Month: July 2019

What is service in a guardianship proceeding?

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A guardianship proceeding involves a determination by the court that someone lacks the ability to make decisions for him or herself, or to manage their finances.  Decisions that are made in a guardianship proceeding can remove someone’s rights and their ability to decide where they live or who they see for their medical care.  Deciding a guardianship case is one of the most significant decisions a judge can make.  As such, before the court will decide a guardianship proceeding the court wants to be certain that anyone who has an interest in the case knows about it and has an opportunity to come to court to be heard.  

As part of a guardianship proceeding, you must serve the guardianship petition on the interested parties. Serving the petition means physically delivering the petition with a summons.  Service is normally performed by the Sheriff’s Department for the county where the petition is filed.  If the Sheriff’s Department has difficulties serving the papers on someone, the petitioner may request a special process server who will make additional efforts to locate the person and to serve the papers on him.  Service of the papers provides notice to the individuals of the guardianship proceeding and the hearing date.  As long as you can show proof that the person received service of the papers, the guardianship proceeding will not be delayed if the person fails to show up at the hearing.

If you are unable to obtain service on someone you will need to show the court all of the efforts that were made to obtain service.  The court may require service by publication.  This is when a notice is published in a legal newspaper for several weeks.  By using service through publication the court is reassured that everything possible has been done to give notice before a guardianship hearing takes place.

Questions?

About the Author

Guardianship and Conservatorship Lawyer Tim McCurdy helps individuals obtain guardianships and conservatorships for loved ones who are no longer able to manage their own affairs or take care of themselves.  Tim McCurdy also assists individuals who are subject to guardianship proceedings to ensure their rights are protected.

What is a guardian ad litem in a guardianship case?

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In a guardianship case, you are going to court to say someone can no longer make decisions for him or herself, and the court should appoint someone else to do that for him or her. In most cases, a court is limited to making decisions based on the evidence produced by the parties. The court will not go out and obtain information for the case. For example, in a car accident case the plaintiff and defendant will present evidence, but the court does not go out and view the scene of the accident or talk to witnesses. In a guardianship case, the court is deciding whether to take away someone’s rights. Since the petitioner is claiming the person is unable to communicate his or her wishes, the person most likely will be unable to present evidence to contest the guardianship. The court needs someone who is unrelated to the case to investigate and provide information to the court. This is the role of the guardian ad litem.

In a guardianship proceeding the court will appoint a guardian ad litem. The guardian ad litem is an attorney appointed by the court to investigate the claims made in the petition and report back to the court. The guardian ad litem will meet with the person who is the subject of the guardianship proceeding and the person seeking to be appointed guardian. The guardian ad litem also has the authority to obtain medical records, or any other evidence the guardian ad litem needs to make a recommendation to the court. At the guardianship hearing, the guardian ad litem will report to the court on whether the guardian ad litem believes a guardianship is necessary, and if the petitioner should be appointed as the guardian. As an impartial party to the proceedings, the recommendations of the guardian ad litem will carry significant weight with the court.

The role of the guardian ad litem is an important part of the guardianship process. The guardianship process can be an overwhelming experience. If you or a loved one are considering guardianship proceedings for someone, contact Tim McCurdy today at (314) 436 – 8389 to discuss your case.

The contents of this article are intended for general information only, and should not be used to make determinations for your own specific legal matters. The general principles discussed in this article may not apply to your specific situation.

Questions?

About the Author

Guardianship and Conservatorship Lawyer Tim McCurdy helps individuals obtain guardianships and conservatorships for loved ones who are no longer able to manage their own affairs or take care of themselves.  Tim McCurdy also assists individuals who are subject to guardianship proceedings to ensure their rights are protected.

How can you keep your home and qualify for Medicaid?

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For many people, their home is their most significant asset.  With the skyrocketing cost of nursing home care, paying for the nursing home can mean losing the home that you have spent a lifetime caring for.  Fortunately, Medicaid provides numerous exceptions to allow someone to protect their home while still qualify for Medicaid.  For example, the home itself will not count against the asset limit for someone’s Medicaid eligibility, as long as the equity in the home is below a maximum (approximately $600,000).  

