Whether you created a revocable or irrevocable trust or you are the beneficiary of a trust, there may come a time when you think the trustee needs to be removed and replaced. Trusts can be a very beneficial component of an estate plan. They offer probate avoidance, tax advantages and other benefits concerning control of assets; however, it can become a complex fiduciary arrangement resulting in disputes between the settlor, trustee and/or beneficiaries.
The person creating the trust, referred to as the settlor, transfers assets into the trust which are then managed by the trustee for the benefit of designated beneficiaries. The trust document can contain language giving instructions on how the assets should be managed. The trust agreement should also state the circumstances under which a trustee may be removed. Most trust agreements will also name a successor trustee.
Maryland state law provides guidelines surrounding the trustee’s duties and responsibilities as well as the obligation of the trustee to follow the terms of the trust agreement, to act in good faith, and do what is in the best interests of the beneficiaries.
Legal grounds to remove a trustee may include:
-Knowingly violating the terms of the trust;
- Mismanaging trusts assets;
-Failing to make an accurate accounting;
-Conflict of interest or self-dealing; and
-Mental incapacity of the trustee.
A few other situations that may be more difficult to prove or enforce include removing a trustee for charging excessive fees or consistent disagreements with beneficiaries. It must be shown the trustee is uncooperative or hostile which leads to ineffective management or curtails the goals of the trust.
For a beneficiary or group of beneficiaries to remove a trustee for any of the above-named reasons, it generally requires a majority vote of the beneficiaries. It may be necessary to petition the court for removal and that can be filed by either a co-trustee or beneficiary.
If you are having issues with a trustee and need assistance in removing and replacing the trustee, contact the experienced estate planning attorneys at Stouffer Legal in the Greater Baltimore area to set up a consultation.
LIVE Webinar – Click Here to Register for December 8th at 10am
How to Protect your "Stuff" in 3 Easy Steps (Estate Planning Workshop)
This webinar covers frequently asked questions and common misconceptions regarding: Wills & Trust, Asset Protection, Nursing Home Issues, Medicaid Qualification, and Estate Taxes.
Please click to register for our webinar:
LIVE Webinar – Click Here to Register for December 8th at 10am
Our webinars are designed to be educational, interactive, informative and generate relevant discussion for attendees. Modern Estate Planning is more than just preparing a will and putting it in a safe. Find out how a comprehensive Estate Plan will protect your assets and your family. Our experienced attorney, Wilson McManus, will be sharing stories on how Estate Planning is beneficial and sometimes crucial. In an Estate Plan, you need to know the Rules: Who's "Rule-book" controls your Estate Plan? Yours? The Governments? Someone else? You need to know your Predators: Who's a Threat to Your Stuff? The Government? Long-term Care Costs? Your Family? You need to know your Options: What Plans are out there? Does a Will work? What about a Trust? Which kind of Trust?
Please click to register for our webinar:
LIVE Webinar – Click Here to Register for December 8th at 10am
Our workshops fill up fast, so please call (443) 470-3599 today to RSVP.
In the age of the pandemic, many seniors are fearful of nursing home facilities and looking for ways to age-in-place or move in with family members. ‘Granny flats’ also known as ‘mother-in- law suites’ are very popular places to allow senior loved ones to live in a family home.
How do you protect your right to stay in this situation? It depends on whether you intend to become a tenant under a lease or an occupant under a use and occupancy agreement. Tenants and occupants are different under the law. A use and occupancy agreement is most commonly used between a home buyer and home seller when one party needs to occupy or use the property for a specific period prior to or after the real estate closing. Although they can also be used in the situation described above when an elderly family member uses his or her resources to help purchase a home for other family members in exchange for the right to live out the remainder of his or her life in part of the premises. While this is a creative strategy that works for many situations, it is very important to consider all of the legal aspects and make sure a formal agreement is in place.
A use and occupancy agreement is not the same as a lease agreement. They share similar qualities but whoever is occupying the home is not considered a tenant under a use and occupancy agreement which means they are not granted tenants’ rights. These agreements need to be very specific and spell out all terms and expectations.
If the elderly loved one is not putting any resources into the purchase price of the home, but simply wants to live there as a tenant, then the family will need to sign a formal lease agreement. This lays out the terms regarding the length of time, amount of rent due, whether pets are allowed and who is responsible for repairs and maintenance.
Either agreement could also list out obligations for other expenses such as utilities. Another important legal issue to know about use and occupancy agreements is that they terminate if the owner sells the property. If you gifted money for the purchase price, you will need to also have a promissory note and deed of trust.
