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April Harris Jackson

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Marriage myth-busting: I don’t need a Will. My spouse will get everything when I die.

Marriage myth-busting: I don’t need a Will. My spouse will get everything when I die.

Many people think that if they are married, their spouse will automatically inherit everything when they pass and so they don’t need a will. While there are some situations where a spouse does inherit everything, it is not the default under Tennessee law. In Tennessee, if you are married and have children, your spouse will share your probate estate with your children. I call this the S.A.K.S. method (Spouse and Kids Share). In other words, your spouse does not inherit everything automatically. 

To clarify:

If you die without a will, Tennessee law dictates that the spouse and children split the estate. 

However, I believe that everyone should create their own plan for distributing their assets after death, even if the state has an understandable default on how to do this. Here’s why: 

Having a Will can make it easier for your family to go through probate. 

Having a Last Will and Testament can be an important way to reduce any burden on your family after your death. In your Will, you decide not only who will inherit your estate but also key decisions like who will serve as Personal Representative (also known as the Executor) and whether you want to require or waive documents that are required by statutes. Having a Will is your chance to have a  say in the probate of your estate before you die. The process can be much less complicated for your beneficiaries as well because you may decide to be even more specific about some of the more difficult decisions that need to be made.

It is much easier on your family if you have an estate plan in place. A last will and testament will provide instructions on how to designate and divide assets between family members and friends. If you die intestate (without a will), then the state’s inheritance laws will determine who gets what.

Preparing an estate plan will cover situations that may arise after your passing

Have you considered what might happen if your spouse remarries? Are you aware that a future spouse can take an interest in a portion of your estate? Would you want part of your assets to go to a new spouse or to any children that they may have with that spouse? Do you have family or children that should benefit instead? There are many other factors to consider, but it’s important to discuss these things with your attorney when you create your estate plan. 

image of a happy couple with the wife nestled under her husbands arm

A Will provides security for your spouse

If you are more concerned about your spouse inheriting from you than your children, you can plan for that too! The general rule in Tennessee is that the spouse would get no less than a third of the estate. 

For example, if you are splitting the estate with two or more children, the spouse would get a third. If there is only one child, the spouse would get half. 

What if you want to provide more? With a Will, you can designate that your spouse gets everything or only leave certain things to your children.  Many spouses write “I love you” wills, where they inherit first from each other, and then their children only inherit when the second parent dies. 

Use a Will to protect spousal inheritance from changes in family dynamics

Another consideration in making a Will is your family dynamic. Do you have children from different relationships throughout your life? Do you have concerns about how your children from those relationships will get along with your current spouse when it comes to your estate?  It is important to consider how you want inheritances to be split. Your Will can dictate how your assets will be handled! You can also designate your preference for the guardian of any minor children in the event that both you and the other parent die. 

Additionally, a Will provides provisions such as the appropriate age at which your children should take over responsibility for managing any inheritance. One primary concern many parents have is whether young adults will be mature enough to make sound judgments concerning any money they inherit. Your Will can establish a certain age at which young adults gain control of their inheritance, to ensure that it isn’t squandered when you would prefer it be used towards education or sound investments. 

In short, your Last Will and Testament should be drafted so that your wishes regarding your family are honored. 

Middle-aged couple walking together hand in hand through a park. They are smiling. They look like a cute couple.

A Will can safeguard your beneficiaries if they become disabled

Are any of your assets expected to go to a loved one who has a chronic medical condition?  If so, you’ll want to consider that an inheritance could disqualify them from any means-tested government benefits that they may receive or be entitled to, which could be devastating if they are counting on that benefit. The most common examples of this are Supplemental Security Income (SSI) and TennCare (Medicaid).  You’ll want to have a contingency plan in your estate plan to make sure that their benefits are secure and not at risk of being cut off due to an inheritance. You don’t want their government assistance to decrease just because you died! You definitely need a plan for that. Make sure to work with a qualified estate planning attorney so you can refrain from making errors with your family’s benefits. 

If you want control over who can access your digital assets, you must make a Will

Many digital assets are governed by terms and conditions which are unlikely to specify who will take over your accounts when you die. Some providers, such as Facebook, permit you to designate someone as a “legacy contact.” However, not all companies are robust enough to provide this type of service. A Will protects your digital assets from falling into the wrong hands or being lost in digital space with no one able to claim them. Check out our blog post about how to create or change your Facebook “legacy contact” here

In conclusion

These are just a few of the things that you’ll want to consider when making an estate plan. I want to encourage you to have a long discussion with your spouse about how your assets should be split when one of you dies. There shouldn’t be any surprises! I cannot stress the importance of knowing each other’s values and putting them in writing. It is crucial to have the outcome you desire. A failure to plan can end up in expensive court litigation. This is why we encourage everyone to speak with an experienced estate planning attorney about how they and their spouse can protect each other through proactive planning. 

