A person may be able to contest their loved one’s will if the person has good reason to believe that it is invalid. Contesting a will is a process that is based on a person’s firm belief that something is wrong with his or her loved one’s will or in the manner in which it was signed or procured.

A person should not contest a will simply because he or she thinks the loved one made a distribution of which he or she does not approve. Rather, one must have valid grounds to make the contest. To begin with, a will is presumed valid if it appears valid on its face, i.e. contains the signature of the loved one and the requisite signatures of disinterested witnesses in accordance with state law. In order to challenge a will, the challenger has the burden of coming forward with legally valid evidence that would justify a court of law in setting the will aside. There are only certain circumstances that would warrant a court doing so:

If the person can prove that the person making the will (also known as the testator) was suffering from mental incapacity to the degree that he did not know that he was making a will and/or did not know the nature or extent of his assets, nor the identity of his family, one may be able to establish that he lacked the requisite mental capacity to make a will. Evidence in this regard may include medical records, witnesses who had interaction with the testator and, possibly, the opinion of a forensic psychiatrist.

If a person believes that another person applied undue pressure upon the testator to change the distribution made in a prior will and/or to disinherit someone who would be the natural object of his bounty, that circumstance may perhaps show undue influence, which is often another basis to challenge a will.

Fraud is another basis to contest the will. For example, if a person can prove that the testator signed the will document without knowing or realizing that it was actually a will, or that he was given misinformation that caused him to sign the will in its present form or to change the distribution plan of a prior will, one may be able to establish that he was fraudulently influenced.

Further, if a person can show that the will was not properly executed according to state law, this may furnish another basis to contest a will. Example: the testator did not sign in the presence of the required number of disinterested witnesses, or that the actual signing was not properly witnessed.

“If you believe that your situation is similar to any of the above circumstances, you may wish to contact an attorney immediately to help you file a claim to ensure the proper distribution of your loved one’s estate,” said Gene L Osofsky, an elder law and estate planning attorney with the Law Offices of Osofsky Osofsky, with experience in trust administration and estate planning. “Also, be mindful of time limits. Usually a will contest must be filed before the will is admitted to probate. Speed may therefore be essential.”

To learn more about elder law and The Law Offices of Osofsky & Osofsky, visit http://www.lawyerforseniors.com/.

The simplest form of gift is to make an outright gift, providing that your grandchild is of an age to be considered an adult. In California, that age is 18. As long as that the gift is not more than $13,000 per year per grandchild, no gift tax report is required. Married couples can double their gift. By way of example, if you and your spouse have four grandchildren, by doubling your gift, you could give away up to $104,000 per year without incurring any gift tax and without any need to file a gift tax return. Gifts that do not exceed this amount per year are called “Annual Exclusion Gifts”.

You can also make direct payments to your grandchild’s school or college for tuition and tuition related costs, as well as for his health care expenses. These payments can be made on top of the $13,000 per year, providing that you pay the school and/or medical provider directly. These gifts are sometimes referred to as the “Educational or Medical Payment Exclusion”.

If your grandchild is still a minor, you may make a gift into a custodial account managed by someone you designate. While the account can be managed by a parent if you so designate, there may be tax reasons to nominate another person to manage these accounts for the grandchild, such as an uncle or aunt. These custodial accounts are sometimes known as “UGMA” or “UTMA” accounts, and most banks and stock brokerage firms have the relevant forms to assist you in setting them up

You may also consider making gifts by funding “529 Accounts”, which are accounts set up to help pay for your grandchild’s education. There are of course other gifting vehicles, including U.S. savings bonds. It is best to check with your tax advisor or estate planning attorney regarding your planned gifting program, especially if you are contemplating gifts of appreciated property.

Gene Osofsky is an East Bay elder law attorney in California. Gene Osofsky specializes in Medi-Cal planning, wills, probate, trusts, nursing home issues, special needs planning, and disability planning. To learn more about elder law and The Law Offices of Osofsky & Osofsky, visit Lawyerforseniors.com.

There are new changes in state law regarding California’s skilled nursing homes.

Nursing homes will now face fines if they do not maintain state-mandated staffing requirements under the reauthorization of AB 1629 signed by Gov. Arnold Schwarzenegger on Oct. 19. The state will now have new tools to enforce the existing staffing requirement of 3.2 nursing hours per patient per day, required of all nursing homes licensed in California that receive Medi-Cal or Medicare payments.

These changes were established for accountability’s sake to ensure that all nursing homes meet state requirements. They were designed to reinforce the Long Term Care Reimbursement Act of 2004, which increased funding for nursing homes to help them meet these staffing requirements. Until now, the 2004 act had not fully met its goal of improving patient care.

The new law will also increase the number of auditors investigating the nursing homes. It will also establish fines for those who are non-compliant.

“The reason for this legislation was to provide better enforcement of the required staffing ratios in nursing homes, in order to improve the quality of patient care,” said Gene Osofsky of the Law Offices of Osofsky and Osofsky, which specializes in elder law, estate planning and trust administration.

Skilled nursing homes and care facilities will face penalties and fines if they do not meet the staffing requirements as required by law. Although some nursing homes already staff at the state’s requirement, others will now be forced to comply through imposition of fines and penalties. “We hope that the new law will provide better enforcement of the required staffing and improve the quality of care for patients,” Osofsky said.

Gene Osofsky also gives tips on how to choose and evaluate a proper nursing care facility. Gene Osofsky is a lawyer who also deals with nursing care issues.

“What’s more important than a nice looking facility is the quality of care. One must look at how the residents in the nursing home are being attended to and how well they are being treated and respected. Try to visit a facility at a time that hasn’t been prearranged in order to get an unrehearsed version of how the place operates,” Osofsky said.

