FAQS

Estate Planning

What is estate planning?


Estate planning is the creation of a definite plan for protecting your assets while you’re alive and then distributing them after your death. At Troyer & Good, each client is guided through the estate planning process with a close evaluation of his or her unique goals and desires, family dynamics, and current and projected estate tax liability. At a minimum, the following documents are the necessary components to an estate plan: Last Will and Testament/Trust, Power of Attorney, Living Will, and Advance Health Care Directives.




What is included in my estate?


Your estate includes anything that you own. This includes things like real estate, business interests, personal property, bank accounts, retirement accounts, life insurance proceeds, and payments that are owed to you.




What about my beneficiary designations?


Problems can arise when people fail to coordinate their beneficiary designations and/or joint accounts with their overall estate plan. Beneficiary designations always take precedence over what is stated in your Will. Those assets will transfer to your heirs automatically upon your death and are not subject to the terms of your Will. That is why we work closely with your financial advisor, accountant, and other professional advisors to create the most complete estate plan possible.




What happens if I don't have an estate plan?


If you die without a valid Will or Trust, you are deemed to have died “intestate.” In general, this means the State of Indiana will statutorily dictate who will inherit your assets. You no longer have control over who receives your assets or how those assets will be distributed.




What happens if I die without a Will?


If you die without a Will, Indiana law will determine how your assets are divided, and the Court will decide who serves as you Personal Representative. For example, if you are survived by a spouse and children, your estate will pass 50% to your spouse and 50% to your children. If you are survived by a spouse and parent but no children, your estate will pass 75% to your spouse and 25% to your parents. Having a Will is the only way to legally express your wishes. You can decide who will receive your assets and in what amount; who should be guardian of your children; and who will be in charge of your estate as Personal Representative.




Should I consider a Trust?


Maybe. Trusts can be important for some people but may be unnecessary for others. A Trust can be used to protect assets for minors, provide for a scheduled payout over a period of time, and shield assets from your beneficiaries’ creditors. Also, a Trust can avoid probate and maintain confidentiality. Our attorneys can help you determine if a Trust is necessary for your estate plan.




What documents do I need in my estate plan?


At a minimum, you should have a Last Will and Testament, Power of Attorney, and Advance Directives for Health Care. A Will allows you to legally express how you want your assets divided and who should be in charge of your estate after you die. The other two documents take effect while you are living. A Power of Attorney lets you choose someone to handle your financial affairs when you are unable to yourself. Advance Directives for Health Care let you choose someone to make medical decisions on your behalf. They also allow you to make known your end-of-life wishes in a Living Will.




Do I need a Will?


Yes! A Will is the only you can legally decide how your assets will be divided and who will be in charge of your estate after you die. You can also decide who will be guardian of your children. Without a Will, the state will make those decisions for you.





Estate Administration

How can your law firm help me if I've lost a loved one?


If your family has experienced the loss of a family member, we can guide you through and demystify the administration process. We assist our clients with probate administration, non-probate administration, and trust administration. It is our goal to offer personal assistance each step of the way.




What is estate or trust administration?


Estate or trust administration is the process that enables the payment of final expenses and debts, distribution of assets to the individuals or entities named in the Will or Trust, and closure of the decedent’s financial affairs. At Troyer & Good, we provide comprehensive legal services to the Personal Representative (or Trustee) and beneficiaries throughout the entire administration, including: filing required documents with the probate court, giving notice to creditors, evaluating and making an orderly payment of estate claims, identifying deceased person’s property, obtaining appraisal of property, preparing the accounting, properly distributing assets, and closing the estate.




Should I avoid probate?


Not necessarily. Put simply, probate administration is the process of distributing assets to the heirs. It's important to know that avoiding probate does not mean avoiding taxes. Probate has both advantages and disadvantages. For example, with probate, creditors have three months to pursue a debt in the estate. Without probate, creditors have nine months. Also, probate gives the Court oversight of family conflicts and supervision of the Personal Representative, which may be important for some families. However, because probate estates pass through the Court, the Will and other related documents are part of the public record. Avoiding probate means privacy can be maintained.




Where do my assets go at my death?


Where your asset goes will depend on how it is titled and if beneficiaries are named. If an asset has a joint owner named, the asset goes to the joint owner. If an asset has beneficiaries listed, the asset goes to the beneficiaries. Joint ownership and beneficiary designations take precedence over your Will. If an asset is in your sole name with no beneficiary listed, the asset will pass according to your Will (if you have one) or state law (if you have no Will). If an asset is titled to your Trust and has no beneficiary, the asset goes to the Trust account.




What if the estate has no money?


An estate is considered insolvent if there are more debts than assets. In those cases, the estate assets are liquidated and used to pay creditors in order of preference as outlined in Indiana law. For example, costs and expenses of administration (such as attorney fees, Court costs, and Personal Representative's fees) are paid first. Funeral expenses and burial costs are paid next. Any unpaid creditors will have to write off the debt. The heirs will receive nothing if there are no remaining funds. Remember that you are not personally liable for the debts of the estate.




