Much of what we do as Maine elder law attorneys is estate planning, probate, and trust administration. These practice areas focus on both planning for how assets will be distributed after a client’s death, and then carrying out the plan efficiently and compassionately when that day arrives.
Every client and every family has different circumstances and different needs. At Nale Law Offices, we make it a priority to know our clients and understand their goals so that we can offer the help that is best for them. To speak with us about your specific concerns, we invite you to contact Nale Law Offices. With offices in Waterville, we serve clients throughout the state of Maine.
Estate planning serves several goals. The essence of estate planning involves directing who will receive your assets on death, how they will receive that inheritance, and who will administer your estate.
But keep in mind that estate planning can also serve to preserve assets by minimizing tax consequences and protecting assets from creditors, and, maybe most importantly, estate planning can preserve family harmony. A well laid out plan clearly specifies your wishes, avoiding confusion and disputes among your heirs.
The cornerstone of your estate plan is your last will and testament. Upon your death your personal representative files your will with the probate court and the court issues an order giving your personal representative the legal authority to take control of your assets, pay your outstanding bills and distribute any remaining assets to those you named in your will. Your will controls assets that on death were in your name alone. It will not control jointly owned assets for which there is a surviving joint owner, or assets for which you have designated beneficiaries. Those assets will pass to the surviving joint owner or the beneficiary automatically regardless of what you said in your will.
While virtually all estate plans include a last will and testament, many people need more to achieve their goals, especially if one of those goals is to avoid or minimize probate. As mentioned above, assets owned jointly with a right of survivorship will pass automatically, by operation of law, to a surviving joint owner.
On assets such as bank accounts or investment accounts you can name “payable on death beneficiaries” or “transfer on death beneficiaries.” These assets will pass automatically to the named beneficiaries upon your death. Similarly, on assets such as life insurance or retirement accounts you can name beneficiaries to whom those assets will pass automatically.
If you own real estate, you can have your attorney prepare a “transfer on death” deed which passes ownership to the named beneficiary automatically upon your death. Finally, assets you have placed in trust during your lifetime will pass to the trust beneficiaries you named in the trust. there is no need for probate.
A trust is a legal entity designed to hold and manage assets for you, and eventually for your loved ones.
Assets held in trusts typically do not pass through the probate process; therefore, trusts are commonly used to avoid probate. Trusts can also be used to protect assets from creditors and from being consumed by medical expenses such as long-term care nursing home costs.
The three most common trusts we work with at Nale Law Offices are revocable trusts, irrevocable asset protection trusts, and special needs trusts (also called supplemental needs trusts). The right type of trust for you depends on your circumstances.
Revocable trusts are commonly called “living trusts.” With a revocable trust, the creator of the trust, or donor, retains complete control over the trust and may amend, revoke, or terminate the trust at any time. Upon the donor’s death, assets in these trusts pass directly to their beneficiaries. The disadvantage of a revocable trust is that the trust assets are subject to creditors’ claims and are countable when applying for MaineCare long-term care benefits.
Irrevocable asset protection trusts are created during the donor’s lifetime and generally cannot be changed or amended. Donors can reserve the right to receive income generated from trust assets but must give up the right to take the assets out of the trust. Any assets placed in the trust can be distributed by the trustee only in accordance with the terms of the trust. Irrevocable asset protection trusts terminate on your death and the assets pass directly to your heirs without intervention of the probate court.
Irrevocable asset protection trusts are a popular tool for MaineCare long-term care planning. However, keep in mind that assets placed in this type of trust are subject to a five year “look-back” period and transfer-of-asset penalty when applying for MaineCare long-term care benefits. We can help you plan to avoid losing both assets and eligibility for needed benefits.
Supplemental needs trusts, also called special needs trusts, can be created during your lifetime or in your will. The purpose of these trusts is to enable you to provide for a disabled person such as a spouse, child, relative or friend without jeopardizing their access to government benefits. The trustee will oversee the distribution of trust assets to ensure that the beneficiary will not lose eligibility for benefits such as Supplemental Security Income, MaineCare, and low-income housing.
When a beneficiary of a supplemental needs trust dies, the assets in the trust will pass to the beneficiary’s estate or to persons named in the trust document. A supplemental needs trust can also be established by a disabled person under age 65 to hold his or her own assets to maintain eligibility for certain needs-based benefits. Keep in mind that in this situation, the state of Maine may have a claim against the assets after the disabled person’s death as repayment for benefits it paid out for their benefit.
At Nale Law Offices, we will help you identify whether you need a trust, and if so, what kind. We will create the trust document to address your unique needs, and, if necessary, work with the trustee to administer the trust.
It’s wonderful when families come together after the end of a previous marriage or relationship, but combining families—and assets—can lead to conflict if not managed carefully. We listen to our clients so that we can understand their goals and family matters. Then we prepare a long-term care and estate plan that helps preserve assets and relationships and provides for an orderly distribution of those assets when the time comes. Trusts are one of many tools we use to help provide for a subsequent spouse while also preserving the inheritance of children from a previous marriage.
Assets held only in the name of the decedent, without joint ownership, without beneficiary designations, or not held in a Trust are then subject to the terms of a Last Will and Testament, or if no Last Will and Testament, subject to the intestate laws of the State of Maine.
Assets left in a will, and assets owned in the sole name of a deceased person who died without a will, must go through probate. Probate is the court-supervised process of disposing of a deceased person’s assets and settling their last debts. We help with probate administration by assisting the personal representative of an estate with their legal duties, including inventory of estate assets, accounting of transactions on behalf of the estate, and efficient distribution of assets.
Assets in a trust pass outside of probate, according to the terms of the trust document. We assist trustees with administering the trust, winding up the trust and distributing assets to beneficiaries after the death of the donor of a trust.
To speak with us about any aspect of estate planning or administering an estate or trust, we invite you to contact Nale Law Offices in Waterville. We work with individuals and families throughout Maine.