Carlsbad CA Estate Planning

Going on a Last Ride

The basic design of hearses has not changed very much over the years. They are somber looking vehicles, usually black, that most closely resemble a limousine.

At least, that is what almost everyone would imagine, when they hear the word "hearse."

However, Derek Dunn of Lubbock, Texas had a different idea.

Dunn created a hearse that resembles a motorcycle and painted it red.

The hearse pulls a platform behind it that carries the casket, which is in the open air. Different graphics can be displayed on the platform for groups, such as firefighters and police.

Dunn even created the hearse to appeal to motorcycle enthusiasts who want to go on one last ride.

Everything Lubbock reported this story in "A Unique 'Last Ride'."

This is a continuation of the larger trend to personalize funerals and memorials. More and more people are choosing to have more personal touches in their funerals, instead of sticking with just the traditional ceremony.

If the trend continues, more stories like the motorcycle hearse can be expected.

Elderly people should be aware of this trend for two reasons. First, if they want to have a non-traditional personalized funeral service, then they should make pre-arranged plans. There are many options available.

Second, and just as important, elderly people who do not want a traditional service, need to let that be known, in case their families might decide to do it on their own.

Reference: Everything Lubbock (June 27, 2017) "A Unique 'Last Ride'."

Your Debt and Your Demise

It is not a secret that most Americans owe money to someone. The people of the U.S. are used to buying things on credit and, as a consequence, they have debts.

Most people would like to be rid of all that debt by the time they pass away. Unfortunately, the reality is that most of them will not.

Approximately 73% of people in the U.S. pass away while still in debt. The average amount of debt is $61,554, but that average goes down to $12,875, if mortgage debt is not included.

Market Watch discussed this in "What happens to your debt when you die?"

Because you are likely to pass away while still in debt, it is important to understand what will happen to that debt, to make sure it is not a burden on your family.

If it is debt that you alone are responsible for, then your estate will pay the debt out of any available funds before any assets are distributed to your heirs. If you estate does not have enough assets to cover your entire debt, then most types of debt die with you.

However, there are exceptions.

For example, any family member who still lives in a house with a mortgage would be responsible for the mortgage payments, if he or she wishes to stay in the home.

What this means is this: you should not worry about most debt being a burden to your family. However, if you wish to ensure that your debt does not eat up the inheritances of your heirs, then you should do some estate planning to avoid that.

Reference: Market Watch (May 29, 2017) "What happens to your debt when you die?"

Forced to Pay for Your Parents

There are many laws on the books that receive very little attention because they are very rarely used. If few ever bother to attempt to enforce a law, then there is usually no reason for people to bring it up.

However, sometimes those laws do eventually become important, because of a general change in circumstances that sees those laws starting to be used more frequently.

An example of this is filial-responsibility laws.

These are laws that have been passed in 28 states that require adult children to provide financial support for their elderly parents, if the parents are unable to pay their own bills, as the Wills, Trusts & Estates Prof Blog discusses in "Filial-Responsibility Laws Could Cost You."

These laws were not used much in the past because government programs for the elderly such as Social Security, Medicare and Medicaid provide financial support for the elderly.

Today, with people saving less and living longer, many elderly people are not able to afford the costs of their own care, which is increasing.

Nursing homes in states with filial-responsibility laws are increasingly looking to enforce them against children with parents who do not pay their bills.

This is yet another reason to make sure that you plan for your retirement and estate. If you do not, your children might be required to pay for you.

Reference: Wills, Trusts & Estates Prof Blog (May 3, 2017) "Filial-Responsibility Laws Could Cost You."

Mary Kills People

A normal television show about a brilliant emergency room doctor who kills people in her off hours, would probably be a very dark drama about a serial killer, if there was such a show at all.

Normally, doctors are treated on television as nothing but heroic and rarely involved in anything too controversial. However, a drama from Canada now airing in the U.S., seeks to tell a different story.

In this show, the brilliant doctor is killing people who wish to pass away. She moonlights by performing euthanasia, also known as physician-assisted suicide.