Can your firm help me contest a Will?


Contesting a Will or Trust typically involves litigation. Our firm does not handle Will contests or litigation. However, we can represent you as an heir to an estate if you have questions about the administration. Or if you believe a Personal Representative is acting unfairly, our attorneys can give you legal advice on your options.





Guardianship

How do I know if I need a guardianship?


Guarianship is a lengthy and serious process. If a person has a Power of Attorney in place, a guardianship may not be necessary. There may be other options available before pursuing a guardianship. In some cases, though, they are necessary. A guardian can be appointed over an elderly person with dementia or other incapacity, a developmentally disabled person, an accident victim, a mentally impaired individual, or a minor who comes into a substantial amount of money. One of our attorneys would be happy to discuss the specifics of your situation with you to help you decide if you want to pursue a guardianship.




How do I get guardianship of someone?


Guardianship is established by the Probate Court in the county where the protected person (the person who needs a guardian) lives. You can petition the Court to be appointed as a person's guardian if he or she is incapacitated. Notice of the guardianship must be given to anyone interested in the guardianship, such as the protected person's family and where he or she lives (like a nursing home or group home). The Court will set a hearing to determine if the person is incapacitated and if you are a suitable guardian. Our attorneys are experienced in guardianship matters and can help you through the Court process.




My special needs child is turning 18. What now?


If your child has a mental illness or disability and cannot make financial or personal decisions, a guardianship may be necessary. A guardianship is a serious matter and should only be considered if there is no other reasonable alternative. Some alternative to a guardianship include a Special Needs Trust, which is designed for beneficiaries who are disabled; a family member who can provide advice and help; assistive or supported living services; a Power of Attorney, which allows your child to appoint someone to make financial decisions; or a financial representative, such as a representative payee or a joint owner on a bank account to help manage finances.




What is a Special Needs Trust?


If your spouse or child has a special need, you may need a Special Needs Trust (or Supplemental Care Trust) within your Will. Leaving money directly to your spouse or child could jeopardize his government benefits (like SSI or Medicaid). With a Special Needs Trust, the funds go into a Trust for your loved one's benefit while preserving their eligibility for public benefits.





Medicaid/Elder Law

When should I start planning for Medicaid?


As early as possible! Often times, people mistakenly believe there is nothing that can be done to protect their assets from nursing home costs. However, there are actually many planning options we can take if you start your Medicaid planning early. Even if you are coming to us at the time of admission to a nursing home, we can still help. There are other planning avenues we can take to maximize the benefits available to you and/or your spouse.




What is a Miller Trust?


A Miller Trust (also known as a Qualified Income Trust) is a Trust created by the Medicaid recipient and someone serving as Trustee. It is used when a person who needs Medicaid is over the Special Income Limit. If a person's gross income is more than the Special Income Limit, then he will need a Miller Trust in order to be eligible for Medicaid. Our attorneys can create a Miller Trust for you.




How do I apply for Medicaid?


If you are eligible for Medicaid, you can apply for Medicaid through the Family and Social Services Administration (FSSA). An application can be obtained online, over the phone, or at a local Division of Family Resources office. If you are not eligible for Medicaid and are over 65, our attorneys can help you. We can help you obtain eligibility while protecting your assets.




Can your office help me appeal a denied Medicaid application?


We do not handle the appeals process with Medicaid applications. We help clients get eligible for Medicaid, and we handle the application process. If you need assistance with either of these steps, you can schedule a consultation with one of our attorneys.




Can I get Medicaid benefits at home or through an assisted living facility?


Yes! The Medicaid waiver was created to pay for care at home or in an assisted living facility. The waiver pays for services that are specifically aimed at helping individuals remain living outside a nursing home. Like traditional Medicaid, the waiver has income and resource requirements to be eligible. Our attorneys can help you arrange your finances to qualify for the waiver.




Am I eligible for Medicaid?


Our office helps people qualify for Medicaid under the aged, blind or disabled category. For this category, you must be aged 65 or older, blind, or disabled. Your income must be below the Special Income Limit, which changes every year. (For 2020, this amount is $2,349). If you are above this limit, you will need a Miller Trust. You can have $2,000 in countable assets (or $3,000 if both spouses are receiving Medicaid benefits). Medicaid allows you to make gifts of $1,200 per year without being penalized. Anything over this amount will result in a penalty. Medicaid will look back five years to determine if you have made any transfers or gifts.




What is a transfer penalty?


Medicaid will look back five years from the date of your application to determine if any transfers were made. A transfer includes transferring cash, real estate, or property. If the transfer was for less than fair market value, then a penalty will be imposed. A penalty means the Medicaid recipient will not receive Medicaid coverage for the penalty period.





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Fort Wayne, Indiana attorneys offering services in estate planning, Wills, Trusts, estate and trust administration, probate, elder law, Medicaid, asset protection, and guardianship.

​© 2020 by Madyson Shannon