by April Harris Jackson | Jul 19, 2021 | Estate Plan
In life, there are jobs we seek out and others that are given to us. Being named an Executor (or Personal Representative) of an estate is one of the most important jobs one can be asked to hold by another person. It means there is someone who trusts you fully and believes that you will manage their final wishes properly and without conflict.
That’s not to say the job is easy. Again, you were likely appointed to the role of Executor because your loved one felt you could handle any stress or difficult responsibilities that come with the job.
The good news, however, is that there are ways to prepare in advance so that your life as an Executor is easier when the time comes. Here are some suggestions a Middle Tennessee will lawyer would have you consider:
- Have the hard conversations now. Meet with the person who is naming you as an executor of their estate and ask them to describe exactly how they wish their estate to be administered. Take notes and make sure you get all the details. Knowing the “why” behind the decisions in the will can help you navigate “gray area” choices if they arise.
- Be organized. The job of an Executor consists of lots of paperwork, bureaucracy, and time maintaining the estate as it goes through the probate process. Set up a filing system, spreadsheets, and bins, so the Executor’s job does not infringe on your everyday life.
- Get a lawyer. No matter the size of the estate, it is prudent for all involved parties to have a lawyer. At the minimum, have a consultation with an attorney to make sure there is not something you have overlooked. People often think they can do everything themselves only to be caught at the end by taxes or administrative issues.
- Move quickly once the person passes away. Grief makes people act in unexpected ways, so it is imperative that after the person dies, you move quickly to locate the original final will and file the necessary paperwork with the courts to be recognized as the Executor. At this time, order up to 8-10 copies of the death certificate to save yourself time later. Another uncomfortable thing you will need to do is to secure the assets. All too often, grieving loved ones will go to the home and begin to take items they believe they should have. You will have to be the one who stops this.
- Be upfront with the heirs of the estate. Make sure they all get a clear understanding of how estate administration works. The process is a slow one, which frequently frustrates family members who are grieving. By giving them an explanation or better yet, having a lawyer do it, they will hopefully have patience with you and avoid conflicts.
- Know there will be conflicts. Grieving is an individual process, and you will take the brunt of most of that emotion. If money is involved in the administration, the speed at which money is inherited can be infuriating. Heirs becoming angry with you is even more of a probability if any perceived omissions or secret bombshells are in the will. Hopefully, if that is the case, you knew ahead of time and were prepared.
- Heirloom distribution needs to be deliberate. Once the significant assets and personal items are named in the will, the hard part starts. Deciding who receives the personal items in the home can cause the most conflicts. There is no explanation for the small household items that might have importance to many family members. A sweatshirt, a picture frame, or a dish can hold deep memories that you might be unaware of. Creating an equitable system for if multiple people want an item will ensure this process is done deliberately.
These are only a few ways you can help yourself if you have been named an Executor. If you find yourself struggling with your duties or you have questions and need some advice, we are here to help. To have an appointment with our Middle Tennessee will lawyer, April, schedule an initial call with us today!
by April Harris Jackson | Jul 11, 2021 | Estate Plan, Special Needs
In the majority of cases, it’s a biological parent (or parents) who will apply to become their child’s legal conservator when they turn 18. But even parents will ask us if they are able to appoint an “alternate conservator” or someone else who can help with all required responsibilities and duties. Most commonly, we are asked by parents of individuals with special needs if they can appoint one of their other adult children, a stepparent, a sibling, a grandparent, or other relative to serve as co-conservator who could have the same legal rights as the main conservator.
Legally speaking, having a co-conservator is absolutely possible, and it’s something we often consider to help lighten the load. However, the parent or main conservator cannot appoint this person themselves. Instead, the candidate will need to go through a formal legal process with the Tennessee courts where they will petition to serve as a co-conservator. During this process, the court will need to verify that the person is indeed capable of serving in this capacity, and from there, a judge will ultimately approve or deny the request.
When we meet with families to start the process of filing for a conservator over a young adult with special needs, we will typically ask up front if the main candidate for conservatorship wants someone else to serve in a co-conservator role. In general, it’s easier and less expensive to take care of everything all at one time. The bottom line is that every family is different, and it’s important to work with an attorney who will help you create an individualized plan that actually works over the long haul.
