DISCLAIMER: THE INFORMATION CONTAINED HEREIN IS DESIGNED FOR INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE CONSIDERED LEGAL ADVICE. PLEASE CONSULT YOUR ATTORNEY OR OTHER QUALIFIED PROFESSIONAL ADVISER BEFORE TAKING LEGAL ACTION.
Frequently Asked Questions
(This is not a comprehensive list. These questions and answers are fairly generic by nature, as each situation is unique and deserves individual attention. Please call us for a FREE 15-minute telephone consultation – 501.843.9014 – where we can determine how we may be of service to you and/or your loved ones.)
1. What is Elder Law?
Elder Law is a broad body of law covering many areas that affect seniors. It covers everything from Estate Planning, Guardianship, Medicare issues, Medicaid qualification, Nursing Home placement, Nursing Home abuse or neglect and the resulting claims, and a number of additional long-term care challenges the elderly may face.
2. How do I keep the nursing home from taking my mother’s house?
A person’s home is an exempt asset in Arkansas. This means that a person going into a nursing home can keep their home and still receive Medicaid long-term care benefits (if otherwise qualified). However, DHS may collect the amount that it has paid after the beneficiary’s death by electing to “re-coup” against his or her house. This means that after the beneficiary dies, DHS may sell the house to recover money it has paid in Medicaid payments.
3. What is Medicaid?
Medicaid is a cooperative, federal – state program. It is designed to meet the financial expense of medical services for the elderly, blind and disabled poor in Arkansas. Medicaid provides a wide range of benefits, including acute medical care, medications, outpatient treatment and long-term care.
4. Who administers the Medicaid program?
Funding for Medicaid comes from both the federal and state governments. Arkansas has designated the Department of Human Services (DHS) Divisions of County Operations and Medical Services to administer the Medicaid program in our state. The eligibility requirements and administration of the program are handled at the state level, subject to the oversight of the federal Health Care Financing Administration (HCFA).
5. Why should I have a will?
A major advantage of a will is that it allows you to designate the person(s) who are to receive your estate at your death. You may have heard the old saying, “If you don’t have a will, the state has one for you.” The state does have a “descent and distribution statute” that provides for the distribution of assets for those people who die “intestate,” or without a will. The problem is that the state’s plan may be good for some and disastrous for others. One size doesn’t typically fit all. However, if you don’t have an estate plan in place prior to your death, you forfeit your right to choose. Another good feature of a will is that it allows you to specify the person who will administer your estate at your death. Once again, if you don’t make the decision, you forfeit your right to choose. Chances are a judge will approve whoever asks the court for the job – and it may not be the person you would have chosen.
6. What is the disadvantage of a will?
The major disadvantage of a will is the court process which happens after your death called “Probate.”
7. What is probate?
Probate is the legal process of changing title to assets. Usually it is the only way to change title from one generation to another. There is usually no probate when the first spouse dies. Why? Married couples generally hold title to assets jointly. So when the first spouse dies, everything passes by operation of law to the surviving spouse. Probate usually begins after the death of the second spouse. The good news is that there are ways to avoid probate and make the distribution of assets much easier for surviving loved ones!
8. How long does probate take and how much does it cost?
Probate usually takes from 9 – 24 months and costs an average of approximately 3% of your estate to complete. Obviously the time and cost to complete the process could be more or less depending on the complexity of the matter, but these are good averages. The executor must get the court’s approval in advance – prior to taking any action to settle the estate – which is why the process can take so long. A probate attorney’s fees are set by state statute.
9. What is a Revocable Living Trust?
A Revocable Living Trust is one of the basic estate planning tools that should be considered when a person is preparing their estate plan. Usually a person weighs the pros and cons of a will vs. a trust when deciding what to do. “Revocable” means just that – once you establish a revocable trust, you can revoke or cancel it at any time. Since you are the Trustor (owner of the trust) you are in full control of the document and can maintain or do away with it at any time without asking the permission of anyone. “Living” simply means that the trust was established and funded during your lifetime, as opposed to being funded at death. (A trust funded at death is called a testamentary trust, which is a trust contained in a will. Assets of a testamentary trust are titled over to the trust at your death, which requires a probate proceeding.)
A Revocable Living Trust may be a good option for avoiding probate.
10. When should I not use a Revocable Living Trust?
If you have a very complicated estate and need the hands-on involvement of a court to untangle the mess, then you should prepare a will and allow your estate to go through probate. And in certain elder law or special needs situations – where the law only allows certain protections if a person has a testamentary or special needs trust contained in a will – the will is the only option.