. Here’s the scenario: Dad died, leaving five adult children. When I drafted his will, he stated that he wanted to benefit all his children equally, so his will reflected that. His life insurance policies had all five children as beneficiaries. But his annuity policy only listed child #3 as the beneficiary.

Probate begins when someone turns in the last will and testament of a recently deceased person (the “decedent”) to the probate court. The court then investigates whether this is indeed the last will and testament, and appoints an executor (or a personal representative or an administrator) to administer the estate.

We’ll get back to the rest of the misconceptions of estate planning in a few weeks. First, we need to answer the question, "What is probate, anyway?" Here’s part 1 of the answer.

Probate is the legal process that transfers your property (your “estate”) to those entitled to it after you die. It’s a simple definition, but with many nuances. Let’s break down that definition:

I hear this one all the time from new clients. They don’t see their lives as complicated, or maybe they’re trying to signal to me that they don’t want to spend a lot of money on estate planning.

I always wonder if they use the same approach with their doctor during their annual physical. As a highly trained and conscientious professional, the doctor will perform all necessary tests to assess health—no more, but no less. Anything short of that would be professional negligence, with the threat of a future lawsuit if something important was overlooked.

Most people know what they own, but few people know how they own it. Unless you’re single with very few assets, this may describe you. How can this be?