Round Rock, TX Attorney Blog

Friday, October 2, 2015

Elder Abuse in the State of Indiana

What is elder abuse?

People are living longer than ever before. With increasing lifespan comes the undeniable fact that more and more elderly people will be unable to care for themselves. Some of these people will be cared for in long-term care facilities and others will be cared for by their loved ones in a home setting. While it may seem safer to be cared for by a loved one at home, it seems that the great majority of the elderly who are abused suffer mistreatment at the hands of their families and friends. The Indiana Prosecuting Attorneys Council (IPAC) recently held a conference addressing many of the issues posed by elder abuse in the state.

Elder abuse is the willful or negligent mistreatment of a vulnerable older person that results in harm or the risk of harm. Elder abuse can be physical, emotional, sexual, financial and may stem from neglect as well as intervention. This abuse is illegal in all 50 states and is often regulated by an agency devoted to protecting vulnerable adults, such as Adult Protective Services. Unfortunately, many of the abused never speak up , either because they are either embarrassed, afraid, unaware, or unable to communicate.

Although elder abuse can go undetected, there are signs to look out for. Unexplained injuries, suspicious financial transactions, and changes in the relationship between the elder and the caregiver often point to abuse of some kind. In Indiana, local prosecutors handle the work of Adult Protective Services. There are only about 40 investigators in the state and last year they handled approximately 10,000 cases. Needless to say, the agency is understaffed. IPAC has determined that they are in need of more investigators but are unsure of the exact number. The above-mentioned conference can be seen as the first step to reforming Indiana’s elder care system. It brought together professionals from various fields to discuss important issues relating to elder care. IPAC hopes to have a clearer picture of what reforms are needed by the beginning of the coming legislative session.

Elder abuse is a huge problem across the country. Fortunately, you can take estate planning measures to decrease your chances of becoming a target. Contact Gerald Winter of Winters Law Firm in Porter County and Valparaiso, Indiana to learn more by calling 219.307.4373.

Tuesday, September 29, 2015

Avoiding Common Mistakes in Estate Planning

Estate planning is designed to fulfill the wishes of a person after his or her death. Problems can easily arise, however, if the estate plan contains unanswered questions that can no longer be resolved after the person's demise. This can, and frequently does, lead to costly litigation counter-productive to the goals of the estate. It is important that will be written in language that is clear and that the document has been well proofread because something as simple as a misplaced comma can significantly alter its meaning.

Planning for every possible contingency is a significant part of estate planning. Tragic scenarios in which an estate planner’s loved ones predecease him or her, though uncomfortable, must be considered during the preparation of a will to avoid otherwise unforeseen conflicts. 

Even trained professionals can make significant mistakes if they are not well versed in estate planning. An attorney who practices general law, while perfectly capable of preparing simple wills, may not understand the intricacies of trusts and guardianships. A great many attorneys, not aware of the tax consequences of bequests involving IRAs, may leave heirs with unnecessary financial obligations. If an attorney is not knowledgeable enough to ask the proper questions, he or she will be unable to prepare an estate plan that functions efficiently and ensures the proper distribution of the estate's assets.

In spite of the wealth of an individual, the estate may be cash deficient if that wealth is tied up in assets at the time of the individual's death. Problems can also result if an estate planner has distributed assets into joint bank accounts or accounts with pay on death provisions. If the executor of the estate does not have access to funds to pay the estate's bills or taxes, the heirs of the estate may run into trouble.

Even if estate planning is handled well from a logistical point of view, lack of communication with loved ones can interfere with a will's desired execution. A tragedy that incapacitates the testator can occur suddenly, so it is imperative that a savvy estate planner confers with loved ones as soon as possible, making them aware of any future obligations, such as life insurance premiums that must be paid and informing them of the location of any probate documents and inventories of assets. Such conversations ensure that the individual's wishes will be carried out without complications or delay in the event of an unexpected incapacity.

In addition to communicating logistical information, it is also essential to schedule a personal conversation with loved ones that makes clear any sentimental bequests or large gifts that require explanation. This avoids the shock or discomfort that may arise after one's death during which a well-thought-out decision is questioned as impulsive or irrational. Such direct communication of one's plans avoids unnecessary envy, arguments or rivalry among family and friends.

