A SURVIVING SPOUSES’ RIGHTS

In Ohio and in addition to other rights, a surviving spouse has a number of basic rights available to them in a probate estate. The purpose of these legislated rights is to attempt to assure surviving spouses are not impoverished or that they have resources for necessities on the death of their husband or wife. Our legal system has generally memorialized these rights in Ohio Revised Code Section 2106. The rights include but are not limited to the following which I have listed in no certain order. A spouse has a right to two automobiles of limited value that are not specifically listed in the Last Will and Testament. He or she has a right to live in their home (aka “the mansion house”) for up to a year if it is not transferred or bequeathed to them otherwise. They have the right to purchase property from the deceased spouse’s estate. He or she has a right to an “allowance for support.” This allowance depends on the money available in the estate and other factors. Additionally, the survivor receives preferential treatment on appointment as the fiduciary to their spouse’s estate. If the surviving spouse wishes to exercise any of their rights, they have 5 months after the appointment of an executor or administrator of an estate to do so. The decision to make is whether they would like to elect to take under the will or to take against the will (which means exercising the rights listed above). Depending on the estate and situation, it may behoove a widow or widower to elect against a will if they were not adequately provided for in the will. Now one reality to watch out for is a situation where the surviving spouse is completely cut out of an estate by the late spouse. Sometimes this is unintentional or intentional and almost always because the late spouse received bad counsel from whoever they held as advisors. Your advisor should be an attorney who can explain the positive and negative ramifications of an estate plan. There are many, many non-attorneys in Ohio doing a disservice to citizens by looking (and sounding) sophisticated regarding estate planning but lacking the professional competence to advise on such heavy matters.

EXPLORING PRE NEED FUNERAL PLANNING

 

Pre-Need planning is a wonderful gift to those you love. As a rule of thumb, a pre-need funeral contract refers to the purchase of funeral goods and services before a person passes away. Why would someone want to pre-plan?

The pre-arrangement allows the person to speak directly to the funeral director about his or her own funeral wishes and preferences. By having pre-planning the service, the individual is providing significant relief to surviving family members from having to make decisions during a time of tumult and grieving in addition to relieving the survivors from a financial burden. Additionally, there is a Medicaid planning benefit to planning as well. Persons who currently qualify for Medicaid assistance or who anticipate qualifying may pre-pay their funerals without impacting their Medicaid eligibility. As this is an exempt purchase. The drawback to pre-planning is that the person is tying up the money.

Now there are really two types of pre-need contract: a guaranteed price contract and a non-guaranteed. In a guaranteed price contract the funeral home guarantees the funeral goods and services the planning person selects at the amount of money stated in the agreement. Which means there will be no need for additional payment later.selected for the amount of money stated in the contract. This means that you or your estate will not be required to pay any additional cost for the guaranteed items. The “non guaranteed contract” treats the amount paid for planning as a deposit against the final costs which is determined at the time of the actual funeral services provided.

If the contract does not guarantee the prices charged, the price of the funeral will be determined at the time the services and merchandise are provided. Any amount you pre-pay will be considered as a deposit to be applied toward the purchase price.

Some good questions to ask (in addition to your wishes) during your pre-planning session are:

* Where will the pre-need funds be deposited until they are needed?
* Will I receive verification from the financial institution that the prepaid funds have been deposited in the trust account?
* If the funds are used to purchase an insurance policy, will I receive verification that the policy has been purchased?
* What is covered by the price guarantee?
* Is the pre-need contract irrevocable or revocable?
* If the contract is revocable, how can I cancel the contract?

I have had to handle funeral arrangements for family, friends and client and can tell you. It is a marvelous relief to know a plan was already in place for our loved one.E

TAX PLANNING – AGAIN

I spent over 30 years analyzing and planning estates for my clients to minimize the bite of estate tax. The mechanisms were complex, not logical, and for many a burden. But in those days before tax reform, the family business, the family farm, and live savings were all exposed to state and federal estate tax that made such planning necessary to minimize their impact.

They’re gone – almost. The Ohio estate tax is gone and the federal filing threshold is $5.9M. But now, the most important tax issue is basis and capital gains tax for beneficiaries. Since property transfers to the next generation more often now in the form of an IRA, annuity, or some survivorship designation, it is important, if you want to preserve assets, to understand how each works and the income tax impact on beneficiaries.

You can do this planning yourself if you understand this, but most don’t. Don’t leave this to chance – come talk to us because the tax bite can still hurt.

TWO PORTLY GENTLEMEN

In October of 1843, Charles Dickens began writing one of the English languages most beloved stories. What began as his attempt to supplement his family’s meager income has in excess of 170 years, become cherished by many with its tale of special spirits, warmth to others and much of the byproduct of Christmas.