Here at the Graceful Aging Legal Services, we want parents and caregivers to feel as secure and supported in their roles as possible, as that ultimately results in the best care for the person with special needs. If you have questions about how to create a Special Needs Plan that takes into account the unique dynamics or challenges in your family, please feel free to contact us at (615) 846–6201 to schedule an appointment.
by April Harris Jackson | Jun 23, 2021 | Estate Plan
One thing the COVID-19 crisis has brought to the forefront of many people’s minds is the need to update older estate plans, including their Last Will and Testaments. We were collectively reminded that having an updated estate plan is incredibly important, no matter how old you are. In general, a Nashville estate planning lawyer will suggest updating your estate plan every three to five years.
The reason for this is simple: a lot can change in that time. A child can go from middle school to adulthood. Babies are born, marriages end and begin, finances, homes, and jobs could change. After many of these changes, people wonder if they need to rip up their old estate plan and start over fresh in order to have documents that accurately reflect their life.
But, ripping up your documents is not the correct way to revoke an older plan and could actually cause problems for your family. Instead, to have an updated plan that is recognized by the courts, the better practice is to revoke your previous documents in writing at the same time you replace them. That way you don’t have any lapse in your planning documentation.
If it’s necessary to revoke and replace an older Last Will and Testament, your Nashville estate planning lawyer will likely suggest reviewing your other estate planning documents as well. That may include refreshing an older power of attorney, creating an updated medical directive, or changing out the people you’ve named in helper roles in your plan, like your Executor or Trustee.
The bottom line is that if you want to make changes to an older plan, do it with the help of an experienced estate planning lawyer. There are legal steps that must be taken to ensure that your new documents are valid and that old documents no longer carry weight in the eyes of the court. The last thing you want is your family coming up with multiple wills and fighting over which will should stand after your passing.
If you’re thinking of updating an older plan, or you’d like to revoke an older will and create a new one, we invite you to schedule an initial call with April to discuss your plan.
by April Harris Jackson | Jun 21, 2021 | Estate Plan
There are a lot of different estate planning and asset protection planning trusts out there: revocable living trusts, Medicaid asset protection trusts, and life insurance trusts are just a few of them. One type of trust that Davidson County trust lawyer find to be useful, though sometimes only in narrow circumstances, is a Tennessee Investment Services Trust, also known as a TIST.
What is a TIST?
A TIST is a self-settled trust that can be used to protect financial assets, real estate, personal property, and business assets from future creditors. Like most other trusts, once these assets are transferred into a self-settled trust, they’re legally owned by the trust and not by you. A TIST is an irrevocable trust, which is the key feature in making sure that future creditors cannot reach the assets that are in the trust.
What are the limitations of a Tennessee Investment Services Trust?
There are a few limitations to these types of trusts. The biggest limitation is the fact that they cannot protect assets from past creditors, so any debts incurred before the trust is created are still liable to be paid out from trust assets. These types of self-settled trusts are also not allowed in a number of states, as many lawmakers were worried that these trusts could be used to wrongfully avoid creditors. Tennessee allows these trusts to be established whether or not you live within the state.
How do I create a Tennessee Investment Services Trust?
If you want to create a TIST to avoid future creditors, your first step should be to speak with a Davidson County trust lawyer who has experience with drafting this kind of self-settled trust. Once you’ve chosen an attorney to create your trust, you’ll have to provide the following information:
- The creditors from whom you want to protect your assets. Many people choose self-settled trusts if they worry about possible accidents or injuries, work in high-risk professions with liabilities, or own a business.
- The trustee of the trust. You cannot choose yourself as the trustee of your own self-settled TIST, since that defeats the purpose of the assets no longer being in your control. You’ll need to choose someone you trust or a corporate trustee who can fulfill those duties.
- The assets that will go into the trust. Typically, people will put financial assets and real estate property into their self-settled trust, but everyone’s individual situation is different. You should bring a list of all your assets when you meet with your attorney so you can better determine what assets will go into the trust.