To protect your rights if you intend to live with family members, it is important to share your plans with a knowledgeable Elder Law attorney. Your legal team can prevent later hardships and make sure your living arrangements are secure. Contact Stouffer Legal in the Greater Baltimore area today for a consultation.
As the pandemic rages on and the weather gets cooler, that can mean our senior loved ones find themselves facing a dark, lonely winter. Loneliness can affect anyone of any age; however, it especially impacts those over 70. Loneliness creeps in both for those residing in nursing homes and those residing independently at home.
Psychologists have long studied loneliness in the elderly and have found that it is important for them to feel useful and to feel heard. Many nursing home facilities come up with creative ways for residents to feel useful such as allowing them to assist in decorating, planning activities, or even designating ambulatory seniors to push wheelchairs for other residents. Helping a senior that lives independently at home feel useful may require a proactive approach. Prior to going into the colder weather, it may be helpful to look into certain organizations that will allow the senior to give their time and energy in a way that is safe yet purposeful.
As for feeling heard, seniors, regardless of where they live, benefit from consistent communication from loved ones. They should be able to share their stories while family members actively listen and enjoy the conversation. Maintaining fulfilling personal relationships improves not only their mental and emotional health but also their physical health as well. Unchecked loneliness has the potential to accelerate an elder’s need for more advanced long-term care.
In addition to helping them feel purposeful and actively listening and observing your senior loved ones, you can also develop a strategy for minimizing isolation. This may be done by helping to introduce the senior to others that live nearby, helping them find community activities that fit their interests, or signing them up for certain volunteer opportunities where someone will visit them on a regular basis.
It does not have to be a major effort to help renew the senior’s interest in people and activities. It can be something simple such as sending a card, sharing a meal, or a quick phone call. Those efforts will go a long way in making a senior feel loved and connected to the rest of the family.
At Stouffer Legal we care about our seniors, and we know it will take a concerted effort in the winter of 2020-2021 to ensure that we prevent loneliness to the extent possible. For more information on our Elder Law services please visit our website at stoufferlegal.com to discover our resources.
Understandably, in-person visits have been suspended due to the Coronavirus pandemic in most nursing homes across Maryland, but what happens if the nursing home refuses all communication? Are there legal ways to enforce the nursing home to open the lines of communication among residents and their family members?
Legally, all nursing home residents should have the right to determine who he or she contacts. However, if the resident is not competent to make that determination then the agent under a healthcare power of attorney is responsible for making those decisions on his or her behalf. Either way, the facility should not deny access and if they are doing so, you have every right to take action. That action may be to contact an experienced Elder Law attorney or you may be able to start by locating an ombudsman to help advocate on your behalf.
Recently, the Centers for Medicare and Medicaid Services (CMS) issued revised guidelines pertaining to the way nursing homes can safely facilitate visitation during the pandemic. The physical separation from family and other loved ones has taken a significant toll on nursing home residents and the CMS hopes to provide this guidance to alleviate some of these issues. Looking back to March of 2020, the CMS issued instructions for facilities to restrict visitation in nursing homes. In May 2020, CMS issued guidance on the phases of reopening. The most recent revised guidance now encourages nursing homes to facilitate outdoor visitation. It also allows for indoor visitation if there has been no new onset of COVID-19 cases in the past 14 days. Another set of guidelines governs end-of-life cases and allows more leniency for those compassionate care situations.
Other measures that are put in place to help prevent new outbreaks in nursing homes include:
-Screening visitors for COVID-19 symptoms;
-Requiring face coverings and physical distancing;
-Providing adequate personal protective equipment for staff; and
-Routinely testing staff for COVID-19.
At Stouffer Legal, we care about our seniors and we want those in nursing home facilities to be able to visit with loved ones safely and appropriately. For more information on how the state of Maryland is handling the application of these CMS guidelines, please contact the Elder Law attorneys at Stouffer Legal in the Greater Baltimore area. If you need assistance in requiring a facility to facilitate communication between a resident and his or her loved ones, schedule a consultation with us today.
People need estate plans, even when they are not holding large assets.
Despite the popular myth that only people with large financial holdings need estate plans, people who do not have a large estate do need an estate plan, according to Pauls Valley Daily Democrat in "More on estate planning myths."
Many of the people who are not wealthy, think that they do not need estate plans. They reason that if there is little to divide up, then there is little to fight over. Consequently, they believe everything will go smoothly.
