John Martin Smith devotes about fifty
percent (50%) of his practice to "Elderlaw." This is a
broad term that covers several areas of the law, including:
- Estate Planning
- Probate of Estates
- Trust Distribution
- Determination of Death Taxes
- Revocable Trusts
- Testamentary Trusts
- Durable Powers of Attorney
- Healthcare Directives
- Medicaid Planning
WILLS AND ESTATE
We will assist you in planning your
estate to provide that your property is transferred to your heirs
or devisees in the least expensive and minimization of taxes to
the maximum extent possible. This may involve a simple will, a will
with testamentary trust, gifts, etc. We review your assets, your
intentions, analyze the tax issues and make recommendations and
alternatives. When you decide what you want, we prepare the necessary
documents to implement your plan. Sometimes we advise as to insurance
beneficiaries, pension, or related beneficiaries, and the advisability
Once a plan is completed and documents
are signed, we bind them into a booklet for your future reference.
Plans should be reviewed periodically, particularly when there are
major changes in the family situation such a death, a divorce, or
PROBATE OF ESTATES,
TRUST DISTRIBUTION, AND
DETERMINATION OF DEATH TAXES
Our office handles many estates,
trust distribution or administration, and determination of death
At death a person may own assets
in their name that will have to be dealt with. If there is no will,
the assets will be administered and distributed pursuant to state
law. If there is a will, it will be probated (put of record with
the court), the assets administered pursuant to the terms of the
will, and then distributed in accordance with the will.
If a person dies owning property
in trust, the trustee may need assistance in the distribution of
assets and the determination of death taxes.
Some estates will be subject to Indiana
Inheritance Tax or Federal Estate Tax (presently only applicable
to gross estates exceeding $1.5 Million). We assist the personal
representative in satisfying the law as to death tax issues.
Guardianships are sometimes necessary
for minor children who inherit property or receive accident settlements.
Older persons who become mentally or physically handicapped may
need a guardian to deal with their assets.
We assist in the establishment of
a guardianship and assist the guardian in complying with the law
as to legal documents, court reports, etc.
AND TESTAMENTARY TRUSTS
Our analysis of a client's assets
and intentions may result in a recommendation of a Revocable Trust
or a Testamentary Trust.
A Revocable Trust is created during
a person's or couple's lifetime, most of their assets are transferred
to the trust, and then held in trust until death, at which time
distribution is made as directed in the trust. The main advantage
is avoidance of probate and, to a certain extent, privacy.
A Testamentary Trust is created by
will for the benefit of minor children, incompetent adults, spendthrift
children, a person on Medicaid (Special Needs Trust), etc. A Testamentary
Trust does not come into existence until death. Usually the trust
is docketed with the courts and a report filed bi-annually.
OF ATTORNEY AND HEALTHCARE DIRECTIVES
A Durable Power of Attorney delegates
the authority to deal with one's assets and affairs to another person.
Durable Powers of Attorney are frequently granted to one's spouse
or a child or children. They are usually signed while one is competent
but not used until one becomes incompetent.
Healthcare Directives may be incorporated
into a Durable Power of Attorney or may be a separate document.
A Durable Power of Attorney remains
effective even if a person becomes incompetent and also remains
effective as to actions taken prior to death but are not finalized
until after death.
A Limited Power of Attorney may be
necessary for a special transaction such as a real estate closing
in the absence of a party.
This is a broad area of our practice
which addresses issues of property and income if one or one's spouse
needs long term medical or custodial care in a nursing home.
Such a person may be eligible for
Medicaid to pay medical and/or nursing home expenses. There are,
however, many issues as to the assets owned by the person or a couple.
There may be ways to protect assets
and income and still receive Medicaid benefits. The "Spousal
Impoverish Act" guarantees that a spouse may retain substantial
assets and income.
We advise clients as to what can
be done to legally shift assets but yet receive Medicaid benefits.
To do this we analyze all assets, how they are held, and whether
they are exempt. We then present alternatives as to the shifting
of assets to the "at home spouse" or the re-investment
of assets into devices to protect them.
The general area of "Elderlaw"
may involve many other issues. The foregoing is a brief description
of "Elderlaw" issues. We have over fifty years of combined
experience in dealing with Elderlaw issues. We regularly attend
seminars in this field to keep abreast of the law and planning techniques.