To learn more about elder law and The Law Offices of Osofsky & Osofsky, visit http://www.lawyerforseniors.com/.

The VA just recently created services for female veterans, and they are now being treated in veteran’s hospitals throughout the nation. Even female veterans coming out of military service are surprised to find that there are now services geared especially for them.

Today, only a third of all U.S. Veteran Affairs hospitals and clinics offer a women’s clinic for female veterans, but the VA plans to expand women’s clinics across the board. There is a surge of women joining the services, meaning more women in the military will be seeking services when they get out and when they get older.

According to the Department of Veteran affairs, women today account for 15 percent of active-duty roles, compared to only 3 percent of the military during the Vietnam era.

Since there is no real delineating line between men and women on the front lines during combat, more and more women are being killed and subjected to combat injuries and trauma. This in turn will affect their family and support systems and ultimately the VA healthcare system.

Gender-specific treatment is the ultimate goal of the VA healthcare system for women who have served in the military, some of whom are suffering from things like combat related injuries, PTSD and sexual trauma. NPR stated that there are more than 2,000 women who fought in Iraq or Afghanistan and, since treatment had historically been geared for men and war stories were about men, the plight of injured female soldiers faded into the background.

Now, the women getting out of the military are being acknowledged in the VA healthcare system and the VA is actively trying to get the word out to the general public, as well as to female military members themselves. When these women get older, they will be fitting into the categories of their male counterparts in regard to their need for long-term medical treatment, health-care services and VA prescription drug benefits.

For more information on veteran’s medical benefits and how you can qualify, go to http://www.LawyerForSeniors.com/.

For a lot of our elders, living alone isn’t what it used to be, especially in the sense of devices and technologically-advanced sensors placed in the home for safety reasons.

When Malcolm McGill, 94, slipped on a wet floor in his Bayonne, New Jersey home without wearing his emergency alert pendant, and could not phone for help, he felt desperation.

Fortunately, a tiny wireless sensor beneath Mr. McGill’s bed detected that the nonagenarian had gotten up. Motion detectors in his bedroom and bathroom registered that he had not left the area in his typical pattern and relayed that information to a central monitoring system, prompting a call to his telephone to ask if he was okay. When he did not answer, more calls were triggered – to a neighbor, to the building manager, and finally to 911, which dispatched firefighters to break through his door. He’d been on the floor less than 30 minutes when help arrived – courtesy of a system known as eNeighbor.

“It’s amazing some of the technology that’s available even for isolated elders living alone,” asserts Gene L. Osofsky of the law firm Osofsky & Osofsky, “That man might have died in similar circumstances a generation ago.”

Technologies such as eNeighbor offer a surprisingly high standard of care – and are backed by corporate giants such as Intel and General Electric – the latter a household word for most elders. But the devices can be expensive, remain largely untested, and are seldom covered by the government or private insurance plans. Doctors are not trained to treat patients using remote data and no mechanism exists for them to receive compensation for doing so. In fact, many such devices – including motion sensors, pill compliance detectors and wireless devices that transmit data on blood pressure, weight, oxygen and glucose levels – can have unintended or even adverse consequences.

“It’s difficult to substitute electronic measurements for face-to-face contact with doctors, nurses, and family members,” Osofsky explains.

Mr. McGill, who has congestive heart disease and suffered a broken hip five years ago, said he could not live on his own without the system that probably saved his life, built and distributed by a Minnesota company called Healthsense.

“Despite their limitations in 2010, in a few years I predict a lot of these sensors will become more practical and pervasive,” Osofsky concludes.

To learn more about elder law and The Law Offices of Osofsky & Osofsky, visit http://www.lawyerforseniors.com/.

Baby Boomers are aging fast, their parents even more so if they’re still around. Caring for an elderly parent can be a big responsibility. Boomers might even be realizing the pitter-patter of their own quickening years.

Large banks are realizing this trend too. Some are betting on enriching their client base – and adding to their receivables while they’re at it – by providing financial elder-care services. Can a bank be effective at helping you care for the elders you cherish?

Sources such as the Wall Street Journal, in a recent article, assert that the larger banks have received positive initial reviews when it comes to such everyday necessities as sorting out medical bills, hiring in-home care, or perhaps administering the sale of a home. Flush with such successes, banks are beginning to delve into more in-depth services such as estate planning; establishing power of attorney subsequent to a crisis (the proverbial “break a leg” comes to mind, or more aptly a hip); health and home care assessments; selecting Medicare coverage and claims management – even scouting long-term living options like retirement communities and assisted living facilities.

Is rushing down to your nearest apparently elder-friendly bank getting you psyched? Advice might be similar as for riding a spirited steed when you’ve never sat in a saddle – Whoa! Treat a bank like you would any other attorney or professional advisor. While a horse might be guileless, a bank probably isn’t. By targeting the elderly population and their family caregivers, from a bank’s perspective seeing their asset management annual fees jingle out of their clients’ pockets might be reason enough for their foray into elder-care services –no matter how convenient their plans might sound.

Even if a particular bank does offer in-depth options worth trying when it comes to elders and their care and also financial legacies, careful investigation and research – as well as asking all the key questions – is essential before choosing any advocate for your beloved elder – be it a bank or otherwise. The person or institution to hire should truly know their stuff, especially the ins and outs of the law and the care-giving industry. A mere dabbler you don’t want. In fact, seeking out the advice of an Elder Law attorney before and not after you make a decision may help you choose the best bank – if that’s truly a direction you still want to go.

