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Often, when a person thinks about estate planning, the first thought is about the creation of a will. However, there are many more tools in the estate planning tool box, and for some a living trust may be the best option.

A trust is a legally enforceable agreement established to allow for assets to be transferred to it and to be managed by a person called the Trustee. The Trustee has the duty to manage the trust for the benefit of another person called the Beneficiary. The person(s) who creates a trust is known as the Grantor(s). The Grantor entrusts the management of his or her property to the Trustee to manage for the benefit and best interests of one or more Beneficiaries of the Grantor's choosing. The Grantor does not have to designate another person as a Trustee to manage the trust and may designate himself or herself as Trustee. Similarly, the Grantor can also be one of or even the only initial Beneficiary. A trust is administered under the terms of the trust document.

A living trust is created during the lifetime of the Grantor rather than being created at death. A living trust is sometimes referred to as a revocable living trust because the Grantor is able to change or dissolve the trust at any time. A revocable trust becomes irrevocable upon the death of the Grantor(s).

A will and a living trust are both instruments that contain directions on how to distribute property at the end of life. One of the major differences between a will and a living trust is when each becomes effective. The living trust is effective immediately upon signing whereas the will only becomes effective when the person dies. Another difference between the will and living trust is privacy. Unlike a living trust, a will is generally subject to probate, which is a court-administered process where a person's estate is supposed to be distributed according to the terms of the will. However, the probate process is often an open invitation to contest, and probate records are all available to the public.

The management and transfer of assets owned by a living trust avoids probate because ownership of the property transfers from the Trustee to the Beneficiary according to the trust document after the death of the Grantor. This occurs without the need for a probate court order because the Grantor established the rules and appointed a successor to carry out the terms of the trust. A will and a living trust also differ in terms of length of time and cost of administration at the end of the Grantor's life. The transfer of property ownership under a living trust can occur within a short time in comparison to the transfer of property ownership through probate, which can typically be measured in terms of months or longer. Because there is no statutory inventory or administration fee and much less paperwork required to manage the trust, the costs of administration varies greatly between the will and living trust.

The cost to create a will is generally less in comparison to a trust. A trust can require significant costs to prepare, fund and manage. However, the peace of mind, control, privacy and greater ease of administration after disability and death of the Grantor often make the living trust the choice of a person who has investigated the pros and cons of each. Finally, a living trust allows a Grantor who is also the Trustee to manage the assets of the trust as long as the Grantor/Trustee is able. In addition, a living trust allows the Grantor to name a successor Trustee to manage property for his or her benefit if the Grantor becomes incapacitated. If you live in Michigan and have questions about estate planning, contact an experienced Michigan estate planning attorney to discuss the estate planning options that are most appropriate for you.

Ask the ElderCare Lawyer
December, 2004

Let me draw your attention to this month’s first question. We are contacted daily by concerned family members who want to do what they can to help their family elder(s). Sometimes loved ones and elders are of a single mind and are working together quite effectively tackling the issues related to successful aging. Other times we hear the familiar lament that Mom and / or Dad just will not listen. He or she will not do what is best – what can we do?

From the readers we have heard from, your questions have been terrific. If we have not heard from you, let us know your thoughts as well. Is this column meeting your needs? Because I get too many questions to answer, I have decided to begin something new. Beginning next month we will be offering a regular conference call where you or your loved ones can call in and listen to the topics we will be discussing. On each call we will be covering a topic related to eldercare legal planning and advocacy. We will also be allowing plenty of time for questions. Perhaps after hearing other people’s stories and suggested solutions, people who are otherwise reluctant may be ready to take the next step.

If you are interested in participating in the upcoming conference calls contact my office at (248) 538-1800 for more information.

My parents need to do planning before it’s too late. Whenever I bring up the subject they don’t want to talk about it. How can I get them to take action?

This is a challenge we hear all the time. Well intended and very concerned family members (often children) and other loved ones and friends generally recognize the need for help before the person in need. This is understandable although frustrating for those who really just want to make sure that things are in proper order and responsible planning is in place.

As we age, often one of the last things we can admit is that we need help. Needing help, especially from our own children, means we have less control. Think about it – when will you be ready to be told to give up the car keys and/or move out of your house into “that very nice assisted living facility”? Your motivation may be to assist them in learning about how proper planning can help them retain control and protect themselves, but even with this noble goal there is no magic set of words that work for everyone.

We often find that it is not the message as much as the messenger. Sometimes parents are resistant to “hearing” things from their children. In these cases, it may be effective to enlist the assistance of other trusted friends, family or professional advisors. Our goal is to allow people the opportunity to first decide if they are comfortable with us and if we can really help.

My father will be going to a nursing home from the hospital. There is a lot of paperwork that has to be signed. The nursing home wants me to sign the papers, is that a good idea?

Have the contract (papers) reviewed by an elder law specialist who has experience with nursing home admission contracts. These contracts can be very confusing. In fact, because of so many variations of contracts used around the State, the Elder law and Advocacy section of the State Bar of Michigan formed the Nursing Home Admission Contract Task Force. The Task Force has been collecting information statewide about nursing home contracts and the entire admission process families go through when admitting a loved one into a nursing home.

