estate planning for seniors

The Ultimate Guide to Beginning Your Estate Plan

Wondering if you should worry about beginning your estate plan?

As unwanted or disturbing as this fact may be, death is inevitable. We’re all eventually going to die and it’s better to make peace with it. But what makes this fact even more stressful is when death comes unannounced. It often doesn’t give people a chance to say goodbye to their loved ones, let alone explain to them what to do with their possessions.

kansas city elder law attorney probate

*This blog is for educational purposes only and should not be considered legal advice. The use of the Paths Law Firm website does not constitute a client-lawyer relationship.

 

This is where estate planning comes in!

Your estate refers to everything you own. No matter how small or grand our estate may be, there’s one commonality: we have to leave everything behind. Hence, people tend to have a certain plan in mind when it comes to their estate to ensure its protection and proper distribution after their death. In this article, you’ll learn the basics of what you should first know about estates and estate planning, and the importance of hiring a qualified elder law attorney.

So, let’s dive right in!

What is an Estate?

Simply put, an estate refers to all the money, belongings, and investments you own, including your home, vehicle, furniture, bank accounts, antiques, and family heirlooms. It also includes any outstanding debts. A comprehensive estate plan will sorts it out, making clear, who’s in charge, and who gets what after you die.

In case you don’t have a plan and your estate matters aren’t specified, you may leave your family and loved ones fighting over your possessions or worse, your hard-earned valuables may go to the state or even skip to unintended heirs, all instead of your loved ones.

What is an Estate Plan and Why is it so Important?

An estate plan is meant to protect your possessions and family after you die or become incapacitated. It preserves important decisions regarding your health care and property disposition.

It is important for everyone to have an estate plan in place regardless of their age. Here’s why:

  • It establishes who would receive your possessions after your death
  • Appoints an executor to handle your estate matters after your death
  • Enables you to avoid the dreaded probate process
  • Includes the name of guardians for the care of yourself or minor children
  • Lays a foundation for medical and financial decisions if you’re incapacitated or incompetent
  • Minimizes stress for your family and loved ones during your incapacity and after your death

Beginning your estate plan is a crucial step in your life and so, it’s best to hand over the task to an expert. An elder law attorney is the best way to create a great estate plan to most likely match your specific needs, desires, and requirements.

Beginning Your Estate Plan: What You Need to Do

Beginning your estate plan may feel overwhelming, but think of it this way: after you die, it will work in your family’s favor as well as protect your belongings as per your wishes. You may think of it as an ‘end of life plan’.

What an Estate Plan Includes

Typically, a full estate plan features a strategic plan for fulfilling your wishes in case you become incapacitated or are unable to act for yourself along with determining what will happen to your possessions, debts, minor children, and pets after your death.

It most likely should include:

  • Powers of attorney
  • A living will, also known as a health care directive
  • A Last Will and Testament
  • Trust
  • Beneficiary designations on insurance or retirement accounts
  • Transfer on death deeds or accounts

3 Key Components of an Estate Plan

Generally, estate planning for seniors consists of three main components.

Beginning Your Estate Plan

1)  Powers of Attorney

A power of attorney is a critical written document in which seniors can empower another individual to act on their behalf in situations that may or may not involve incapacity. Please note, these “powers” can’t be granted to another for the execution or revocation of a Last Will and Testament or living will.

Durable Power of Attorney:

This is the most recommended type of power of attorney for estate planning purposes and usually the most beneficial.  The person signing the power of attorney, known as the “principal,” may grant the powers to begin immediately or for them to begin upon a certain event.  Should the powers begin upon an event, this is sometimes referred to as a “Springing Power of Attorney, i.e. it “springs” into effect upon the described event.  The most common event described in such powers of attorney is the requirement that a physician (or two) giving their opinion that the principal is incapacitated.

If properly drafted, it is “durable” because the powers don’t terminate in the event the principal becomes disabled or incapacitated. Powers of Attorney, and the authority granted in them, terminate immediately when revoked by the principal and upon the principal’s death.  After their death, the family needs to look to property titles, beneficiary designations, trusts and Wills for direction.

General Power of Attorney:

A principal may delegate to the trusted person (also referred to as an Attorney-in-Fact) in a power of attorney with general powers to act in a fiduciary capacity on the principal’s behalf with respect to all lawful subjects and purposes or with respect to one or more express subjects or purposes.