Gene Osofsky is an East Bay elder law attorney in California. Gene Osofsky specializes in Medi-Cal planning, wills, probate, trusts, nursing home issues, special needs planning, and disability planning. To learn more about elder law and The Law Offices of Osofsky & Osofsky, visit Lawyerforseniors.com.

Every year, more than $10 billion in Social Security benefits go unclaimed. Asserts attorney Gene L. Osofsky of the law firm Osofsky & Osofsky, “This is primarily because married couples do not know how to optimize their social security benefits.”

Much of this unclaimed bonanza does consist of spousal benefits that most people don’t even know they’re entitled to receive. “These benefits can increase your income and solve the riddle of whether it’s more advantageous to get immediate monthly income at age 62 or wait until you’re age 66 and get a bigger check – maybe significantly bigger,” Osofsky says.

If you do wait until age 66, which the U.S. government considers full retirement age, for people born between 1943 and 1954 the monthly benefit will be one-third greater than if you take it at age 62. If you wait until age 70, the check will be 76 percent larger. The longer you live, the more it will matter, and chances are, you’ll live a long time. The typical 65-year-old can expect approximately an additional twenty years of life. Within that pertinent group of 65-year-old elders, 41 percent of women and 28 percent of men will live to age 90 – and half of those women will make it to age 95, as will one-third of the men.

Spousal benefits offer a way around the potential conundrum. “If you’re married – or if you’re divorced after ten years of marriage and haven’t remarried, you can claim a benefit not only on your own work record, but also on your spouse’s,” explains Osofsky. No, you can’t collect those benefits simultaneously. But you might be able to get them consecutively. “You can file first to get a spousal benefit, and then later to get your own benefit after it has grown as large as possible. It just has to be done in the right order,” Osofsky says.

Being astute about these spousal benefits and how they work, can result in increased social security income for a married couple. “You may be able to increase your household income substantially over time,” Osofsky concludes, “You just have to be smart about it.”

To learn more about East Bay elder law lawyers, East Bay elder law attorney, Medi-Cal planning, Medi-Cal planning lawyers and The Law Offices of Osofsky & Osofsky, visit Lawyerforseniors.com.

Attorney Diane Fener, based in Virginia Beach, Virginia, has family duties when she travels to New England to visit her parents. Her mother lives in the dementia unit of an assisted living facility in Rhode Island. She then meets with her father at his apartment about a half-hour drive away in Massachusetts. Her father’s second wife, Ms. Fener’s stepmother, lives nearby in a nursing home and she too, has dementia. She last visits her stepfather – the man who was her mother’s second husband for more than two decades.

“I’m sure that Ms. Fener doesn’t get to spend as much time as she might like with each of her parents,” says attorney Gene L. Osofsky of the law firm Osofsky & Osofsky, “but her situation is typical of many blended families today.”

During the 1970s, there was a spike in U.S. divorce rates. In the aftermath of that spike, states liberalized their divorce laws and working women became less inclined to remain in unsatisfying marriages, the cultural stigma of divorced lessened, and grown children of these broken marriages are dealing with the unintended consequences. “A new layer of complexity has been added to an already complex and emotional situation, especially for caregivers,” Osofsky explains.

In fact, the added stresses of divorce, family upheaval, and tighter finances can be so detrimental to your health that the effects can linger for years into the future. Because Osofsky & Osofsky is frequently engaged to help divorced or remarrying couples update their estate plans to protect their newly blended families, Ms. Fener’s plight struck an empathetic chord with Osofsky. “Divorce can have poignant and practical effects 20 or 30 years down the road,” he explains, “not just on the couple but also on their grown children now acting as caregivers.”

Adult children of aging parents can find themselves caring, not only for mom and dad, but also for stepmom, stepdad, and sometimes even extra sets of stepparents from an additional or current marriage. “Dividing time and often finances between so many parents with new and special needs can quickly take its toll,” Osofsky concludes.

To learn more about East Bay elder law lawyers, East Bay elder law attorney, Medi-Cal planning, Medi-Cal planning lawyers and The Law Offices of Osofsky & Osofsky, visit Lawyerforseniors.com.

Joseph P. Kennedy, the patriarch of the Kennedy Family, left behind a labyrinth of blind trusts to manage the millions he had earned from scratch. He put his wealth into trusts with a long-term strategy in mind, to manage the family’s holdings for several generations of Kennedys. These blind trusts are run by financial experts whose goals are to invest conservatively and maintain the principal. Small amounts of profit are doled out to members of the Kennedy family annually. This network of blind trusts has maintained their overall wealth during the recent recession and in some instances they have flourished, even though the family can at times be hard pressed for ready cash.

In 2006, the recently-deceased Ted Kennedy could count as holdings five distinct family trust funds worth a minimum of $45 million to possibly as much as $150 million. Kennedy estimated that the family’s multiple trusts distributed $500,000 to $5 million in annual income. Before 2006, Senator Kennedy’s filings listed assets at less than $20 million. As only the family’s financial advisors were privy to details about the primarily blind trusts, it’s difficult to determine what made them double in value during the course of a single year. One thing for certain: Edward M. Kennedy passed away near the peak of his family’s net worth.
Trust instruments possess a unique nature. The Kennedy Trusts are excellent examples of how comprehensive and versatile trusts can be. First established as a single trust in 1926 by Joseph P. Kennedy, the Kennedy patriarch followed with successive trusts in 1936 and 1949. Each was “entrusted” with its own purpose; for instance, the 1926 trust was intended for Rose and their children, and the 1949 instrument was intended for his grandchildren. Each trust was established as a blind trust, in that it acted independently from any other trust.

