The Montana Estate Lawyer

Thursday, September 23, 2021

Preparing for Coronavirus: The #1 Legal Document Every Adult Needs to Have (Round 2)

As we seem to be heading into Round 2 of the Coronavirus pandemic, we thought it was important to re-discuss the need to be proactive when it comes to your healthcare planning. Below is an article we originally published on August 27, 2020, where we explain what a Healthcare Agent is and why they are so important to your planning!

Even though these original thoughts may be over a year old, they are just as important today, as they were in 2020.

What Is a Healthcare Agent?
A healthcare agent (also called a medical agent, healthcare surrogate, a healthcare proxy, or a medical proxy) is a person you authorize in a healthcare or medical power of attorney to make decisions about your medical care if you are too ill to make them yourself or are otherwise unable to communicate your wishes.

Why is it important to choose a healthcare agent now?
The death rate in the United States for those contracting Coronavirus appears to be between 1.5% and 2% (updated as of September 20, 2021, per the Johns Hopkins University Coronavirus Resource Center).
Read more . . .

Thursday, August 12, 2021

A Family Meeting Can Play a Key Role in Your Estate Planning

Over the years, both Keith and I have stressed to our clients the importance of communicating your estate plan to your family.  Holding a family meeting is a good way to do this.  We feel so strongly that a family meeting plays a key role in ensuring an effective estate plan that we have incorporated it into our Peace of Mind By Design process we have in place for revocable living trust-based planning.  Of course, a family meeting's role is not limited to just trust-based planning.  It can play a key role in any plan you have in place.
Read more . . .

Thursday, July 22, 2021

Montana Supreme Court affirms that assets held in an irrevocable trust may be exempt for Medicaid purposes

Long-Term Care Costs Continue to Rise 

As we all know, long-term care costs continue to rise. We previously discussed how long-term care insurance may be able to make long-term care more affordable. We have also discussed the benefits of using an irrevocable asset protection trust for long-term care planning. 

The use of irrevocable trusts in Montana for long-term planning came into question recently in the Estate of Marilyn Scheidecker v. Montana Department of Public Health and Human Services case when an Administrative Law Judge and District Court in Montana upheld the denial of Medicaid eligibility for a woman who along with her sister established an irrevocable trust and transferred assets into the trust.
Read more . . .

Thursday, June 24, 2021

When a Will and a Contract Conflict

A Last Will and Testament devises one’s property after their passing. Great weight is given to this document; Wills have formalities that other documents don’t, hinting to its importance. But what happens when a devise in a Will contradicts a formerly executed contract? 

This issue was litigated recently in Ohio. In this case, Twila entered into a partnership agreement in 1986 with her husband and another couple. The partnership agreement contained a provision that stated: “To protect and preserve the family character of this Partnership, each of the undersigned partners agree to have prepared and to execute a last will and testament so as to ensure that his or her interest in this Partnership will, upon his or her death, pass to and vest in his or her surviving spouse.
Read more . . .

Thursday, May 27, 2021

May is National Elder Law Month

May is National Elder Law Month. This designation was established by the National Academy of Elder Law Attorneys (NAELA), of which I have been a member for the past 18 years. Its purpose is a way to acknowledge those members in the legal profession who support the senior community, those persons age 65 or older, with all of their planning needs.

Many people ask, "What is elder law?" Essentially, elder law is a classification of law that relates less to the type of casework performed and more to the type of person who is served. Elder law attorneys represent, counsel and assist seniors, people with disabilities and their families, with a variety of legal issues.
Read more . . .

Thursday, April 22, 2021

IRS Issues New Rules for ABLE Accounts

ABLE accounts were authorized by the Achieving a Better Life Experience Act of 2014 and can be an excellent resource for individuals with disabilities. Let's take a deeper dive into what these accounts are, how they can benefit certain individuals, and some new regulations issued by the Internal Revenue Service (IRS) in order to clarify some rules regarding ABLE accounts. 

Read more . . .

Thursday, April 8, 2021

Estate Planning Isn't Just for Married Couples

Estate planning is not only for married couples - if you are single, estate planning can still be an essential financial tool. For example, you may want to:

• Arrange for your assets to be distributed after your death
• Pick someone to handle your financial affairs if you become incapacitated
• Select a person to make medical decisions on your behalf if you are unable to communicate

As a single person, you will need many of the same documents as a married couple. People typically include the following documents in their estate plans:

• Durable Power of Attorney - allows you to carry on your financial affairs in the event that you become disabled. Unless you have a properly drafted power of attorney, it may be necessary to apply to a court to have a guardian or conservator appointed to make decisions for you during a period of incapacitation. This guardianship process is time-consuming, expensive, emotionally draining and often costs thousands of dollars.

Read more . . .

Thursday, March 11, 2021

Taypayer Bill of Rights

With the tax filing season having started on February 12, 2021, for individual tax return filers, here is a reminder to all filers that, in 2015, Congress enacted the Taxpayer Bill of Rights in Section 7803(a)(3) of the Internal Revenue Code to ensure that all taxpayers have rights in dealing with the IRS. Here is the link to the full description of these rights as set forth on the IRS website:  

As codified, these rights are as follows: 

Read more . . .

Thursday, February 25, 2021

Interview with Betsy Schaffer, Special Olympics Montana Athlete of the Year

As we have announced recently, we have partnered with Special Olympics Montana as our Charity Partner of the Year. Special Olympics is an organization that is important and impactful for so many people! Below is an interview with Betsy Schaffer, the 2020 Special Olympics Montana Athlete of the Year, where she explains why Special Olympics is important to her.

Why Special Olympics is Important to Me?
By Betsy Schaffer, Special Olympics Athlete

Info about Betsy:
-- 2020 Athlete of the Year
-- First Games 2009
-- 30 Games in the books!

Q: Betsy- you’ve participated in Special Olympics for over 11 years now. Congratulations! That’s a lot of hard work, perseverance and commitment. Why is Special Olympics important to you?
A: I get to participate in my favorite events in the State Summer Games.

Read more . . .

Thursday, January 28, 2021

Our Charity Partner of the Year

This year, Scott, Tokerud & McCarty will launch our Charity Partner of the Year program. The 2021 Charity Partner of the Year was chosen because they act with integrity and humility, and they show extraordinary dedication to transforming the community. 

The 2021 Charity Partner of the Year is the Special Olympics Montana.

Special Olympics was launched in the 1960s, born from Eunice Kennedy Shriver's outrage for the lack of inclusion for persons with intellectual disabilities...


Read more . . .

Thursday, January 14, 2021

Probate Administration - Frequently Asked Questions

(This blog has been updated from the post dated August 8, 2012)  

1. What is probate? 
Probate is the process of proving the Will, appointing the Personal Representative, paying the decedent’s debts, filing applicable tax returns, collecting any monies owed the decedent, and identifying, valuing, and transferring the decedent’s assets. 

2. When is probate necessary? 
Probate is required if the decedent owned any real property interests held in the decedent’s sole name, or, if the decedent owned more than $50,000 of personal property, such as vehicles, artwork, bank accounts, investment accounts, etc., with no beneficiary, POD, or TOD designations.

Read more . . .

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