Most attorneys will recommend separate trusts for couples in separate-property states such as Virginia (as opposed to community property states such as California), although there are a few reasons why couples may want to consider joint trusts.
 
 
Reasons to Choose a Joint Trust Over a Separate Trusts in a Separate Property State
 
 
Joint trusts are consistent with clients’ view of marital assets
 
Many spouses see a joint trust as more consistent with their views of marital property. Instead of treating each asset as “his” or “hers,” all assets are viewed as “ours” by virtue of their inclusion in a single joint trust. This allows clients to avoid the sometimes-contentious process of deciding how marital assets should be divided to fund separate trusts.
 
 
Joint trusts involve the creation of only one trust instrument, which may save attorneys’ fees
 
Clients often view joint trusts as a cheaper alternative to a two-trust estate plan. Whether this will be true depends on the estate planning attorney’s fee structure. Drafting a joint trust can—in some circumstances—be a more time-intensive undertaking than drafting two separate trusts, and many attorneys charge accordingly. Regardless of whether the attorney actually charges less for a joint trust, many clients believe that the fees should be less because the attorney is only preparing one document instead of two.
 
 
Ease of administration during lifetime
 
If both spouses are bringing relatively the same amount of assets into the marriage and don’t have significant issues with creditors to worry about, a joint revocable living trust would be the easiest solution during their lifetimes.  Creating a joint trust may save time and costs to set up and fund as they are typically more straightforward than setting up separate trusts. You may also save extra steps when it’s tax time each year by not having to have an individual tax return for your spouse’s trust and yours.
 
 
Reasons to Choose a Separate Trust Over a Joint Trusts in a Separate Property State
 
 
 
In separate-property states, separate trusts will often be the better choice for married couples with a sweetheart estate plan (at the death of the first spouse, all is left to the surviving spouse, then to the children at the death of the surviving spouse). The benefits of enhanced asset protection, ease of administration, and greater flexibility usually outweigh the psychological benefit of a joint trust.
 
 
 
Enhanced asset protection
 
As a general rule, assets held in a revocable trust are subject to creditor claims of the trust maker(s). Although this is true for both separate trusts and joint trusts, joint trusts have a disadvantage in that they keep all assets in the same trust. If a creditor obtains a judgment over either spouse, all assets in the joint trust are at risk for attachment by the creditor.
 
With separate trusts, each spouse’s assets are segregated into a trust for that spouse. If only one spouse becomes subject to a judgment, only the assets held by that spouse are at risk. The assets of the innocent spouse—which are held in a separate trust—are generally out of reach of the creditors of the spouse being sued. This means that separate trusts provide greater asset protection benefits over joint trusts in situations where only one spouse is liable to a creditor.
 
In addition to asset protection during the grantor’s life, assets in a separate trust are even more protected after the grantor of the separate trust dies. At that time, the trust becomes irrevocable, making it even more difficult for other beneficiaries or the surviving spouse’s creditors to reach the property held in the now-irrevocable trust.
 
Asset protection may be of special interest to doctors and other professionals at high risk of being sued for professional malpractice, who may benefit from the added asset protection afforded by separate trusts. 
 
 
 
Ease of administration at death
 
One of the main problems with joint trusts is the inability to trace assets after one spouse’s death. As assets in a joint trust are bought and sold over time, it can become difficult to identify which assets are treated as belonging to which spouse. In community-property states, it can also become difficult to determine which assets are joint or community property and which are separate property.
 
This process frequently requires careful valuation of the property in the trust as well as executing new deeds for real property, retitling stock certificates, or establishing separate investment accounts to hold the deceased spouse’s separate property.
 
Tracing is especially difficult when joint trusts divide into separate trusts after the first spouse’s death. This requires the surviving spouse to itemize and value the assets that belong in each component after the first spouse’s death. Experience has shown that many surviving spouses simply do not go through this process, resulting in a commingling of assets that is impossible to unwind later.
 
Tracing can be important for both tax and non-tax purposes. For tax purposes, it is important to understand which assets are treated as belonging to the deceased spouse. This can have implications for both basis step-up and federal estate tax purposes. Similarly, if the spouses have different planning objectives, a commingling of assets or failure to separate the estate into separate trusts at death can alter the client’s non-tax estate plan.
 
Many of these issues can be avoided with separate trusts. With separate trusts, each spouse is treated as the owner of the assets titled in that spouse’s trust. Any changes in value or sales or purchases of assets are clearly delineated, regardless of whether they occur before or after the spouse’s death. This makes it much easier to identify the original ownership of the assets and the tax consequences that occur both before and after each spouse’s death.  Trust administration after the death of the first spouse can be very simple and straightforward. The only tasks may be notifying the financial institutions of the grantor’s death and providing them with the trust’s new tax identification number in order to properly report tax issues going forward.
 