You never know when family members will decide to fight over an estate and exactly what they will fight over. While it is true that a large amount of money often leads to a fight, it does not always do so.
Sometimes the most bitter of estate battles are actually over little things. Some estates have even been known to easily settle large fortunes, but have long and bitter feuds over small personal items that are not worth very much.
This means that families might choose to argue over estates that do not have anything of value, if there are sentimental items wanted by more than one family member.
It happens much more often than you think.
An estate planning attorney can guide you in creating an estate plan that meets your unique circumstances.
Reference: Pauls Valley Daily Democrat (March 1, 2017) "More on estate planning myths."
Suggested Key Words: Estate Planning
For more information on Estate Planning, please contact Stouffer Legal at 443-470-3599 in the Greater Baltimore area.
LIVE Webinar – Click Here to Register for December 2nd at 10am
How to Protect your "Stuff" in 3 Easy Steps (Estate Planning Workshop)
This webinar covers frequently asked questions and common misconceptions regarding: Wills & Trust, Asset Protection, Nursing Home Issues, Medicaid Qualification, and Estate Taxes.
Please click to register for our webinar:
LIVE Webinar – Click Here to Register for December 2nd at 10am
Our webinars are designed to be educational, interactive, informative and generate relevant discussion for attendees. Modern Estate Planning is more than just preparing a will and putting it in a safe. Find out how a comprehensive Estate Plan will protect your assets and your family. Our experienced attorney, Wilson McManus, will be sharing stories on how Estate Planning is beneficial and sometimes crucial. In an Estate Plan, you need to know the Rules: Who's "Rule-book" controls your Estate Plan? Yours? The Governments? Someone else? You need to know your Predators: Who's a Threat to Your Stuff? The Government? Long-term Care Costs? Your Family? You need to know your Options: What Plans are out there? Does a Will work? What about a Trust? Which kind of Trust?
Please click to register for our webinar:
LIVE Webinar – Click Here to Register for December 2nd at 10am
Our workshops fill up fast, so please call (443) 470-3599 today to RSVP.
The Internal Revenue Service recently announced that taxpayers can deduct from their 2021 income if they are buying long-term care insurance. It must be a qualified policy and the premiums will be tax deductible to the extent that they exceed 10% at the insured’s adjusted gross income in 2021. The same qualifications apply to unreimbursed medical expenses including Medicare premiums as well.
To be considered a qualified policy, the policy must be issued on or after January 1st of 1997. Other requirements include that the policy must offer the consumer inflation protection as well as nonforfeiture protection. The policy must simply offer these protections. The purchaser is not required to actually purchase those protections. Any policies purchased before January 1st of 1997 may be treated as qualified as long as it is approved by the Insurance Commissioner of Maryland.
The premiums are deductible for the taxpayer, his or her spouse and other dependents. The rules may vary slightly if you are self-employed. Self-employed individuals can take the amount of the premium as a deduction as long as they make a net profit. In the case of self-employment, your medical expenses do not have to exceed a certain percentage of your income.
The long-term care insurance premium tax deduction is not available with hybrid policies such as life insurance and annuity policies with a long-term care benefit.
Below is the chart published by the IRS showing the deductible amounts for long-term care insurance premiums for 2021:
Age at the end of 2021 2021 Limit-$450 2020 Limit
40 or less $ 450 $430
41-50 $850 $810
51-60 $1,690 $1630
61-70 $4520 $4350
70+ $5640 $5430
Tax-qualified long-term care insurance benefits are generally tax-free. However, some policies pay a cash amount or indemnity once you qualify for benefits. The tax-free maximum allowable amount for 2020 is $400 a day, or the actual cost of care, whichever is higher.
For more information on long-term care planning, contact the experienced Elder Law attorneys at Stouffer Legal in the Greater Baltimore area.
Predicting how much time a patient has left is not an exact science. Some may die unexpectedly and others decline slowly over time. It can be a very stressful time for caregivers and not knowing what to expect only magnifies the anxiety. Dying often happens in stages and there are certain signs that can provide clues to caregivers to determine just how close a patient is to death. Below find some common end of life indicators:
Withdrawal
Caused by decreased blood flow and oxygen to the brain, a patient will tend to withdraw as death approaches. While they may still be aware and able to hear, they increasingly become unable to respond.
Confusion
The patient may have delusions, hallucinations or appear agitated and confused. It is often common for someone to hallucinate and see people who passed away long ago. Try to continue to remain calm and reassuring.
