Protecting private property requires stewardship

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The cornerstone of our system is the private ownership of property. Unfortunately, if we fail to plan to protect our property, then we plan to fail in our responsibility to be a good steward of what we have, and family may pay the price.

Unless you are comfortable with exposure to many threats, then you need to get a personalized estate plan that addresses all known potential threats.

What threats? Unnecessary court costs, legal fees. Unnecessary hassle and delay. Loss of dignity. Loss to creditors and in-laws. Loss to taxes. Family disputes. Loss to nursing homes.

It is so easy to neutralize threats if you plan ahead of time and get some papers in place.

With a good estate plan, so many problems will be avoided.

For instance, let's say Mom has two sons, Jack and Franklin. Jack is married to Emmy, and they have one son, Dirk. Franklin is on disability, and he has a son, Ricky, who has special needs and is on disability too.

Mom, who is a widow, owns a house debt-free worth $350,000. Also, she has enough other assets so she is comfortable knowing she will never need to mortgage the house.

Mom wants to make sure everything goes to her kids in equal shares, but also wants to make sure Emmy will not get the money she leaves to Jack. Also, Mom wants to make sure that Franklin's benefits will not be jeopardized by inheriting property.

Mom also wants to make sure that she does what she can to ensure the house stays in the family, even if she needs Medicaid. What should Mom do?

She should deed the house to an irrevocable trust which will benefit Jack and Franklin, and she can keep or retain a life estate. This means she owns it during her life, and upon her death, her interest evaporates and the kids benefit as she directs.

The benefit, if this is done five years in advance, is that then the state will not get the house when or if it seeks to recover from Mom's estate, and the transfer will not create a period of ineligibility.

With the rest of her assets, she should create a revocable trust and direct when she passes, the assets go into trusts for Jack and Franklin so Emmy won't get it, and Franklin's and Ricky's benefits will not be jeopardized.

Since Mom deeded the future interest on the house away, she guaranteed her kids would get that, even if she spent down her assets to qualify for Medicaid.

A little bit of planning can do so much to neutralize many threats, and it can make a big difference.

Mark F. Winn, J.D., Master of Laws (LL.M.) in estate planning, is a local asset protection, estate and elder law planning attorney. www.mwinnesq.com

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