Q&A Archives - Donohue, Beasley and Ferber

Is a “No-Contest” Provision in a Will Enforceable?

A no-contest provision in a will or trust prevents you, if you are a beneficiary, from challenging the will simply because you believe it is not fair, and you should have gotten more of the decedent’s assets than what the decedent left to you.

When there is a no-contest clause, if you challenge the will or trust and lose, you will get nothing unless the no-contest clause allows you to receive a lesser amount if you contest the will.

Enforceability of a No-Contest Clause

A no-contest provision will be enforced according to the express terms as it is articulated in the will or trust document. There are two separate New Hampshire statutes, one applying to such clauses in a trust document, and another applying to such clauses in a will.

The statutes are nearly identical in their enforceability and non-enforceability of a no-contest clause. Massachusetts law concerning no-contest provisions in wills and trusts is almost identical to New Hampshire’s.

It won’t matter whether your challenge is made in good faith, or if you believe you have probable cause for the challenge. If the will or trust documents are valid, the no-contest clause will be enforced exactly as it is written.

Unenforceability of a No-Contest Clause

If you can prove any of the following, the no-contest clause will not be enforced:

The will or trust is invalid because it was written due to fraud, duress, or undue influence.
The testator (one who wrote the documents) lacked testamentary capacity. Meaning that person was not of sound mind at the time the documents were written, or that person was under the age of 18 when the documents were written.
The trustee, or any other fiduciary, has breached their fiduciary duty.
If you join in any action brought by the trustee or other fiduciary, as long as that person is not the beneficiary named in the no-contest provision, you will not be penalized.
If you join with all beneficiaries and agree to settle any other matter relevant to the trust or will.
You make a motion, or there is any proceeding to determine whether if you take the action you are considering taking, will that action constitute a contest within the meaning of the no-contest provision.
You bring an action for interpretation of the trust or will.

There may be other situations where a challenge to the documents may be allowed even under the no-contest provision. If you are considering challenging a will or trust that has a no-contest provision, you need to first consult with experienced estate planning attorneys at Beasley and Ferber who will help you understand what you are risking if you decide to make that challenge.

Contact Beasley & Ferber for Assistance

You should also make an appointment with us at Beasley & Ferber if you want to include a no-contest provision in your will or trust. We are here to help and will discuss with you the benefits of including such a provision in your estate planning documents.

If you determine such a clause is needed, we will draft your documents for you so that your will and trust will be free from challenges and your wishes will be carried out as articulated in your estate planning documents.

What is a Durable Power of Attorney?

As you work with an estate planning attorney, you may come across the term, “durable power of attorney.” This term is often interchanged with the term, “power of attorney.” Both refer to giving permission to another person or entity to make important decisions on your behalf, but there are important distinctions between the two. As a party working on a responsible and reasonable estate plan, it’s essential that you understand all the aspects of a durable power of attorney.

What a Power of Attorney Actually Is

A durable power of attorney is a physical legal document. Your estate planning attorney will draw up the Durable Power of Attorney document in accordance with your wishes. The name is a little misleading because the power to make decisions needn’t go to an actual attorney. The power can be given to a trusted family member or trusted family friend. In some cases, the power is given to the actual estate planning attorney. However, in all cases, the “agent,” or the person receiving the durable power, must be an adult over the age of 18 years old at the time the document is drawn up.

How Does a Durable Power of Attorney Differ From Power of Attorney?

A Durable Power of Attorney is a subtype of a Power of Attorney, with one very important caveat. The Durable Power of Attorney covers instances where the individual has become temporarily or permanently incapacitated from injury, accident, or illness, either physically or mentally. This means that even if a person becomes incapable of making sound, rational decisions for themselves, the individual named in the Durable Power of Attorney has full legal recourse to make those decisions on behalf of the incapacitated person. As you can see, whom you choose for your Durable Power of Attorney is extremely vital.

What Kinds of Decisions are Included in a Durable Power of Attorney?