Drowsiness
As the body starts to shut down, the metabolism decreases. This will make a patient drowsy and often appear unresponsive. Patients may even lapse into a comatose state at the end of life, but most are still able to hear even after they are no longer able to speak.
Decreased Urination
As the amount of fluid intake decreases, there will be reduced kidney function and a decrease in urination, although there is often a loss of bladder and/or bowel control as well.
Discolored Skin
The skin often becomes gray or bluish in color due to decreased circulation. The skin may also feel cool to the touch.
Irregular Breathing
Breathing may become more shallow and alternate between rapid and slow. The heart rate may also change in response to the altered breathing patterns. You may hear a rattling sound often referred to as the death rattle.
Changes in Muscle Function
Involuntary muscle movements called myoclonic jerks and the loss of reflexes are additional signs that the end of life is near. There are medications that can be given to minimize these jerking movements and improve sleep quality.
For caregivers dealing with end-of-life patients, often calling in hospice can provide some much-needed relief. Medical professionals can help identify some of these symptoms and develop an appropriate care plan so that caregivers and family members know what to expect going forward. At Stouffer Legal we care about our seniors, for more information on Elder Law issues contact us today.
Many people have been told that it is important for people to “avoid probate.” But just because people may have heard that term, doesn’t mean they know exactly what probate means, why it can be a problem or how to successfully avoid it. In this post, we will take a look at the term probate to understand exactly what it means, and what the process includes.
What is Probate?
The term probate most literally means “to prove” a will. Today it covers the entire legal process necessary to settle a person’s estate after they die. The appointed representative (usually a family member) opens the probate case in court. With the court’s help, they will work through all of the financial business that the decedent left behind. For example, probate includes disposing of personal property, money, real property or anything else that the deceased owned at the time of their death. Probate also deals with any debts that were in existence at the time of death.
Why is Probate Such a Negative Thing?
Probate is not inherently evil. It is simply a system that was created to oversee the way estates are handled. However, there is some truth when people say that probate should be avoided, if possible. Some of these cons are listed below.
A Lack of Privacy
Probate cases are filed in the court and are in the public record. If for any reason a person wants to maintain a sense of privacy after they die, it could be a good idea to avoid probating the estate in court. Famous people or other potentially controversial people usually don’t want their financial and family affairs dragged out into the open.
Probate Can Create Family Disagreements
One reason that wills and estates are probated in court is to allow interested persons the chance to represent their own claim on the estate by challenging or contesting a will that does not favor them. For people with complicated family dynamics, unpopular second marriages or estranged loved ones, avoiding probate should be a top priority. When an estate is handled through non-probate channels, it becomes much less likely that a will may be successfully challenged.
Probate is Slow
Like most things that end up in court, probate can be time-consuming. In more complex estates, the entire process can last months or years. And, while the family waits for this time to pass, the decedent’s assets or property may be slowly losing value or be lost completely.
Probate is Costly
Probating an estate requires the help of a competent probate lawyer to facilitate the matter. Since the process requires court appearances and extensive paperwork, the legal fees can mount up quickly. With proper pre-planning, much or all of this cost may be avoided.
How Can Families Prevent the Need for Probate?
Creating a smart estate plan is the best way to avoid probate. You and your attorney can work together to draft the proper legal documents and carefully time asset transfers.
Revocable Living Trust
The revocable living trust is an instrument which dictates the management or distribution of property. The property is transferred in title to the trust during the owner’s lifetime. The property owner also chooses someone to act as trustee, an appointed fiduciary who will manage the trust property and any distributions after the death of the trust’s creator.
The other good thing about a trust is that there is no need to involve the court in any way. There is nothing to file and it does not need to be submitted to the probate court.
Joint Title
Another way to avoid probate hassles is by placing your assets into joint ownership with your future beneficiaries. This way, when you pass away, the ownership interest will automatically transfer to the joint owner.
Payable-On-Death and Transfer-On-Death
Payments on death accounts (POD) have a designation which names a person who will receive the assets in the account when the original account owner dies. At the same time, transfer on death (TOD) is a designation on the title or deed to a piece of real estate or a car which will automatically change ownership once the owner dies.
Don’t Be Tempted to Give Away Your Assets
Some people assume that the easiest way to avoid probate is to give everything away before you die. However, doing this could cause problems for seniors when they may need to qualify for assistance for long-term care.
Hopefully, these tips will help you and your family plan responsibly for the future. Contact a qualified estate planning and elder law attorney today.