Medicaid also allows a transfer of the home prior to a Medicaid application without a penalty if the home is transferred to a select group of people.  First, the home can be titled in the name of a spouse without a transfer penalty.  Second, the home can be transferred to a disabled child.  Third, the home can be transferred to a sibling who has an equity interest in the home.  Fourth, the home can be transferred to a child who is living in the home and has provided care for the individual that helped that person stay out of the nursing home.  All of these options allow a person to protect or transfer their home while still qualify for Medicaid. While there are opportunities to protect or transfer a the home, the requirements of these rules are highly technical.  If you or a loved one are trying to protect say home while possibly qualifying for Medicaid contact Tim McCurdy at (314) 436 – 8389 today to discuss your options.

Questions?

About the Author

Estate Planning Lawyer Tim McCurdy helps families identify their goals,
and create a plan to make those goals become a reality.  

Estate planning services provided by Tim McCurdy include
non-probate transfers, powers of attorney for
both finances and health care, wills, and trust documents.

How can I transfer a car without probate?

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What is a transfer on death designation?

     A transfer on death designation is a simple way to transfer ownership of an automobile when the owner passes away.  By making a designation on your title application you can pass ownership of the car when you pass away.

How do I create a transfer on death designation? 

     The title application for your vehicle has a form for a transfer on death designation.  By  naming someone in that form they become the transfer on death designee.

Does a transfer on death impact ownership of the car?

     A transfer on death designation is similar to a beneficiary designation on a life insurance policy.  By naming someone the beneficiary under a transfer on death designation, that person does not receive any ownership interest in your car while you are living.  You can make changes to your designee or remove the transfer on death designation at any time by filing a new title application.

What are the benefits of a transfer on death designation?

     Vehicles are assets that can be easily missed in an estate plan.  You may have beneficiary designations for your investment accounts, a beneficiary deed for your home, and a trust that holds your significant assets.  But what if you purchase a new car at some point after you prepare your estate plan?  The vehicle you drive will likely change at least once between the time you prepare your estate plan and when that plan must go into effect. 

     Often people have prepared a comprehensive and effective estate plan but they failed to account for subsequently acquired assets, like a car.  If someone passes away without a transfer on death designation or other estate planning, their car can often become a hassle for loved ones who wish to either keep the car or sell it.  A probate estate may need to be opened just to transfer ownership of a vehicle.  Worse, sometimes a declaratory judgment action must be filed against the Department of Revenue just to obtain clear title to a car.  The cost of obtaining title can often outweigh the value of the vehicle.  By using a transfer on death designation you have a simple method of creating a beneficiary for the car without any additional estate planning.

What does a transfer on death designation cost?

     The transfer on death designation is made by including it on your title application for your vehicle.  If you are obtaining title for the first time for your vehicle you can name the transfer on death without any additional cost, since you are already submitting a title application.

What are the limitations of a transfer on death designation?

     The main limitation of a transfer on death designation is if you want to have the vehicles sold and the proceeds divided between more than one person.  If you are just leaving the vehicle to one person then you simply name that person on the title application.  If you have more than one person who you want to receive assets from the estate, you might consider naming a trust as designee for a transfer on death designation.  Alternatively, if you had more than one vehicle you could name different persons as the transfer on death beneficiaries for different vehicles.  If you name more than one person as your transfer on death designee then they will need to work together to obtain title and dispose of the vehicle.

How does the transfer on death designation work?

     Once you have created a transfer on death designation it does not impact your ownership of the vehicle or your ability to sell the vehicle.  Once you pass away, your transfer on death designee will present a death certificate to the Department of Motor Vehicles.  The Department of Motor Vehicles will issue new title in the name of the transfer on death designee.  The designee will need to pay the application fee to obtain title.  The application is processed like any other application for title for a vehicle.

Questions?

About the Author

Estate Planning Lawyer Tim McCurdy helps families identify their goals,
and create a plan to make those goals become a reality.  

