Category: Elder Law

Oregon Transfer-On-Death Deeds: The Good, the Bad, and the Ugly

Post by Stephanie Carter, Attorney at Law, with Draneas & Huglin, P.C.

Member, Senior Resource Alliance Northwest

On January 1, 2012, a new estate planning tool became available to Oregonians–the Transfer-on-Death Deed (TODD).  The new law allows property owners to transfer real property (i.e., real estate) to one or more beneficiaries using a TODD.   The Deed must be recorded while the transferor is still living, but is revocable and does not take effect until the transferor’s death.  This means that the property owner can sell the property at any time during his or her lifetime, automatically revoking the TODD.

Bank accounts, certificates of deposit, investment accounts, life insurance and almost all other assets have long allowed the owner to designate a beneficiary and, thus, avoid probate.  Real property, often the largest asset a person owns, did not allow such a designation.  The new TODD is intended to allow for real property to pass after death without probate.

When used in the right circumstances, a TODD could save the estate money.

As an estate planner, I have several concerns about the use of  TODDs without first obtaining competent legal advice.  Some of these are:

1.  Potential for fraud and elder abuse.  An untrustworthy individual could influence an elderly property owner to sign a TODD in his or her favor.  Such a transfer may defeat the transferor’s estate planning objectives.  The persons who would otherwise have inherited the property would have to bring a court action to defeat the TODD.

2.  18-month Cloud on Title.  When an estate is probated, there is a four-month creditor claim period, and the State of Oregon must be informed of the probate proceeding.  At the end of the claim period, clear title to the property may be transferred.  If a TODD is used, the property may not be transferred for 18 months.  One of the reasons for this longer period is to allow the state of Oregon to learn of the property owner’s death and assert a claim against the property for monies the State paid out for Medicaid care.

3.  Multiple grantors may lead to inconsistent results.  If there are joint grantors, a surviving grantor may revoke the deed after the other grantor’s death.  The revocation may be inconsistent with the deceased grantor’s wishes.

A TODD may or may not be the best tool for you to use to transfer real property at your death.  Consult an estate planning attorney to learn if this option is right for you. 

Stephanie Carter, Attorney at Law, Draneas & Huglin, P.C., 4004 Kruse Way Place, Suite 200,
Lake Oswego, OR, (503) 496-5509, stephanie@draneaslaw.com

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No Comments by jeanblackburn on January 31, 2012
filed in Baby Boomer Age Wave, Education for Senior Providers, Elder Law, Family Caregivers, Financial Issues, Risks, Resources, Legislative and Political Issues, Senior Resource Alliance NW

Who Gets the Tax Deduction When Decedent’s Personal Property is Donated to a Charity?

Post by Stephanie Carter,  Attorney at Law, with Draneas & Huglin, P.C.

Member, Senior Resource Alliance Northwest

When I assist a personal representative in the probate of an estate, the question almost always arises:  Who gets the tax deduction when the decedent’s personal property is donated to a charity?

Most clients assume that the estate gets the tax deduction.  That is incorrect!  Instead, the receipt for the deduction should be passed on to the beneficiary.  So, look at the decedent’s will or trust to see who was gifted the decedent’s personal property.  If the decedent died with no estate planning in place, then you would look at the intestacy statute to see who inherits the estate.

It is also important to remember that a trustee or personal representative (“fiduciary”) should not dispose of personal property to anyone other than the designated beneficiary without authorization.  Sometimes this authorization is provided in the will or trust. 
For example, the estate planning document may give the fiduciary discretion to sell personal property and give the beneficiary the proceeds from sale.  In other cases, the beneficiaries may jointly agree that certain items may be donated (e.g., those items that do not sell at an estate sale).

Stephanie Carter, Attorney at Law, Draneas & Huglin, P.C., 4004 Kruse Way Place, Suite 200,
Lake Oswego, OR, (503) 496-5509, stephanie@draneaslaw.com

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No Comments by jeanblackburn on January 30, 2012
filed in Education for Senior Providers, Elder Law, End-of-Life Care, Family Caregivers, Financial Issues, Risks, Resources, Legislative and Political Issues, Senior Resource Alliance NW

Lack of Estate Planning Sets the Stage for Conflict

Post by Stephanie Carter, Attorney at Law, with Draneas & Huglin, P.C.

