Category Archives: Estate Planning

Using a Revocable Living Trust to Avoid Probate

“Probate” – a word that creates fear and dread in the hearts of many. (For more information on what “probate” is, see my previous blog, “What is Probate?”)  But the truth is:  While the probate process in some other states is complex, time consuming and expensive, Maine has a streamlined probate process which for most people is relatively fast and is no more expensive than alternatives to probate.

 Reasons to avoid probate.  Nevertheless, in some instances, it can make sense to make arrangements to avoid probate.  This is true if: 

  • You have real estate outside of Maine; or
  • You have concerns about privacy and want to keep the details of your estate plan private.

 Ways to avoid probate. A number of simple ways can be used to avoid probate, such as: 

  • Putting real estate, bank accounts and investment accounts in joint names;
  • Designating beneficiaries on investment accounts, retirement plans, annuities and life insurance; 
  • Using “transfer on death” designations (“TOD” or “POD”) on accounts.

 Using a Revocable Living Trust to avoid probate. A “revocable living trust” may also be part of a plan to avoid probate.   This is done as follows:   A lawyer writes up a trust document.   Under this document, you name yourself as trustee. This means that during your life, and for as long as you are mentally competent, you remain in control of your assets.  You are able to add assets to or remove assets from the trust, spend money from it, change the terms of the trust, or revoke the trust altogether. You also name a “successor trustee”:  a trusted person (such as a family member or bank) to take charge of the assets when you die, or possibly sooner, if you become mentally incompetent.  When you die, the successor trustee pays bills and then distributes money and property according to the directions in the trust document, to the people you name in the document and in the amounts directed by you.  This can all be done without anyone having to file papers in the probate court. This preserves your privacy.  And if you have real estate outside of Maine, it avoids the necessity of filing for probate in another state, which can indeed be expensive.

 When considering whether to have a trust of this type prepared, be aware that the fees will be higher than if you go with a simple will.  This is because, in addition to the drafting of the trust document, deeds must be prepared, transferring your home and other real estate to the trust. Your bank and investment accounts will also need to be transferred to the trust, and beneficiaries will need to be changed on your retirement plans and life insurance.    This will all require more time on the part of your attorney, for which you should expect to be billed. 

(This blog is by attorney Sally M. Wagley, a Maine elder law attorney with the firm of Levey & Wagley, P.A., in Winthrop, Maine.  The information provided on this website is for informational and educational purposes only.   This information should not be construed as rendering legal advice or offering an answer to a specific legal problem.)

A Trust for a Minor or Young Adult Child

If you have a minor child or a child in the late teens or early twenties, you should consider leaving your child’s inheritance to a trust, rather than to your child outright. Why? 

  • The establishment of a trust will avoid the necessity of having a court appoint a conservator for a child under age 18.  (Even the child’s surviving parent or guardian will be required to have to seek appointment as conservator before funds can be distributed from your estate and used for your child’s benefit.  This is required by law, and will take time and money)
  • A trust will prevent your child’s receiving his or her inheritance at age 18.  Even responsible children in this age group can make impulsive financial decisions.  The placement of the funds under the control of a trustee will ensure that your child’s inheritance is responsibly managed until your child is ready to do this on his or her own.
  • A trust will enable you to choose a reliable person to act as trustee for your child.  It is not necessary that it be a bank or trust company:  you can choose a family member or friend.
  • A trust can direct what types of things your child’s inheritance can spent on, such as college or vocational training. 

A trust of this type need not be expensive or complicated.   The trust can be relatively simple and made part of your will.  It is not necessary to place funds in the trust now.  Rather, funds (or other assets) will go into the trust upon your death.  

I have prepared many hundreds of these trusts for clients with children who are minors or young adults.   Typically the trust directs the trustee to use funds for the child’s health, education and support until the child reaches age 19 or graduates from high school.  Thereafter, the trustee is directed to use the funds for college of other post-secondary education, as well as living expenses if the child is enrolled full time.    Most clients choose to have the trust end, and the child’s inheritance released to the child, at age 25.  (I had one very protective mother insist that her son should not get his full inheritance from the trustee until age 50, which I thought was a bit much.)  Other clients direct the trustee to distribute income from the trust investments automatically over a period of years, as well as installments of principal from time to time. 

However, the terms of the trust are entirely up to you, and can be tailored to fit your situation and your goals for your child.

Trusts 101

Clients frequently come into my law office asking “Should I (or we) have a trust?”  My answer is always “It depends on your situation and what your goals are.” 