Are you ready to make your Will? Schedule a free initial call and make your plan with the Team at GALS! 

How do I qualify for Medicaid?

Long-term care is expensive

Many people have sufficient income to maintain a regular lifestyle but are unable to afford the high cost of long-term care. With the average cost of long-term care around $7,000.00 a month, it is incredibly difficult for most families to afford it, even more so after retirement. That’s why it’s a good idea to plan for qualifying for TennCare, also known as Medicaid.

Evaluate and restructure your assets to qualify for TennCare

do you know how to qualify for tenncare? Image is of a man in a long-term care facility. He is taking a walk with a nurse and his partner.
It’s worthwhile to know how to qualify for TennCare

As we discussed in our blog last week, there are certain criteria you need to meet to be eligible for TennCare. As an elder law attorney, one of my jobs is to help families get their loved ones qualified for TennCare while maintaining resources available for the rest of the household.

One of the ways that we do this is by restructuring a family’s assets. We do this by turning resources that are countable for TennCare purposes into items that TennCare does not count as part of its eligibility assessment

This process is known in the elder law community as a spend-down. The goal of the spend-down is to make you or your loved one eligible for TennCare as far as your assets are concerned. If you are overqualified for income-based criteria, we can use a special type of trust called a Qualified Income Trust, or a Miller Trust, to reduce your income. The goal of a spend-down is to maintain the quality of life for all family members including those who need long-term care. 

Image of a scooter as a mobility device. Buying a scooter is a good way to spend down your assets to qualify for tenncare
Bob might benefit from purchasing a quality mobility device

What is a “spend-down”?

For example…

Bob needs to go into long-term care. Bob is eligible based on his income. He makes $2,000.00 a month of social security retirement income. Bob also has a house, a car, and $50,000.00 in the bank. Bob is widowed and his children are adults. 

We need to do something with at least $48,000.00 from Bob’s bank account in order to make him eligible for TennCare. His house and his car are not countable for TennCare purposes in most cases. What can we do? 

  • Make improvements to his home that would improve his quality of life and access to the things that he needed in the home. This might include: 
    • Grab bars in the shower or hallway.
    • A ramp into the main entrances.
    • Paving the driveway or expanding it closer to the door 
    • Widening doors 
  • Buy some things for Bob that his Medicare did not cover, such as:
    • Hearing aids
    • Dentures
    • Eyeglasses
    • Top of the line mobility devices 

There may be other things that would improve Bob’s quality of life. There are things we can spend money on or convert into income. I am also going to suggest to everyone that they use the money to make arrangements for end-of-life needs if they have not done so already. Since at some point Bob’s children will need to make arrangements for his burial or cremation, paying for it now from his excess funds is a great way to make those funds unavailable for TennCare purposes and meet a future need. 

image of a smiling older gentleman sitting with his daughter. Do you know how to qualify for medicaid?
Bob has peace of mind because he has plans in place for long-term care

Bob might want a Care and Savings Assessment

It’s not easy getting approved for TennCare / Medicaid, and we know it! That’s why we offer help in planning your steps to qualify. It doesn’t matter what your starting point is, we’re here to help you navigate the process with one goal: get our clients the quality of care that they need. Contact us if you would like to make plans for qualifying for TennCare.

Will TennCare Choices pay for my Mother’s nursing home?

Last week we defined TennCare and how it applies to our clients. This week I want to go more in-depth with how TennCare serves Tennesseans with long-term care. 

Many people believe that Medicare benefits will cover nursing home care once an individual is 65 or older, but this simply isn’t true. While Medicare covers the first 100 days, it doesn’t cover long-term assisted living. Read more about Medicare here

TennCare Choices logo for Tennessee Medicaid Long-Term Services and Support
Choices” is Tennessee’s Medicaid program for long-term care services and support

Back to TennCare/Medicaid…

My Mom doesn’t have long-term healthcare insurance. What are my options? 

  1. Payout of pocket until you run out of cash – This is an unrealistic option for most families. Nursing home care is expensive. Not a lot of people have an extra $7,000-$11,000 a month in their bank accounts.  
  2. Do a reverse mortgage on her home. 
  3. Qualify for the TennCare / Medicaid program called “CHOICES”

As you can see, options 1 and 2 are very unpleasant and leave nothing left for a loved one’s legacy. However, option 3, CHOICES, is definitely something worth looking into.

What is CHOICES?

CHOICES is the category of TennCare that provides Long-Term Services and Supports (LTSS) such as nursing home care.