The Kennedy trusts had staying power and were built to last, with each ensuing trustee active in providing for the beneficiaries while simultaneously protecting the principal for future generations. It was sad and tragic that Ted Kennedy has been taken from us as Americans. His stature as a voice in the U.S. Senate is beyond dispute. But the Kennedy trusts are a legacy for all of us, an excellent example of how trusts can be designed to protect and build even a relatively modest estate.

Gene Osofsky is an East Bay elder law attorney in California. Gene Osofsky specializes in Medi-Cal planning, wills, probate, trusts, nursing home issues, special needs planning, and disability planning. To learn more about East Bay elder law lawyers, East Bay elder law attorney, Medi-Cal planning, Medi-Cal planning lawyers and The Law Offices of Osofsky & Osofsky, visit Lawyerforseniors.com.

Mr. Obama is at heart a cautious man. During his 2008 campaign, he pledged to raise income tax rates for top earners, but has since reneged, as advisors have told him that such an elimination of high income “tax cuts” as Republicans like to call them – would have an adverse effect on a chronically ailing economy during a deep recession.

Despite the “Death Tax Repeal” movement’s best efforts, it looks like the estate tax is here to stay.
Democrats seem determined to act with deliberate speed to prevent the estate tax’s scheduled repeal. A prior levy on large inheritances was first approved by Congress under President George W. Bush in 2001. Rollbacks were phased in, albeit slowly, with a full elimination in place for next year.

The Senate Finance Committee is expected to propose legislation to reverse the scheduled elimination in lockstep with a likely announcement of the Obama Administration’s detailed estate tax preservation proposal in his October 2009 budget. This anticipated “swift action” by Democrats was associated with a rationale that it would be politically more difficult to initiate their plan to resuscitate the estate tax once it was gone.

Under the Obama plan detailed during the campaign, the estate tax would be locked in permanently at the rate and exemption levels that became law in 2009. Estates of up to $3.5 million (twice that for couples) would be exempt from any taxation. The value of estates above that would be taxed at 45%. If the tax were restored to Clinton-era levels, the first $1 million would be excluded from being taxed and the remainder taxed at 55%.

Nearly a year has gone by since candidate Obama’s campaign promises were initially voiced regarding the estate tax. But despite the procrastination of our elected leaders, a version of the estate tax will likely be still in place next year, although the sort of permanency that estate planners might have wished for may remain elusive. So despite the fact that uncertainties exist and are likely to linger, it’s not the time to “sit on the fence” when planning your estate. Contact your elder law attorney or estate planner at your earliest opportunity to review your personal situation.

Gene Osofsky is an East Bay elder law attorney in California. Gene Osofsky specializes in Medi-Cal planning, wills, probate, trusts, nursing home issues, special needs planning, and disability planning. To learn more about East Bay elder law lawyers, East Bay elder law attorney, Medi-Cal planning, Medi-Cal planning lawyers and The Law Offices of Osofsky & Osofsky, visit Lawyerforseniors.com.

Creating an accounting for the deceased’s assets and liabilities

Giving notice to potential creditors

Settling outstanding debts

Making distributions for estate taxes, if applicable

Making fiduciary income tax return

Making distributions to named beneficiaries

Filing a final accounting with the court to close the probate process

Included with these responsibilities is the duty to keep the estate viable during the probate process. This may include paying the mortgage on a house or even making car payments. Probate can often be a lengthy process, which is why you can petition the court to release short term funding for these purposes while probate continues.

“If you’re thinking that this sounds like no easy job, you’re absolutely right,” says Osofsky. It is an endeavor that should never be undertaken lightly. Executors are generally entitled to compensation from the deceased’s estate, but most immediate family members decline this option. “One good bit of news from this,” explains Osofsky, “is that you are not financially responsible for any debts the deceased may have accumulated.” To emphasize, all debts, taxes, legal fees, and administrative costs should be paid from the estate of the deceased, not from your own pocket. If you have advanced any such costs, you are usually entitled to claim a refund from the estate.

But the responsibilities of an executor can often be accomplished more efficiently with the help of a knowledgeable Elder Law attorney, such as Gene L. Osofsky of the law firm Osofsky & Osofsky. “We receive requests from clients to assist them in handling their responsibilities as an executor, especially when the executor is overwhelmed with grief and not accustomed to some of the required duties,” Osofsky explains, “If you find yourself in this situation, seek out an attorney knowledgeable in this process.” It will ease your burden, give you peace of mind, and may prevent needless family squabbles.

To learn more about East Bay elder law lawyers, East Bay elder law attorney, Medi-Cal planning, Medi-Cal planning lawyers and The Law Offices of Osofsky & Osofsky, visit Lawyerforseniors.com.

Specifically, Medi-Cal funding to skilled nursing facilities has been penciled in at $96.4 million in the Governor’s budget, but a raft of caveats have been included in the budget as a whole. “There will be a reduction of $60.5 million in Medi-Cal county administration, and also a reduction of $47.9 million in the funding for private hospitals,” Osofsky says, “as well as limiting services to a maximum of three days per weeks – at a savings of $28.1 million – for adult day health care.”

These austerity measures are likely to adversely affect many Californians who may be Elders both directly and indirectly, depending upon their circumstances. “A few years from now, the ripples from these recession-beating budgetary maneuvers may prove more far-reaching than anyone first anticipated,” Osofsky concludes.

To learn more about East Bay elder law lawyers, East Bay elder law attorney, Medi-Cal planning, Medi-Cal planning lawyers and The Law Offices of Osofsky & Osofsky, visit Lawyerforseniors.com.

