Pro Bono Community Service Project

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The Probate, Trust& Tax Section of the Allen County Bar Association is facilitating a pro bono community service project. Volunteer attorneys are providing estate planning documents to the residents of Fairington Apartments in Fort Wayne. The basic estate planning documents include Last Wills and Testaments, Powers of Attorney, and Advance Directives for Health Care. The Fairington Apartments is a senior preferred low-income housing apartment complex that is subsidized by HUD. There are at least 49 residents being assisted by this project. Our attorneys, Tracy Troyer and Leah Good, are volunteering to draft documents for the project.

The goal of this project is to help low-income individuals have a basic estate plan in place. An estate plan is essential for all individuals. The Last Will and Testament directs how your property will be distributed and who will be in charge of your estate. You can also name who will be guardian of your minor and/or disabled children. The Power of Attorney appoints someone to act on your behalf in financial matters when you are unable to do so. Lastly, the Advance Directives for Health Care appoints someone to make health care decisions for you when you are unable to do so. All of these documents are important and essential to having a complete basic estate plan. If you do not have all (or some) of these documents in place, our attorneys would be happy to help you put those in place.

Do You Need a Will and a Trust?

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If you already have a Trust, you may think that you do not need a Will as well. After all, Trusts accomplish a similar purpose to a Will: you decide who will receive your property. However, even if you have a Trust, you should have a Will along with it.  One reason you want to have a Will along with your Trust is because a Trust only deals with property that has been transferred to the Trust. It is unlikely that you will be able to transfer all your property to the Trust or you may come into property shortly before you die. If you don’t remember or are unable to transfer some property to your Trust, then it will not pass under the terms of your Trust. Having a Pour-Over Will prevents this problem from happening. A Pour-Over Will directs that any remaining property not titled in your Trust will “pour over” into your Trust. Also, a Will can accomplish things that a Trust cannot. For example, you can name a guardian for your minor or disabled children in your Will. While it is always beneficial to have a Will, it is not always necessary to have a Trust. You should meet with an attorney to discuss whether or not you need a Trust. If you already have a Trust but do not have a Will, you should meet with an attorney to prepare your Will.

Amending or Revoking Your Trust

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During your lifetime, you may update your estate plan several times as your circumstances change. In some cases, you may benefit from having a Trust in your estate plan. If you have a Revocable Trust, one of the useful features is your ability to amend and/or revoke the trust as needed. You can change the terms of your trust, alter it, or end it altogether. If you created a joint trust with your spouse, you must both agree in writing to amend any trust provisions (such as beneficiaries or the successor trustee).

There are several situations that may warrant amending your trust: you get married, you have children, you add valuable property to the trust, your spouse dies, a beneficiary dies, you move to a new state, you change your mind about who you want to inherit, or you change your mind about the successor trustee. You may need to revoke your trust if you have extensive revisions to make or you get divorced.

Because you have likely already transferred property to the trust, it is usually better to amend your trust rather than revoking it if you have any changes. Revoking your trust and creating a new one would require that you switch over all your property to the new trust. It is much better, then, to amend and restate your trust – meaning that you restate (or rewrite) your trust with whatever changes you need. Amending and restating your trust allows you to keep the original date and keep your property in the trust.

If you think you might benefit from having a trust in your estate plan, our attorneys would be happy to help you create one. Or if you already have a trust but would like to update it, our attorneys can help you with that as well.

Should I Update My Estate Plan If I Move?

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If you are moving out of state, then you have a lot of thoughts and concerns on your mind. But you don’t want to forget about your estate plan. It is critical that you review and update your estate planning documents when you move to a new state. Fortunately, you have already done the hard part – deciding what documents you want, what you want in your documents, and what you want to accomplish for your family.  However, you now need to make sure that all of your estate planning documents are in full compliance with your new state’s laws.

Last Will and Testament. The good news is that most states will accept out-of-state Wills. You should still have it reviewed by an attorney in your new state because each state has its own laws regarding different aspects of your Will. For example, you want to make sure that the person you have appointed as Personal Representative is still able to serve in that capacity in your new state. Most states allow out-of-state Executors to serve but have special requirements. Also, if you are married, then you want to consider how your new state treats marital property. The probate process can differ in each state as well, which may require you to draft a new Will with proper language. Meeting with an attorney will allow you to review your Will and make sure it complies with the new state laws.

Trusts. If you have a Revocable Trust, then it should still be valid in your new state. You want to make sure, though, that your Trust is properly funded. For example, if you buy a new home when you move, then you may want to revise your Trust.

Advance Directives for Health Care. Advance Directives for Health Care are usually valid across state lines. However, each state has its own forms, provisions, and language so it may be best to draft new health care directives to make sure they comply with the new state laws. Also, you may want to revise your directives to name someone who lives near you, for convenience’s sake.