Member, Senior Resource Alliance Northwest

A surprising number of famous people have died without any form of will or trust to direct distribution of their estate.  This has often led to conflicts over the right to control the estate assets, including intellectual property, public image, and other money-producing assets.

For example, Martin Luther King Jr. didn’t have a will when he was unfortunately assassinated.  His estate, which is run now through a corporation established by his children, often struggles to determine what King’s wishes would be.  Decades after the civil rights leader’s death, his children are still trying to sort out matters related to his estate.

Reggae singer Bob Marley left no will when he died in 1981.  Over the past 30 years, the estate has been involved in multiple lawsuits.  Handling Marley’s estate was complicated by the fact that, although Marley died in Florida, he maintained his Jamaican citizenship.  Since Jamaica’s laws of intestacy were not as generous as Florida’s, his advisors decided to prepare an estate plan AFTER HIS DEATH that Marley’s widow then signed.

The Jamaican court sorted out the issue of the falsified will and removed Marley’s widow as administrator of the estate.  The court then had to resolve the issue of who had the right to use the singer’s name, likeness and image in commerce.  About 10 years after Marley’s death, the Jamaican Supreme Court decided that Marley’s heirs possessed this exclusive right.  The heirs include the widow and Marley’s children.  Unfortunately, the list of heirs does not incude siblings.  The estate is now suing Marley’s half-brother for using his image to promote a Miami music festival and restaurant, as he has done for many years.

Swedish author Steig Larsson, known for his Millennium series that includes The Girl with the Dragon Tattoo, also died without a will.  His estate passed to his heirs (brother and father with whom Larsson was not close) rather than his long-time partner, Eva Gabrielsson.  Gabrielsson has refused to release to the estate the partial fourth volume in the book series, has fought for her share of the apartment they shared, and control over Larsson’s literary estate, which she feels better prepared to administer than Larsson’s family  The dispute is still pending.

Although your estate may not be large, and you may not be famous, proper estate planning can help pass your estate to the next generation without the conflicts that occur when money and sentiment are involved.

Stephanie Carter, Attorney at Law, Draneas & Huglin, P.C., 4004 Kruse Way Place, Suite 200,
Lake Oswego, OR, (503) 496-5509, stephanie@draneaslaw.com

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No Comments by jeanblackburn on January 30, 2012
filed in Communication and Relationships, Education for Senior Providers, Elder Law, End-of-Life Care, Family Caregivers, Financial Issues, Risks, Resources, Legislative and Political Issues, Senior Care Reference Materials, Senior Resource Alliance NW, Uncategorized

Hearthstone at Murrayhill Free Seminar Series: “Making Life Choices”

Blog Post by Penny Holcomb, Community Relations Director, Hearthstone at Murrayhill

Printable Flyer

Free Seminar Series for Seniors and Families

A free seminar series is being offered by Hearthstone at Murrayhill, a retirement community located at 10880 SW Davies Road in Beaverton.  The four-week series, titled “Making Life Choices,” is geared toward seniors and their families. Seminars will be held on four consecutive Saturdays, beginning January 14, from 10 a.m. to noon.

The January 14 session, titled “What You Don’t Know…CAN Hurt You,” will feature two local professionals: Lake Oswego Attorney Christopher Young from the Pixton Law Group and Diane Childs from the State of Oregon’s Department of Consumer & Business Services. Mr. Young will focus on common legal issues faced by seniors and their families. Ms. Childs will provide tips on how to protect your money from fraud and identify theft.

Subsequent Saturday sessions (January 21 and 28, and February 4) will feature other local professionals who are familiar with the needs of seniors and their families. They will address such topics as “Creating Family Peace in Times of Turmoil,” “Selling Your Home in a Down Economy,” and “Getting Organized.”