 
 
Flexibility and protection after death
 
Many joint trusts become irrevocable upon the death of the first spouse. Many clients are concerned that the spouse could remarry or favor one child over another. The purpose of irrevocability is to provide the first spouse with assurance that his or her estate planning objectives are ultimately achieved.
 
This assurance comes at the cost of lack of flexibility. If there are changes in the law, finances, or family dynamics after the first spouse’s death, joint trusts that have become irrevocable do not allow the surviving spouse to adjust the estate plan to accommodate these changes. Separate trusts, on the other hand, preserve the ability of the surviving spouse to alter, amend, or revoke the assets held in the surviving spouse’s trust.
 
At the death of a spouse, separate trusts are generally set up to allow the trust assets to be used as needed to support the surviving spouse under the “HEMS” standard (Health, Education, Maintenance and Support), but do not allow the surviving spouse to withdraw trust assets beyond the HEMS standard or redirect the assets of the trust.  However, the surviving spouse still has full control over the assets in their own separate trust. 
 
By comparison, a joint trust may be set up in one of three ways:
 

1. After the death of one spouse, the surviving spouse has complete control over the trust assets, and may amend or revoke the trust at any time; OR
2. After the death of one spouse, the surviving spouse has limited control over the trust assets, including the separate assets of the surviving spouse within the trust, with no ability to amend or revoke the trust (in other words, the surviving spouse cannot access any of the trust assets other than for their needs); OR
3. If a Joint Pour-Over Trust is used, then after the death of one spouse, the separate assets of the trust and one-half the joint or community assets are poured into separate Revocable Living Trusts which were previously drafted for each spouse.  This plan requires the drafting of three trusts, but allows the ease of use of a joint trust while both spouses are alive but the control of assets after death that separate trusts allow. 

 
If separate trusts are used, rather than a joint trust, it is possible protect the deceased spouse’s trust assets from being redirected to a new spouse or new children should the surviving spouse remarry, and thus prevents the surviving spouse from disrupting the deceased spouse’s estate plan with regard to the deceased spouse’s assets, without limiting the surviving spouse’s control over their own separate assets in their own trust. 
 
 
 
Remarriage and Blended Family Benefits
 
Couples who have been married before or who have children from another relationship may also benefit from using separate trusts. This is particularly true when each spouse has property or inheritance that they would like to keep separate for certain reasons.
 
For example, perhaps a newly married spouse has inherited their parents’ home and the couple would like to live there, but the new spouse wants to make sure the family home stays in their own family and passes only to their own children at their death.
 
In addition to a prenuptial agreement, keeping the house in a separate trust would allow this spouse to specify exactly how that home should be used and passed on when they die. Using a joint trust to achieve the same result requires much more careful drafting and introduces a much greater potential for confusion and mistakes in administering the trust after the death of the spouse who owns the house.
 

The National Academy of Elder Law Attorneys (NAELA) has designated the month of May as National Elder Law Month.  Elder law is an area of legal practice that focuses on issues relating to the aging population.  Elder law attorneys handle a wide range of concerns surrounding elder care.  This may include protecting assets from long-term care, Medicaid planning, financing long-term care, and estate planning. 

WHAT DO ELDER LAW ATTORNEYS DO?

Elder law attorneys prepare legal documents including Wills, Trusts, and Powers of Attorney.  A Will is a vital part of your estate plan and covers things like distribution of your assets and who will act as guardian for your children, things that if you do not prepare ahead of time, the state’s law will decide for you.  Powers of Attorney let you give another person the power to act for you if you were to become incapacitated.  A trust is a legal document that gives instructions for handling assets. 

HOW CAN AN ELDER LAW ATTORNEY HELP ME?

Elder law attorneys are advocates for elderly individuals and their loved ones.  They have specialized knowledge and experience concerning public and private resources and services that can help meet the needs of senior citizens, including those with disabilities.  An elder law attorney helps seniors and their families obtain their necessary legal documents and protect their legal rights.

While the area of elder law concerns the older population, no matter what stage of life you are in, there are steps you can take to better plan for your future with your elder law attorney.
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If you are interested in learning more, you can contact the office at 540-962-6181 to schedule an appointment with Jeanne Hepler, who is an elder law attorney.  Ms. Hepler is a member of Elder Counsel, WealthCounsel, and the Virginia Chapter of the National Academy of Elder Law Attorneys. 