The debate about health care reform, especially as it pertains to end-of-life issues, is becoming increasingly contentious in so-called “town hall” meetings across America. Various political luminaries such as former Vice-Presidential candidate and resigned Alaska governor Sarah Palin have been saying some things bristling with emotionally charged phrases. Palin released the following statement on her FaceBook page:

“The America I know and love is not one in which my parents or my baby with Down’s syndrome will have to stand in front of Obama’s ‘death panel’ so his bureaucrats can decide based on a subjective judgment of their ‘level of productivity in society’ whether they are worthy of health care,” Palin says, “Such a system is downright evil.” Palin continued, “Health care by definition involves life and death decisions. Human rights and human dignity must be at the center of any health care discussion.” Palin claimed that the Orwellian Obama plan would surreptitiously herd elder Americans into euthanasia and assisted suicide via rationing of medical treatment.

But does President Obama’s health care reform initiative really do what she claims? In fact, the plan, although controversial, encourages potentially productive doctor-patient conversations concerning end-of-life issues which may indeed be relevant to most anyone. The proposal’s language was designed to encourage doctor-patient conversations, but it was taken out of context and distorted beyond recognition for political advantage. In fact, a Living Will is good for individuals, and good for the country. It gives people essential choices about how they choose to end their days. It puts Americans in control of their destiny. Most attorneys already discuss these issues with their clients when preparing estate plans. Doctors often have these discussions now with their patients. The proposed health care reform bill will now enable the doctor to be paid for spending the time to help patients think through these important decisions. When the President’s mere mention of living wills used as a fear tactic to senselessly frighten our elders , the tactic is not only dangerously disingenuous, but may actually cause real harm. It may discourage essential conversations between doctor and patient. Proactive Elder Law attorneys continue to encourage their clients to create a Living Will or an Advance Health Care Directive – before it’s too late. Under the plan, doctors and their patients will now be encouraged to have this conversation, as well.

Gene Osofsky is an East Bay elder law attorney in California. Gene Osofsky specializes in Medi-Cal planning, wills, probate, trusts, nursing home issues, special needs planning, and disability planning. To learn more about East Bay elder law lawyers, East Bay elder law attorney, Medi-Cal planning, Medi-Cal planning lawyers and The Law Offices of Osofsky & Osofsky, visit Lawyerforseniors.com.

A Last Will and Testament is a legal declaration by which a person names one or more people to manage their estate and provides for the transfer of property upon death.

Death is inevitable. But a careful choice in selecting an executor is seldom a given, especially where property and money are involved. During life, families may seem to get along fine, but the mixture of the death of a loved one, considerable property to be disbursed, and an executor who seems unfair or biased — can be a recipe for conflict. The living, prior to their passing, don’t always write out their wishes in clear and concise ways. If there is uncertainty in a family about what might occur upon the death of a patriarch or matriarch, for instance, the atmosphere following death can become an emotional war zone.

Family dynamics can disintegrate into shouting and resentment. Such family “fireworks” have little to do with the 4th of July, and can have long-lasting impact upon family relationships. Seemingly devoted family members fighting like wolverines don’t require an alumni card from the University of Michigan.
Unresolved disputes can result in a will contest. That contest can take on a life of its own, with potentially grim consequences for family harmony. Emotion often outshines logic in these contests. Where disputes occur, the litigation process can stretch out seemingly forever and become very expensive. For this reason, when preparing your Last Will, serious thought should be given to the selection of the best person to serve as one’s executor.

The best executor is one that approaches his or her duties professionally, with tact, with due regard for family dynamics, and with professional guidance from a knowledgeable attorney. If a will contest nevertheless does occur, at least it should then be grounded in a semblance of law and fair play. For this reason, it is important to choose the best person to serve. If you or someone you love is named as an executor, it is imperative that you engage a knowledgeable attorney early on in the probate process in order to help manage the proceedings, mediate expectations, lend assistance and guidance to the executor, and hopefully minimize family friction. By doing so, you just might preserve the very loving family of which the deceased was so fond.

Gene Osofsky is an East Bay elder law attorney in California. Gene Osofsky specializes in Medi-Cal planning, wills, probate, trusts, nursing home issues, special needs planning, and disability planning. To learn more about East Bay elder law lawyers, East Bay elder law attorney, Medi-Cal planning, Medi-Cal planning lawyers and The Law Offices of Osofsky & Osofsky, visit Lawyerforseniors.com.

You thought you were clever when you created an estate plan in the mid-1990s, and you were, for the time being. But now your estate plan documents are contained in a bank’s safety deposit box, gathering dust until they’re needed. Nothing has changed since 1994, right? Right, if you inhabit a vacuum and your family has not grown or changed in any way, and if suspended animation has become your form of existence. According to Gene L. Osofsky, such an existence is more likely in the genres of fantasy and science fiction, but seldom in real life. “If you are living as most people do, changes occur whether you want them or not. There are several reasons to update your estate plan – even if it seemed perfectly fine at one time.”

The passage of time: “This is actually the most common reason people update their estate plans,” Osofsky explains, “You are entitled to change your mind if a more sensible idea comes to mind. If you named your parents as trustees when your children were minors, you might wish to name your now 37-year-old son instead, especially if that much time has elapsed. No disrespect intended to your mom and dad, bless their souls, but now they’re in their early 90s! In addition, certain documents should be re-executed to avoid being perceived as stale.”

The birth or death of a beneficiary or fiduciary: “If you have new children or grandchildren, or a parent or sibling has passed on, it’s time to update,” Osofsky says.

