How to prevent assets in a will from being passed to a person suffering from incurable dementia? Triggered by this question, a similar one. How can I write a will such that if a beneficiary is suffering from senile dementia at the time I die, they are passed elsewhere? The situation may well arise if I have previously succumbed likewise, and so cannot revise my will. My siblings are of a similar age, and share my genetic inheritance. I would want the money to go to their children, if they are beyond considering for themselves whether to enter into a deed to reassign their inheritance at the time of my death. Is there any reason it can't be handled in the same way as survivorship? Specify a condition which, if satisfied, means that the beneficiary is to be treated as if they had pre-deceased me.
Conditions stated in a will should be objectively verifiable, to avoid later ligation of the "yes he is / no he isn't" type. In this case, it would appear that your concern is over the beneficiary not actually being competent to take care of themselves. The courts often have to make that judgment, when a party seeks conservatorship over an adult. So it seems that the situation you are addressing can be summarized by saying "has not been found legally incompetent". You should discuss with your attorney what the exact wording ought to be, and also whether that describes your actual intents. For example, the description of disqualification probably should not include execution of a temporary power of attorney for a specific purpose, nor would it include a DNR order. Hiring an attorney who knows the terminology would steer clear of vague or mistaken terms.
What does this paragraph mean? Line by line. I give my Residuary Estate This is a gift, effective when the person writing the Will dies, of everything that is left over after all debts and taxes are paid and after any other gifts already in the Will (e.g. leaving a car or a house or a Monet to someone in particular) have been given. to the said [Full Name] absolutely I'm going give [Full Name] a name so that it is easier to follow this explanation. [Full Name]'s name for purposes of this answer is &quot;Luna&quot;. This says to give all that stuff to Luna when the person who wrote the Will dies, if Luna is still alive for whatever the required amount of time is after the person who wrote the Will dies. The required survival time period is either in the boilerplate provisions of the Will, or in the relevant statute if the Will is silent on the question. The Will says &quot;absolutely&quot; because historically, someone who received gifts of property in deed or wills in England only got to keep it for their lifetime, unless it clearly specified otherwise, after which someone else would get it. But in this case, if Luna survives this long, Luna gets all of this stuff with no strings attached. and if [Name] shall fail to obtain a vested interest leaving issue who survive me then such issue shall take by substitution If Luna dies before the person who wrote the Will does, or doesn't stay alive for the required number of days afterwards, then Luna isn't entitled to this stuff. Luna's descendants get it instead (i.e. Luna's descendants &quot;take by substitution&quot; what Luna would have gotten if Luna had lived, instead of Luna's probate estate getting the stuff). and if there shall be more than one of such issue they shall take in equal shares per stirpes but so that no issue shall take whose parent is alive and so capable of taking. If Luna predeceases and has exactly one living descendant who is alive when the person who wrote the Will dies, and that living descendant lives the required number of days after the person who wrote the Will dies, then the sole living descendant of Luna gets all of the stuff that is left over when the person who wrote the Will dies. If Luna has more than one living descendant, the stuff that is left over when the person who wrote the Will dies, then Luna's descendants gets broken up the way described below, which is called per stirpes: Create one share for each child of Luna who is alive and survives Luna by the required amount of time. If Luna has only one living child, that child gets everything even if Luna's child has children of their own. Create one share for each child of Luna who didn't live for long enough after the person who wrote the Will's death, if the predeceased child has descendants who are alive and remain alive after the person who wrote the Will dies by the required amount of time. This share is then broken up into one sub-share for each child of the predeceased child who is alive when the person who wrote the Will dies and is still alive after the person who wrote the Will dies by the required amount of time, and one sub-share for each predeceased child of the predeceased child who has living descendants who remain alive for the requisite number of days. Continue this process until 100% of the the residuary estate has been assigned to someone and give them their share of it once the estate is settled. If someone lives past the minimum number of days to outlive the person who wrote the Will, and then dies, that person's share goes that person's probate estate. For visual learners, a per stirpes distributions of assets looks like this: A per stirpes distribution to descendants is the plain vanilla ordinary way to giving stuff to the descendants of a dead person when you don't know in advance who will outlive you. What if Luna predeceases with no living descendants? Usually, this paragraph of a Will will be followed by another paragraph called the &quot;ultimate contingent beneficiary&quot; which says who gets the stuff that's left over in the residuary estate if Luna predeceases the person who wrote the Will and has no living descendants. Often, the ultimate contingent beneficiary will be one or more distant relatives, a list of friends, or a charity. If there is no ultimately contingent beneficiary in the Will, but Luna and all of Luna's descendants predecease the person who wrote the Will, then it goes to the next of kin (a.k.a. &quot;heirs at law&quot;) of the person who wrote the Will, if there are any relatives of the person who wrote the Will who are close enough to qualify to inherit under