Estate Planning For 65 And Older

As attorneys who have practiced elder law in East Hanover, New Jersey, for 25 of our 44 years of practice, we are often asked to review the wills of clients who are concerned about asset protection to avoid medical spend-down impoverishment. Like Carnac the Magnificent, a role played by Johnny Carson on "The Tonight Show" many years ago, we can often tell our clients what their will says before we even review it.

If your will is like most seniors' (drafted over 20 years ago), it says that when the husband dies, he leaves everything to his wife; the wife's will is vice versa. When both are gone, the estate goes to the kids. These "sweetheart" wills work fine for the first 65 years of life. After that, they don't. Why?

What's Wrong With The Sweetheart Will?

Here's an example of what can go wrong with the sweetheart will:

Suppose the husband enters a nursing home and then the wife dies. She leaves her entire estate to her sweetheart/husband. Now he will have to spend down all of the spousal estate she left before he is eligible for public benefits to pay for his nursing home expenses.

Such couples have unintentionally made a nursing home the beneficiary of their wills. This result can be avoided with a properly drafted will that will still protect your sweetheart. When you reach retirement age, you need to also protect your assets from disability or catastrophic illness, in addition to the usual tax planning.

What Estate Planning Do I Need?

The term estate planning, reduced to basics, means every person needs the following documents:

  • A last will and testament that addresses tax and long-term care planning
  • A durable power of attorney, the MOST important document you need
  • A health care directive (living will) so that you, not the medical providers, direct your health care wishes
  • A financial plan to calculate the amount of your estate that can be protected/preserved/saved/sheltered from medical or tax spend-down

Depending on the amount of assets you have and your age, you may also need trusts to protect and preserve your assets.

Don McHugh and Vince Macri are two of only 450 attorneys nationwide who are certified in elder law (CELA) by the National Elder Law Foundation

Free Lawyer Consultation

For a free initial consultation with one of our certified partners regarding wills and estate planning, call 973-577-6010 or fill out the fee free contact form on this website.