 

 

No Comments by Mike Brunt on January 14, 2012
filed in Communication and Relationships, Elder Law, Family Caregivers, Financial Issues, Risks, Resources, Local Events, Senior Housing Options

Dispute Over Estate of Stieg Larsson Highlights Importance of Estate Planning

Post by Stephanie Carter, Elder Law Attorney with Draneas & Huglin, P.C.

Member, Senior Resource Alliance Northwest

In November 2004, Stieg Larsson, Swedish writer and journalist, died suddenly of a heart attack.  Larsson became famous after his death through the posthumous publication of his Millennium Trilogy (“The Girl With The Dragon Tattoo,” “The Girl Who Played With Fire” and “The Girl Who Kicked the Hornet’s Nest”).  Today, these books have sold more than 20 million copies in 41 countries and have been made into movies.

Larsson lived for 32 years with the architect Eva Gabrielsson.  They never married; they had no children; and he did not leave a will.  Swedish law makes no provision for common-law marriage.  Under the Swedish law of intestacy, Larsson’s entire estate was inherited by his Father and Brother, from whom he was estranged.

This disposition of Larsson’s estate sparked a bitter dispute between Larsson’s Father, Brother and Eva Gabrielsson.  Gabrielsson claimed that Larsson’s Father and Brother Larsson “were never a part of our lives” and that they are unsuited to handling his estate–including the valuable copyrights.

Larsson’s former workplace, Expo, owns the computer on which is stored the partial manuscript for the fourth book in the Millennium series.  Larsson’s Father and Brother own the contents of the computer.   However, Gabrielsson currently is in possession of the computer and has so far refused to hand it over.

Negotiations between the parties began in November 2009, but were broken off the following month when Gabrielsson announced she had declined a ”settlement” offer of about 2 million euros from Larsson’s estate (which is now valued in the tens of millions of euros).  The dispute remains unresolved.

 

Practical Application Under Oregon Law

The situation described above is unfortunately all too common.  The outcome under Oregon law would be similar to that of Sweden in this context. If a person dies with no will, the deceased person’s probate estate wil pass to members of his or her family in the order of priority listed in the statute.  If assets like bank accounts, certificate of deposit, and life insurance list beneficiaries, the asset will pass to the listed beneficiary.  If no beneficiary is listed, the asset becomes a part of the probate estate.

The problem also arises when a deceased person signs estate planning documents, but never updates them and does not regularly (every 3-5 years) check the beneficiary designations on assets that do not pass by will or trust.

It is very difficult when I have to tell a client that he or she will not share in a loved one’s estate because of outdated documents.  Do you have estate planning in place?  If so, how long has it been since you updated it?

Stephanie Carter, Draneas & Huglin, P.C., 4004 Kruse Way Place, Suite 200,
Lake Oswego, OR, (503) 496-5509, Stephanie@draneaslaw.com

 

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No Comments by conniemulligan on October 20, 2011
filed in Alzheimer's and Dementia, Baby Boomer Age Wave, Education for Senior Providers, Elder Law, Financial Issues, Risks, Resources, Legislative and Political Issues, Senior Care Reference Materials, Senior Resource Alliance NW

Senior Resource Alliance NW – Professionals to Serve Your Senior Loved Ones

Blog Post by Mike Brunt

Those who have helped an aging loved one through the later years of life know that the romanticized picture of old age as sipping lemonade on a porch swing is a far stretch from the actual experience. The realities of aging force seniors and their family members to confront physical, emotional, logistical, financial, legal, and caregiving challenges that are hard to predict, even harder to accept, and impossible to completely avoid.

What is needed is a strong group of affiliated service providers who can provide needed services and confidently refer you to other resources you can trust…enter Senior Resource Alliance NW.

 

The Senior Resource Alliance NW was formed to be an inter-connected group of professionals in the Portland Metro Area who provide essential products and services to seniors and those who care for them.

If you are working with your aging mother on estate planning and advanced directives for health care, you may also be in need of a trusted provider of in-home caregiving services or home remodeling. Or, if you are working on moving your parents into an assisted living community, you may also need help with an estate sale or the physical process of downsizing and moving. If Medicare is your hot topic, you may also be looking for financial planning or information you can trust about reverse mortgages. Whatever your need may be, the Senior Resource Alliance NW is your source of friendly, reliable professionals who will be there for you when you need them most.