The New York Times recently reviewed the show in "Review: 'Mary Kills People,' but It's for a Good Reason."

While the Times review is somewhat mixed, that this show exists at all highlights the changing attitudes about euthanasia.

It was only a couple of decades ago when Dr. Kevorkian was seen as the evil "Doctor Death." Now, many people are taking the idea of physician-assisted suicide seriously.

A few states have recently legalized the practice and many more are considering it as part of the dying with dignity movement, which seeks to allow terminally ill people the choice of when they want to pass away and under what circumstances.

The concept, however, is still controversial since not everyone agrees it is a good idea.

This new television show is certain to draw more attention to the concept and get people talking about it even more.

Reference: New York Times (April 21, 2017) "Review: 'Mary Kills People,' but It's for a Good Reason."

Slayer Statute Limitations

You have probably heard this plotline before. It is a common one that goes something like this: a younger relative of a wealthy person in need of money or just plain greedy, murders the elderly relative to inherit his or her estate or cash out a life insurance policy.

This is more than just a Hollywood fantasy. It happens in real life.

There are even famous examples from history, such as the Roman Emperor Tiberius who was killed by his heir Caligula or so the writer Suetonius alleged.

We actually do have laws that are designed to prevent this from occurring known as "Slayer Statutes."

They generally state that people cannot inherit from those they are responsible for killing.

However, they can have their limitations, one of which the Wills, Trusts & Estates Prof Blog discussed in "Court Determines that Slayer Statute is Not Applicable in Self-Defense Case."

In the case discussed, it was not clear what led to the death of the holder of a life insurance policy. The sole beneficiary of the policy was involved in the death and had given conflicting statements.

The beneficiary was not convicted of murder and claimed self-defense.

The deceased's sister sued to claim the policy, but the court decided that since there was some merit to the self-defense claim, the slayer statute did not apply.

Needless to say, it is good that slayer statutes exist to guard against profiting by killing, even if the statutes do have some limitations.

Reference: Wills, Trusts & Estates Prof Blog (April 11, 2017) "Court Determines that Slayer Statute is Not Applicable in Self-Defense Case."

Sued for Saving Patients

Millions of Americans have completed advanced medical directives such as health care powers of attorney and living wills. More and more people are taking advantage of their legal options to give directives to health care professionals about what treatments they wish to receive and what should be done to preserve their lives.

While this has empowered millions to take charge of their own end of life care, it has not been without conflict as The New York Times reports in "The Patients Were Saved, That's Why the Families Are Suing."

The problems start when the patients' advanced directives are not followed.

Health care workers, who are either unaware of the directives or uncertain about them, have been known to resuscitate patients who do not wish to be, for example. This had led some families to sue for saving the lives of their sick relatives, which is a new position for doctors to be in.  Most suits normally come when they fail to save patients.

It leaves many doctors bewildered, since the Hippocratic Oath does not suggest that saving a patient's life is ever inappropriate.

Americans deserve to have their advanced medical directives respected and followed. Much thought and consideration goes into the decisions people make about their end of life care.

This is an issue that requires further education and making sure that health care workers are made aware of their patients' advanced directives, so they can be sure to follow those directives.

Reference: New York Times (April 10, 2017) "The Patients Were Saved, That's Why the Families Are Suing."

In Vitro Fertilization and Posthumous Children

Before undergoing cancer treatment that could render him infertile, a Spanish man decided to freeze his sperm for possible later use by his partner. After the treatment, the couple started the process of in vitro fertilization but did not complete it, since his condition got worse and he passed away.

The day before he passed away the pair were married.

After his death, the Spanish woman unsuccessfully attempted in vitro fertilization four times. The clinic refused her a fifth attempt without a court order.

It seems that Spanish law only allows genetic material to be used for 12 months after a person has passed away, according to FOX News in "Judge allows woman to undergo in vitro fertilization with dead husband's sperm."

The interesting aspect of this case is that the government chose not to argue in court on legal grounds that the woman should not be able use the sperm. Instead, the government argued on the moral grounds that it was impossible to know whether the man would still want the child or even if he would still want to be married to the woman, if he were still alive.