There are different kinds of Durable Power of Attorney documents. The kinds of decisions covered determine the type of Durable Power of Attorney. Your estate planning attorney can draw up paperwork covering decisions related to healthcare, finances, care for dependents, and more. Items may include:

selling, buying, and managing estate assets
control over banking and investment accounts
filing tax returns
applying for benefits such as Medicaid, Medicare, etc.
arranging home health care, hospice care, palliative care, etc.
choosing healthcare providers
making decisions related to life support, resuscitation, etc.

Benefits of Having a Durable Power of Attorney in Place

Many families and individuals seek out an estate planning attorney to get a Durable Power of Attorney drawn up. The benefits of having this document include having a third party ready to make important, possible life-saving decisions for an individual who can’t make them. With a Durable Power of Attorney, private decisions can be kept out of a courtroom, where a judge would make those decisions instead.

If you have a family member who may be incapacitated or you simply want an extra layer of protection for your family members, contact Beasley & Ferber today.

How Will Selling My House Affect My Medicaid?

Medicaid is a federally funded program that each state administers and offers assistance to the elderly, those with disabilities, and low-income people. If you or an elderly loved one are on Medicaid, there are certain regulations that must be adhered to. One of them has to do with income and assets. At the same time, you may be in a situation where you need to start looking at the possibility of selling your home in order to pay bills. Many people who are on Medicaid are forced to sell their homes in order to pay their costs. This is permitted as long as the money is used to pay off debts such as a mortgage, auto payments, or medical expenditures. You should get the help of an elder law attorney in New Hampshire before acting, however. In the meantime, here is what you should know about how selling your house may affect your Medicaid benefits.

Pay Attention to Your Assets

If the proceeds from the sale raise your assets beyond your state’s Medicaid asset level, you may be disqualified from receiving Medicaid. “Assets” refers to any liquid assets, such as cash or equities, for the purposes of the asset threshold.

In most jurisdictions, the barrier is a mere $2,000, thus selling a home will almost always put you well over the limit.

You can still qualify for Medicaid provided your total countable assets stay below your state’s criteria, which in most cases is merely $2,000 in most cases. Primary houses are deemed exempt assets, therefore purchasing a new home may be a viable alternative. However, if the purpose of selling the house is to free up cash, then buying another house may not serve your needs.

Consider Spending Down Assets

If your assets surpass the asset restriction, you can “spend down” your assets to go back below the limit and re-qualify. There is no penalty period that prevents you from getting Medicaid coverage if you spend down your assets utilizing approved spending. Simply reduce your countable assets down below the threshold and resubmit. Paying down credit cards, your remaining mortgage balance, medical expenses, auto payments, and other debts are all eligible spend-down choices. If you or your loved one are moving into a care facility, you could use the assets from the sale of the home and spend down the assets by paying your care facility fees ahead of time.

Rules For Selling a House While on Medicaid

Medicaid is designed to separate “countable” from “non-countable” assets. Because the value of your principal house does not count against your asset limit, it is called a non-countable asset. If you leave the house and it is no longer your primary abode, however, it becomes a taxable asset. As a result, you may be ruled ineligible for Medicaid before ever selling your property.

As you can see, the rules for selling a home while receiving Medicaid are complicated. That’s why it’s highly recommended that you enlist the services of an elder law attorney, such as Beasley & Ferber. Contact us today for help.

What Should You Know Before Applying for Medicaid?

You may qualify for Medicaid if your income falls below a certain level, and you meet certain other eligibility criteria. Medicaid is a federal program operated independently by each state. According to Medicaid.gov, approximately 72.5 million Americans have health insurance coverage through Medicaid. The program provides insurance for more people than any others, including the age-based Medicare program. Read on for some important things to know before applying for Medicaid.

