The Atlanta Lawyer October/November 2019 | Page 21

IN THE PROFESSION federal taxation limits. Unfunded trusts are also common, as clients do not understand that their assets would have to be titled into the trust in order to be conveyed. Often there’s no transfer instructions, quit claim deeds, or changed beneficiary designations prepared by the drafting attorney - hard news to deliver when a family has lost a parent/spouse - and learn the Decedent’s trust is not operable. The benefits of trusts in Georgia, (where probate is standardized, quick and inexpensive) should be reviewed with those clients unlikely to ensure that all of their assets will remain titled into a trust over time. They may not be candidates for a rev trust, especially if they do not own real property out of state, or have no encroaching incapacity. Probate proceedings follow the discovery that property was not deeded into trust, or CD’s were not retitled at the bank. 9. Transferring assets to avoid “the Government getting them” Attorneys are often asked for confirmation that it is a good idea to “sell/gift out Mama’s house,” or to “transfer Dad’s bank accounts,” to defeat perceived attempts by the federal government to take assets when a (particularly senior) family member dies. This dynamic is driven largely by untutored reports about Medicaid (or even Medicare) benefits, both in the news media and on occasion, comments made by well- intended attorneys who do not understand the implications of assets transfers. Examples: ill-advised, premature transfers can actually cost families Medicaid eligibility; capital gains tax bills results; and family feuds occur when beneficiaries find assets devised by a Will are already owned by someone else. These questions are best answered by eldercare attorneys well versed in the highly exacting (and ever changing) federal regulations which govern benefits eligibility. 10. Issue Spotting for Special Needs Beneficiaries, to protect the fragile Attorneys should attend to family/friend references to a beneficiary “on social security/disability,” or to the diagnosis of a mental health disorder. Even a veiled reference to a loved one who “struggles/ has always been a little slow/hard time with the bottle/drugs/in the psych hospital/ attends special school,” merits pause from routine estate planning suggestions. Gone are days when families left all assets to the special needs beneficiary, or conversely, gave all assets to healthier beneficiaries, to “see to his/her needs.” Both approaches interfere with special needs beneficiaries’ access to public benefits eligibility, and like Medicaid, these rules can be very inflexible. Individuals desiring to make bequests or gifts to a special needs beneficiary (found disabled under law) must contribute through a special needs trust. Distributions from Will provisions with support trust language will diminish or even terminate a disabled beneficiary’s access to Social Security income, and other critical benefits. JOHN KILLEEN Bodker, Ramsey, Andrews, Winograd & Wildstein PC [email protected] KATHRYN SEABOLT Kathryn S. Seabolt PC [email protected] Find and Rent the Ideal LawSpace for Your Practice www.LawSpaceMatch.com connects lawyers with offices and offices with lawyers. Exclusively for lawyers. Created by lawyers who share space. Search for offices in existing law firms in 40,000 zip codes for free. Find empty law offices for rent in law firms. www.atlantabar.org THE ATLANTA LAWYER 21