What is the process for getting qualified for CHOICES?

In order to be eligible to receive benefits from TennCare/Medicaid your loved one must first qualify within these three categories:  

  1. Medical eligibility 
  2. Income threshold
  3. Asset threshold
Wheelchair bound woman looking up at a nurse in white while at a nursing home for long-term care
Being medically and financially eligible is necessary for TennCare approval

How does someone become medically eligible for TennCare CHOICES?

The state of Tennessee will determine who is medically eligible to receive TennCare Long-Term Services and Support (LTSS) by using a pre-admission evaluation (PAE). This PAE is used to determine if the applicant can do basic life skills on their own without help. The PAE will also determine if the applicant is safe in their current environment. 

The PAE is a strict evaluation and it is performed on a case-by-case basis. An applicant must receive a score of 9 or higher on a 26 point scale in order to be considered medically eligible for TennCare Long-Term Support Services. 

For example, a caregiver or healthcare provider may be asked about a patient’s level of ability to do things and how much assistance is needed. 

The following Activities of Daily Living (ADLs) are covered in the PAE evaluation: 

  • Transfering
  • Mobility
  • Communication
  • Medication
  • Orientation
  • Eating
  • Behavior

If you or your loved one is unlikely to get to a nine or higher on the PAE, it is always appropriate to ask for a “safety determination” evaluation as an alternative route of becoming medically eligible for Choices. 

How can someone become financially eligible to receive CHOICES

You must be able to prove that the applicant has a low income and little assets. As of January 2022, an individual applying for TennCare CHOICES cannot have an income exceeding $2,523.00 per month. Additionally, the applicant cannot have more than $2,000 in assets. This includes any money in the bank and investment accounts but also requires consideration of retirement accounts, life insurance policies, real estate, artwork, jewelry, and any other valuables. When we talk about the assets for a couple of things get a little more complex. The most important thing is that both the applicant and their family are taken care of, both medically and financially. 

Graceful Aging Legal Services, PLLC Logo for the Care and Savings Assessment - It is a graph with lines slowly going down.

My Mom is over the limits for income and assets? What do we do? 

If the applicant is in excess of the amounts we can plan for that! We have a tool to help people who have excess income and assets yet need to qualify for TennCare/Medicaid called the “Care and Savings Assessment”. With this Care and Savings Assessment, we work to determine the best way to structure you or your loved one’s finances, either now or in the future. We plan so that our clients have the peace of mind knowing they can qualify for TennCare if and when they need it! 

In conclusion 

It is often helpful to have an attorney assess your financial situation and offer recommendations on how those finances may be restructured to qualify for TennCare Long-Term Services and Support (LTSS). As an experienced TennCare planning attorney, I can help you evaluate your risk and create a plan that takes care of everyone in the family.

Are you ready for help with TennCare planning? Contact us and we can discuss your plan. Next week we will go over some examples of how we restructure an individual’s finances to meet their needs for long-term care. 

How can I plan long-term care with TennCare?

TennCare is Medicaid

What is TennCare? (A brief overview of Medicaid)

Quite simply, TennCare is Tennessee’s Medicaid program. While the name “TennCare” has the word “care” in it, it is NOT Medicare. In order to further clarify the difference between the terms “Medicaid” and “Medicare,” you need to remember that we use “Medicare” to “care” for our elders and “Medicaid” to “aid” those, of any age, in need. Essentially TennCare is Tennessee’s brand of Medicaid. Hopefully, that little trick will help you remember the differences between each program. 

Who qualifies for TennCare?

Now that you are familiar with the difference between Medicare and Medicaid, let’s discuss who qualifies for TennCare (Medicaid). 

There are three qualification criteria that you must meet in order to obtain Medicaid/TennCare. 

1. Medical qualification There is a special medical test that applicants must pass in order to qualify.  Usually, a care facility will handle this piece of the Medicaid application. 

2. Asset qualification – A TennCare applicant who is single can only have $2,000.00 in assets before they are eligible for TennCare.  Vehicles and real estate are usually exempt from the count of assets. A “Care and Savings Assessment” is a good place to start if the applicant needs help with figuring out what they have in assets and what options are available to make excess assets “non-countable” for TennCare purposes. 

3. Income qualification – A TennCare applicant can only receive $2,382.00 per month (as of 2021) in order to receive TennCare. If an applicant has more than this amount in income, an attorney can resolve it through what is called a Miller Trust or a Qualified Income Trust.

Long-term care is very expensive

Why should I be concerned about long-term care services?