On National Slam the Scam Day (and throughout the year), the Social Security Administration gives you the tools to recognize Social Security-related scams and stop scammers from stealing your money and personal information. Please share scam information with your loved ones. Help us “Slam the Scam!”

Recognize the four basic signs of a scam:

1.      Scammers pretend to be from a familiar organization or agency, like the Social Security Administration. They may email attachments with official-looking logos, seals, signatures, or pictures of employee credentials.

2.      Scammers mention a problem or a prize. They may say your Social Security number was involved in a crime or ask for personal information to process a benefit increase.

3.      Scammers pressure you to act immediately. They may threaten you with arrest or legal action.
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4.      Scammers tell you to pay using a gift card, prepaid debit card, cryptocurrency, wire or money transfer, or by mailing cash. They may also tell you to transfer your money to a “safe” account.

Ignore scammers and report criminal behavior. Report Social Security-related scams to the SSA Office of the Inspector General (OIG).

Visit www.ssa.gov/scam for more information and follow SSA OIG on Facebook, Twitter, and LinkedIn to stay up to date on the latest scam tactics. Repost #SlamtheScam information on social media to keep your friends and family safe.
 

When you think about estate planning, the first thing that comes to mind is writing a will.  While a will is important, there’s more that’s needed to protect your future.  To be clear, the will does allow you to control how your assets are distributed after you pass away. If you didn’t have one, your assets and property would simply be distributed in an action carried out by the state.  Your wishes or what you “would have wanted” is simply irrelevant to the state without a formal will in place. A will is also critical when you have minor children. The terms of your will can give you control over how your children are raised should you and your spouse pass away. In your will, you can name a trusted person to serve as a guardian, meaning someone who will raise and care for your children when you cannot.  Without making a will, a court decides who raises your children; a decision that could potentially appoint a person you never would have selected yourself.
 
Having a will is definitely important, however, there are limitations to what a will can do by itself.  Fortunately, other estate planning documents can fill in the gaps.  For example, having a General Durable Power of Attorney (sometimes referred to as a POA) and Advanced Medical Directive will ensure that you retain some control over what is done on your behalf if you become incapacitated. Each of these documents empowers one or more individuals to make decisions about your assets or medical care when you are unable. Having these documents in place allows you to choose who you want to handle your affairs, rather than having a court make that decision for you, which could lead to the appointment of someone you would not have chosen for yourself.
 
Additionally, many bank accounts, life insurance policies, annuities, retirement accounts like IRAs and 401(k)s, and jointly-owned property allow you to use a beneficiary designation, instead of a will, to determine how the assets will be distributed. Many IRS rulings and court cases have concluded that the owner’s statements and intent in his or her will do not matter if they contradict what was written on the beneficiary designation form. This is why it’s also important to review your beneficiary designations periodically to ensure they reflect your wishes now, and not what you wanted when, for example, you opened the account 20 years ago.
 
Another estate planning tool families can utilize to provide a greater level of flexibility in how their future is managed is a trust.  There are different kinds of trusts that can be established for your needs.  For example, a revocable living trust can allow your estate to avoid probate entirely—and the public scrutiny that accompanies it.  Trusts can also protect your assets against creditors and other threats while protecting your heirs’ inheritances against creditors, predators, remarriage, and even their own poor decisions if they are not yet mature enough to handle an inheritance on their own.
 
As you can see, a will helps you accomplish important goals, but additional estate planning tools and strategies are available to protect you and your loved ones both after you pass away and in the event of disability while you are still alive.
 
To kick off the new year right, it’s a good idea to meet with an experienced estate planning attorney like Ms. Hepler at Collins & Hepler, PLC to discuss your own situation.
 

What is a Power of Attorney?

It is a legal document that designates an individual to make decisions on your behalf in case you cannot make choices for yourself. The individual is your personal agent: someone who acts in your best interests if you are unable to for whatever reason. A Power of Attorney gives your agent certain abilities, like handling your finances, filing your taxes, or making medical decisions for you.

That sounds like a lot of power. When would I need a Power of Attorney?

There are different powers of attorneys for different circumstances and for different lengths of time. You could need a power of attorney if you decide to live overseas for a few years, if you become incarcerated, if you fall into a coma, if you become affected by dementia, or a host of other financial or healthcare-related reasons. A Power of Attorney generally comes into play when you become incapacitated.
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Okay, that could be helpful. Why do I need a Power of Attorney?

Everyone should establish a power of attorney. Anyone can become incapacitated at any time, but it is especially important for seniors to set up a power of attorney before they become physically or mentally incapacitated. That way, you can ensure that someone will get your estate and your affairs in order. Otherwise, if you become incapacitated without a POA in place, then no one can handle your affairs until someone pays a lawyer to go to court and be appointed your guardian and conservator. So not only do you risk leaving your affairs in limbo, but you also risk not being able to choose the person who handles those affairs.