It is important to seek counsel regarding powers of attorney as there is no “one size fits all” formula. For example, whether or not a power of attorney “grants general powers for all subjects and purposes,” there are twelve actions that must be expressly enumerated and authorized in the power of attorney for the Attorney-in-Fact to exercise them, and several are frequently needed in the elder law field.

Health Care Power of Attorney:

There are legal formalities surrounding a power of attorney allowing a principal to designate another person to make medical decisions for the principal when he or she cannot make such decisions.

kc elder law attorney estate planning

2)  Death Planning

Last Wills and Testaments (often referred to simply as a “Will”) fall into the category of death planning. Trusts are often primarily used for this as well and are also helpful to have in case of incapacity. Properly executing these documents better ensures the fulfillment of your wishes regarding the division and distribution of assets after your death. It’s in these estate planning documents that you can explain in detail how you want your possessions to be distributed and who you want to inherit them. The more thorough, the better.  A primary difference between a Will and a trust is that a Will’s directions only apply to assets going through the probate process.

Probate:

You must note the following points regarding probate:

  • This process of transferring title to assets is required for all assets that don’t qualify under “Avoiding Probate.”
  • It’s our experience, the majority of estates processing through probate requires about 1 year to complete and fees & costs are about 4% of the probate assets’ value. This is not as horrible as most people believe it to be.
  • A Last Will & Testament only applies to assets that are being transferred through the probate process, i.e. if the transfer of title to a certain item falls under the “Avoiding Probate,” then whatever the Will states, in general, or specifically to that item, has no actual effect on the transfer.
How to Avoid Probate:

If you want to avoid probate in order to transfer your property as you wish upon your death, you have three options:

Joint Ownership:

Joint ownership means two or more people hold or own title to a property. The title of the property dictates ownership.  Basically, the last owner living owns all interest in that property. This form of ownership for estate planning is not often recommended unless it happens between long-time married spouses or in a very limited way is desired for protecting assets from creditors.

Once joint ownership is established in certain assets, the consent of the joint owner may be required to make any changes. Also, once a senior adds another owner to an asset, it likely exposes the asset to the potential problems of the new joint owner, i.e. their death, their incapacity, their creditors, a divorce, etc. The greatest reason for not jointly titling assets is that the senior doesn’t need to in order to effectively and efficiently accomplish their objective.

Beneficiary Designations:

Beneficiary designations are quick and simple to accomplish for any asset in Missouri (cars, real estate, bank accounts, life insurance, etc.). However, there is little to no flexibility for contingencies by using beneficiary designations.

This is usually a poor choice for transferring real estate, in particular, for the following reasons:

  • Not only do all the beneficiaries receiving an interest in the property need to agree when it comes to selling it, but title companies will also require the beneficiaries’ spouses to agree
  • If a beneficiary is incapacitated (due to stroke, car accident, etc.) at the time of a later transfer or sale, the probate court is likely to be required to appoint a guardian regarding that beneficiary’s share
  • There is no way to determine who will be responsible for utilities, cleaning, and all that precedes selling, or how they will be reimbursed for their expenses

Trusts:

These trusts are commonly referred to as “Living Trusts.” There are many types of trusts and the titles given them depend on the overall objective when utilizing such.  A “Living Trust” is a standard estate planning tool wherein the client maintains control, being able to change or terminate it anytime, while they are alive and have the capacity.

A Living Trust is the preferred method of estate planning in most cases for the following reasons:

  • Provisions/alternatives/contingencies can be made depending on the order of deaths of the senior or others to be included in their estate plan
  • Provisions/alternatives/contingencies can be made in case of the senior’s or other person’s incapacity
  • Provisions/alternatives/contingencies can be made to protect assets passing to beneficiaries, unlike other methods of avoiding probate

A Living Trust should hold title all your assets. IRAs cannot be owned by the trust, but the beneficiary of the IRA can be the trust and is recommended if properly drafted to hold retirement assets.  Instead of simply leaving the property to family or friends, you can title it to a trust to ensure that your wishes will be fulfilled, won’t be dependent on another persons death or incapacity, and provides more privacy from public scrutiny.

What’s most important is that you should make sure a trust meets your objectives. An expert elder law attorney may help you find the best type of trust that suits your needs.

3)  Asset Protection

It’s common for seniors to be concerned about nursing home costs, getting sued, being targeted by a scammer, or even an unscrupulous relative. You can use advanced estate planning methods, such as general liability (umbrella) insurance policies or long-term care insurance.  This is a good idea to consider for you, your partner, your children, or other beneficiaries to protect your assets as a part of your estate plan. There are other types of trusts and estate planning tools good for this advanced planning.  A professional elder law attorney may also discuss various trust options with you to help you protect against these fears.