Estate planning services provided by Tim McCurdy include
non-probate transfers, powers of attorney for
both finances and health care, wills, and trust documents.

Do I need an attorney to file for guardianship?

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Yes. Missouri law requires that a duly appointed guardian and conservator be an attorney or be represented by an attorney. The reason for this is that the guardian-conservator will have to make several decisions on a periodic/unexpected basis to where a Judge will not be able to immediately approve/disapprove of any actions. A conservator is generally required by law to account for all receipts and expenditures of a protectee; and with the expenditures, the conservator is charged with ensuring that they are all in the protectee’s best interests and approved by the Court or are otherwise permitted by law. Failure of a guardian-conservator to properly discharges his/her duties by law and in the protectee’s best interests can result in removal or personal liability.

Guardianship and Conservatorship proceedings are complicated and significant proceedings. If you or a loved one think guardianship is right for your situation contact Tim McCurdy at (314) 436-8389 to discuss your options today.

Questions?

How to make home improvements while qualifying for Medicaid coverage for nursing home care.

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One of the biggest challenges to establishing Medicaid eligibility to pay for nursing home care is the asset limit – the limit on resources that a person can have and still be eligible. Medicaid has a limited number of exceptions to the which assets count towards this limit. Often the most significant exception is the home – the value of the home will not count against Medicaid eligibility.

This can create a planning opportunity when a married couple has one person going into the nursing home, but the other spouse is staying in the home. Money can be used to make improvements to the home. Use of this money decreases the amount of available resources to the Medicaid applicant. This helps establish Medicaid eligibility. The money is also making needed repairs to the home, which will be useful to the spouse who is remaining in the home.

Two important factors to consider when deciding whether this is the right strategy for you are time and estate recovery. First, how soon does the spouse need nursing home care? We all know home projects can take longer than we anticipate, and it may not make sense to delay a Medicaid application to complete home repairs if it means private paying for nursing home care.

Second, Medicaid has the right to recoup money paid for nursing home care when the person dies. If the spouse (who did not receive Medicaid) is still in the home then Medicaid cannot recover against the house. If the spouse who did not go in the nursing home passes away first, though, then the house might be in the Medicaid recipient’s name and be subject to estate recovery. In that scenario you have put money into the house just to see it go to the State.

These are just some of the issues and strategies that exist when dealing with a home and applying for Medicaid.  If you or a loved one is facing the financial burden of long-term care contact Tim McCurdy at (314) 436-8389 to discuss your options today.

Questions?

Who can obtain Letters of Administration in probate?

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If the deceased person had a will and the will has been presented to the probate court, the probate court will issue “letters testamentary.”  A last will and testament enables someone to name their personal representative.  The probate court will give deference to the wishes of the person as expressed in his or her will, and unless there is a clear reason not to (such as the person died first), the probate court will name the person(s) identified in the will as the personal representative.

Assuming there is no will, the probate court will first issue letters of administration to the surviving spouse.  To be named personal representative, the spouse must be married at the time of death.  For example, a recently divorced ex-spouse would not have priority as a personal representative.

If there is no surviving spouse, then the probate court will look next to those individuals who have a right to inherit from the estate.  Ideally, all the heirs will agree on who will serve as the personal representative, and they will consent to one person serving.  Ultimately, the probate court must decide who is qualified to serve as the personal representative, and to issue letters of administration to that person.

Questions?

About the Author

Probate Lawyer Tim McCurdy helps families navigate the probate process from
start to finish.  Probate can, at first, appear to be a daunting process.  Tim McCurdy counsels individuals to help navigate this process as efficiently as possible.

What are Letters of Administration?

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What are Letters of Administration?

The first step in a probate estate is for the probate court to grant “letters of administration” to the personal representative of the estate.  When you petition the probate court to open an estate, you file an application for the issuance of letters of administration.   When the probate court issues letters of administration, the “letters” state that you have been appointed the personal representative of the estate to collect and dispose of the deceased person’s estate.

Questions?

About the Author

Probate Lawyer Tim McCurdy helps families navigate the probate process from
start to finish.  Probate can, at first, appear to be a daunting process.  Tim McCurdy counsels individuals to help navigate this process as efficiently as possible.