If you’d like to learn more about self-settled trusts, including Tennessee Investment Services Trusts and how one can fit into your estate plan, or if you currently have a self-settled trust and would like to have it reviewed by our experienced Davidson County trust lawyer, please contact us at (615) 846-6201 to set up a consultation.
by April Harris Jackson | Jun 14, 2021 | Elder Law, Estate Plan
There are many options available to seniors who would like access to liquid assets, and reverse mortgages are one of the most common – and misunderstood. Our Nashville elder law attorney has outlined everything you need to know about reverse mortgages, so you have the information you need to make the best choice possible.
What is a reverse mortgage?
A reverse mortgage is a financial tool available to older adults aged 62 and older who own their homes. It allows them to use their home equity as collateral to receive a lump sum, line of credit, or annuity to receive money. This makes the homeowner the borrower and the bank the lender, which means that interest will need to be paid on the monthly repayments to the lender.
When is the reverse mortgage loan due?
Typically, the borrower is responsible to make monthly payments to the lender until the amount that is borrowed is paid back. However, there are certain circumstances where the entire amount of the loan could be called for immediate repayment:
- The borrower lives in a different primary residence. You must live in the home if you have a reverse mortgage, even if you still own the home. The lender will call the loan due if you rent out the home or move out for any other reason.
- The borrower does not live in the home for 12 consecutive months due to health reasons. A senior suffering from health conditions who moves into a nursing home must move back to the home within 12 months, otherwise, the loan will be due.
- The home is sold. The loan will be called due if the borrower either sells the home or transfers the title of the home to another person who is not also a borrower of the reverse mortgage.
- The borrower passes away. There are cases where a non-borrowing spouse may be able to remain in the home after their spouse passes away, but certain conditions must be met. It’s best to speak with an experienced elder law attorney to find out how to avoid leaving the house if the loan is called due upon the passing of a spouse.
- The loan agreement is breached. Reasons for a loan breach included non-payment of property taxes, a lapse in homeowner’s insurance, or if the house falls into disrepair.
Obtaining a reverse mortgage could be beneficial in certain circumstances, but there are a lot of different issues you should be aware of before you take out this type of loan. It’s best to consult with an elder law attorney who has experience with reverse mortgages to find out if it is the best solution for you.
If you’d like to learn more about reverse mortgages and how they can impact estate planning, or if you have a reverse mortgage and want to have your existing estate plan reviewed, please contact us at (615) 846-6201 to set up a consultation with our Nashville elder law attorney.
by April Harris Jackson | Jun 9, 2021 | Estate Plan
The power of attorney is one of the most important documents in your estate plan, but there are some common mistakes that could render it ineffective. Knowing how to spot these mistakes is key to make sure that you get the most out of your power of attorney and all the benefits it provides. Here are three of the most common mistakes that our Hermitage estate planning lawyer sees people make with their power of attorney documents and what you can do to avoid them:
- Creating a Very Limited Power of Attorney
One common mistake is underestimating what you’ll need a power of attorney to actually do for you. Many people assume they’ll only need it so a loved one can help pay some bills or take care of complicated finances. But what happens if you become incapacitated and need nursing home care and your house needs to be sold to pay for that care? If your power of attorney does not provide for real estate property transactions, then your loved ones will have a very hard time getting things settled. You should make sure that your power of attorney covers the following items at a minimum:
- Real estate property
- Digital property
- Investments
- Tangible personal property
- Bank and financial accounts
- Taxes
- Business dealings
- Trusts and gifting powers
- Adding a Loved One as Joint-Owner on an Account
You might think you can use an easy loophole – adding a loved one to your bank account – to avoid having to create a power of attorney. Sure, your loved one will then have access to the account and will be able to pay bills and make transactions as needed, just as they could do with a power of attorney. But the issue is that once you make that loved one a joint owner on the account, that account effectively becomes their property. Using a power of attorney is a much cleaner way to let someone else handle your financial affairs.
- Not Using Your Power of Attorney
This may seem like a no-brainer, but there are plenty of people who make a power of attorney document and stick it in a safe or a desk drawer without ever telling anyone about it. Your banks and financial institutions will have no idea about it and could give some trouble to your loved ones when they present it – that is, assuming your loved ones even know where to find the document. The best way to avoid this is to send copies to your bank and other financial institutions where you do business and make sure your loved ones know where to find your documents if they ever need them.
If you have more questions about your power of attorney, or if you’d like to create a new power of attorney as part of your estate plan, please schedule an initial call with April to talk over your plan.