Understanding What Federal Law Requires

Federal law requires each state to provide coverage to low-income families and individuals, people who receive Supplemental Security Income (SSI), pregnant women, and children who meet all eligibility requirements. These groups of people fall into mandatory eligibility groups. Governments of each state have the option to add additional groups or cover certain individuals. Common examples are children living in foster care not eligible for other healthcare programs and people who receive community-based services because of a disability.

2010 Medicaid Expansion

Congress passed the Affordable Care Act (ACA) 11 years ago that expanded access to Medicaid for millions more Americans who had not yet reached their 65^th birthday. Under ACA, all children whose families earned a minimum of 133 percent of the federal poverty rate automatically qualify for Medicaid. Several states chose to extend the same eligibility requirements to adults. If you feel your annual income is low enough to qualify for Medicaid, your next step is to check the eligibility requirements in your state.

Main Eligibility Criteria for Medicaid

States use both financial criteria and non-financial criteria when deciding whether to approve a Medicaid application. Employees who process applications use the Modified Adjusted Gross Income (MAGI) model to determine the financial eligibility aspect. Several other federal healthcare programs use MAGI, including the Children’s Health Insurance Program (CHIP) and the health insurance marketplace operated by individual states.

MAGI considers the applicant’s taxable income, eligible deductions, and tax filing status. The formula replaces a previous program used to determine Medicaid eligibility associated with the now-defunct Aid to Families with Dependent Children (AFDC). MAGI does not require applicants to disclose assets or apply a resource test.

People who are blind, have other significant disabilities, or are over age 65 do not have MAGI applied to their Medicaid application. State governments typically use the formula for determining social security disability income (SSDI) eligibility for Medicaid applicants who fall into one of these three groups.

Non-Financial Qualifications for Medicaid

Federal and state governments also require Medicaid applicants to meet the following non-financial criteria:

Be a permanent resident of the state where they applied for Medicaid.
Be born in the United States or a naturalized citizen, although certain lawful permanent residents also qualify.
Meet age, parenting, and pregnancy status qualifications imposed by individual states.

Contact the Elder Disability Law Firm of Beasley & Ferber

Applying for Medicaid can be frustrating and confusing, especially when eligibility requirements can vary significantly between states. Beasley & Ferber invites you to request a consultation with our elder disability law firm today to receive guidance as you go through the process.

What Should You Look for in an Elder Law Attorney?

There are a lot of questions that come with aging that need to be answered regarding the future. So, how do you get a good elder law attorney who understands the legal issues that you or your loved one might face? Read on to learn what to look for in an elder law attorney.

Expertise in Elder Law

Several law attorneys are experienced in different fields of law. Some of them may profess to know about elder law. It’s best to choose an attorney that specializes in elder law, however. Choosing an elder law attorney who has the expertise and focuses on elder law will benefit you since they are more knowledgeable about the issues affecting elders. Their expertise helps them protect against property loss, protection of assets, and develop proper plans to improve quality of life.

Understanding of Financial and Personal Profile

The most suitable attorney is the one who has an understanding of both personal and financial profiles. The vast knowledge will help the attorney make essential decisions and recommend the best strategies for legal matters. Choosing such an attorney will significantly help in resolving issues that may arise.

Process Guidance

The best elder attorneys have the patience to guide you through the different planning processes and legal stages. They should be capable of guiding you through different options to achieve your goals. The guidance should cover asset protection and incapacity planning in case of pre-planning and quality of life preservation in case of crisis planning.

Fast Implementation

A good elder law attorney should be able to expedite the process of implementing the agreed strategy. Pre-planning may take between 4 to 6 weeks to prepare the protection documents, while crisis planning requires faster processing, especially where long-term care is concerned.

Custom Planning and Consultations

Customized solutions have a much more favorable outcome than general solutions. Having an attorney who is present and involved in the plan creation and execution is beneficial to you. An attorney with a personalized approach will have no problem walking with you through the process, educating you, and helping you choose the best course of action to take.