As a member of the Task Force and as part of my Elder Law practice, I have reviewed numerous contracts. Generally, the contracts all contain required information about a resident’s rights, billing procedures, bed holds, pharmacy, podiatry, laundry, and other added services. If there are problem areas in the contracts we typically find those problems related to the resident’s finances, responsible party relationships, and guarantees. However, we recently reviewed a contract that stated that the nursing home would be allowed to “deliver the resident back to the responsible party’s home if the nursing home decided to discharge.”

My general advice is to have the papers reviewed before signing them. Even if the contract is already signed I still suggest you get a copy and have it reviewed. Sometimes we find things in the contract that we can resolve with the nursing home before any problems arise. Be careful of the definition of “responsible party” in the contract. Generally, don’t sign as a “guarantor.” Only sign if the nursing home resident (in this case your father) can’t sign for himself. Retain a copy of everything for your records.

I have been learning about ways to protect my money if I need a nursing home. I don’t want to go to a nursing home. Do you have any suggestions how I can afford to stay in my own house when I need more help?

One of our biggest challenges as we age is maintaining our quality of life and quality of care without going broke. Most people want to be able to stay in their own home as long as possible. Virtually no one wants to go to a nursing home. Whether in a nursing home, assisted living, adult foster care, home for the aged, or continuing care community, the cost of care is very expensive and rising.

Probably the best way to “afford” the high cost of care and keep your options open to stay in your home (or other non-nursing home care setting) is to either have a lot of money (how much is enough?) or purchase a good long-term care (LTC) insurance policy while you are still young enough and healthy enough. With the average private pay cost of nursing homes being over $60,000.00 per year and comparable in home care running more than $100,000.00 per year, long-term care insurance may well be the best investment in quality of life and quality of care that anyone can make.

To help pay for long-term care insurance and own your home, you may want to consider a reverse mortgage. Reverse mortgages can sometimes be just the answer to stretch the budget to afford LTC insurance or even to help pay for the cost of care directly. If you qualify for a reverse mortgage, it is possible to borrow against the equity in your home and not have to repay the loan during your lifetime.

There are many people “selling” long-term care insurance. However, there are only a few real specialists in the field. Seriously consider getting together with a specialist to find out if you are insurable and how much good insurance will cost. Just like LTC insurance, if you are interested in looking into reverse mortgages, contact someone who specializes in them to make sure you are learning all the facts.

The probate court exists primarily for two reasons – protection and distribution. During your lifetime, if you become incapacitated and need someone to act on your behalf, he / she must have legal authority to do so. Unless you have given the person(s) you want that authority (for example through a power of attorney), they will have to get an Order from the probate court instead.

Generally, probate court protection is either in the form of a guardianship (protection of the person) or a conservatorship (protection of the assets). When a person dies owning any assets, the probate court provides legal authority for the assets to be distributed. Whether or not the person has a Will, the probate court will ultimately issue an Order directing distribution.

Besides the added costs and time delays that often go along with probate court process, people who have gone through probate often speak about the loss of control – in court, the judge always has the final say. Perhaps most important to some is the fact that the entire probate process and all the probate records are open to the public. In my experience most people are looking to maximize their control, minimize the process and time for administration and keep things private. If those are your planning objectives, then with proper planning you can avoid the probate process.

My wife and I each have a trust. Should our house be owned by one or both of them?

It depends. Sorry for the lawyer’s answer to this one. It should be an easy question to answer. However, I do not know enough about your circumstances to effectively answer. In some cases we may suggest the house remaining outside of the trust(s) to maximize protection from creditors’ claims. In other cases we may recommend the house being in one or both trusts to increase countable assets for long-term care planning. Other times it depends on the rest of the assets held in each trust.

My best recommendation is to get back to the attorney that helped you with your plan originally and ask him or her for specific guidance. Even if you have made a decision previously about the “funding” of your trust, it may be time to check in just to make sure that things are still in order – especially if any circumstances have changed for you or your family. Remember, keeping your plan up to date is just as important as having a plan in the first place.

Sanford J. Mall is Certified as an Elder Law Attorney by the national Elder Law Foundation. He is the founder and senior partner of the Farmington Hills law firm of Mall Malisow & Cooney, P.C. The law firm’s practice is in estate planning, elder law, special needs, probate and estate administration. To contact Mr. Mall call Toll Free 1-866-699-1800. Ask The ElderCare Lawyer....

• • • • QUALITY LIFESTYLE (248) 280-4593 • OCTOBER 11-DECEMBER 12, 2004 - 21

Article By Sanford J. Mall, Counselor at Law Mall Malisow & Cooney, P.C.

Ask the ElderCare Lawyer is a regular feature of Quality Lifestyle Magazine. Each issue will address your questions in areas relating to estate, probate, elder law, Medicaid, Medicare, and ElderCare legal advocacy and counseling. If you wish to have your questions answered,please send them to Sanford J. Mall, 31000 Northwestern Highway, Suite 220, Farmington Hills, MI 48334.

The questions for this article came from recent meetings at the law offices of Mall Malisow & Cooney, P.C.

Defining Characteristics of a Living Trust

Ask the ElderCare Lawyer December, 2004

Ask the ElderCare Lawyer
December, 2004