English inheritances law. If there is no one closely enough related to the person who wrote the Will to qualify under English inheritance law, then the stuff &quot;escheats&quot; (i.e. is inherited by default) by the King (or Queen) of England, as the case may be. There are some circumstances when the Will can be ignored. Everything above explains what this language in the Will means. This isn't always what happens, however. There are several exceptions to the general rule that property goes to the people that the Will says it goes to. I won't list them all here, but it is important when a Will is being written to understand that this is the case. For example, if the person who wrote the Will leaves nothing in the Will to their spouse of thirty years as of the death of the person who wrote the Will, who has no assets of their own, then the Court will partially ignore what the Will says and give some of the residuary estate to the surviving spouse. Also, the Will only controls assets that are in the &quot;probate estate&quot;. Some assets pass at death in what are called &quot;non-probate transfers&quot; that are not controlled by what the Will says. And, finally, of course, if the Will was written when the person signing the Will was of unsound mind, the Will can be invalidated in a &quot;Will contest&quot; in the appropriate court if the person contesting the Will's validity can prove that the person signing it was of unsound mind at the time. This is mediocre legal writing This paragraph gets the job done, but it is not very well written by modern legal Will drafting standards. It is adequate and probably meets the standard of care for a lawyer who hasn't committed malpractice. Lawyers in England have been writing paragraphs like this one for three or four hundred years. But it is not &quot;best practices&quot; legal writing in a Will. Good modern legal drafting for a Will would be much easier for a non-lawyer to understand, in addition to being clear and unambiguous.
If this is Florida, then a will has to be written. If there is no written will, the estate falls under the law of intestate succession, part 1. Per § 732.502, every will must be in writing, signed, and witnessed (therefore a voice mail is not a will). If there are any relatives, they may be entitled to a share; otherwise, the estate goes to the state, where it is sold and the funds go into the state school fund (§732.107).
Question 1. In the trust that goes solely to my brother, in the event either my mother or father are dead, how is that asset split up? Can a trust dictate how an asset if split up if I am not on the trust. This is governed by the terms of the trust. The trust can say whatever the people who wrote it wanted. Question 2. How is the debt handled? The asset still has debt on it, who is responsible for the debt? I am thinking the answer to this question depends on the answer the Question 1. The trust owns the property subject to the mortgage. The people who originally signed the mortgage (presumably both of your parents) are also personally liable to pay the mortgage in the event that the debt is not fully satisfied in a foreclosure sale, or in the event that the mortgage creditor prefers to sue the mortgage debtors individually in the event of a default. After the death of the mortgage debtors, the mortgage company can file claims in their probate estates for repayment of the mortgage related debt if it does so in a timely fashion, although it would be more common to simply foreclose on the real property and obtain repayment of the debt that way. The death of the mortgage debtors is almost always an event of default under a mortgage, so if both mortgage debtors die, the mortgage creditor can usually force the trust to repay the debt, either by selling the house or by refinancing it. Question 3. They currently live in New York state, I found an article that New York state for nursing home care at more that 12k per year. If they were to move to a cheaper state like Alabama what are the laws or rules, ie. how long they have lived there, assets. This question verges on incoherent. But I think I understand what you are trying to ask. In every U.S. state, the joint federal-state program known at the federal level as Medicaid, although it has different names at the state level (California, for example, calls it &quot;Medi-Cal&quot;), will pay for nursing home care at approved nursing home facilities if the applicants meet state eligibility requirements. This generally involves an income test, an asset test, and a determination that the applicants have not made disqualifying gifts to trusts or to third-parties within the past five years. The income test is based upon state median or average income and is usually lower in a state like Alabama that has a lower median state income, than it is in New York, that has a higher median state income. For retirees, the main kinds of income considered are defined benefit pension plans payments, annuity payments, and investment income. The exact details of the asset test vary somewhat from state to state. Generally speaking, New York State is among the most strict in this regard. The basic outlines of the disqualification for gifts made within five years to others including trusts before applying for nursing home care are similar in broad outline, but the consequences for violating the rules are a function of the average cost of nursing home care in a state, which varies considerably. Generally, a gift of a fixed dollar amount gives rise to more months of disqualification of Medicaid in a state where the costs of nursing home care is low than it does where the costs of nursing home care are high, because the amount of the gift made in the past five years is divided by the average cost of nursing home care at the time the application is made, to determine the number of months that the applicants are disqualified from Medicaid. More generally, setting up trusts intended to qualify you for Medicaid is a highly technical matter with severe consequences if it is done incorrectly, and I would hope that your parents did so while conferring with a competent elder law lawyer. If they did it themselves, there is a high chance that this will have very severe negative consequences.