A Power of Attorney is very valuable because it appoints a spouse, child, loved one, attorney, or friend to can handle your estate, health, and finances if you become unable to do so yourself, rather than wait for the worst to happen without having a plan in place.

​Independent Living homes are also known as group homes, retirement communities, or residential facilities. These are small, private facilities that house roughly 20 residents or less who live in private or shared rooms. Residents receive personal care, meals, and access to staff, but nursing and medical care are not provided on-site.

​These facilities can house from 25 residents to over 100, and residents have their own apartments and share common areas. In addition to meals, housekeeping, laundry, 24 hour supervision, and social and recreational activities, the facilities also provide different levels of care, including aid in personal care and medication.

​Skilled Nursing Facilities are similar to assisted living facilities, but they generally have the most focus on medical care. They additionally provide supervision and security, as well as assistance with everyday activities and physical, occupational, or speech therapy services.

​CCRCs are communities that offer different levels of service or care in one spread-out location, where independent housing, assisted living, and skilled nursing are all offered. Where you live depends on the level of service you need, and various healthcare services and recreation programs are also provided.

The Nursing Home Improvement and Accountability Act is a bill that was introduced in August which addresses common issues that nursing home staff and residents face, especially in the wake of COVID. Nearly 1 in 3 COVID-related deaths were connected to nursing homes, and more than 184,000 nursing home and long-term care residents and staff have died from the virus. The NHIAA is designed to improve staffing issues, quality, oversight of nursing home and long-term care facilities, require an infection preventionist to be working full-time, and improve transparency for residents and their families. Keep reading to learn about what the bill intends to do for seniors and staff:


1. Resolve Staffing Issues

The NHIAA will require all nursing homes to employ an “infection prevention and control specialist”—someone who controls and prevents the spread of diseases—and ensure that nurses are available 24 hours a day (currently nurses must be present only 8 hours a day). It also gives power to the Department of Health and Human Services (HHS) to study how many nurses and nursing assistants are needed in nursing homes to be able to provide quality care to residents. Then the HHS can also use that information to ensure that facilities are never understaffed.

2. Protect Seniors’ Legal Rights

Many nursing homes require applicants to sign an arbitration agreement before being admitted into the facility, which requires the residents and the facilities to resolve issues together instead of suing each other in court. The bill will protect seniors so that they won’t have to choose between long-term care and their right to sue their nursing home if they suffer during their car.

3. Ensure that Nursing Homes are Financially Stable

To ensure that nursing and long-term care facilities are financially secure, the bill requires that the post a bond of $500,000 to the HHS as an emergency fund. This bond ensures that there will always be money available in case of emergencies or unexpected circumstances, for example, if the facility must suddenly close or if it faces financial hardships. The HHS will also provide additional oversight to low-performing nursing homes to help improve their quality of care, infection control, and emergency preparedness.

4. Modernize the Physical Environments

​Facilities will receive help to upgrade their physical space for residents and staff. The NHIAA proposes to “enhance staff experience” and “promote evidence-based, patient-centered care for residents” to make nursing homes better places to live and work. There will also be a demonstration program which provides money to nursing homes so that they can invest in improving the facilities and raise workforce standards.


You can read more about the Nursing Home Improvement and Accountability Act here and read it in its entirety here.

If you are thinking about the future, you probably have a lot on your plate: How do I draft a will? What is a power of attorney? Why do I need to manage my assets? But, have you thought about nursing home care?

Probably not, because almost no one thinks they will have to live in a nursing home or that they will eventually need round-the-clock care. There is no debate that we all want to be independent and we all want to be able to take care of ourselves no matter what. However, despite our best efforts, it can be difficult to plan for emergency medical care or financial difficulty.

What do you do when you’ve promised your loved one that you’ll never place them in a home, but you’ve realized that you don’t have the skills to take care of them like a professional? It is a difficult decision for elders and families alike, so it is rare for anyone to even acknowledge that they will have to deal with these things.

Nonetheless, even though no one thinks they will even have to consider full-time care in a nursing home, but sometimes the unexpected happens and then you’re facing having to spend thousands of dollars a month while draining your savings and your children’s inheritance. These kinds of changes can be sudden, jarring, and scary.

Medicaid can help cover the costs of a nursing home if you have less than $2,000 in assets, but the reality is that most people funnel their life savings into monthly nursing home care until there is nothing left, and only then can Medicaid step in to help. Medicaid Estate Planning Attorneys have the specialized knowledge and training to avoid this outcome and help protect your future.