Consider Education and Experience

Choosing an elder attorney who has the proper education and experience comes with a more significant promise of success. An educated attorney ensures they know the most recent changes to laws and how to navigate them. The different circumstances they handle and the experience gained means they understand the strategies and processes that will work well.

An elder law attorney can be contracted to offer vital help in ensuring you or your loved one’s legal needs are taken care of in a legal and profitable manner. These are some of the considerations you should keep in mind when choosing an elder attorney. For more information about the many services that an elder law attorney can offer, please feel free to contact us.

Who Should You Disclose Your End-of-Life Arrangements With?

End-of-life arrangements are highly personal decisions. You have legal control over your body, possessions, and financial assets until your expiration, and rightly so. When you work with the elder law firm of Beasley & Ferber, you can trust that your end-of-life arrangements will be held in the strictest of confidence. However, to facilitate matters after your demise and to ease the way for survivors, you may choose to disclose those arrangements with certain others.

Direct Beneficiaries

Sometimes people like to disclose end-of-life arrangements with direct beneficiaries of trusts, wills, and insurance policies. While this choice often comes from an eagerness to let beneficiaries know they will not be forgotten, it’s not always smart to disclose this information. Being a direct beneficiary with full knowledge of the inheritance makes that person vulnerable to scrutiny, should unusual circumstances come into play. For instance, if an end-of-life decision must be made, you wouldn’t want your beneficiary to be wrongfully accused of trying to sway the choice in one way or another. Rest assured that the very act of including a loved one in your financial gifting post-departure will ensure they know they were cherished.

Adult Children

When estate planning necessitates leaving property and other assets to adult children, it can be a good idea to let those children know what they can expect. This is especially the case when you have multiple children since surviving children have a tendency to debate the fairness of inheritances. To avoid family rifts after your passing, let adult children know ahead of time at least the percentage of your estate that each can expect to receive.

Now, this brings up a dilemma. While you may want your adult children to know what percentage of your assets they will get, you may not necessarily want their spouses to know, or their spouse’s parents. There’s no point in denying that if the estate is substantial, adult children and their spouses will be liable to talk about what numbers that you’ve disclosed. Therefore, it will no longer be very private.

One way to circumvent this is to directly ask that your adult children keep the information private. Another way is to keep it general; let them know they will each be treated equally, but do not disclose any other details.

Crisis Planning is a Special Case

An Advance Directive is a way that you can let your wishes be known to doctors and loved ones in case you are mentally incapacitated and unable to do so. It behooves your loved ones if you tell them that you have signed an Advance Directive to be followed in this circumstance. This way, your loved ones will be ready to make that difficult decision on your behalf. You should tell your spouse or partner at a minimum.

When you’re ready to make end-of-life arrangements, contact the elder law firm of Beasley & Ferber, everything will be made easier. Whether you need estate planning or to put in place an Advance Directive, you can rely on us.

Why Should You Contact a Lawyer Before You Need One?

You never know when you’re going to need a lawyer. You can certainly plan ahead for things like updating your will or setting up a trust. However, you can’t schedule when someone is going to decide to sue you or when someone in your family might need to go live in an assisted care facility or nursing home. Even if you live an exemplary life, you’re likely to have legal needs, especially as you age. That’s why you need to establish a relationship with an attorney as early as possible.

Benefits of Establishing a Relationship with a Lawyer Before You Need One

One of the worst things you can do in a stressful legal situation is try to represent yourself. While it may seem like a cost-efficient thing to do, the truth is it could end up costing you much more in the long run. Just like you wouldn’t think of re-wiring your home yourself, it doesn’t make sense to represent yourself in court without the proper training, experience, and contacts.

However, having a trained and experienced lawyer to represent your interests is just one of several benefits to having a relationship established with an attorney before you need one. When a lawyer already knows you and your situation, he or she doesn’t have to start at zero when you need legal representation. That means your attorney can “hit the ground running” and not have to spend time catching up on the basics of your unique situation.