Your own marriage or divorce, or the marriage or divorce of one of your beneficiaries: Says Osofsky, “It’s time.”

Moving to a new state: “Tax, health care, and estate planning laws vary from state to state. If you don’t take this into account, you or your descendants might be in for some rude surprises,” Osofsky insists.

A significant change in your financial status, or in the status of your business: “Your estate plan reflects the size and nature of your assets when you created your original documents. Different strategies might be more effective as the configuration of your estate changes,” says Osofsky.

Changes in tax law: “Back in the 1990s, A-B trust splits were in common use on the first death in order to minimize estate tax. With increasing exemptions, those trust splits may no longer be necessary for the estates of most couples,” Osofsky asserts.

But if none of the above has happened to you, you may be one of the few for whom updating your estate plan is no longer necessary because your procrastination has entered the realm of suspended animation.

To learn more about East Bay elder law lawyers, East Bay elder law attorney, Medi-Cal planning, Medi-Cal planning lawyers and The Law Offices of Osofsky & Osofsky, visit Lawyerforseniors.com.

There are advantages and disadvantages to establishing a so-called “kid’s trust.” Gene L. Osofsky, of the Law Firm Osofsky & Osofsky, is a great person to help you figure out the pros and cons. Advises Osofsky, “It may be worthwhile to prepare a trust for a minor child even if you believe your estate is relatively small and your significant assets are few.” Often, just being the beneficiary on an insurance policy may warrant a trust for a child. According to some experts, every parent should consider a trust for their non-adult child, or children.

It’s often overlooked that children who are minors cannot legally inherit large sums of money directly or as indirect tangibles such as a vehicle or proceeds of an insurance policy. If a parent dies and attempts to leave a large sum directly to a child not yet of age, the court will intervene and appoint a guardian to manage the inheritance for the minor child. “This guardian may not be the trusted friend or relative whom you might have preferred,” Osofsky says, “But if you engage an attorney during your lifetime to help you establish a trust; your child may be spared from having to grow up with an additional layer of bureaucracy impeding them as they mature into adulthood. Without a court-appointed guardianship to worry about, in effect you gain control over how your gift of money is controlled and spent – even if you are no longer physically around.”

According to Osofsky, other benefits of creating a trust for your minor child may also come into play. “Your trust may make arrangements to pay for said child’s education, delay the age when your child has outright access to the money, or even reduce applicable taxes,” he explains. But choosing the appropriate trustee is also crucial. “You need someone reliable, detail-oriented, and great at handling money,” Osofsky says. If that combination seems daunting, perhaps consulting with a specialist in Elder Law matters (like Osofsky) may help you decide.

To learn more about East Bay elder law lawyers, East Bay elder law attorney, Medi-Cal planning, Medi-Cal planning lawyers and The Law Offices of Osofsky & Osofsky, visit Lawyerforseniors.com.

When you or a loved one are forced by age or circumstance to move from “sweet home” into “sweet nursing facility, ” it can be a most agonizing decision. But there may be ways to make those decisions seem less daunting.

It is understandable for a family to experience a degree of apprehension when the comforts and familiar nuances of home are exchanged for the unknown, where your loved one is suddenly dependent upon others for their daily needs after a lifetime of relative independence. The most well-meaning nursing home staff is, when you get right down to it, comprised of strangers. Imagine how you would feel suddenly placed in a nursing home full of strangers especially if your next generation of friends and family are living too far away to easily visit. This predicament is a reality faced by many elders.

To ease the transition, and to monitor an elder’s care as they’re placed in a nursing facility, an attractive option for many families is hiring a Geriatric Care Manager. So-called GCMs can be a valued resource for elders and their families – an insider who knows the ins and outs of the system and can navigate effectively, matching the best care and services to each individual’s situation. But some families are asking their GCMs to stay in the picture even after gramp-pa is settled and acclimated to the nursing home, so that he continues to receive the best possible care. GCMs sometimes recommend the hiring of professional caregivers to check in with your loved one periodically, perhaps weekly or even daily, as required.

An excellent resource for finding a Geriatric Care Manager in your area is the National Association of Professional Geriatric Care Managers, which can be Googled. If the time is fast approaching but it’s not here yet, a call to your resourceful Elder Law attorney might be in order. Ask him to include a mention of the GCM preference in your estate planning documents or other relevant instructions.

Gene Osofsky is an East Bay elder law attorney in California. Gene Osofsky specializes in Medi-Cal planning, wills, probate, trusts, nursing home issues, special needs planning, and disability planning. To learn more about East Bay elder law lawyers, East Bay elder law attorney, Medi-Cal planning, Medi-Cal planning lawyers and The Law Offices of Osofsky & Osofsky, visit Lawyerforseniors.com.

Recently a friend of mine was hospitalized for a gallbladder procedure. Going to visit her to lift her spirits sounded like a good idea initially, but when I somehow ran afoul of the hospital’s stringent regulations regarding visitors, my best laid plans went awry. After several attempts, I gave up. My grievous error was mentioning her by name to the “wrong” nurse, and in so doing I’d violated my friend’s privacy. The hospital perceived me as a threat, simply because I have a rather loud voice. Later when my friend wondered why I hadn’t gone to visit her, I explained, but my excuse seemed inadequate to say the least.

If you or someone you care about has been hospitalized recently, you’ve discovered that strict rules regarding patient privacy exist at most hospitals. Sometimes bordering on the Kafka-esque, these arbitrary regulations can seem like bureaucracy run amok, and in worst case scenarios, can shut out patients from visitors entirely. Hospital staffers are prohibited from dispensing information about patients to extended family members and friends, if not also to closer relations who may not possess proper identification. A frustrating trap of “Catch-22” can dramatically increase anxiety levels as information about people you care about is kept “confidential,” sometimes for no apparent logical reason except for the hospital’s self-centered liability concerns based upon strict laws regarding privacy.