Click Here for more on- How to Talk to Aging Loved Ones

The Bottom Line

You may be in good health now, but there’s no guarantee of the future. You may become mentally incapable of making decisions anytime, so there’s no time like the present to put your estate plan in place. It’s crucial to have a great estate plan in place to make sure your possessions and family members are protected. Unfortunately, many seniors think creating an estate plan is a complicated and stressful process, but we’re here to simplify the process and get it done effectively and efficiently.

It doesn’t have to be this way! By understanding how an estate plan works and hiring an expert elder law attorney can make the process smooth and pleasant.

Click the logo to contact us today!

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Educational Seminar at Paths Law Firm

Paths Law Firm provides a Free Educational Elder Law Seminar every month to help you plan for your future.

Administrative Assistant

Ryan D. Foley

Ryan Foley at Paths Law

Administrative Assistant

Ryan D. Foley

Ryan graduated from the UMKC School of Law in 2018 and passed the Missouri Bar that year. Prior to law school, Ryan attended the University of Missouri – Columbia where he attained a degree in Business. He is a Kansas City native, growing up in the Northland where he achieved his Eagle Scout rank by doing a project for his high school. During his time in law school, Ryan was introduced to the practice area of Elder Law by one of his professors and has been

Ryan enjoys working with and educating clients to provide advocacy and support during the unfamiliar and often overwhelming probate process. Ryan understands the challenges faced by individuals when faced by the uncertainty and complexity of government systems or even handling a Trust during a time of grief, and he strives to make the process as easy as possible.

Administrative Assistant

Makaylee A. Morelli

administrative assistant at Paths Law

Administrative Assistant

Makaylee A. Morelli

Makaylee is currently working on her bachelor’s in political science and hopes to soon start law school as an aspiring attorney. In her free time, she loves to spend time with her friends and family but most importantly her dogs Taffyta, Tallulah Belle, and Harry. Their favorite thing to do is go on coffee dates and get pup cups.

Attorney

Kathleen E. Overton

Kathleen Overton, attorney at Paths Law

Attorney

Kathleen E. Overton

After starting her career as a disability attorney, Kathleen transitioned into estate planning at a mid-sized regional law firm. Kathleen joined Paths Law Firm in 2021 when she decided to return to a boutique law firm that provides excellent service and quality to clients. Because of her background as a disability attorney, she brings a thorough understanding of public benefits to each client meeting. At Paths Law FIrm, Kathleen focuses on traditional estate planning and business entity formation, providing tailored advice unique to each client’s situation.

Public Benefits Assistant

Tena K. Dooley

Public Benefits Assistant

Amanda D. Martin

I have my Associates in Applied Science and have over 20 years of office management experience. I have two daughters and one grandson.

During my time away from the office I enjoy spending time with my family.  I enjoy almost everything outdoors and my hobbies include fishing and gardening.

PARALEGAL

Sydney R. Morris

Paths Law elder law in Kansas City

PARALEGAL

Sydney

Sydney is currently enrolled at the University of Missouri-Kansas City pursuing an accounting degree and plans to later attend law school.

In her free time, Sydney enjoys spending time with her nephews and volunteering at her local church.

 

CLIENT SERVICES MANAGER

Christy L. Phillips

client service manager at Paths Law

CLIENT SERVICES MANAGER

Christy L. Phillips

Phone: 816-640-8635
Email: [email protected]

Christy has 3 years of experience in Elder Law working for seniors and their families as a Benefits Coordinator processing Medicaid and VA applications. Prior to joining Paths Law Firm Christy worked in the finance industry for over 10 years.

 

Christy’s experience in the finance industry has been extremely beneficial to her role as Benefits Coordinator. There have been many influences that went into her decision to select the field of Elder Law. Christy has a special place in her heart for the elderly and attributes this to her relationship with her grandparents.

When asked why she loves what she does, Christy said that at Paths Elder law, she gets the opportunity to help clients in more ways than one. Her favorite part of her job is getting clients approved for Medicaid or VA benefits as it is a huge relief for them and their loved ones.

Christy was raised in Ogden, Utah, and moved to Independence, MO, when she was ten years old. She has two children that keep her busy and fill her life with joy! Christy’s daughter cheers for Avila University, and her son plays competitive baseball for the Bucks and races BMX locally for the Motorcycle Closeout Team.