Another good reason to have a relationship established with a lawyer is access. Lawyers are humans, and they can’t take on an unlimited number of clients. When you have an established relationship, you can be confident that your lawyer or at least a close associate will be able to take your case when the need arises.

Lastly, having a lawyer you can trust means that you don’t have to “shop” for a lawyer during a stressful time in your life. When tension and stress are running high, mistakes and poor decisions can easily happen. You may fall victim to settling for the first lawyer that can take you on instead of the best lawyer for your needs. You can feel assured during difficult times knowing that your lawyer is ready to represent you when the need arises if you are already an established client.

Working with Beasley & Ferber

Beasley & Ferber specializes in estate and elder law. We help New Hampshire families hold onto their homes and protect their savings as they face nursing homes and escalating medical expenses. We recently received the “Outstanding Business Award” from the State Committee on Aging and Division of Elderly and Adult Services.

To learn more about how having an attorney at the ready can help you and your family, contact Beasley & Ferber to set up an appointment. We’ve been helping New Hampshire families like yours since 1991.

Why Plan Now for What Comes Later?

Nobody wants to think about dying, let alone talk about it. But the truth is, funerals are expensive. Long-term care is expensive, too. And unless you want to pass your debt down to your children, you need to make plans for the inevitable. There’s no need to wait until you pass that senior citizen milestone to begin thinking about end-of-life expenses. In fact, the sooner you begin putting money away and channeling your savings where you want it to go, the better you can provide for those you love after your absence. Speak with an elder-law attorney at Beasley & Ferber today for answers to all your frequently asked elder-care questions.

I’m Still Young. Why Do I Need to Start Elder Planning Now?

Tomorrow is not a sure thing, and if the unexpected should happen sooner than later, would your loved ones be financially prepared to go on without you?

Planning for the future means more than just financing a burial plot and prepaying a funeral home for your interment. It might also mean helping your spouse keep the house in the event of your death or keeping your kids in college should your income suddenly cease. By talking with a specialist in elder law, you can learn how to minimize the financial impact of your death on those you love.

Won’t My Life Insurance Pay for My Funeral?

Your life insurance will pay a death benefit to your beneficiary upon proof of your death, but it’s important to make sure that number is enough to do more than just offset the costs of your funeral. If you’re half of a two-income household, your absence will leave a huge financial hole. An elder law attorney can help you choose the right amount of coverage to suit your health, your lifestyle, and the cost of premiums you can afford.

As Long As I Provide for the Necessities, My Family Should Be Okay, Right?

Unfortunately, nobody has a crystal ball that helps them foresee what the necessities will be. And your quality of life as you age will play a major role. You may eventually need the services of a long-term care facility, and Medicare doesn’t typically cover this expense. Therefore, you’ll need protection for your assets, so your children aren’t denied their inheritance. Making an appointment with Beasley & Ferber can help you protect what’s rightfully yours. It can also help you better predict the sort of expenses you might accrue as you age.

I Don’t Have Children, So Why Should I Worry What Happens After I Die?

While it’s true your financial worries will cease upon death, there’s no guarantee that you won’t need help in the years leading up to your final exit. With no children to help care for you in your old age, you may need to hire a professional caregiver, and they don’t usually come free. If you begin planning now, you’ll be able to rest easier later.

When you’re ready to begin planning for your own elder care or for the care of an aging parent or other loved one, Beasley & Ferber is available to help. Contact us today to schedule a consultation.

What Does It Mean to Have an Attorney on Retainer?

It’s likely you’ve heard of someone having “a lawyer on retainer,” but do you really know what this phrase means? More importantly, are you someone who should have a lawyer on retainer?

“Lawyer on Retainer” Definition

In essence, having a lawyer on retainer (also called an attorney on retainer) means having an established lawyer-client relationship with a lawyer. Essentially, in exchange for upfront fees, you are “holding” your lawyer. Then, in the event that you require legal assistance or representation, you will be able to call on that lawyer for their legal help.