Medicaid Estate Planning can be a difficult field to navigate with complex laws and ever-changing policies, but with the help of an attorney, you do not have to make difficult decisions about long-term care by yourself. If you are already thinking about estate planning—the process of setting up legal protections for your money, assets, and property for yourself and the loved ones who will inherit from you—you also need to plan for long term care.

If you are not thinking about your future, you should start planning now. Medicaid Estate Planning attorneys can help you protect your money and property for yourself, your future, and your loved ones, while simultaneously helping you qualify for Medicaid financial assistance for nursing home care whenever you may need it.

When it comes to retirement, surveys of our aging population leave us with one resounding piece of advice:  Don’t underestimate how long you could live.  If you’re lucky enough to retire at age sixty-five, then it might not be unreasonable to expect that you could need to subside on your retirement savings for another thirty years.  A 2015 survey of octogenarians (people in their 80’s) by New York Life found that more than half of participants were not expecting to live as long as they had, leaving them wishing they had saved more money throughout their lives.

Americans are now living much longer lives than our grandparents did.  Our own longevity is increasing, while the longevity of Social Security is in doubt.  The 2015 Social Security Trustee’s annual report projected that the combined trust funds that help pay old age and disability benefits will run out by the year 2034.  That means the funds will dry up by the time today’s 48-year-olds reach full retirement age.

This projection doesn’t mean that retirement payments will stop completely in 2034.  It means that by that time, the funds won’t hold enough money to pay the retirement benefits fully; only about 75% of the benefits will be covered.  So what does that really mean for us?  It means that unless politicians act to adjust the current system, we may not be able to rely on Social Security getting us through our retirement years.  We like to think that Congress will act sooner rather than later to initiate a solution.  But for now, the current precarious position of Social Security forces us to think beyond “Plan A” and onto “Plans B, C and D.”
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Shockingly enough, over half of all American households nearing retirement age have absolutely no retirement savings.  So what provides most of the retirement income for about half of all seniors?  You guessed it:  Social Security.  If aging Americans can’t fully rely on Social Security to provide for us through retirement, then we need to think about financial planning, and the sooner the better.

More and more Americans do not have access to a retirement savings plan at their workplace.  While it’s clear that most of us are far more likely to save for retirement if we can do so out of our paychecks, there are still plenty of ways to save even if our employer doesn’t provide a 401(k) plan.  If you're planning for retirement, consider speaking with a financial adviser about funding an IRA or a Roth IRA.  An IRA, or an Individual Retirement Account, is a type of savings account geared toward retirement that offers a few tax advantages.  With traditional IRAs, you can defer paying income tax on up to $5,500 that you contribute.  Investors over age 50 can defer paying income tax on as much as $6,500.  You can defer to pay income tax while you invest your money in your IRA, but income tax will be due once you withdraw the money from the account.  A Roth IRA is slightly different, in that you do not get a tax deduction on your contributions, but you don’t pay any tax on the earnings and the withdrawals are tax-free when you’re ready to retire.

Another way to ensure you’re saving for retirement is to put aside your tax refunds every year.  Save them in an account promised for retirement.  In fact, by using IRS Form 8888, you can directly deposit your tax refund into a savings account, an investment account or an IRA.

If you have trouble saving your earnings, try setting up a direct deposit.  You can allocate a certain percentage of each of your paychecks to go into your retirement account.  That way, you can save passively and ensure your money is set aside in a safe place.  If you’re wondering how much you should set aside, most financial experts are now recommending saving 15% of your income for retirement.

If you are very close to retirement age already, consider delaying your Social Security benefit.  The older you are when you file for Social Security benefits, the greater your annual payment (up to age 70).
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Once you have your nest egg, no matter how big or how small that egg may be, the most important and urgent next step is to protect it.  Building your savings and failing to protect them is like storing your nest egg on the edge of a brick wall; Humpty Dumpty can fall at any time.  In our elder law practice we've witnessed this happen to many families.  Illness and injury send over half of all older adults into long-term care facilities.  Often, a person admitted into a long-term care facility, such as a nursing home, feels forced to spend down their savings and even sell their house to pay the bills.  With nursing homes costing well over $80,000 per year, it’s no wonder that most families find their savings drained within the first year.  Don’t let this happen to you.  With a little planning, you can protect your savings from the devastating costs of long-term care.  In fact, even if you or your loved one is already admitted into a nursing home, there are still steps you can take to protect whatever savings you have left.  We can help you protect your assets from the costs of long-term care and health crises.  Contact us for a free consultation.