Then I ask clients, “What are your goals?   What are the concerns you have that make you think about having a trust?”   These concerns may include:

  • Providing for a minor or young adult child
  • Providing for a disabled person
  • Providing for a pet
  • Avoiding probate
  • Minimizing estate tax
  • Preserving your assets against the high cost of nursing home care
  • Keeping your vacation home in the family.

There are many different types of trusts, for many different purposes:

  • A trust for a minor or young adult child;
  • A “special needs trust” for a disabled person;
  • A trust for the care of an animal;
  • A revocable living trust, to avoid probate;
  • A tax-oriented trust, to reduce estate taxes;
  • A trust to preserving your assets against the high cost of nursing home care;
  • A trust to hold your vacation home for the benefit of your family.

In the coming weeks, I will write about different types of trusts which can be useful depending on the client’s situation. Later this week:  Trusts for minor or young adult children.

Estate Planning for Parents of Disabled Children

by Sally M. Wagley, attorney

Parents of disabled children tend to worry a lot. I am frequently asked the following questions:
• Will my child be able to live independently, without my support?
• Does my child need a guardian?
• Where will my child live?
• Does my child qualify for public assistance programs such as SSI and MaineCare (Medicaid)?
• If I leave money or property to my child, will my child lose public assistance?

Will my child need a guardian?
Some children, in spite of their disabilities, are able to live independently. Many people with physical disabilities lead active lives, helped by adaptive equipment, in-home services, and legal protection under the Americans for Disabilities Act. For this group, the appointment of a guardian is not a concern.

Even a child with mental or emotional disabilities may be able to live on their own or in supportive settings such as supervised apartments and group homes.

A parent of a disabled child should ask him or herself, “Is my child able to make decisions about medical care? Is my child able to manage money?” If the parent has any doubt, he or she should first consider whether the child has the mental capacity to sign a durable power of attorney, in which the child chooses another person (such as a parent, other family member or family friend) who can to access medical and financial information and make the decisions for the child, to the extent the child is unable. In this situation, the child continues to have a degree of independence.

However, the child’s mental disability may be so severe that he or she does not have sufficient understanding of the power of attorney. In this case, I advise parents, upon the child’s turning 18, to petition the probate court for appointment as the child’s guardian. Otherwise, the parent will no longer be able to make decisions for the now adult child. Where the child has money or property in excess of $5000, the parent must also be appointed as the child’s conservator.

A parent will also worry who will watch over the child after the parent is gone. I advise parents, in their wills, to designate a responsible adult to act as the child’s guardian in this circumstance.

Where the child receives some kind of Social Security benefit, the parent should also apply to become the child’s representative payee, to handle that child’s benefit check.

Will my child qualify for public assistance?
A child who has a physical, mental or emotional impairment may be unable to support him or herself financially. The child is also unlikely to have medical coverage.

In order to be eligible for cash benefits from the Social Security Administration, the child must undergo a disability determination. This can be started by visiting the local Social Security office.
If the child is determined to be disabled, he or she may qualify for Social Security Disability Income (SSDI) or Supplemental Security Income (SSI). A child with a deceased or disabled parent may qualify for SSDI, based on his parent’s work record. The amount of the cash benefit will vary, based on the parent’s work history. After two years of being on SSDI, the child will also qualify for Medicare, which will cover much, but not all of, the child’s medical expenses. Depending on the amount of the SSDI benefit, the child may also qualify for MaineCare. (discussed below), which would cover the child’s other medical expenses not covered by Medicare.
Children who do not qualify for SSDI may qualify for SSI. The child must be low income and have limited assets. The maximum SSI benefit in 2010 is $674. If the client qualifies for SSI, he or she will also qualify for MaineCare.

MaineCare (Medicaid) is a comprehensive public insurance program. MaineCare is available to a number of different populations, with different income and asset thresholds for each group. You should call the local Department of Health and Human Services office to find out whether your child might be eligible.
In my will, should I leave my child money or property? Will this cause my child to be ineligible for public assistance?

The parent may be want to leave money or property to the child, but may worry that the child will lose benefits, particularly medical coverage.

Special Needs Trusts for Disabled Children
There is an answer to this problem. The parent’s will should leave the child’s inheritance to a special needs trust. This arrangement will enable the child to maintain benefits while having funds available to provide for the child’s “special” or “supplemental” needs. A person, known as a “trustee”, oversees the funds. You can choose a family member, friend, professional or financial institution to be the trustee. The trustee will have discretion as to what kinds of things to spend the money on. The trustee will not give money directly to the child (this would cause the child to lose benefits) but instead will make payments directly to providers of goods and services to the child. The primary purpose of the trust is to meet those of the child’s needs which may not be met by benefit programs. These needs may include: dental care, eyeglasses, holistic health care, special therapies, in-home services in excess of what public programs provide, companion services, adaptive equipment, telephone, tuition, transportation, exercise programs, and the like.