Areas of Expertise:

  • Counseling Services
  • Daily Money Management
  • Estate Planning & Elder Law
  • Financial Planning
  • Geriatric Care Management
  • Home Remodeling & Repair
  • In-Home Care
  • Insurance
  • Mortgages
  • Real Estate
  • Relocation Services
  • Senior Housing

 

2011-2012 Officers for the Group Are As Follows:

President: Barbara Murphy, Neil Kelly Company
Vice President of Marketing: Stephanie Carter, Draneas & Huglin, P.C.
Chair of Marketing: Mike Brunt, Home Instead Senior Care
Secretary & Chair of Membership: Kim Megorden, KARE Transitions, LLC
Treasurer: Sandra Wagner, Frazier Hunnicutt Financial

 

Contact Information for the Senior Resource Alliance NW:

WEB: www.sranw.com
PHONE: (503) 442-3864
EMAIL: info@sranw.com

 

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No Comments by Mike Brunt on October 5, 2011
filed in Aging In Place, Communication and Relationships, Elder Law, Financial Issues, Risks, Resources, Senior Care Reference Materials, Senior Housing Options, Senior Resource Alliance NW

Spouse on Medicaid? You May Need to Change Your Will.

Post by Elder Law Attorney, Geoff Bernhardt
Article on Geoff’s Blog

Wednesday, January 5, 2011

Legislative Alert! Do You Have a Spouse on Medicaid? Oregon Law Now Requires You to Change Your Will

According to the State of Oregon, the average cost of long-term care is now $7,663 per month. Paying for this care for very long is beyond the means of most middle-class families. In an effort to obtain good care for an ill spouse and preserve enough assets for the healthy spouse to live independently, many people in this situation apply for assistance with care costs through the Medicaid program.

Once the Medicaid application is approved, most people neglect to consider a crucial question: What happens if the healthy spouse passes away before the ill spouse? While Medicaid allows an ill spouse to have only $2,000 in assets, a healthy spouse is permitted to maintain additional assets, as much as $109,560 plus the family home, for his or her support. What will happen to these assets if the healthy spouse dies first?

The answer depends on the will of the healthy spouse. Mostly, we see that the healthy spouse has made no change at all to an old will leaving all assets to the ill spouse. In that event, if the healthy spouse dies first, all assets pass to the ill spouse. This causes two problems. First, the ill spouse will immediately lose eligibility for Medicaid benefits. Second, due to illness, the ill spouse is usually unable to manage the inheritance. Sometimes the court has to appoint a conservator to manage the ill spouse’s inheritance and pay the bills. All of this results in large expenses for the ill spouse and extra hassle for loved ones.

Sometimes, the healthy spouse will go to the other extreme. Instead of leaving everything to the ill spouse, the healthy spouse signs a new will leaving nothing to the ill spouse. The problem with this is, under Oregon law, you cannot completely disinherit your spouse. An ill spouse has the right to receive a portion of the healthy spouse’s estate. If the ill spouse is on Medicaid, the State of Oregon will intervene in the healthy spouse’s estate, and the court will require that some of the healthy spouse’s estate be set aside for the ill spouse. As of January 1, 2011, that amount is being increased to one-third of the healthy spouse’s estate.

As a practical matter, this means that every healthy spouse who has an ill spouse receiving Medicaid benefits needs to update his or her will to comply with this change in Oregon law. At a minimum, one-third of the healthy spouse’s estate should be left in a support trust for the ill spouse. Remaining assets can be left in a special needs trust for the ill spouse (these funds will be protected from the Medicaid spend-down) or to other beneficiaries.

So, if you have a spouse in long-term care who now receives, or who may in the future receive Medicaid assistance, speak with an experienced elder law attorney to discuss bringing your will into compliance Oregon law. Prompt attention to this issue could save your family tens of thousands of dollars and avoid delays in Medicaid eligibility. Most importantly, updating your will helps to insure that the ill spouse will always receive good care and has the best possible quality of life.

