All too often will-seeking clients call the firm asking if we do “simple” wills, say they need a will, but don’t want one of those “long wills”, or claim to not have anything, so they just need a “basic” will. On this week’s #TuesdayTips article, ERA Law Group, LLC discusses how having a properly drafted will can mitigate many of these foreseen and unforeseen problems.
All too often will-seeking clients call the firm asking if we do “simple” wills, say they need a will, but don’t want one of those “long wills”, or claim to not have anything, so they just need a “basic” will. Most law firms will respond to the client, “Yes! We can do that!” But there are pitfalls that can arise, some foreseen and some unforeseen, when a person only has a “simple” will, and the client does not even know these potential pitfalls exist. On this week’s #TuesdayTips article, ERA Law Group, LLC discusses how having a properly drafted will can mitigate many of these foreseen and unforeseen problems.
Two common scenarios arise when people have a “simple” will that case issues: (1) Age issues, and (2) Disability issues. The first scenario, age, has two parts: (a) what happens if someone who is under eighteen (18) years old is set to inherit money or property from the decedent; and (2) what if someone who is over eighteen (18) years old is set to inherit money or property, but is irresponsible to handle a substantial inheritance?
In Maryland, a person under eighteen cannot inherit money or property and hold legal title to that property in their own name. Someone else over eighteen must hold title to that property, for the minor’s benefit, until the minor attains eighteen years old. Often times, though, the Testator or Testatrix (man/woman who creates the will) might not think that a person at eighteen is mature enough to handle inheriting money or property; therefore, in a properly drafted under-stated age trust (a.k.a. a minor’s trust) set up in a will, he/she can set the minimum age to inherit to an age he/she feels is more appropriate. Often, a Testator or Testatrix will choose somewhere between age 23 and 25 because the person inheriting has completed college, grad school, a trade school and/or has been working for a reasonable amount of time and a can hopefully manage an inheritance of money, property or both. Therefore, it is advantageous for your will to contain an under-stated age subtrust that directs how a minor’s or individual’s inheritance who is under a stated age will be held and managed. Last, this subtrust can avoid the requirement of court intervention if a minor is set to receive an inheritance and no provisions are made outlining how to handle a minor receiving an inheritance.
The next scenario is: what happens if a person who is incompetent or disabled is set to receive an inheritance? It is possible that when a person dies, he or she has designated an individual who is incompetent or disabled to receive all or a portion of their estate. If that happens, it can have dire consequences for the beneficiary. For example, what happens if the child of a decedent has a severe cognitive disability (i.e., severe autism or severe Downs Syndrome) and is receiving SSI and Medicaid because he is unable to work. If the parent does not do proper planning, that disabled child may inherit a substantial sum of money causing that child to lose his SSI and Medicaid benefits.
Or this other scenario: a husband is in a nursing home on Medicaid because of severe dementia, but the wife still living in the community suffers a massive heart attack and dies. Now the husband in the nursing home may be designated in the wife’s will to receive all of her estate. Now the husband in the nursing facility might lose his Medicaid benefits because he now inherited a house that needs to be sold. Remember, the husband has severe dementia, cannot sell the house himself, and does not have a power of attorney. Now a guardianship issue has presented itself in addition to him losing his Medicaid benefits because he now has excess assets.
All of the problems caused in scenario two can be avoided if the decedent’s will has a properly drafted Incompetent or Disabled Beneficiary Trust.
At ERA Law Group, LLC, we advise our clients of these potential pitfalls, even when the client wants to do “basic” planning. Unfortunately, if not properly counseled, “basic” planning can cause very complex issues later after someone dies. At that point, it may be too late to cure the issues. That is why ERA’s “basic” or “simple” will includes both of these subtrusts…we don’t want our clients to be left stranded if these difficult and “unforeseen” scenarios come up later. Call us today at (410) 919-1790!