The trustee may also, in the trustee’s discretion, expend funds for the child’s housing. For instance, the trustee might purchase a modest home for the child or might pay for an oil delivery. If the child is on SSI, such an expenditure will cause the child to lose a little more than one-third of his or her monthly benefit, but this may not be a bad trade-off.

The trust can provide that, upon the child’s death, the balance of the trust will go to other family members or to charity.

Getting help
When it comes to a will, a special needs trust or a power of attorney, consult a lawyer who is knowledgeable in this area. Beware of forms on the internet or in books, which may not be appropriate for Maine residents, and which may not address your particular situation. Also, there are tax considerations, which can only be addressed with the help of a competent professional.

The information provided here is for educational purposes only, and should not be construed as legal advice or an answer to a specific legal problem.

Sally M. Wagley assists older and disabled people and their families in the areas of public benefits, estate planning and estate administration, with the firm of Levey and Wagley, P.A. in Winthrop, Maine, www.leveyandwagley.com.

Should I give my house to my children?

           A question I often hear from clients is:  “Should I give my house (or camp) to my children?”  Clients often believe that deeding property to others will preserve it in the event of nursing home expenses. Clients may also want to avoid probate, or may want children to help with taxes, insurance and maintenance. It is essential for any client considering this move to know the risks and benefits.

 Possible benefits:

  • If the client is able to go five years without needing nursing home care, but later does need such care, the property will not count against the client if the client seeks financial help from the MaineCare (Maine Medicaid) program.
  • If the property is out of the client’s name at death, the State and other creditors will not have a claim against the property.
  • As a condition of transferring the property (especially a camp), children may agree to pay all or part of the property-related expenses, making life a bit easier for a client on a fixed income.
  • The client may, if desired, maintain a degree of control over the property with a life lease or life estate.*

 Possible risks (and some ways to reduce risks):

  • Nursing home expenses:  If the client needs nursing home care within five years after deeding the property, and if the client needs to apply for MaineCare (Maine Medicaid), the client will be penalized for the gift and will be ineligible for MaineCare for a period of months or years.  The client will either have to go without the needed care for that time period or will have to ask the children to pay for care until the period of ineligiblilty is over.
  • Loss of control:  Having given the property away, the client will need to get approval from the children if the client wants to sell or refinance the property.  (The client can, however, maintain the right to live in or use the property by insisting on a life lease or life estate.*) 
  • Child’s creditors or divorce:  If the child gets into financial trouble or bankruptcy or gets divorced, the child’s creditors or ex-spouse may be able to obtain an interest in the property. (However, the transfer of the property to an irrevocable trust may offer some protection against a child’s creditors or ex-spouse.)  
  • Child’s unexpected death:  If a child unexpectedly dies before the parent, the property may go to the child’s own heirs. (The irrevocable trust or a joint ownership arrangement may be helpful in this circumstance as well.)
  • Tax consequences:  If the client transfers a residence to a child and the property is later sold, there will be a capital gains tax, as the client will no longer be able to use the IRS primary residence exclusion.  The client may also lose property tax exemptions, such as the homestead and veteran’s exemptions.  In addition, the child may later, upon selling the property, pay a higher capital gains tax than if the child inherited it (unless a life estate* or similar arrangement is used).  

 Caution concerning life estates:  Be aware, however, that if you reserve a life estate in the property (treated differently  from a life lease under the State’s MaineCare rules), this  may expose the property at your death to a MaineCare “estate recovery” claim.

  Questions for clients:

          Before advising a client about whether to transfer property, I ask the client a number of questions, including: 

  • How is your health? What are the chances that you might need long term care in the next five years?
  • Do you have long term care insurance?
  • Do you have enough money to pay for nursing home care for all or most of the next five years?
  • Are you willing to give up a degree of control to your children? 

          In short, there is no simple answer to the question “Should I give my property to my children?”  While this may be a reasonable step for some clients, for others (especially older people with chronic health problems and little savings) the risks may be too great.  Any client considering this move should first obtain legal advice from a skilled estate planning or elder law attorney.


The information provided here is for educational purposes only, and should not be construed as legal advice or an answer to your specific legal problem.

Sally M. Wagley practices elder law, estate planning and estate administration with the firm of Levey and Wagley, P.A. in Winthrop, Maine, www.leveyandwagley.com.