July 13, 2012

Last Will and Testament

AS AN ATTORNEY WHO HAS PRACTICED ELDER LAW for many years, Ms. Felinton is often asked to review the wills of clients who are concerned about asset protection to avoid medicaid spend down impoverishment. If your will is like most seniors’ (drafted over 20 years ago), it says that when the husband dies, he leaves everything to his wife; and the wife’s will is vice versa. When both are gone, the estate goes to the kids. These “sweetheart” wills work fine for the first 65 years of life. After that, they don’t. Why?

What’s Wrong With the Sweetheart Will?

SUPPOSE THE HUSBAND enters a nursing home and then the wife dies. She leaves her entire estate to her sweetheart/husband. Now he will have to spend down all of their spousal estate she left before he is eligible for public benefits to pay for his nursing home expenses.

MOM AND DAD HAVE UNINTENTIONALLY made the nursing home the beneficiary of their wills. This result can be avoided with a properly drafted will which will still protect your sweetheart. When you reach retirement age, you need to also protect your assets from disability or catastrophic illness, in addition to the usual tax planning.

DEPENDING ON THE AMOUNT OF ASSETS YOU HAVE, and your age, you may also need trusts to protect and preserve your assets.