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I am asked by clients all the time the question: Do I need a Trust to avoid probate in Indiana? The simple answer is: No. The more accurate answer is: It depends.Probate is the legal process by which a court of competent jurisdiction appoints an executor / administrator / or personal representative (synonymous terms often used interchangeably), to pay expenses of a decedent; and, to gather, collect, value, and transfer assets of a decedent to the next of kin or properly designated heirs. This process is public and can become cumbersome, lengthy, and expensive. Trusts are often used to legally […]

A “living trust” is the name frequently given to a revocable trust used in estate planning as an alternative to a will. The downside to a will is that for a will to be valid and effective to transfer property at one’s death, the will must be “probated.” Probate is a formal court proceeding that is expensive and often ties up the decedent’s estate for many months, while the beneficiaries wait for their inheritance. A “living” trust avoids probate. An individual can establish his/her own individual living trust, or spouses, if they wish, can establish one trust together called a […]

The current federal gift tax exclusion allows you to give away up to $15,000 per person annually, to as many individuals as you wish. Whether you will benefit from utilizing this exemption depends on your assets, but for most, at least those with assets under $11.7 million, gifting $15,000 annually does not result in a tax reduction.The federal government imposes taxes on gifts made during your lifetime and/or at death that exceed certain dollar amounts. The current lifetime exemption for 2021 is $11.7 million per person. This means you have the ability to gift a total of $11.7 million ($23.4 […]

An essential legal document that everyone should have is an Appointment of Health Care Representative. Recent changes to Indiana law make it important that you review your Appointment of Health Care Representative with your attorney. Unfortunately, injury and the illnesses of old age often make it difficult or even impossible for a person to make their own decisions. If a person can’t make health care decisions for themselves, someone must be appointed to make those decisions for them. Indiana recently updated its Health Care Representative law, making it easier to appoint a Health Care Representative and providing additional options for […]

Q:        Can the Seller of “replacement property” real estate, in a 1031 like – kind exchange, place conditions on the sale of that real estate which would entitle the Seller to receive the property back in certain situations? A:        A Seller may condition the sale of “replacement property” in a 1031 like – kind exchange which would require the property to revert back to the Seller in certain circumstances. However, placing such a “hook” of some sort on the replacement property that the Buyer in a 1031 like – kind exchange is planning to receive could jeopardize the Buyer’s tax […]

Creating a “life estate” in your home can be an effective estate planning technique as well as an effective asset protection plan with respect to nursing home planning, but beware of the pitfalls.  A “life estate” can be created in real estates, like your home.  The homeowner transfers the home by a deed that is recorded in the county recorder’s office where the home is located.  Most commonly, the parent(s) will transfer the home to their children and the deed must expressly reserve to the parent(s) a “life estate.”  The parents then own a “life estate” while the children own […]

Advance directive documents are simply making a decision about the care you would want to receive if you were unable to speak for yourself.  It involves deciding who will be your voice and advocate as well as specific treatment you do or do not wish to receive.  In Indiana, the legal documents you need for advance care planning are called a Durable Power of Attorney, an Appointment of a Health Care Representative and a Living Will.  The purpose of a Durable Power of Attorney is to name someone that can make financial decisions for you if you were unable to […]

The snapshot date is the date of institutionalization lasting at least 30 consecutive days. Institutionalization may be in a hospital, nursing home, similar health care facility, or any combination thereof, so long as the institutionalization is continuous and unbroken. The snapshot date relates to married couples only when one of the spouses is ill; and, it is necessary to know when applying for Medicaid assistance for the ill spouse. This is because all countable resources are valued as of the snapshot date, no matter when it occurred (even if years before the current application). Currently, the Community Resource Allowance cap […]

I have heard that there’s a five-year look-back for Medicaid.  Why shouldn’t I just have my parents gift their assets to me without the assistance of an elder law attorney? The temptation is great to try to go it alone when thinking about a future Medicaid qualification.  But that may not be the wisest decision.  When a gift is made directly to another individual, that individual determines what happens to that asset in the future; it can be spent, lost in a divorce, or become fair game in the event of a lawsuit.  Often elder law attorneys make use of […]