Consulting with attorneys who specialize in estate planning is the cornerstone of creating a plan to ensure that one's desires are carried out and that all the bases are covered. Estate planning attorneys serve as invaluable repositories of all information necessary to strategizing a plan that not only meets one's personal needs and desires, but is legally binding.

Monday, September 21, 2015

Disaster DIY: Business Law Edition

Have you ever watched the TV show Disaster DIY on HGTV? The premise of the show is that many people have no idea what they are doing when it comes to home remodeling, but they try the “do it yourself” (DIY) approach  anyway. The host of the show then comes in to save the day, repairing what the DIYers have messed up, and teaching them how to do perform certain tasks.

This show has many parallels to the world of business law. It is tempting to try and find a DIY solution to legal issues. Budgets are tight, and professional legal advice can seem like a luxury when you are first starting out or struggling to meet quarterly goals, so many businesses adopt a DIY solution when what they really need is a good lawyer.

The Internet also encourages many businesses to DIY their legal issues, whether its access to legal info or various forms. But the problem is that advice on the Internet is not always accurate, particularly since business law is different in every state.

After pursuing the DIY route and disaster ensues,  business owners are forced to call in the professionals to clean up the mess.  Unlike the TV show, where the show’s producers cover the DIYers costs, the costs of fixing a legal DIY disaster rest solely on the business or the business owner. It often costs businesses significantly more to rework a legal framework that wasn’t carefully thought through. There are two reasons for this. First, proactive legal help is always going to be more cost effective than legal triage; it’s infinitely more costly to actively fight a pending lawsuit than it does to carefully draft and implement needed policies. Second, the results that even the best attorney can salvage from an awful situation are not likely to be as as ideal or as cheap as it would have been to avoid the disaster altogether.

Thursday, September 17, 2015

Trinkets & Treasures: How to Properly Distribute Personal Property and Heirlooms

I would like to ensure that my valuable jewelry is distributed to certain family members. Can I accomplish this in my Will?

When it comes to creating and executing a Last Will and Testament, it is important to address both real and personal property. Real property is a term referring solely to land, whereas personal property basically involves everything else. Also known as “tangible” personal property, this can include jewelry, furs, antiques, fine art, firearms, and any other heirlooms – regardless of market value.

Many people mistakenly skip over the vital step of describing their personal property wishes in their Will, trusting that family members will know who gets what. In the aftermath of the death of a loved one, however, it is often difficult to determine precisely which piece of art was to go to which niece, and which nephew was to inherit the gun collection. Accordingly, this can create the perfect storm of emotions, creating unnecessarily family strife.

A better alternative is to include a personal property memorandum in a Will that must be honored at the time of death, and may be attached to a Will as an addendum. In this memorandum – which may be handwritten – the testator may list individual pieces of property along with the intended recipient. So long as the document is signed by the testator (or by another person at the testator’s direction), the memorandum must be upheld as valid in the event of a conflict and cannot be overlooked during the estate administration process.

Some pieces of personal property, such as firearms or artwork, come with accompanying documentation of authenticity – making proper distribution more complex. For these reasons, it is not uncommon for a testator to decide to place these items in trust to avoid the hassle of probate. This is an experience in which an estate planning attorney can be invaluable.

If you would like to discuss your options with regard to your valuable or priceless personal property, please do not hesitate to contact Winters Law Firm, serving clients throughout Northwest Indiana at 219.307.4373.

Monday, September 7, 2015

When Will I Receive My Inheritance?

If you’ve been named a beneficiary in a loved one’s estate plan, you’ve likely wondered how long it will take to receive your share of the inheritance after his or her passing.  Unfortunately, there’s no hard or and fast rule that allows an estate planning attorney to answer this question. The length of time it takes to distribute assets in an estate can vary widely depending upon the particular situation.

