Elder Law, Wills, & Probate

We handle all Elder Law matters including:
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In the practice of Elder Law, Wills and Probate, we focus on helping people and their families. Our Elder Law clients are often aging, have disabilities, or special needs. We provide information, counseling, and advice to assist you and your family with planning in advance of a crisis or in coping with a crisis. We assist with concluding the estate of a loved one.

 

 

Our planning and practice is designed to inform and guide our clients to a better understanding of the legal issues they face and to identify their options and benefits available to them. We also strive to counsel and assist our clients in finding solutions to practical problems that are present in difficult times of serious, lengthy illness.

The Importance of an Estate Plan: PLAN AHEAD

It is essential to properly plan ahead for the future, especially your estate. We can help in this often difficult and confusing process by offering plans that give you the flexibility you want, while still making the process as simple as possible.
Wills and trusts do more than distribute your assets and pay your debts at your death. They also protect the well being of surviving loved ones and help to ensure that your final wishes are carried out in a suitable manner. It is essential for everyone to prepare by establishing an estate plan, regardless of financial situation, age or health.
We recognize that not everyone wants or needs the same amount of planning in his estate, so we developed three basic approaches that can be tailored to suit our client’s particular situation.

LEVEL ONE – BASIC ESTATE PLANNING – HAVE A WILL

The first level of estate planning we offer includes a Last Will and Testament and Advance Directives. A Last Will allows you to declare how your property will pass, to name your beneficiaries and the person to handle your estate, and to make special bequests of property. Our Advance Directives include Financial and Health Care Powers of Attorney and a Living Will. The Powers of Attorney should be carefully tailored to meet your needs and objectives. Powers of Attorney allow another person to act for you in the event you become disabled or incapacitated. Additional options you may want to consider as part of your plan include Do Not Resuscitate (DNR) Orders, and health care releases. Some clients choose to include testamentary trust provisions in their Wills to better manage and control property after death. Trusts are also appropriate to protect assets for your minor children and designate their guardian.
LEVEL TWO – AVOID PROBATE AND MANAGE ASSETS WITH A TRUST
The second level of estate planning includes all benefits listed in Level One, plus the Revocable Living Trust. This approach reduces the inconvenience and expense of probate administration. Assets pass through this trust rather than your probate estate. You have the added protection of asset management and higher levels of fiduciary duty under a trust if you become ill or otherwise disabled.
LEVEL THREE – TRUST PLUS TAX PLANNING OR SPECIAL NEEDSThe third level of estate planning offers our most complete and flexible protection available. It includes all provisions listed in Level Two, plus extended trust provisions offering protection of the assets of the surviving spouse, children, and other listed beneficiaries, estate tax and inheritance tax consideration, and the flexibility to make detailed provisions regarding distribution of the estate. Level Three serves to protect individuals who have beneficiaries with special needs. Special Needs Trusts, including pooled trusts, allow persons with a disability to receive property in trust to supplement their needs while maintaining the person’s public benefits, such as Supplemental Security Income (SSI), TennCare or Medicaid. 
Benefits of a Living Trust:
  • Control over your property, perhaps years after your death
  • Easy to amend, Trusts provide extended planning options
  • Asset management while you are living, especially if disability arises
  • Avoid probate and its costs, delays and publicity
  • Trusts protect your privacy
  • Trusts protect families with children by prior marriages

 

Frequently Asked Questions
WHAT IS ELDER LAW?Elder Law is a combination of legal areas that focus on the special needs of aging persons. The emphasis of the practice is on planning and public benefits advice, such as Medicaid or Veterans’ Benefits.

 

WHAT IS PROBATE?Probate is a legal court procedure in which the assets of a deceased person are passed to beneficiaries. The executor or personal representative of the estate gathers together the assets of the deceased person, pays creditors, and distributes the assets to the beneficiaries or heirs. This process typically takes at least one year to complete. Not all of a deceased person’s assets are included in the probate estate. Assets which are titled jointly with a right of survivorship, life insurance policies with beneficiary designations, trust assets, et cetera, pass outside the probate estate.

 

I WANT MY CHILD TO TAKE CARE OF MY AFFAIRS WHEN I AM NO LONGER ABLE. HOW CAN I MAKE SURE HE/SHE WILL BE PERMITTED TO ACT FOR ME?A Durable Power of Attorney is the best way of doing this. Merely creating joint accounts is not always a good choice, as it may frustrate your long-range estate plan, create possible tax liabilities, or result in Medicaid planning problems.

 

WHAT IS A DURABLE POWER OF ATTORNEY?A Durable Power of Attorney is a legal document through which you give another person (called an “Agent” or “Attorney in Fact”) the legal authority to manage your financial or medical affairs. A Durable Power of Attorney remains in effect even if you become disabled or cannot communicate.

 

WHAT IS A CONSERVATOR?A conservator is a person appointed by the court to assist a disabled adult person with his or her finances and/or personal and medical decisions. The court supervises the conservator’s handling of finances through an annual accounting. The conservator also is required to post a bond.

 

IF I GAVE SOMEONE A DURABLE POWER OF ATTORNEY, WILL IT BE NECESSARY TO HAVE A CONSERVATORSHIP PROCEEDING IF I BECOME INCAPACITATED?Not usually. The purpose of a Durable Power of Attorney is to avoid a court proceeding which can be costly and time consuming.

 

HOW DO I REVOKE A DURABLE POWER OF ATTORNEY?It depends on the language contained in your documents. Often you can revoke a Durable Power of Attorney by giving written notice to your Agent or Attorney in Fact. You may also want to notify your financial institutions where your Agent or Attorney in Fact conducted normal business on your behalf and file the revocation with the Register’s office.

 

WHAT IS AN ESTATE OR INHERITANCE TAX?Under federal law, taxes are generally due on estates over $3,500,000 for 2009. In Tennessee, an inheritance and estate tax is imposed on estates that exceed the maximum single exemption of one million dollars ($1,000,000).

 

WHAT IS A LIVING WILL, AND DO I NEED ONE?A living will is a document through which you declare your decisions about end of life medical treatment to your family and medical providers. A living will is an important way of communicating your wishes about your right to die naturally and free of pain.

 

WHAT IS AN INTER VIVOS OR LIVING REVOCABLE TRUST?A living trust or inter vivos trust is a trust that exists or comes into being during the lifetime of the grantor (i.e. the maker of the trust). Typically these are revocable or amendable by the person who makes it.

 

WHAT IS A REVOCABLE TRUST?A revocable trust can be revoked or amended during the life of the Grantor or according to the provisions included in the Trust Document.

 

WHAT IS AN IRREVOCABLE TRUST?An irrevocable trust cannot be changed by the Grantor once the trust has been established. This type of trust is often used to avoid estate taxes because funds placed in the trust are generally not included in the Grantor’s probate estate.

 

DOES A NURSING HOME RESIDENT HAVE TO SELL THE HOMEPLACE TO QUALIFY FOR MEDICAID?Not if the person has intent to return. And, typically a nursing home resident does not have to sell the home if it is occupied by a community spouse, a child under 21, a blind or disabled child, a caregiver child, or a sibling under certain circumstances. Sometimes homes can be transferred to children, but this depends upon the overall circumstances of each particular case. You should consult an attorney with specific questions regarding the transfer of assets.

 

DO ATTORNEYS MAKE HOME VISITS?Our attorneys schedule home visits and will also travel to a nursing home.All of our attorneys are well versed in Wills and Probate matters. Mr. McDonald, Mr. Taylor and Mr. Levy have all handled numerous Elder Law matters. Mr. Levy has had the opportunity to litigate several complex estate matters.

 

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