When Christy is not working, she enjoys crafting and making homemade gifts for her loved ones and raising her kids to be healthy, happy, and positive humans.

 

Practice Areas

  • Medicaid Benefits
  • VA Benefits

 

Professionalc Memberships and Affiliations

  • Missouri Notary

FINANCIAL MANAGER

René A. Fracassa

Rene A. Fracassa, Paths Law

FINANCIAL MANAGER

René

René has worked along side Rusty for 35 years. Not only is she part of the Paths team, she is also his wife. René spends her time working with the accountant to keep all of the finances in order, as well as general office management.

In addition to helping run the office, she helps manage the family and grandkids, tries to keep everyone fed, and has a passion to teach Bible Studies. Her former career in Event Planning trained her to juggle all the activity. She understands Rusty’s passion to serve people from the first mention of law school. It is a great pleasure for her to be an important part of every area of his life.

 

MARKETING MANAGER

Hilary R. Tichota

Hillary at Paths Law

MARKETING MANAGER

Hilary

Hilary plays a vital role in the daily operations of the office. In addition to her regular office duties, Hilary has a heart of gold.

For more than 5 years, Hilary has operated the front desk at Paths, running the office and catering to clients. Hilary recently moved into the role of Community Relations Coordinator. She has a passion for people and a focus to share our business practices with the community’s seniors, businesses, and clients. She especially has a heart for seniors, showing they are loved through her visits, treats, the “Pen to Pal” program, and volunteering services at various senior living communities. She is a wonderful wife and mother of two. Most activities with seniors involve her great talent for any type of craft.

 

SR. PARALEGAL & OPERATIONS MANAGER

Jennifer A. Bronson

Jennifer, senior paralegal

SR. PARALEGAL & OPERATIONS MANAGER

Jennifer

Jennifer has been in the legal field for over 25 years and considers Paths her second home.

When she’s not running the office or working for our clients, she’s spending time with her first passion – her children.

ATTORNEY

Russell A. Fracassa (Rusty)

attorney at Paths Law elder law

ATTORNEY

Russell A. Fracassa (Rusty)

Phone: 816-640-8635

When asked what he wants to do, his reply was “I just want to sit at the kitchen table and work directly with people.” Rusty enjoys working with clients providing experienced advocacy and supporting them through their unfamiliar and overwhelming situations. Due to all the challenges faced by seniors, it is essential to work with an experienced elder law attorney who has expertise in the law, issues, and concerns affecting seniors and their families.

Rusty brings nearly 30 years legal experience and expertise working for seniors and their families as an elder law attorney in Kansas City and surrounding. Prior to law school, Rusty was a practicing accountant. This provides invaluable experience in his current practice of law. Rusty decided to put his focus on helping the elderly, vulnerable adults, and their families navigate challenging life, end of life, and death events.

Rusty understands the challenges faced by individuals whose capacity is declining and how upsetting the loss of a loved one can be. He understands he may not be able to eliminate his client’s grief from loss, but he strives to provide clients with peace of mind. Rusty works directly with client’s long term care issues, including Medicaid, Veteran’s Benefits, Estate Planning, Asset Protection, and Special Needs Planning.

In 2010, Rusty’s faith and love led him and part of his family to China as Christian missionaries. He and his wife, went permanently, but ended up dedicating 3 years to that ministry. They returned to Missouri to help with grandchildren after a family tragedy and later began anew with Paths Elder Law. The goal is providing compassionate care through legal advocacy.

When Rusty is not practicing law, he enjoys spending time with his family, grandchildren, and excessive eating at local restaurants.

 

Practice Areas

 

  • Wills and Trusts
  • Estate Planning
  • Asset Protection
  • Medicaid Benefits
  • VA Benefits
  • Probate
  • Guardianship and Conservatorships
  • Education

 

BSBA and Master’s in Accounting, Master’s in Inter-Cultural Studies, and Doctorate in Juris Prudence

  • Rockhurst University
  • Liberty University
  • University of Missouri – Kansas City


Admissions to Practice

  • Missouri


Professional Memberships and Affiliations

  • State Bar of Missouri
  • National Academy of Elder Law Attorneys (long-time Member)
  • Elder Counsel (Charter and Ongoing Member)
  • Missouri Association of Trial Attorneys (Past Member)
  • Kansas City Metropolitan Bar Association
  • Missouri State Bar Committees – Elder Law, Estate Planning, Probate