One of my favorite scenes is the oft overlooked part in Chapter One where the “two portly gentlemen” are let into the miser’s counting house by his employee, Bob Cratchit. They engage Mr. Scrooge to solicit resources for the poor and destitute. He summarily does not like the entreaty and presses them on their perspective. I wonder: what are the legal implications of their presence in his office that fictitious night? The laws impacting the scene if it occurred today could include: premises liability (what if one slip and fell?); propriety of their solicitation (were they registered with the State? would the donation be tax deductible?); agency (did the employee have the right to let them in?); trespassing (Scrooge would argue it.); hostile work environment we would need to ask Bob Cratchit); employment (was Bob an “at will” employee, independent contractor or salaried under contract?); fraud (were the two guys honorable at all or something akin to the IRS phone scammers we have today?); and the list goes on.

As we consider our lives and how they are impacted by an almost innumerable number of regulations and laws (state, federal and international), we can know well that life can be a complex bag of rules, tensions, met and unmet expectations. I hope this Christmas season we can all understand in our heart of hearts the question put forth by the two portly gentlemen from the pen of Charles Dickens. “A few of us are endeavoring to raise a fund to buy the Poor some meat and drink, and means of warmth. We choose this time, because it is a time, of all others, when Want is keenly felt, and Abundance rejoices. What shall I put you down for?”

DEPRESSION AND THE CAREGIVER GUILT

I regularly meet with sons, daughters, and spouses of an elder client who is failing. These close relatives often attempt to be the “care giver” for the failing elder, fulfilling their wish to remain at home.
While that is a laudable goal and one that many share, I always caution the caregiver to be very careful about burnout from trying to do too much, both mentally and physically. Care giving for a failing elder is stressful and when it is an around-the-clock obligation, the health of the caregiver is sometimes at risk.
Solutions are very family specific, depending upon who is available. One important theme is for a caregiver to be self-forgiving. I like the myths that my friends at Right at Home, a home health agency recently listed. Each of these (with my paraphrasing) is not true:
• I need to be perfect – no;
• I should only have positive thoughts about what I am doing – no;
• I shouldn’t talk about what I’m experiencing – no;
• I shouldn’t let others know about what is going on – no;
• My needs need to take a back seat to the services I am providing –no;
• Other caregivers are better at this than me and have a better attitude –no;
• I should do it all myself – no.
Caregivers – protect yourself. Dark, cold winter days will increase the chance for depression. Get some relief and thank you for what you do.

LAWYERS CAN COOK – SO CAN YOU

On this 4th of July, we could spend time at family gatherings telling lawyer jokes – there are lots to go around and everyone enjoys them – except lawyers. There are better things to talk about, like Cleveland – the Cavaliers, the Indians, etc.

 

 

I, however, will be cooking over the grill, the honored tradition in our family where everyone is invited and “Tim can throw something on the grill.” I don’t mind – I’ve always loved outdoor cooking (and indoor in the winter).

 

 

Here is an easy one I came up with to replace burgers and dogs: Pork Loin. Just get a pork loin, unwrap it and make a wrapper of aluminum foil. Then open 2 cans of frozen apple juice concentrate – let it melt so it is like syrup. Make some thin slices in the edge of the loin all around, spread the concentrate on the loin, and wrap again. I like to leave it setting out on the counter for several hours on a cookie sheet to come to room temperature before I cook. Then remove the foil and put the loin put on a medium grill, turning every 15 minutes and sprinkle with salt/pepper and drizzle the apple juice concentrate on the loin until internal temperature with your meat thermometer shows the pork is done. Let it sit on the platter for 30 minutes and slice. You will be a hero.

 

 

Never got anything for free from an attorney? You just did.

Is That A Loan or A Gift?

My dad always said, “Do not loan it, unless you are willing to give it away.” You know the scenario. Your neighbor or brother borrows your bolt cutters and “man they’re gone!” You have a better chance of retrieving keys from a river of molten lava than seeing those bolt cutters or your mom’s cake pan return to their proper place. Now imagine what it looks like when the receiver thinks the property (i.e. cash, vehicle, even house) is a “gift”, while the giver thinks it is a “loan.”

 

 

Yep, I’m sure you’re chuckling but you know it’s true. As attorneys we experience this all the time. I had a client whose ex-in-laws demanded repayment of a “loan”. The exes gave some property to the client and client’s spouse during the marriage. Now that the marriage was no more, the exes are calling the gift a loan, demanding repayment with interest in an amount pulled out of thin air. The problem was there is nothing in writing.