Let's say the trustee runs into a situation where the beneficiary demands some action, and the trustee thinks this action is a really, really bad idea. Then the trustee can either say "no". Or the trustee can say "yes" and be liable (so if the action is a really bad idea then the trustee won't do this). The trustee can NOT say "yes if you sign this paper that I'm not liable for the result of this action", because the job of the trustee is to protect the beneficiary and he wouldn't be doing that.
Choice of Law The place where you get married is irrelevant to the question of whether or not you need a pre-nuptial agreement. What matters is where you intend to live once you get married. A pre-nuptial agreement exists to change the default rules of law upon death and divorce. These rules differ from state to state, so the default rules you might modify depend upon where you intend to live after you get married, and so does the extent to which you need to modify those rules. Generally, a divorce will be governed by the law of the place where the couple resides when the divorce is commenced, and generally inheritance is governed by the laws of the place where the decedent (i.e. the dead person) was domiciled (which means something close to, but not the same as where the decedent resided) at death. Why Get A Pre-Nuptial Agreement? If you and your bride are happy with the default rules of law regarding divorce and inheritance in the place that you intend to live, there is no need for a pre-nuptial agreement. If the two of you are not content with the default rules of law regarding divorce and inheritance in the place that you intend to live, then a pre-nuptial agreement can change some, but not all, of those rules. Generally, a pre-nuptial agreement can change rules regarding property division, alimony and attorneys' fees, but not matters related to children or related to the grounds upon which you can get divorced or related to whether fault can be considered in a property division or alimony determination. What the pre-nuptial agreement would say would depend upon your objectives for entering into it. To answer your question it is necessary to know &quot;what harm are you afraid of that a pre-nuptial agreement could prevent?&quot; This has more to do with your expectations and values than it does with the law. Some reasons that people enter into pre-nuptial agreements include: preventing a spouse from inheriting or receiving in a divorce wealth that you inherited or might inherit in the future, because the donors might decide not to leave you inheritances otherwise; preserving wealth acquired by the spouse's respectively during life for one's adult children in a late in life marriage (e.g. during retirement) that is unlikely to produce more children. The Formalities Any pre-nuptial agreement should be drafted with both spouses represented by lawyers, and any competent lawyer should know the details of executing the document that are necessary to make it valid. If the agreement is drafted in English, which would make sense if she was moving to the U.S. to join you, she would need to have an interpreter in addition to a lawyer to help her evaluate and negotiate it, unless she was already fully fluent in English enough to understand advanced legal concepts (which would be very uncommon unless, for example, she went to school for many years in the U.S.). Immigration Considerations In the immigration process, U.S. immigration officials are skeptical that international marriages are legitimate and have the power to determine that an international marriage was a sham. One factor among many that immigration officials use to determine that a marriage was a sham entered into for immigration purposes is the existence of a pre-nuptial agreement that favors the citizen spouse. The more strongly the agreement favors the citizen spouse relative to the default rules of law, the more likely it is that immigration officials will determine that the marriage is a sham. It is not necessarily a factor that will cause the marriage to be found to be a sham, in and of itself, but it is an important factor that would be considered. If you enter into a pre-nuptial agreement, you are making it harder for your bride to become a U.S. citizen, and the more it favors you, the harder it will be for her to become a U.S. citizen.