Some of the factors that will be involved in determining how long it takes to fully administer an estate include whether the estate must be probated with the court, whether assets are difficult to value, whether the decedent had an ownership interest in real estate located in a state other than the state they resided in, whether your state has a state estate (or inheritance) tax, whether the estate must file a federal estate tax return, whether there are a number of creditors that must be dealt with, and of course, whether there are any disputes about the will or trust and if there may be disagreements among the beneficiaries about how things are being handled by the executor or trustee.

Before the distribution of assets to beneficiaries, the executor and trustee must also make certain to identify any creditors because they have an obligation to pay any legally enforceable debts of the decedent with those assets. If there must be a court filed probate action there may be certain waiting periods, or creditor periods, prescribed by state law that may delay things as well and which are out of the control of the executor of the estate.

In some cases, the executor or trustee may make a partial distribution to the beneficiaries during the pending administration but still hold back sufficient assets to cover any income or estate taxes and other administrative fees. That way the beneficiaries can get some benefit but the executor is assured there are assets still in his or her control to pay those final taxes and expenses. Then, once those are fully paid, a final distribution can be made. It is not unusual for the entire process to take 9 months to 18 months (sometime more) to fully complete.

If you’ve been named a beneficiary and are dealing with a trustee or executor who is not properly handling the estate and you have yet to receive your inheritance, you should contact a qualified estate planning attorney for knowledgeable legal counsel.

Wednesday, August 26, 2015

Medicare Premiums Expected to Rise Up to 52 Percent for Some Seniors

What changes to Medicare laws are expected in the future?

As seniors continue the post-retirement financial planning process, the annual Medicare Trustees Report released at the end of July purports to show a dramatic increase in Medicare Part B premium costs – up to 52 percent in some instances. Moreover, the Trustees  Report shows that Medicare Part B deductibles are also expected to rise – also up to 52 percent for some seniors. In sum, certain groups of Medicare Part B recipients could see a concurrent rise in both monthly premium and out-of-pocket expenses.

Medicare Part B Coverage

For those who are just beginning to plan for retirement and long-term care, understanding Medicare and its various components, as well as the role of Medicaid in long-term care planning, can be overwhelming. In general, Medicare is available for senior citizens who have paid into the program for a sufficient number of years during their employment history. The program works much like a private insurer, and is administered by private management companies. It consists of several parts, each assigned a letter, with each component covering a different segment of comprehensive healthcare.

Medicare Part B is an essential component of healthcare coverage that spans a wide variety of everyday services, including doctor visits and surgical procedures. What it does not cover, however, is long-term care services beyond 120 days.

For those in need of long-term care services, including round-the-clock skilled nursing services in a nursing home setting, it may be necessary to begin planning for eventual Medicaid eligibility. Medicaid, which covers the costs of a nursing home stay, is available for those who meet the financial requirements of enrollment. These requirements tend to change year to year, so it is important to meet with a reputable elder law attorney to keep current with the latest information.

If you are in need of elder law advice or would like to speak to a reputable attorney about your options in estate planning, please contact the Winters Law Firm in Valparaiso, Indiana. We serve clients throughout Northwest Indiana and can be reached at 219.307.4373.

Monday, August 24, 2015

Tips for Executors: The Basic Steps of Indiana Probate Administration

I am named executor for a family member that recently passed away. Where do I get started?

Serving as executor or executrix for a loved one’s estate can be both an honor and – for some – a great burden. As experienced practitioners of probate law, our office can help take the stress and anxiety out of this process, and allow you the opportunity to complete the tasks at hand with minimal difficulty.

If you are new to the estate administration process, you may be wondering where to begin. The following offers a timeline for the probate process in Indiana, and should serve as a starting point as you begin your journey:

 Step #1: The first step for an executor is to become officially appointed as such by the Indiana probate court. This is accomplished by taking the original Last Will and Testament and a Petition for Probate to the probate court in the county where either the decedent lived or owned real estate. At this point, the probate court will provide the executor with Letters of Probate, which provide authority over the estate assets and allow the executor to lawfully handle the decedent’s assets and debts.

Step #2:  If the administration will be supervised by the court, the next step is to file an inventory of assets and liabilities. Not all estates require this step, however, and an estate administration lawyer can help you better decide if you need supervised or unsupervised administration.