Understanding Retainer Agreements

Not all client-lawyer retainer relationships are the same. Generally speaking, you can choose between several different types of agreements when retaining an attorney.

For instance, you can deposit a sum (one that is allocated as your retainer fee) into an account in your lawyer’s possession. If you end up needing legal assistance after this account has been established, any billable hours will be pulled from that fund. Naturally, an account like this won’t likely cover all of the expenses you accrue when using the services of a lawyer. On the other hand, the set-aside account allows you more instant access to your lawyer’s services because you would already have established a relationship with them.

You can also form a general retainer relationship with a lawyer. This is a contract that is usually arranged around a specific project. Instead of your lawyer billing you for the precise hours they work on a given project/your case, your lawyer would simply be available at basically all times to answer your legal questions and discuss your legal options with you as they relate to the project.

Similarly, you can put a lawyer on retainer for a set period of time. In this way, instead of the lawyer being available for the duration of the project you’re working on, he or she will be available until the end of your agreed-upon period.

Who Needs a Lawyer on Retainer?

Not everyone needs a lawyer on retainer, but it may — at some point in your life — be a valuable legal arrangement to utilize. For instance, if you are in the midst of signing business contracts; dealing with a project that requires lots of potential penalties for things like taxes, permits, or zoning; handling the estate plans for yourself or a family member; participating in a large real estate transaction; or even going through a messy divorce, all of these situations may warrant having a lawyer on retainer.

While it is certainly not mandatory to enter into such a contract, it can definitely be beneficial. Moreover, if you expect legal challenges in your immediate (or long-term) future, having an attorney on retainer is an excellent way to put your mind at ease. You’ll know that you have somewhere to turn should a serious legal issue arise that you cannot handle alone.

To learn more about hiring a lawyer on retainer, contact us at Beasley & Ferber today. We would be happy to sit down and speak with you one-on-one about your options.

Why Do First Time Parents Need a Will?

Becoming a first-time parent can be an overwhelming experience, but it is also a true blessing that you simply cannot fully grasp until it happens to you. The pregnancy and lead-up to the birth of your child or pre-adoption process is just the beginning of both the love — and anxiety — that parenthood will bring with it as the years pass.

From the moment your child enters the world, you will want to do everything within your power to love and protect them — even in a worst-case scenario. For this reason, it is critical to set up a will as soon as possible.

If you’re still unsure of the importance of a will for you and your new family, take a look at these 3 reasons, which more fully explain the importance of this document.

Why a Will Is So Important for New Families

1. It names who your child’s potential guardian will be.

In the event of your death, your will names a legal guardian who will care for and look after your child. Not having a will or naming a guardian means that your child could be lost in the court system and uncertain circumstances for months or even years at a time until a legal guardian is set.

2. It sets up your child’s future assets.

Naturally, if your child were to lose you, they would need funds in order to continue living the lifestyle you prepared for them. In many cases, a will can set up a trust that will provide for your child until he or she turns 18. After the age of 18, a will can also prepare additional funds for your child’s adult life.

3. It names a power of attorney in the event you are incapacitated.

In certain circumstances, you may become incapacitated and unable to make decisions for yourself or your child before they turn 18. In this case, you will be able to name your power of attorney(s) in your will. Most sound wills name both a health care power of attorney (for making health care wish decisions) and a finance power of attorney (for making financial decisions).

This is critical as not naming a power of attorney for either one of these areas could result in decisions being made that you would never be happy with were you in charge.

Contact Beasley & Ferber Today to Set Up Your Will

No parent wants to think of their child living without them. Still, it is the most responsible and thoughtful parents that do broach this subject and understand the importance of will creation in order to secure their child’s safety, happiness, and success in the future.

Although it is difficult to think about an unfortunate event occurring in the future, it is critical to realize the importance of such planning. No one else can make these decisions but you, and it’s worth deciding on them now.

To learn more about setting up a will for you and your family, contact us at Beasley & Ferber today.

Join One of Our Seminars

Category: Q&A