No Comments by Mike Brunt on January 17, 2011
filed in Education for Senior Providers, Elder Law, Financial Issues, Risks, Resources

“Elder Law, Guardianship, and Special Needs Planning” by Geoff Bernhardt

Excerpts from “Elder Law, Guardianship, and Special Needs Planning”
by Geoff Bernhardt, an elder law attorney in Portland, Oregon. 
His contact information can be found at www.elderlawpdx.com.

Full text of this article can be found online at http://www.elderlawpdx.com/elder-law-articles.html

…A power of attorney must be signed by a person who is legally competent.
This means the signer must have the ability to understand the nature and importance of the document. If someone already has Alzheimer’s Disease, or dementia, or has suffered a stroke, it may be too late to sign a power of attorney. Therefore, it is important to sign a power of attorney while a person has mental capacity to understand the document.

…The main advantage to a conservatorship is court oversight, and the surety bond.
If the ill person does not have a trusted person to manage finances using a power of attorney, the conservatorship may be preferable to a power of attorney.

…In Oregon, there are three documents commonly used to specify your wishes about health care decisions in the event you are not able to communicate those wishes:
a living will, a durable power of attorney for health care, and an advance directive for health care.

- Living Will.
Also called a Directive to Physicians, a living will is a document stating that you do not want life-sustaining treatment if two doctors certify that you are in a terminal condition, and that life-sustaining treatment will only postpone the moment of your death. This document was widely used in the late 1980’s and early 1990’s. The main problem with a living will was that it did not appoint someone to review medical records and communicate your wishes about end-of-life care to medical staff.

-Durable Power of Attorney for Health Care.
The Durable Power of Attorney for Health Care was designed to supplement the living will. This document allowed a person to appoint an agent to communicate with health care providers and make decisions about end-of-life care. The main problem with this document is that it expires seven years after it is signed. A secondary problem is that the form was ambiguous, requiring the person to write the word “yes” to indicate that he or she did not want life support or tube feeding.

- Advance Directive for Health Care.
The Advance Directive for Health Care was authorized by the Oregon legislature in 1993. This form combines the best features of the living will and the power of attorney for health care. It allows you to appoint a health care representative to make decisions about health care for you in the event you are unable to do so. It also lets you give instructions to your health care representative so he or she will have a clear understanding of your wishes. The form does not automatically expire after a certain period of time, and can be good for your entire life. It also allows you to make additional comments about end-of-life decisions. An advance directive for health care is the best way to ensure that your wishes about health care would be respected if you faced a life-threatening illness or injury.

…A POLST form and guardianship are ways in which others can make health care decisions for you.

- POLST
Physician’s Orders for Life-Sustaining Treatment. This is a document on bright pink paper that can be placed in a person’s medical chart. It sets forth physician’s orders concerning certain types of end-of-life care. It must be signed by the doctor. Some people obtain completed POLST forms and post them on the refrigerator so they can be seen by paramedics in the event of a medical emergency.

- Guardianship.
A guardianship is a court order allowing one person to make health care and placement decisions for an incapacitated person. If you have not appointed someone to make health care decisions for you (for example, by signing an advance directive for health care), it may be necessary to seek the appointment of a guardian. People who suffer from dementia, Alzheimer’s Disease, or other illnesses affecting the ability to make important decisions often need the assistance of a guardian to make placement decisions. A guardianship is expensive – it can cost several thousand dollars to secure the appointment of a guardian by the court. It is far better to rely upon the advance directive for health care to appoint someone to make health care decisions for an incapacitated person. Even if you sign an advance directive for health care, a guardianship will sometimes be necessary to make placement decisions. 

2 Comments by Mike Brunt on April 23, 2010
filed in Elder Law, Financial Issues, Risks, Resources
At Home Instead Senior Care, we provide non-medical services to senior citizens in their own homes or apartments. Our services include companionship, light housekeeping, meal preparation, medication reminders, escorting to appointments, personal care, and dementia care. We help seniors maintain their independence and help them stay safe, healthy, and happy at home, wherever home may be.