Getting around strict privacy laws, however, is a doable proposition if you enlist the aid of an Elder Law attorney. A reputable Elder Law firm can suggest options that work and are perfectly legal. A comprehensive Health Care Directive and a signed HIPAA Authorization might be considered admission tickets to visiting your loved one or else a viable way to ensure cooperation of hospital staffers when you need it most. But creating these documents must be accomplished with planning and a bit of finesse, a fait accompli prior to you or your loved one ending up in a hospital.

An estate plan created by an Elder Law attorney would likely include not only financial documents, but also the precise documents needed to honor your wishes pertaining to medical care. If you wait until the hospitalization is upon you, however, your procrastination can leave you at the mercy of hospital staffers who may be sticklers for adhering to the letter of the rules regarding privacy.

Gene Osofsky is an East Bay elder law attorney in California. Gene Osofsky specializes in Medi-Cal planning, wills, probate, trusts, nursing home issues, special needs planning, and disability planning. To learn more about East Bay elder law lawyers, East Bay elder law attorney, Medi-Cal planning, Medi-Cal planning lawyers and The Law Offices of Osofsky & Osofsky, visit Lawyerforseniors.com.

Elder Law attorney Gene L. Osofsky, like many Americans, recently read a feature article in the April 27, 2009, issue of The Nation that gave him pause. The article, entitled “A System from Hell” by Kate Michelman, detailed the tragedy of a family that, despite possessing adequate insurance coverage, has nevertheless been pushed to the brink of destruction.” Her young adult daughter was paralyzed when a horse fell on her; her husband, who had been diagnosed with Parkinson’s Disease, was then crippled and lost any hope of independence in the twilight of his life, after shattering his hip; and now the mounting medical bills keep on exacting a terrible toll – all this happens to a responsible couple who had seemingly prepared for health-related contingencies. How could this happen in America?” Osofsky asks. Michelman’s husband was placed in assisted living after surgeries and hospitalizations for his fractured hip. Ironically, the couple had thought to purchase private long-term care insurance years before their crisis, but although their insurance plan nominally covered long-term care, it did little to address her husband’s long-term care in respect to its actual costs. “How does one plan for a situation such as this? Kate Michelman certainly thought she and her husband had planned for every eventuality – she is a well-known and well-to-do public figure, he was a tenured college professor, they had excellent medical insurance, even long-term care insurance, and still it wasn’t enough,” Osofsky says, “They still found themselves on the brink of losing everything.”

According to Osofsky, Michelman’s story is frightening “precisely because it could happen, and is happening, to any of us.” The unfortunate truth about medical insurance, long-term care insurance, and Medicare/Medi-Cal for those who qualify, is that they often cover “most of the cost” of medical treatment and rehabilitative care. Asserts Osofsky, “Most is woefully lacking when we must face the awful reality of how high the costs actually are. Deductibles, co-payments, share of costs, and uncovered services have become a huge personal obligation, a black hole of debt where accumulated life savings can disappear in a heartbeat.” Is there a solution? The key is to enlist the help of committed experts who know how to navigate the convoluted worlds of the medical industry, insurance industry, and government benefit programs. Osofsky suggests “finding professionals who can help you build a plan to make the best use of those systems and what they offer.” But even that’s not a complete solution. Something needs to change. Concludes Osofsky, “Medical care in the United States has become a mountain of cost that even the young and the healthy ignore at their own risk.”

To learn more about East Bay elder law lawyers, East Bay elder law attorney, Medi-Cal planning, Medi-Cal planning lawyers and The Law Offices of Osofsky & Osofsky, visit Lawyerforseniors.com.

“It might seem counterintuitive,” says Elder Law specialist Osofsky, “but according to a 2006 case decided by the California Supreme Court, being designated as a ‘care custodian’ of a dependent adult, may actually disqualify such persons from receiving testamentary bequests.” Adds Osofsky, “Only if the person making the testamentary bequest engaged a separate attorney to conduct an Independent Review and affirm that the testator was of sound mind and knew what he was doing, could the bequest be upheld.” The law seeks to protect dependent adults from coercive beneficiary disbursements made under duress or as the product of overreaching or undue influence. In certain care settings, California law presumes the naming of a care custodian as a beneficiary of one’s Will or Trust to be coercive actions assumptive of an unscrupulous care custodian and therefore void.

The case of BERNARD V. FOLEY (decision handed down August 21, 2006) found that unrelated friends providing ongoing health services to a dependent adult were “care custodians” under the relevant state statute and were therefore disqualified from receiving a testamentary distribution. James Foley and Ann Erman were longtime friends with Carmel Bosco. Ms. Bosco lived with them for two months prior to her death. Foley and Erman assisted her with her daily needs, including preparing her meals, helping her bathe, changing her diapers, and administering oral medications. Three days before she died, Ms. Bosco altered her living trust to make Mr. Foley and Ms. Erman each 50 percent beneficiaries. They had not previously been beneficiaries of the trust.