Unless you are a millionaire or multi-millionaire, TennCare eligibility and designation could have a major impact on your finances and your family. While you may not need TennCare now, you will want to plan as if you will need it in the future. As you may have heard us say before “we hope for the best, and plan for the worst.” Having a plan is an effective way to ensure that you will have long-term care coverage when you need it. This isn’t to say that you won’t find yourself needing TennCare much sooner than expected. When this happens we call it “TennCare Crisis Planning”. 

Knowing your options makes all the difference

I don’t know where to start!

The biggest obstacle to TennCare planning is determining what to do with your assets and income; especially if there is excess in any category. There are a lot of rules and potential pitfalls that you need to look out for. Fortunately, we have some great financial planning and legal resources that can help our clients. If you have an immediate need for TennCare or want to plan for TennCare we can supply the client with what we call a “Care and Savings Assessment”. It’s a wonderful tool that helps people effectively navigate through their options.

How do we help our estate planning clients with TennCare planning?

For our estate planning clients, we like to take into consideration the possibility that you may need TennCare in the future. 

For example, it is our priority to set up our client estate plans to make sure that TennCare is accessible if it is ever needed.  As with many government organizations, Medicaid has lots of rules to follow and many people find that they did not know what rules they were supposed to be following until it was too late!   Fortunately for our clients, we know the rules and can help you plan in advance of ever needing to apply for TennCare to cover medical care.  Additionally, we create documents that make sure that someone can apply for Tenncare on your behalf. This is useful if you become incapacitated in the future. 

How do we help our Conservatorship clients with TennCare? 

Many of our conservatorship clients are caregivers for a loved one who requires skilled nursing to keep them safe. The average cost for this type of care is about $7,000.00 per month or more.  There is usually a large gap between monthly income and fees.  Our firm can navigate the TennCare application process and assure that the appropriate language is in the conservatorship order paperwork with the court so that the client may obtain the appropriate benefits for their loved one.  

How do we help clients with TennCare Crisis planning? 

For those who have never considered the cost of long-term care until they or a loved one need to enter a nursing facility, the cost of care is likely to come as a shock- and an unaffordable, but necessary, expense.  This is when we can step in with what we call “crisis planning,” meaning that you need a plan and you need a plan now

In these cases, we are able to look at the household financial situation of the person needing skilled care, as well as the family situation overall, and come up with a plan for how to best use existing resources and get them qualified for TennCare benefits to pay for the nursing home bills. This process called our “Care and Savings Assessment”,  is one of the most rewarding things that we do!  It allows us to help people get the care that they need while still providing a quality of life for themselves and their families. 

If you are concerned about accessing TennCare benefits for long-term care, contact our office for a complimentary initial call using our online calendar here

Read our article about Medicare planning.

Have you thought about qualifying for TennCare in the future?

You’re almost 65. Congrats on your Medicare Milestone!

We’ve been talking about Medicare for a few weeks now, but we haven’t gotten to the how-tos yet.  That’s about to change. Today we dig into how you actually enroll in Medicare. 

Your first Medicare enrollment period begins three months before you turn 65 and runs until three months after.  Even if you don’t sign up for any other coverage, we recommend that you sign up for Medicare Part A during this first enrollment period. 

To sign up for Part A, go to the Social Security Administration’s Medicare portal here.  It will be helpful to set up an account for when you come back to sign up for Part B or when you are ready to begin receiving retirement benefits. 

If you are signing up for Parts A and B, the process is the same. You’ll sign up through the Social Security Administration’s website. Remember that if you enroll for Part B, your premiums will either be deducted from your Social Security retirement payment or you will receive a bill. The 2021 Part B premium is $148.50 for most people.

If you are looking for a Medicare Advantage plan, Part D, or a Supplement (Medigap) plan, you will want to compare plan options using a plan comparison service.  There are insurance brokers like Kendall Chanley and Harry Perret here in town who can help you compare options and narrow things down. Once done, they will get you signed up. These services are free to you and it’s nice to have one agent who can help you each year. 

If you prefer to do things yourself or just want to do some exploring, Medicare.gov will allow you to find plans in your area and narrow them down based on what you are looking for and price ranges. I recommend filtering plans by the star ratings (four or above) and then whether you are looking for dental, vision, and prescription medicine access. 

Once you make it through your first enrollment period at age 65 (ideally), you’ll be eligible for open enrollment each year from October 15th through December 7th.  You may also have options to select coverage during a special enrollment period if you lose other coverage. 

Applying for Medicare isn’t nearly as scary as it sounds, but it does require advanced planning and research. You don’t want any deadlines sneaking up on you! Personally, I love using reminders on my calendar well in advance of any deadlines that I have. Maybe one to begin research, one to call an expert, one to compare plans, one to sign up….all before your birthday or November. 

What’s your plan for Medicare enrollment?  Head to our Facebook page to share your plans in the comments!