Written By: Brandy Miller | December 21, 2016 | No Comments

By: Larry W. Miller, Jr., Esquire

Here’s a true story that I was involved in early in my career.  A man in his mid-thirties is married to his true love, and has been married for fifteen years.  Together they had worked very hard saving all of their earnings until they could afford their own farm. The two of them prepared to spend the rest of their lives living their dream of working together and providing their future children with a quality home with both parents available to play an integral role in their upbringing.

Then this man gets cancer.  Despite being diagnosed with a terminal form of cancer and despite having eight months to prepare for his ultimate demise, this man never writes a will.  Upon his death, his wife finds out that her husband’s parents own fifty percent of the farm under Pennsylvania’s intestacy law (the law mandating where assets go in an estate where there’s no will), and she must sell her home and give half of the profits to his parents.  I can tell you it was devastating to watch as this woman packed her belongings and went out into the world having been denied her and her husband’s hard earned dream farm.

This is the effect not doing some basic estate planning can have on those that you leave behind.  Upon your death, your loved ones will be facing terrible grief.  Having to take on a legal mess on top of their grief is often too much for people to handle.

So what do you do?  The basic answer is draft a will.  Even the most basic of wills make things so much easier on those you leave behind.  However, maybe drafting a will is not sufficient to achieve what you are looking to accomplish.  Often people are looking to save money on taxes, protect their assets from having to be used to pay off nursing home debts, and avoid probate.  Most often a will cannot accomplish all of those goals alone.  Talking to a knowledgeable attorney can help you understand the options that are available and make sure the documents you do draft will stand up to any legal scrutiny.

One option that is losing popularity is the living trust, which is also known as the revocable living trust.  The living trust is no longer being considered as a legitimate option by many people because the law no longer exempts the revocable trust from having to perform certain tasks formerly only associated with probate.  However, executing a non-revocable trust does accomplish the goals once touted by living trust companies as necessary.  A non-revocable trust can exempt assets from the estate for both taxation and Medicaid considerations; however, it is subject to “look back periods”.  This means if the drafter goes into a nursing home or dies within a certain time frame, the trust will not accomplish the task of exempting the assets.  This is why proper planning makes things so much easier for those you leave behind.  Proper planning allows maximum savings from taxation and nursing home costs, but if you wait until death or a nursing home is imminent, it’s probably too late.

Nonetheless, even last minute planning can still save some assets.  Do the ones you leave behind a huge favor.  Take the time to consult an attorney about proper estate planning.  Those left behind will be glad you did.