But Ms. Bosco’s relatives protested. Petitioning the court to invalidate the amendment, they argued that Mr. Foley and Ms. Erman were disqualified from receiving a testamentary distribution because they were “care custodians.” “Under California law, there is a presumption that donative transfers to care custodians are procured by undue influence,” explains Osofsky, “The state Supreme Court merely affirmed that a ‘caregiver’ under the statute could even be a friend who renders care to a dependent adult without compensation.” According to the Court’s decision, the definition of custodial care includes uncompensated or nonprofessional care and there is no evidence the legislature intended to make an exception for preexisting personal friends who provide health care services. Concludes Osofsky, “Elders have to be protected from people who would provide them with unprofessional care simply as a pretense to inheriting their assets. The very fact that they require such care puts them in an extremely vulnerable position.” But even this can be less than ironclad. “Sometimes persons have legitimate reasons for wanting to make bequests to their non-family member caregivers. In California, this essentially requires two attorneys to be involved, one to perform the Will or Trust and a second to conduct the Independent Review. Is this a trap for the well-intended?”

To learn more about East Bay elder law lawyers, East Bay elder law attorney, Medi-Cal planning, Medi-Cal planning lawyers and The Law Offices of Osofsky & Osofsky, visit Lawyerforseniors.com.

If you are thinking that joint accounts are a foolproof way to escape probate and funnel dollars to loved ones as a sort of “poor man’s estate plan,” think again. Circumstances exist when a joint account is an excellent option. But the instrument has its pitfalls as well, and if misused or entered into without caution, joint accounts can pose serious risks. Adding a loved one to a bank account may seem like a prudent action, but such actions can impact Medicaid planning or even make your account “fair game” for your loved one’s creditors.

Applications for Medicaid long-term care coverage can be tricky. States are obliged to examine the applicant’s assets to determine eligibility. Although a joint account may include two or more names, states tend to make the assumption that the applicant is the owner and entirely responsible for the total funds in the account, irregardless of who might have contributed to the account. Imagine your name is on a joint account. You enter a nursing home. The state is still likely to assume that the account’s assets are yours – especially without proof otherwise. Realize also that proving anything is a lot more difficult from inside a nursing home, or even an assisted living facility, when you might not have ready access to your papers and files as you did within your home sweet home back when you were well and able.

It can get worse. What if you or the other joint owner of the account decides to take monies out of an account that is already under state scrutiny? This can be perceived as “improper transfer of assets” for Medicaid purposes, which may have an adverse effect upon your eligibility. You or the other joint owner could become ineligible for Medicaid for a period of months or perhaps years. In fact, if a joint owner is removed from an account, it can appear suspicious to investigators. Example: Your parent enters a nursing home. You decide to remove your parent’s name from the joint bank account. Again, this simple action, prudent on its face, can be construed as an improper transfer of assets.

Remember that an account remains exposed to all the account owners’ creditors. If your son is added to the account and falls behind (or worse, defaults) on his credit card debt and gets sued, guess who is on the hook? Under laws currently in effect, a credit card company can confiscate the money in your account to pay off your son’s debt. Another pertinent question revolves around trust. Can you completely trust the person you are adding?

Viable alternatives to joint accounts do exist. A consultation with your attorney specializing in Elder Law may suggest a durable power of attorney or else a well-considered trust instrument. Seek out a qualified Elder Law attorney near you.

Gene Osofsky is an East Bay elder law attorney in California. Gene Osofsky specializes in Medi-Cal planning, wills, probate, trusts, nursing home issues, special needs planning, and disability planning. To learn more about East Bay elder law lawyers, East Bay elder law attorney, Medi-Cal planning, Medi-Cal planning lawyers and The Law Offices of Osofsky & Osofsky, visit Lawyerforseniors.com.

It is the worst economic downturn since the Great Depression of the 1930s. The decline and associated roller coaster ride on Wall Street has made durable power of attorney into not just a luxury when it comes to planning your estate, but an absolute necessity. Some Elder Law attorneys have come to view the instrument as even more integral to contemporary estate plans than a Will or Trust.

A Dow Jones newswire column is a case-in-point. It presents the cautionary tale of a female elder who had recently lost half of $6 million in savings. The losses were incurred almost entirely on the stock market. The woman’s woes only intensified when she became incapacitated, and her relatives were stymied when attempting to shift her investments, becoming increasingly frustrated as various remedies were attempted as damage control measures. But they lacked legal authority to take these corrective steps. An inherent irony was that the woman had once executed a power of attorney in case she ever were to become incapacitated, but the issue had become moot as the person she’d nominated had died and she’d neglected to name a successor. If dead men (or women) tell no tales, it’s also true that dead friends, no matter how trusted, cannot follow through with their power of attorney responsibilities.

Such columns have also tackled what many consider to be the thorniest question when executing a power of attorney. Is there someone you can actually trust with this power? Trust is always a thorny issue, but perhaps it is better to avoid naming someone if one-hundred percent trust has yet to be established. In fact, the powers of attorney instrument has become the subject of frequent “horror stories” in recent years, especially since the onset of our current Great Recession. In fact, exploitation of vulnerable elders by rascally persons misusing their powers of attorney roles is becoming epidemic.

But this doesn’t make the instrument less necessary in these difficult times, assert Elder Law experts such as Gene L. Osofsky. If someone trusted can be found, and if proper safeguards are in place, such as deciding who retains originals of the power of attorney document prior to when the instrument may be needed, then it can work well indeed. A power of attorney can take effect immediately or can become effective only when the subject is incapacitated as defined in the document and confirmed by a physician. In 2009, the need for a durable power of attorney has never been greater.

Gene Osofsky is an East Bay elder law attorney in California. Gene Osofsky specializes in Medi-Cal planning, wills, probate, trusts, nursing home issues, special needs planning, and disability planning. To learn more about East Bay elder law lawyers, East Bay elder law attorney, Medi-Cal planning, Medi-Cal planning lawyers and The Law Offices of Osofsky & Osofsky, visit Lawyerforseniors.com.