Step #3: Handling creditor claims is a big part of the administration process, and creditors have just three months from the date notice is published or mailed to properly file a claim against the estate.

Step #4: Distributing assets is the last step in the administration process, and must be done after the estate’s debts and liabilities are disposed of. Assets are to be divided according to the executor’s directions in his or her Last Will and Testament, and the executor is required to handle this responsibility in a timely manner.

If you were recently named as an executor in a Last Will and Testament and would like to speak to an experienced attorney, please contact the Winters Law Firm in Valparaiso, Indiana today: 219-307-4373. 

Saturday, August 8, 2015

You’ve Finally Done Your Healthcare Directives – Now What?

Healthcare directives can be vitally important, as recent cases, like that of Terry Schiavo, clearly brought to light. These important documents can mean the difference between your health care wishes being carried out or family members fighting over whether a loved one should be placed in a nursing home or removed from life support. Healthcare directives usually include both a healthcare power of attorney and a living will, or a form which is a combination of the two. In a healthcare power of attorney, an individual authorizes another individual to make healthcare decisions for him or her if the individual becomes unable to do so. A living will expresses an individual’s preferences about life support.

Once you have executed your healthcare directives, you may be uncertain as to what to do with them. First, you should make copies of the documents and inform others of their existence. In addition to your health care agent, persons you should consider notifying of the directives include family members and your health care providers.  Ideally, the originals should be kept in a place that is both safe and easily accessible.

You may wish to consider using a secure registry service to store your healthcare directives. Such services allow you to access healthcare directives any time and in any location with access to the Internet.  Some also allow the documents to be accessed via an automated fax-back service. In addition to providing the healthcare directives, many registries also allow caregivers to access information like emergency contacts, allergies, and other pertinent medical information.

You should review your healthcare directives regularly.  As individuals get older, their preferences about health care and life support change, and it’s important that your directives reflect your current health care wishes.   Of course, life changing events such as marriage, divorce, or the death of a loved one typically require changes in those documents to ensure that the people named in them are still those you wish to make decisions on your behalf.  

Moving to another state? Many states provide that healthcare directives prepared in another state are valid, but you should consult an attorney to make sure your wishes will be carried out in the manner you desire.

Establishing your healthcare directives can spare your family a great deal of anguish if they need to make decisions at a time that is already very emotionally-charged. By keeping the documents in a secure place, providing copies to loved ones, and reviewing them regularly, you can be more certain that your healthcare wishes will be carried out.

Friday, August 7, 2015

Small Business Succession Planning

As a small business owner, what do I need to consider when deciding the best course of action for the future? 

You’ve spent your life building and growing your business. You’ve invested time, money, and more sweat equity than you could possibly recall. Yet, you’ve come to terms with the fact you won’t be around forever to manage everything – and you’re not quite sure what the next step should be. 

Sound familiar? If so, it may be time to meet with a reputable business succession attorney at the Winters Law Firm – a team of legal professionals with a keen understanding of the unique estate planning needs of Indiana small business owners. For help, contact our Valparaiso office right away, and consider the following as you plan for the future: 

Issue #1: Family Dynamics: For many, the obvious choice in business succession planning is to pass the dynasty on to the next generation. However, this choice should not be made lightly, and oftentimes families hand over the reins to children only to see the business liquidated and sold a short time later. Thoughtfully consider the strengths and weaknesses of family members before making this pivotal decision, and do not be afraid to consider other options. 

Issue #2: Transition Style: Are you ready to retire and get out of business altogether? Or would you rather stay on board in a “consulting” role as your children or partners continue in the day-to-day management of the enterprise? The answer will depend heavily on the current management structure, and whether there is anyone in place who knows the ins and outs of the business with the same keen attention to detail as the founder. 

Issue #3: Liquidation: It may be a difficult concept to consider, but for some small business owners it makes the most sense to sell the business and use the proceeds for a comfortable retirement. For high net worth businesses, this option will also prompt the need for a strategic and well-thought-out estate plan – which our office can help with as well.

If you are ready to discuss your options in business succession planning, please do not hesitate to contact the estate planning attorneys at Winters Firm right away: (219) 307-4373. 