How long do you have to open a probate estate?

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Generally speaking, a probate estate must be opened within one year of death. Also, to be valid a will must be filed with the probate court within one year of death.

What if a probate estate is not opened within one year?

If a probate estate is not opened within a year there are a few options, but they fall short of full probate administration. First, if the assets in the estate are $40,000 or less, a small estate affidavit can be obtained. The small estate affidavit can be used to transfer title and otherwise manage a deceased person’s affairs, but it is limited to $40,000 or less.

Second, if a small estate affidavit is not an option then a petition for determination of heirship can be filed. The determination of heirship results in a declaration from the court regarding who should receive assets left by the deceased person.

If your family has experienced a loss you should contact an attorney as soon as possible to discuss whether probate is necessary, and to consider your legal rights. Contact Tim McCurdy at (314) 436-8389 or tmccurdy@lashlybaer.com.

Questions?

About the Author

Estate Planning Lawyer Tim McCurdy helps families identify their goals,
and create a plan to make those goals become a reality.  

Estate planning services provided by Tim McCurdy include
non-probate transfers, powers of attorney for
both finances and health care, wills, and trust documents.

How can I transfer a car on death without probate?

by

What is a transfer on death designation?

     A transfer on death designation is a simple way to transfer ownership of an automobile when the owner passes away.  By making a designation on your title application you can pass ownership of the car when you pass away.

How do I create a transfer on death designation? 

     The title application for your vehicle has a form for a transfer on death designation.  By  naming someone in that form they become the transfer on death designee.

Does a transfer on death impact ownership of the car?

     A transfer on death designation is similar to a beneficiary designation on a life insurance policy.  By naming someone the beneficiary under a transfer on death designation, that person does not receive any ownership interest in your car while you are living.  You can make changes to your designee or remove the transfer on death designation at any time by filing a new title application.

What are the benefits of a transfer on death designation?

     Vehicles are assets that can be easily missed in an estate plan.  You may have beneficiary designations for your investment accounts, a beneficiary deed for your home, and a trust that holds your significant assets.  But what if you purchase a new car at some point after you prepare your estate plan?  The vehicle you drive will likely change at least once between the time you prepare your estate plan and when that plan must go into effect. 

     Often people have prepared a comprehensive and effective estate plan but they failed to account for subsequently acquired assets, like a car.  If someone passes away without a transfer on death designation or other estate planning, their car can often become a hassle for loved ones who wish to either keep the car or sell it.  A probate estate may need to be opened just to transfer ownership of a vehicle.  Worse, sometimes a declaratory judgment action must be filed against the Department of Revenue just to obtain clear title to a car.  The cost of obtaining title can often outweigh the value of the vehicle.  By using a transfer on death designation you have a simple method of creating a beneficiary for the car without any additional estate planning.

What does a transfer on death designation cost?

     The transfer on death designation is made by including it on your title application for your vehicle.  If you are obtaining title for the first time for your vehicle you can name the transfer on death without any additional cost, since you are already submitting a title application.

What are the limitations of a transfer on death designation?

     The main limitation of a transfer on death designation is if you want to have the vehicles sold and the proceeds divided between more than one person.  If you are just leaving the vehicle to one person then you simply name that person on the title application.  If you have more than one person who you want to receive assets from the estate, you might consider naming a trust as designee for a transfer on death designation.  Alternatively, if you had more than one vehicle you could name different persons as the transfer on death beneficiaries for different vehicles.  If you name more than one person as your transfer on death designee then they will need to work together to obtain title and dispose of the vehicle.

How does the transfer on death designation work?

     Once you have created a transfer on death designation it does not impact your ownership of the vehicle or your ability to sell the vehicle.  Once you pass away, your transfer on death designee will present a death certificate to the Department of Motor Vehicles.  The Department of Motor Vehicles will issue new title in the name of the transfer on death designee.  The designee will need to pay the application fee to obtain title.  The application is processed like any other application for title for a vehicle.