Power of Attorney. Powers of Attorney are valid in all states if they meet the state’s legal requirements. It may not be immediately legally valid so you want to make sure that yours is valid under the new state’s laws. Similar to your health care documents, you may want to consider naming an attorney-in-fact who lives closer to you.

Even if you feel that your estate planning documents are still valid in your new state, moving is a good time to make sure that your estate plan is current and up-to-date. It is a good idea to get an estate planning attorney in your new state to help you review and update your estate plan. If you are new to Indiana, our attorneys would be happy to help you review your estate plan and update any necessary documents.

Do I Need a Will If I Have Little Money?

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Perhaps you don’t own many items or don’t have much money to your name. Do you still need a Will? Creating an estate plan is always a personal choice. However, it is best to produce a Last Will and Testament for your legacy to make sure that your wishes are carried out. If you do not have a Will, Indiana dictates what will happen to your possessions and money after you die. It is rare for your wishes to match those of the statutory mandates.

In some cases, you may have definite opinions about who you want certain items to go to. For example, you may own something that does not necessarily have monetary value, but has sentimental value. In that case, you may want the item to go to someone specific. You may have a pet that you want taken care of after you pass. Or maybe you have a snow globe collection that you would like to go to a friend or relative. You can also decide in your Will where any money that you do have will go.  A Last Will and Testament allows you to name who will be the Personal Representative (Executor) of your estate. The Personal Representative is in charge of making sure that your possessions go to the right person. Another important provision of your Will is naming the guardian for your children. If you die while your children are under eighteen, then you want to decide who will be the guardian for them. Or if you have a child or spouse who is disabled, then you may want to create a trust in your Will to care for them after you’re gone.

Even if you decide not to create a Will right now, you should revisit the issue periodically. Your situation may change, causing your estate planning needs to change as well. If you accumulate more property or have children, then you may reconsider creating a Will. At that time, our attorneys would be happy to help you assess your needs and create a Will to meet them.

Pajama Drive and Brunch

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This Saturday Long-Term Care Ombudsman Program of Northeast Indiana is hosting a pajama drive from 10:00 am to 12:00 pm. Anyone is invited to come! There will be a free brunch, some pampering, and a little bubbly. While there is no fee to attend, you should bring a donation of a new pajama set or gown (any size or gender) and/or a small financial donation. The goal of this event is to help the Long-Term Care Ombudsman Program share comfort and warmth with our nursing home neighbors in need. The event will feature vendors promoting wellness, Valentine gift ideas, and food. If you’d like to attend, RSVP online at www.doingthegood-ombudsman.org/brunch-event. Or contact Linda Hecht at 260-443-1836 or support@dtg-ombudsman.org. 

Long-Term Care Ombudsman helps protect the rights of aging adults in over 80 local nursing homes and assisted living facilities. The program aims to improve the quality of life and care for residents of long term care facilities. It accomplishes this mission through investigation and resolution of individual complaints, consumer education designed to inform and empower consumers, system advocacy which includes legislation and public policy activities, promotion of community involvement in long term care, and other activities designed to improve long term care delivery and oversight. 

Come out this weekend to support the Ombudsmen and our local nursing home residents! 

When: Saturday, February 11 from 10:00 am to 12:00 pm

Where: Parkview Field Lounge, 1301 Ewing Street, Fort Wayne, IN 

Who: Anyone can attend! 

Can I Name an Out-of-State Executor?

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Naming the Executor, or Personal Representative, for your estate is an important consideration. You name someone as the Personal Representative in your Will to be in charge of your estate. This means he/she will be responsible for protecting your assets until all debts and taxes are paid and then distributing the remainder to anyone named in your Will. There are a few requirements in Indiana for your Personal Representative: 1. He/she must be at least 18 years old; 2. He/she must have sound mind; and 3. He/she cannot have been convicted of a felony under federal or state law.

Perhaps your Personal Representative meets those requirements but lives out of state – is that allowed in Indiana? The short answer is yes. However, any out-of-state executor must post bond and file written notice accepting the appointment and naming an in-state agent to accept legal papers (such as the estate attorney). For practical reasons, it makes sense to name someone who lives nearby. Your Personal Representative may have to handle estate matters on a daily basis for many months. Another option you have is to name an in-state Co-Personal Representative with your out-of-state choice. The out-of-state Personal Representative may still have to post bond, but it may be helpful to have a resident agent living nearby to handle your estate.

Whatever your decision may be, our attorneys would be happy to help you prepare your Will. Or if you are an out-of-state Personal Representative named in someone’s Will, our attorneys can assist you in administering the estate.