Wills & Estate Planning

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Estate Planning That Works for the First 65 Years of Life Doesn't Work After That

As attorneys who have practiced elder law in New Jersey for over 22 of our 43 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 Karmac 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; and 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 their spousal estate she left before he is eligible for public benefits to pay for his nursing home expenses.

Mom or Dad has unintentionally made the nursing home the beneficiary of their wills. This result can be avoided with a properly drafted will which 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 which will address tax and long-term care planning
  • A durable power of attorney is 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 spendown

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 2 of only 450 attorneys nationwide who are certified in elder law (CELA) by the National Elder Law Foundation,

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For a free initial consultation with one of our certified partners regarding wills and estate planning, call 973-887-4254 or fill out the "Fee Free" contact form on this Web site.