 

 

There are numerous practical problems in gifting. First, will the contested amount be worth your time and money with an attorney. Think of a $500 lawnmower. Who is going to engage a lawyer at $200-400/hour for the hope, as there are no guarantees of winning any suit in court, to get a used $500 lawnmower or $500 back. Second, they say relationships are the only thing you take to heaven. How many relationships have been ruined over “stuff”? I will not represent someone whose core purpose is to harm others.

 

 

Remember this: If you are loaning it out, be willing to give it away. If you are not willing to give it away, get it in writing and preferably secure your loan with right to the borrower’s property in a proportionate amount. If the amount is significant to you, engage an attorney in the beginning. It will save you a lot of future angst. Finally, if it is a gift, there are scenarios where memorializing it in writing is not only prudent but wise.

INSIDE JOB

Today, we mark the onset of a New Year. While we all get used to writing or typing 2015 and not 2014, this day presents us a fresh marker to number the days in our lives. We are stewards of our lessons going forward. One lesson I take from 2014, and all the years prior, is that failure is an inside job. In an era where no one takes personal responsibility for their actions, I have concluded that I am the best person to sell Me a bad idea. When a friend convinced me to play dodgeball in front of one of our large garage windows as a junior higher, I said, “Self, that is a great idea! You will have a lot of fun. Now where’s the ball?” You get the picture, and so you have been your best salesperson for many of those significant decisions in life.

This past year our law firm has helped bridge poor planning by “do-it-yourselfers” and peace for their families. In those instances, the planners may have received their bad planning ideas from the internet, a co-worker, a less than persnickety uncle, or a bank teller. However, the individual is the one who ultimately approved and took confidence in their bad idea.

In the spirit of a fresh start, let’s plan with a purpose and be ever leery of those bad ideas. If you need solid, well-constructed estate planning, contact our office. I have heard it said that “Ninety percent of all those who fail are not actually defeated. They simply quit.” You see, it is an inside job. Let 2015 be a year where you have been intentional in meeting goals for your marriage, your children, grandchildren, business, church, synagogue or work. Have a great year!     broken window

LATE-LIFE PLAN

One thing you quickly realize in the elder law planning area is how complex the situations are and how many variables affect the decisions of our elder population. One thing I know: placing your head in the sand is not a good option. That option just places greater stress on other loved ones who then, by default, must make decisions for you.

I regularly correspond with other elder law attorneys and caregivers – always looking for better ideas. One article Dr. Caroline Dott recently submitted to ElderCareMatters, a cross-disciplinary group I belong to, had some real value. She recommended that we all need a “late-life plan” and need to discuss it with our family while we still have our mental faculties so we can enjoy the best possible late life stage. This is far better than defaulting in a crisis to the oldest daughter or son, who now, in the middle of raising his or her family, must make decisions for you.

Caroline recommended having discussion with your parents now. Begin by fantasizing what the most comfortable and fulfilling last stage of life would be like, and then ask for some details:
• Where and/or with whom will you live?
• What pleasurable, exciting activities will you participate in?
• Where and with whom will you travel?
• What experiences will you have to avoid any regrets at life’s end?
• How will you fund your plans for the rest of your life?
• When and how will you complete all legal transactions?
• Which family members/friends/experts will be responsible for managing your finances, medical/psychiatric, legal issues and funeral arrangements when you no longer can?
• After making the plan, notify all participating parties, providing them with copies of documents related to their responsibilities.

Well-made plans pay huge dividends to those that make them. Do it today.

Dotty’s Ten Tips for communication with a person living with Dementia

1. Do you know what makes me feel secure? A smile
2. Did you ever consider? When you get uptight it makes me feel tense and uptight.
3. Instead of getting all bent out of shape when I do something that seems perfectly normal to me and perfectly NUTTY to you. Just smile at me it takes the edge off the situation.
4. Please try to understand and remember my short term memory is gone – don’t talk so fast, or use so many words.
5. When you use one of those long winded explanations of me- I’ll say No because I can’t tell what you are asking me to do. Keep your words few and simple so I can follow you.
6. Slow down. Don’t sneak up on me and start talking. Did I mention I like smiles?
7. Make sure you have my attention before you start blabbering away. If you don’t have my attention, I’ll be confused and say NO.
8. My attention span and ability to pay attention are not so good, please make eye contact with me before you start talking. A nice smile always gets my attention. Did I mention that before?
9. Sometimes you talk to me like I’m a child or idiot. How would you like it is I did that to you? Go to your room and think about this. Don’t come back and tell me you are sorry, I won’t know what you are talking about. Just stop doing it and we will get along.
10. You talk too much – instead try taking my hand and leading the way. I need a guide not a person to nag me.

Resource: Alzheimer’s Reading Room