The government took the position that the man could not consent to having a child, but the judge was not persuaded and ruled in favor of the woman.

Similar cases are expected to appear with greater frequency and present a challenge to current estate law.

It is not clear how estates that are already settled, will be able to handle a child born years after the deceased passed away.

Reference: FOX News (March 23, 2017) "Judge allows woman to undergo in vitro fertilization with dead husband's sperm."

Dying With Debt

There is a common belief that any debt a person has, dies with him or her. In a sense that is true, but it is also false depending on the type and the amount of debt.

It is important to understand the dynamics of debt and dying, because 73% percent of Americans pass away with debt. The average amount of debt at death is approximately $62,000 according to FOX Business in "Americans Are Dying with an Average of $62K of Debt."

The only type of debt that completely disappears when the debtor passes away is federal student loans. However, even then the proper paperwork must be filed. The same situation is not necessarily true with other types of student loans.

Other types of debt must be paid by the estate, before any assets are distributed to heirs.

Thus, if a person passes away owing $100,000 and having assets of $150,000, then the estate must pay the debt and only the remaining $50,000 can be inherited by heirs.

If the estate does not have enough assets to cover the full amount of the debt, then heirs are not responsible to pay it. However, there are exceptions. For example, if the estate contains a home, then the value of that home might be used to pay the debt even if other people are living in it. As a result, the heirs might need to pay the debt to stay in the home.

The issue of debt and death can get very complex. If you have any questions, it is a good idea to talk to an estate planning attorney who can help you manage what will happen to any debt you have when you pass away.

Reference: FOX Business (March 21, 2017) "Americans Are Dying with an Average of $62K of Debt."

Offering Condolences

A lot of the time when we see other people hurting, we wonder what we can do to help.  We often conclude that there is nothing we can do. It is common for this to happen, when we learn that someone has passed away and we see their family in mourning.

As humans, we lack the ability to bring the deceased back to life.

There are other things, however, we can do to help the family that do not require much time and effort as the Wills, Trusts & Estates Prof Blog points out in "How Condolences Alleviate Grief."

The easiest and one of the best ways to help people mourning for a loved one, is to let them know we care and to offer our condolences. This does not require a grand gesture. It only requires a sincere statement of sympathy.

Sending a card or flowers is another way to offer condolences. Charitable donations in the name of the deceased is also a small thing that can let grieving people know you care.

This is important. Knowing that other people really do care helps those who are grieving.

It does not fix everything. It does not bring anyone back to life. Nevertheless, it does help people move on and makes it easier for them to handle other things that need to be done when a loved one passes away, such as making funeral arrangements and dealing with the estate.

Reference: Wills, Trusts & Estates Prof Blog (March 20, 2017) "How Condolences Alleviate Grief."

Counting on Medicaid

Nursing home care is one of the most expensive things facing elderly people. It costs a lot of money to get long-term care in a nursing home.

Many older people do not have the money for it and do not have a realistic way of getting that money.

As a result, they look to the government to pay for that care. The government will step up through Medicaid, but only if the elderly person, who is in need of nursing home care, has no assets.

When seeking to qualify for Medicaid, however, many people make a big, big mistake.

This mistake is discussed in the Pauls Valley Daily Democrat article titled "Misunderstandings create traps in planning."

The mistake is a simple one to explain, but it is important to make sure you understand it so you will not make it. You cannot give your assets to your children, just before you go into a nursing home, at Medicaid's expense.

Unfortunately, that is just what many people are planning to do and it will not work.

What is the problem?

Medicaid has a five-year lookback window, which means that the program will look at any asset transfers the applicant (or anyone on his or her behalf) made within five years of needing long-term care.

If those transfers were not made at market value, then Medicaid will not pay for care until the expenses start to exceed the value of the transferred assets. There is a formula to calculate the “penalty period” that will be applied.

This simple mistake is a big source of problems for the elderly. Make sure that you understand it and ask an elder law attorney, if you have any questions about it.

Reference: Pauls Valley Daily Democrat (March 8, 2017) "Misunderstandings create traps in planning."