Thursday, August 6, 2015

Legal Tips from the Shark Tank

Lawyers are often mocked in pop culture as “sharks,” but a quick flip through the TV guide tells you the real sharks out there are in the business world. The ABC reality show “Shark Tank” has become a cultural phenomenon, inspiring tons of people to start their own businesses and invent new products.

If you are part of the wave of Shark Tank inspired entrepreneurs, here are some legal tips for you.

Don’t go into the Shark Tank, or into business, without a plan. On the show, the entrepreneurs that do the best are the ones that are the best prepared to answer all of the sharks’ questions. In the everyday business world the same is true. It’s just that it’s not sharks asking the questions - it’s investors, employees, and the other companies you are doing business with. 

Be prepared to take risks, but preferably not legal ones. Starting a business is a gamble, but it can be downright dangerous if you don’t fully comprehend the legal risks you are taking on. Several entrepreneurs have had their dreams crushed by the sharks because their business is just too big of a legal risk to invest in. In order to be successful in business you need to know what risks you face so you can plan around them.

Be prepared to negotiate. The sharks rarely buy into a business on the first terms offered to them by the entrepreneurs. In and outside the tank, the successful business owners and inventors are the ones prepared to negotiate to get a deal that is good for both parties. This often means giving up more equity than originally planned or revaluing assets to reflect market realities.

Patents are shark bait. The old saying “you’ve got to spend money to make money” is absolutely true in the innovation world. The sharks’ eyes light up when an inventor mentions that they have a patent on the idea or product they are pitching. That’s because patents are hard assets that you can buy, sell, license or build a business around. If you have a great idea, spend the money to patent it. 

Going head to head with the sharks is something only a few businesses do. But feeling like you have been thrown to the sharks is something all business owners and inventors can identify with. If you are looking for someone to help you navigate the legal issues your business is facing - from starting up, to scaling up, to selling out - consider contacting an experienced business law attorney today.

Thursday, July 30, 2015

Using Divestment Strategies to Secure Long-Term Care

Will Medicare cover the costs of a nursing home stay? 

The government-run health insurance program known as Medicare is accessible by millions of Americans upon reaching age 65 – covering a wide range of services from general wellness visits to invasive surgery. However, one glaring issue with Medicare coverage is its virtual ignorance of long-term care needs for seniors who are simply no longer able to live on their own. More specifically, long-term care coverage is generally available to a Medicare enrollee only up to 120 days – and is usually reserved for rehabilitative-type treatments or post-operative recovery requiring skilled nursing. 

So, for the average American with a moderate nest egg saved, how is one to afford the skyrocketing costs of nursing home care – which average anywhere from $7,000-$12,000 per month depending on the jurisdiction? Further, if a husband and wife require care together, this sum could be potentially doubled – depleting assets at a record pace. 

In short, Americans are either required to deplete their entire life savings on the costs of long-term care, or with a little pre-planning can arrange for careful and tactful divestment strategies to help them to eventually qualify for Medicaid – another government health insurance option based primarily on financial need. 

Divestment strategies and Medicaid

Medicaid regulations are comprised of a myriad of guidelines, income thresholds, and property allowances to guide applicants as they begin the application process. For married applicants, the excluded income and assets are somewhat higher than those assessed against single applicants. However, in either scenario, applicants must demonstrate a lack of significant assets in order to qualify. 

Herein lies the need for an experienced elder law attorney to help plan proper and lawful divestment strategies in order to preserve assets for future generations while simultaneously ensuring long-term care eligibility when the time comes. One way to do this is to begin transferring assets to family members now, in hopes that the need for Medicaid eligibility will not occur during the five-year lookback period – which could trigger a penalty. There are also other ways to spend down your assets such as pre-paying for funeral and burial costs.  Other options include the use of irrevocable trusts, which should be handled with the care and consideration of a knowledgeable attorney. 

If you are considering the rising needs of long-term care in light of your own personal savings – and would like to speak to a reputable elder law attorney – contact the Valparaiso and Porter County, Indiana based Winters Law Firm at (219)307-4373 today. 

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