That really sucks. I've had similar experiences when handling the probate proceedings of lawyers who were not good about returning original wills to clients. I am providing an answer under general principles without researching Oregon specific accounting, record retention and probate laws, to at least give you a start although I recognize that a better answer would research these questions. The accounts/clients from her business were sold to another woman. Is it legal for us to transfer everything to her possession? Probably yes. There should be a government agency in Oregon that regulates accountants that has rules regarding that question. The linked rule seems to govern this situation. It says in Rule 801-030-0015(d) that: (d) Custody and disposition of working papers. (A) A licensee may not sell, transfer or bequeath working papers described in this rule to anyone other than one or more surviving partners or stockholders, or new partners or stockholders of the licensee, or any combined or merged organization or successor in interest to the licensee, without the prior written consent of the client or the client’s personal representative or assignee. (B) A licensee is not prohibited from making a temporary transfer of working papers or other material necessary to the conduct of peer reviews or for the disclosure of information as provided by section (1)(b) of this rule. (C) A licensee shall implement reasonable procedures for the safe custody of working papers and shall retain working papers for a period sufficient to meet the needs of the licensee’s practice and to satisfy applicable professional standards and pertinent legal requirements for record retention. (D) A licensee shall retain working papers during the pendency of any Board investigation, disciplinary action, or other legal action involving the licensee. Licensees shall not dispose of such working papers until notified in writing by the Board of the closure of the investigation or until final disposition of the legal action or proceeding if no Board investigation is pending. So, a transfer to a successor firm appears to be permitted. What if she refuses to take the documents? Her probate estate could retain them and stay open, they could be returned to clients, or there could be a rule established by the Oregon body that regulates accountants that authorizes a central depository of such records. In Colorado, for example, in the case of law practices with no successors, original wills and estate planning documents can be deposited in the records of the court with probate jurisdiction that has jurisdiction over the territory where the decedent's practice was located. But, I could not locate any provision of this kind in Oregon law. Is it legal for us to destroy/shred/etc. the documents? In many cases, yes. Some states, by statute or regulation, and others by custom, allow business records to be destroyed as a matter of course, normally one year after the longest statute of limitations that could apply to a dispute where the records would be relevant (often seven years since the longest normally applicable tax statute of limitations is six years). Destroying tax returns is usually not a big concern because a transcript of the old tax returns can be ordered from the tax collection agency where they were filed. But, business records related to purchases of property and capital improvements and depreciation, and related to divorces, can be relevant for decades after they were created, so the more honorable course of action would be to make at least a cursory effort (such as a postcard sent to a last known address of each client with a deadline for requesting a return of their file) to return the files of clients that include original business records as opposed to mere copies of tax returns. Oregon has a seven year retention rule for most purposes pursuant to Rule 801-030-0015(e) which is linked above: (e) Retention of attest and audit working papers. (A) Licensees must maintain, for a period of at least seven years, the working papers for any attest or compilation services performed by the licensee together with any other supporting information, in sufficient detail to support the conclusions reached in such services. (B) The seven-year retention period described in paragraph (A) of this subsection is extended if a longer period is required for purposes of a Board investigation as provided in paragraph (d)(D) of this rule and OAR 801-010-0115(3). The referenced rule in that rule states: (3) Requirements upon resignation. Upon resignation, a former licensee is required to: (a) Surrender the CPA certificate or PA license to the Board; (b) Take all reasonable steps to avoid foreseeable harm to any client, including but not limited to providing written notice of resignation under this section to all clients and inform all clients of where client records and work papers will be stored and of the clients’ right to secure copies of all such records and work papers at no cost to the client; (c) Maintain client records for a period of at least six years, or return such records to the client; and (d) Continue to comply with the requirements of OAR Chapter 801 Division 030 pertaining to confidential information and client records. (e) For the purpose of subsection (b) above and unless otherwise required by the Board, a resigning licensee of a registered firm is required to give written notice to only those firm clients for which the resigning licensee was the sole or primary CPA on an engagement, an engagement leader, or the client relationship manager. In practice, the consequences of destroying a record that shouldn't have been destroyed are likely to be minimal, because any recovery would be limited to the assets of the estate and there is a time limit for making claims against estates which is quite strict, and your grandma has no license to revoke. But, again, the honorable thing to do in order to honor her legacy and do right by her former clients would be to either transfer the records to a successor firm or to attempt to return them, as she would be required to do if she had surrendered a license during life.
I'm not a lawyer or a medical professional, but on Wikipedia's page about DNR, we see the following quote: In the United States the documentation is especially complicated in that each state accepts different forms, and advance directives and living wills are not accepted by EMS as legally valid forms. If a patient has a living will that states the patient wishes to be DNR but does not have an appropriately filled out state sponsored form that is co-signed by a physician, EMS will attempt resuscitation. Based on this, I would hazard the guess that you can't treat anything other than those forms as legally binding, as they even ignore a living will without that state's form.